The Nigerian extractive sector, mining in specific , has been beset by activities of illegal miners, leading to the  loss of an unimaginable amount of revenue. To stem this  tide, the Minister of Solid Minerals Development, Dele Alake, unveiled a 2,200-strong Mines Marshal to smoke out illegal miners and all those who flout the nation’s mining laws. However, some are challenging the constitutionality of such a step. Rotimi Agboluaje writes. Â
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One of the ills plaguing the Nigerian State is the pervasive security challenge. The challenge is taking tolls in virtually all sectors of the economy, and therefore taking a shine off any achievements the government ought to record. One major sector bedeviled by insecurity is mining.
Perpetrated mostly by illegal miners, insecurity is so ingrained in the sector that the country is losing a humongous amount of revenue to the saboteurs.
Needless to say, the activities of illegal miners are detrimental to the economy on many fronts.
Accentuating this is the fact that despite the country’s endowment  with numerous natural minerals and deposits in its nooks and crannies, it has not been able to optimise the benefits of these God-given assets. Rather than reaping the benefits of the endowments as being done by some global mining powerhouses like Canada, China, Australia, South Africa, Brazil and others, the activities of saboteurs and illegal miners are robbing the country of huge revenue.
This nefarious act of illegal miners has raised concerns among many organisations at various times.
For instance, the Speaker of the Economic Community of West African States (ECOWAS) Parliament, Mohamed Tunis, recently disclosed that Nigeria loses 91 per cent of its revenue from the mining sector to illegal miners. Again, another recent report by Nigeria Extractive Industry Transparent Initiatives (NEITI) estimated that Nigeria loses about 9 billion dollars annually to illegal mining and smuggling of gold.
In fact, the increased prevalence of illegal mining and other criminal activities affecting host communities necessitated the signing of Executive Order banning illegal mining by some governors. Yet the challenge remains intractable and unabated.
However, on March 22, 2024, the Minister of Solid Minerals Development, Dele Alake, unveiled a 2,200-strong Mines Marshal to smoke out illegal miners and all those who flout the nation’s mining laws. The marshals were drawn from the Nigeria Security and Civil Defense Corps (NSCDC).
The mandate of the new operatives is to stem theft and other nefarious activities around the nation’s mineral resources so that the country can reap maximum benefits from its God-given resources.
This was sequel to the efforts of the presidential inter-ministerial committee on securing natural resources. This first layer of the new security architecture to secure the mining environment, has a command structure spread across the 36 states and the Federal Capital Territory (FCT).
The new Mines Marshals led by a Commander, Chief Superintendent of Corps, Attah Onoja, will have their command and control domiciled in the Ministry of Solid Minerals Development (MSMD), with  an initial 60 operatives deployed in each state and the FCT.
After the launch, a litany of nagging questions and issues have been thrown up by some Nigerians.
Some are asking where the budget for the marshals comes from. While some are questioning the amount already spent on the marshals. Some are expressing reservations on the work-ability of the process considering the antecedents of the government. Others are bothered about the legality and constitutionality of raising a group within the paramilitary organisation which they claimed might be antithetical to  the Nigeria Security And Civil Defence Corps Act (2007) and the 1999 Constitution as Amended. However, some foresee a likely conflict and constitutional clash between the Governors and the Minister as the Land Tenure Act of 1978 vests the control of land on the Governors.
Speaking on some of the issues raised, a Senior Lecturer at the Faculty of Law, Lead City University, Ibadan and Natural Resources Law scholar, Dr. Dominic Akabuiro, posited the minister was empowered to undertake the exercise.
Akabuiro, an energy consultant and law teacher quoted relevant sections of   the 1999 Constitution, Nigerian Minerals and Mining Act, 2007; the Exclusive Economic Zone Act 1978, the Nigeria Security and Civil Defence Corps [NSCDC Act 2007], and even the Land Use Act, 1978 to support his argument.
According to the lawyer, ‘’The 1999 Constitution of the Federal Republic of Nigeria: Section 44(3) of the Constitution of the Federal Republic of Nigeria states thus: ‘Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria, shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly’.
“The above provision, unequivocally vests the ownership right of minerals and natural resources exclusively on the Federal Government of Nigeria. This implies that the Federal Government is the only authority that can make policies, laws and regulations or design programmes on exploration, mining, allocation of permit, and security measures to safeguard mining sites.
“Section 44(3) of the Constitution is in consonance with Section 1(1) of the Nigeria Minerals and Mining Act, 2007.
”Nigerian Minerals and Mining Act, 2007: It should be noted that the Second Schedule, Part 1 of the 1999 Constitution, places Mines and Minerals, including oil fields, oil mining, geological surveys and natural gas under Exclusive Legislative List of the Constitution’’.
The natural resources scholar said accordingly, the National Assembly has enacted the Nigerian Minerals and Mining Act, 2007, adding that the Ministry of Minerals and Mines is primarily designated to implement the Act.
The law teacher maintained that Section 1(1) of the Act provides: ‘that the entire property in and control of all mineral resources in, under or upon any land in Nigeria, its contiguous continental shelf and all rivers, streams and watercourses throughout Nigeria, any area covered by its territorial waters or constituency and the Exclusive Economic Zone is and shall be vested in the Government of the Federation for and on behalf of the people of Nigeria’. He said again, it is consistent with Section 44(3) of the Constitution.
Continuing, Akabuiro said: ” Similarly, Section 1(2) provides that: all lands in which minerals have been found in commercial quantities shall, from the commencement of this Act be acquired by the Government of the Federation in accordance with the provisions of the Land Use Act, 1978.
“The  Exclusive Economic Zone Act, 1978: Section 2(1) of the EEZ Act, while making similar provisions, covers both minerals, natural resources, petroleum resources including fisheries within the sea bed, subsoil and superjacent waters of the Exclusive Zone. It vest sovereign and exclusive rights on the Federal Government of Nigeria in matters of the natural resources etc. and all matters covered under the Territorial Waters Act, the Sea Fisheries Act, or the Petroleum Act (now repealed by Petroleum Industry Act (PIA), 2021) sovereign and exclusive rights with respect to the exploration and exploitation of all natural resources shall vest in the Federal Republic of Nigeria.
” In Section 146 of the Act, the Minister can act under this to create officers of the Ministry to arrest illegal operators within the mining areas in Nigeria”, he maintained.
In the same token, a Senior Advocate of Nigeria, Chief Yomi Aliyu, said the amended Section 3 of the Nigeria Security and Civil Defence Corps NSCDC Act 2007 empowers the NSCDC to “maintain 24 hours surveillance over infrastructure, sites and projects for the Federal, State and Local Governments’’.
According to Aliyu: “Mining is article 39 on the exclusive List of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).Thus, Mining sites are properties of the Federal Government of which the NSCDC are to maintain 24 hours surveillance and “prevent subversive activities” that could affect the economy of the nation.
“One will be right to conclude, therefore, that the Minister was merely igniting one of the functions of NSCDC by assigning mining sites to its officers. Giving them a new name of Mining Marshalls is mere surplusage and descriptive of duty than the creation of a new entity as one might be tempted to think. NSCDC Act, 2007, also empowers the Corps to “maintain an armed guard.”
“The Minister, having the consent of the Minister of Interior Affairs, is acting within the law and the Constitution of the Federal Republic of Nigeria”.
The same line was toed by another legal practitioner, Mr. Justice Akose, who asserted that what the minister did was very constitutional as the marshals were drawn from a security outfit already established by an Act of the National Assembly.
On the investiture of ownership of land on Governors and their power to issue mining licences and suspend mining activities, Barrister Atose said: “The governor is the chief security officer of his state but he does not have power to suspend mining activities. Only the president can do that. Maybe, those people were doing illegal mining that was why they could not challenge him and look at the Ibadan bomb blast scenario, those people said they had a licence from the federal government and so,  Governor Seyi Makinde could do nothing’’.
On his part, Aliyu [SAN] said: “There is a partial power of the Governors reserved in the Land Use Act of 1978 that vested all powers in the Governor of a State. The Constitution also makes the Governor the Chief Security Officer of their States. These two give power to Governors to ensure that peace and tranquility reign in their States and also to prevent retardation of the land that statutorily belongs to them. But immediately, the Federal Government issued a licence to a miner, the power of the Governor became otiose”.
Another legal practitioner, Mr. Yomi Ogunlola said mining is exclusively under the Federal Government while the land that holds the mines is under the supervision of the governor of the State.
He added that: “Naturally, activities which may endanger the State would engage the interest of the governor. If a miner kills another miner, in a State, who  prosecutes?”
Nonetheless, another Law teacher, Prof. Olu Ojedokun said if the marshals stray into law enforcement, constabulary duties and policing, it could be argued that they are encroaching on the role of the Nigerian Police, as enshrined in  Section 214 of Nigerian Constitution 1999.
Ojedokun said: ‘’In most parts of the world, it is the police that carry out these duties, it will appear that a constitutional amendment is required to move mining to the Concurrent  Legislative List and then to move the police general also to that list. This will ensure effective policing of resources. The action of Alake will not move the needle. They are all under authority. So, it is going to be difficult to advise them not to follow the instructions of the minister but they should seek an amendment of the law so that they are not operating under an illegality’’.
Another law scholar, Dr. Aderonke Adegbite said it is only the National Assembly, and the federal government that can make laws and create outfits in charge of national security.
Away from the legal viewpoint, the Head of Department of Geology, University of Ibadan, Prof. Gbenga Okunlola, and an immigration scholar Prof. Rasheed Olaniyi, commended the initiative. They emphasised that the new Marshals must collaborate with other security agencies to achieve the desired result.
Specifically, Prof. Okunlola maintained that there must be proper monitoring and clear terms on the extent of their power.
‘’They must not become bribe takers who are after pecuniary interests. We must monitor them for enforcement. Let us give them a trial. When Dr. Fayemi was the minister it was mooted”, he said.
Olaniyi, on his part, said.”Mining Marshall should be highly empowered to counter the activities of illegal miners. It should be noted that illegal mining is also linked to banditry and so on. The new Marshall must collaborate with other security agencies and not operate in isolation”.
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