Nigeria: Accelerating The Globalisation Of Energy And Mineral Development Through Legislation And Legal Instruments

Last Updated: 16 May 2001
Article by Olajumoke Akinjide-Balogun

(Delivered at the 9th Energy Forum of International Energy Services Limited held at Lagos Sheraton Hotel; May 15 – 17, 2001)

Introduction

I must confess that I will be concentrating on Energy Development in this Paper as this is primarily my area of expertise. And indeed, in the field of energy law, I will be speaking mainly of the petroleum sector although much of what I will say will also be relevant to the power sector.

Briefly the structure of the Paper is as follows:

  1. I will define the meaning of globalization;
  2. Examine whether there is a need to accelerate Globalization of Energy and Mineral Development;
  3. Examine globalization in the context of attracting finance and capital flows and foreign direct investment;
  4. Discuss the need for localization and indigenization of the energy and mineral sectors: particularly in terms of the need for a clear domestic investment strategy;
  5. Finally, I will conclude by drawing together all the threads of the Paper.

What Is Globalization?

I must confess that the title of the paper "Accelerating the Globalization of Energy and Mineral Development etc" begs the question. Implicit in the title is the assumption that globalization is a good thing. There is also a second assumption that not only is it a good thing but that it should be fast-tracked. So the question is: is globalization indeed a good thing? And if it is, should globalization be encouraged and assisted in its application in Nigeria?

The answer to these questions depends on the definition you give to globalization. There are many definitions of globalization: some of them are positive, others are neutral while others still are, frankly, hostile.

In the positive group there is no better proponent than Mr. Stanley Fischer, First Deputy Managing Director of the International Monetary Fund (IMF). Recently at a conference on globalization held in Cameroun Mr. Fischer said –

"globalization is multi-faceted, with many important dimensions – economic and social, political and environmental, cultural and religious – which affect everyone in some way. Its implications range from the trade and investment flows that interest economists, to changes that we see in our everyday lives: the ease with which we can talk to people all over the world; the ease and speed with which data can be transmitted around the world; the ease of travel; the ease with which we can see and hear news and cultural events around the world; and most extra-ordinarily, the internet, which gives us the ability to access the stores of knowledge in virtually all the world’s computers." 1

It is Mr. Fischer’s opinion that there is no point in debating whether we should be for or against globalization. He believes that failure to embrace globalization will lead to marginalization. Rather, in Mr. Fischer’s opinion the relevant question is how best to take advantage of the opportunities presented by globalization.

At the further end of the spectrum are those who argue against globalization and see it as "a recipe for economic, environmental and cultural disaster."2

These critics see huge trans-national companies becoming more powerful and influential than democratically–elected governments while putting shareholder interests above all else. They see the developed countries making huge economic gains at the expense of those who can least afford it: the poorest developing countries of the south. They see national cultures and identities under threat, environmental standards being lowered in a race to the bottom where countries seek to be "internationally competitive" in order to attract investment, and workers being increasingly exploited in a low wage economy to increase competitiveness.

Should We Accelerate Globalization?

The answer to the question whether we should accelerate globalization depends on which side of the fence you are on. If you are pro-globalization, you may be all for speeding up the process. If you are against globalization and see it as the ultimate capitalist evil, you will fight to halt its insidious advance. My position in this paper is that there is truth in both views. A typical lawyer’s stand.

In favor of the pro-globalization lobby is the undeniable fact that globalization, at its best, produces a rapid flow of private capital, new technology, management techniques, financial expertise, and goods and services, all of which are of benefit to the country. Proponents of this view will argue that opening the global economy is a means to an end. Nations that reap the benefits of an improved economic performance they argue, also increase and sustain environmental protection, higher labor standards, decent wages and greater democracy. The theory is that with increased prosperity the citizenry will demand higher standards of living and more freedom.

On the other side of the coin is the fact which has been repeatedly argued by opponents of globalization that, in its worst manifestations, globalization could be viewed as re-colonization. In its submission to the United Kingdom Government’s White Paper on Globalization no less a prestigious organization than OXFAM said:

"The benefits of globalization have been this disproportionately captured by rich countries and powerful transnational companies, while poor countries and poor people have been left behind. The gap between winners and losers is widening at an alarming rate……. Contrary to the claims of some that the benefits of globalization are automatic, and automatically good for poverty reduction, the 1990s ended with 70 million more people in the developing world (excluding China) in poverty than at the start of the decade. Progress has been most disappointing in Africa……. Rising inequality has been a hallmark of globalization. The income gap between rich and poor countries has reached record levels – and continues to widen. Income distribution is also worsening in a large group of developing countries……. Policies associated with globalization have skewed the benefits of economic growth in favor of rich countries. Protectionism costs poor countries over $700 billion a year, along with opportunities for growth and employment. Intellectual Property rules are raising the cost of technology transfer."3

The truth in my humble opinion, is that economic openness is only part of development strategy. It is not the entire strategy. I am not certain that we need to accelerate globalization. What we need to do is accept it as a fact of modern life and consider how best to take advantage of the opportunity presented by globalization. We need to use it as a tool of national development, that is, prepare for it by articulating our National Objectives, equipping our citizenry and overhauling our institutions to make them more efficient and thereby better able to take the best advantages of globalization, sifting through and leaving the negative, exploitative aspects behind.

Perhaps the best elucidation on the subject of globalization and developing countries that I have come across is by Mr. Dani Rodrik, Professor of International Political Economy at the John F. Kennedy School of Government, Harvard University, and Senior Adviser at the Overseas Development Council. Mr. Rodrik in his book "The New Economy and Developing Countries: Making Openness Work" (1999) said that developing countries can thrive in the new global economy – but only if they combine economic openness with a clear domestic investment strategy and effective civil and political institutions. He says that it is domestic investment that makes an economy grow not integration into the global economy. The global economy’s benefits can be realized fully only when the complimentary policies and institutions are in place at home. Policy makers therefore have to focus on the fundamentals of economic growth (i) investment (ii) macro-economic stability (iii) human resources and (iv) good governance. He cautions that countries will fall apart if their social and political institutions are inadequate to bring about the bargains required for macro-economic adjustments. This is because labor, business, and other social groups will block the implementation of fiscal and exchange rate policies if they try to open the economy without strengthening their institutions of conflict management. Such countries will find themselves confronted with high inflation, scarcity of foreign exchange and other problems. Where societies are split along ethnic or regional lines they are particularly susceptible to policy paralyses.

The effective solution to these problems are participatory political institutions, civil and political liberty, high quality bureaucracies, the rule of law and social insurance to act as safety nets to absorb the shock of adjustments necessary.

The message is that developing countries have to engage the world economy but on their own terms not on terms set by global markets or multi-lateral institutions.

Globalization In The Context Of Finance And Capital Flows And Foreign Direct Investment

I said earlier that, to the limited extent that globalization means attracting capital and foreign direct investment, it is potentially a good thing. How then do we encourage this positive aspect of globalization for energy and mineral development in Nigeria? How does one attract capital flows into a country? Stanley Fischer’s IMF list includes sound macro-economic policies, better governance, legal and financial reform, privatization, price liberalization and infrastructure investment. My paper is targeted at development through legislation and legal instruments. Much of the IMF shopping list can be achieved through legislation, regulations and instruments such as national policy documents.

It is perhaps pertinent to observe that the Nigerian energy industry is, in terms of the participants, already global. This indicates that the investment conditions in Nigeria as regards the energy industry are attractive in global terms. What we need to do is to make the industry more efficient – in terms of productivity, regulation, transparency, procedures for start up, etc to enhance profitability. We will now look at how we can enforce global standards on energy operators, on Government, and in the civil society generally.

Legislation And Legal Instruments

There is no absence of law governing the energy sector in Nigeria. We have statutes, regulations, rules, guidelines and standards galore. However, the law governing the energy sector is inadequate, antiquated, incomplete and is generally not enforced. The principal law is the Petroleum Act of 1969. Much has happened since this statue came into force and it is long overdue for review. For example, the Petroleum Act does not deal with environmental issues, the Indigenous Concession Programme and, abandonment issues. These are clearly critical aspects of petroleum operations. There is a perceived gap between developments in the petroleum industry and the regulatory environment in Nigeria. It is my opinion that there should be a Standing Advisory Committee on petroleum matters membership of which should include experts from the petroleum industry, both public and private sector, to advise the Minister of Petroleum from time to time on current issues concerning the industry.

It has been repeated ad nauseum that there is a need for a clear articulated energy policy in Nigeria. Work has been progressing on drafting the energy policy for many years, however this policy is still not out. Clearly, it is odd that a country that depends predominantly on the energy sector for its earnings should not have a coherent public statement of its energy policy that can be referred to by both Nigerians and the world at large. At this stage of our development, we should have had an energy policy in place decades ago,which policy should have undergone several revisions with public workshops and discussions accompanying each revision exercise. Currently, it is encouraging to note that there are two reviews of the petroleum sector being carried out: one by the National Assembly and the other by a committee constituted by the National Council on Privatization. It is hoped that these bodies will work together to produce a document that will satisfy the aspirations of the Nigerian people.

Energy Operators

Looking at energy operators in terms of adherence to global standards in their operations, undoubtedly, legislation and legal instruments can be used to good effect to ensure that companies operating in Nigeria comply with global standards. Critical areas are:

  1. Health, safety and environment.
  2. Abandonment of facilities.
  3. Labor relations.
  4. Corporate governance issues.
  5. Corporate social responsibility issues.

Government Agencies

As has been observed repeatedly, the energy industry is a truly global industry. The challenge therefore for the Nigerian government is to organize itself and its agencies in a manner that is in line with global standards while adopting policies that serve national interests. In this regard I will mention as an example an agency that is crying out for reform i.e the Department of Petroleum Resources (DPR). As is well known, the DPR is the regulatory arm of the Ministry of Petroleum for the oil and gas industry. This agency has been plagued by myriad problems some of which are:

  1. Lack of fund.
  2. Inadequate staff.
  3. Inadequate equipment.
  4. Turf wars with the Ministry of Environment.

The DPR has been crying out for autonomy, restructuring of its funding and a clear definition of its functions and areas of responsibility. It is difficult to see how Nigeria can operate a globalized energy sector without the supervision of modern, efficient and effective regulators. With the imminent privatization and deregulation of the power sector the need for a regulator with adequate powers to protect the Nigerian populace has long been recognized. It is hoped that, at the appropriate time, the power regulator’s office will be properly constituted, funded and manned.

Civil Society

The ideal legal frame work required to attract investment globally to the energy sector must ensure that laws, regulations and policy governing the industry are clear, complete, transparent, accessible, flexible, and practical. I have earlier mentioned the need to institutionalize a consultative and advisory process to ensure that the policy makers make regulations that are both technically feasible and cost effective. Legal processes must be quick and remedies efficient and effective. There is need for stability of contract terms, fiscal provisions and policy. In order to achieve these goals the laws need to be reviewed, the administration of justice system should be reformed in order to deliver the required service, the judiciary must be independent and competent, and the infrastructure underpinning the administration of justice system must be overhauled.

I would like if I may to focus just a little bit on the reform of the administration of justice system. This is long overdue. It well known in Nigeria, to our shame, that the courts are overcrowded, ill equipped, time consuming and inefficient. Recently the United States Government in its annual country report to the U.S. Senate denounced the Nigerian Judiciary as corrupt, susceptible to government interests and pronounced our administration of justice system as unable to deliver the required service. In his famous report on the civil justice system in England and Wales titled "Access to Justice" the Rt. Hon. Lord Woolf the Master of the Rolls identified a number of principles which the civil justice system should meet in order to ensure access to justice. He said that:

"the system should:

(a) be just in the result it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of the particular cases allows; and (h) be effective: adequately resourced and organized."

These principles serve as a good guide to Nigeria which, after all, inherited the British Common Law system when Nigeria undertakes its reform process.

Localization And Indigenization

It is my basic belief that natural resources are God-given for the indigenous population. While exploitation of natural resources can be global, in that they can and should be jointly exploited by both local and international companies, the fundamental aim of globalization should be to secure higher profits to the nation, technology transfer, transfer of management skills, importation of high environmental standards etc.

We should never lose sight of the fact "charity begins at home". We must not forget that these resources should benefit Nigerians first and foremost i.e., we should as a nation enjoy by far the majority of any benefit accruing from the exploitation of our natural resources.

We now come to the dark side of globalization. If care is not taken globalization could be as I said earlier re-colonization. A new struggle for wealth and control between the north and the south. It is an undisputable fact that trans-national corporations, particularly with the recent consolidation in the petroleum industry and the emergence of the supermajors, that many of these trans-nationals are larger and more powerful than nation states. With the support of global economical institutions, the trans-nationals may be seen as exploiters of a nation rather than contributors to its prosperity.

Indigenization Policy In The Petroleum Industry

The Government, as a matter of national policy, must find ways to re-localize the energy industry and establish a frame-work that encourages national and local enterprises, keeping both jobs and money in the community. Trans-national companies should be encouraged to partner and align with local companies and to encourage the development of locally manufactured inputs. On the subject of promoting local content in the Nigerian petroleum industry, I associate myself fully with the views Chief Aret Adams expressed recently at the seminar held recently in Nigeria on the subject. Chief Aret Adams advocated the adoption by the Nigerian government of a policy to promote local content with goals that are specific, measurable, achievable, recordable, and time bound (SMART). Chief Adams advocated the setting up of a Nigerian Content Development Programme (NCDP) to be run by representatives of all the industry’s stakeholders.4

The Indigenous Concession Programme which was initiated to increase "Nigerianization" of the upstream petroleum sector needs to be grounded in legislation. The Marginal Fields Programme announced by the government is to be encouraged. The Guidelines for Farm-out and Operation of Marginal Fields are still awaited. What we do know is that Government is committed to promoting the expansion of the scope of indigenous participation in the petroleum industry.

Actualizing the goals of localization and indigenization is fertile ground for legislation and policy instruments. The final goal of the Nigerian petroleum industry should be to turn the principles of globalization on its head i.e, to make it work in our favor. What I mean is that our aim should be to "globalize" the Nigerian petroleum industry in the manner that Brazil has achieved through Petrobras and Malaysia through Petronas. There is no reason why the Nigerian companies, having acquired adequate know-how, should not be able to operate globally. And in this regard I can see that with the aggressive entrepreneural spirit that is a natural heritage of all Nigerians, there is no reason why several Nigerian companies should not emerge with global capacity in the foreseeable future.

International Policies

While national policies are needed to set the development strategy of a nation, increasingly there is a clamor for international policies to set standards for corporate behavior. It is desirable for the international community to work towards an effective multi-lateral agreement to establish guidelines for corporate behavior. I will here mention my opposition to the Multi-lateral Agreement on Investment (MAI), which was being negotiated at the Organization for Economic Co-operation and Development (OECD). Fortunately the negotiations towards the MAI ceased without any agreement being concluded in 1999. The OECD’s MAI proposed to:

  1. Open all sectors of a nations’ economy to foreign companies.
  2. Require countries to treat foreign investors the same as the local companies.
  3. Ban performance requirements whereby some states require companies who get public money to hire locally.
  4. Set binding dispute settlement rules which would allow an investor to directly challenge national laws and seek monetary damages.

The MAI was particularly repugnant to developing countries for many reasons, one of which is the fact that the forum in which it was negotiated is one in which developing countries are unrepresented. Corporate investors would under the MAI get new rights without being held accountable for the social and environmental concerns of countries they operated in. I believe that this is taking the concept of globalization too far, and that any attempt to re-open negotiations of the MAI as originally conceived should be fiercely resisted by developing nations.

Conclusion

I have defined globalization and, in particular, economic globalization as opening up to global markets. I also concluded that globalization is a two-edged sword and that as a nation we should take the good and leave the bad. At this stage of our national development, there is probably no need to accelerate globalization. However, there is an urgent need to revise, reform, and review our institutions and laws in order to better prepare ourselves to take advantages of the benefits that could accrue to us through the globalization process. It is acknowledged that legislation and legal instruments can play a powerful role and be used as an effective tool in the process of national restructuring. However, we must never forget that we are masters of our destiny and that this responsibility must not be surrendered to global markets, trans-national companies or multi-lateral institutions. National interest must always be the pre-eminent guiding principle in all our legislation and policy making.

A striking illustration of a nation putting its national interest before the clamor for globalization is the recent prohibition issued by the Australian government against Shell thereby preventing it from acquiring a substantial shareholding in Woodside Petroleum Limited. The Australian government stated in its Press Release dated 23rd April 2001 that while Australia operates a liberal foreign investment regime, on this occasion, the Shell proposal is considered contrary to the national interests. The announcement was made by the Australian Finance Minister, Mr. Peter Costello. Similarly, a couple of days later, the Committee on Foreign Investment in the United States blocked the proposed acquisition of a U.S. company - Silicon Valley Group - by a Dutch company on the basis of a possible threat to national security. Nigeria should therefore be emboldened and encouraged to take a robust view in the defense of its reasonable national interests.

Footnotes

1The Challenge of Globalization in Africa by Stanley Fischer, The France-Africa Summit, Yaounde, Cameroun, January 19, 2001.

2 Globalization Explained by the International Soceity for Ecology and Culture (ISEC), U.K.

3 Globalization, OXFAM Policy Paper 5/00, Submission to the U.K Government’s White Paper on Globalization.

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