Cattle and Vehicle Parts: Any Correlation?

Introduction

Social media was abuzz, last week, with public reaction (mostly negative) to the comparison by the Hon. Attorney-General of the Federation and Minister of Justice, Abubakar Malami, SAN, of the ban on open grazing of cattle in the South, with a similar (albeit hypothetical) restriction on the sale of auto spare parts in Northern Nigeria. He made that allusion as a reaction to that part of a 12-point declaration by the 17 Governors of Southern Nigeria (“the Asaba Declaration”) two weeks ago. Were those criticisms justified, or was the Hon. Attorney-General right? We shall attempt a few – admittedly subjective – answers, as well as a review of other seemingly controversial parts of what has now turned out to be the Mother of all Declarations (pardon the pun).

The ‘Order Paper’

Apart from the ban on open grazing of cattle, the Southern Governors also called for the practice of true federalism, redressing the allegedly imbalanced appointments of President Buhari to reflect federal character, restructuring of the Federation – including creation of State Police, and convoking a national conference or dialogue.

Reactions

As previously noted, the overwhelming majority of public reaction to the Declaration has focused on the ban on open grazing of cattle in the South. Most of the respondents from the core Northern part of the country (apart from Malami, that is) have been harshly critical of the above four items in the Declaration. Everyone – from the Senate President, Ahmed Lawan, the coalition of Northern Groups (CNG), former Head of the NHIS, Prof. Yusuf Usman, Miyetti Allah and the Daily Trust Newspaper (in an editorial) – have all pushed back on some, if not all, these four points. Before looking deeper into those reactions (particularly Malami’s ‘bombshell’), an overview of the socio-political and legal context of the Declaration.

Background

It is an open secret that the centuries-old practice of unrestricted or open grazing of livestock by mostly Fulani pastoralists, has, in recent years, led to tension with owners of farmland across the country – not only in the South. This has often spilled over into conflict, leading to bloodshed and loss of lives. In turn, it has prompted at least four States – including Ekiti and Benue (a Northern State) – to enact legislation to control the practice. Public perception, particularly in the South, that President Buhari (a Fulani) is somewhat reluctant to ‘rein in’ his ethnic kinsmen, the pastoralists (or so-called herdsmen), at least, partly explains the near-unanimity of Southern Governors (only two were absent at the meeting which produced the Declaration) on the issue.

The Law

While the legality or otherwise of those ‘new’ laws is yet to be tested, a decision delivered half-a-century ago by a High Court in Abeokuta, the old Western State, has emboldened advocates of the illegality of open grazing. That judgement, by Hon. Justice Adewale Thompson, in Suit No. AB/26/66, categorically declared the ‘custom’ of open grazing as “unreasonable (and) repugnant to natural justice, equity and good conscience”. The court, therefore “banned open grazing (on the ground that) it is inimical to peace and tranquillity”.

But, of course, as a precedent, that decision only applies to Ogun State – just one of the 17 Southern States which issued the diktat: it does not bind the people of the remaining 16 States (less Ekiti and two others, which have already enacted anti-open grazing legislations). Accordingly, if the Governors of those States seek to give the ban teeth within their own States, they will need to borrow a leaf from those other States aforesaid.

Beyond that, however, one can pose the question whether such new laws are even necessary or expedient, given the existence of the offence of criminal trespass and the tort of private nuisance in our statute books. Such laws (particularly criminal trespass) are targeted at precisely such behaviour, i.e., the practice of open grazing. For example, Section 342 of the Penal Code, in force in Benue (and other Northern States), specifically provides that: “whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy such person or with intent to commit an offence, is said to commit criminal trespass”.

Given that this definition is wide enough to cover trespassing into farmland with one’s livestock to graze thereon (obviously to the farm owner’s annoyance), it is clear that the new anti-open grazing laws are more of a knee-jerk reaction to an old problem, than anything else. This is, however, understandable, given public anger in the affected States at the seeming impunity with which herdsmen are apparently running riot with their cattle, leaving a trail of sorrow, tears and blood in their wake. Something is better than nothing, it seems, even if it is at the risk of confusing motion with movement.

Accordingly, it is necessary to interrogate the precise parameters (if not outright legality) of the so-called anti-open grazing laws. What is their focus in terms of geographical space? Are they limited to grazing or foraging simpliciter, or do they include mere movement in transitu? In either case, who can legitimately complain about them – is it not only the landlord (or lady), occupant or person in possession? Does the government have the locus to complain about alleged damage (or even mere transit/movement, without more) by cattle/livestock?

In the former case, can the State cry more than the bereaved? In the latter, granted that the constitutional guarantee of freedom of movement enures in favour of human beings (and not cattle), is it not unreasonable if not disingenuous, to argue or expect that a person should only transit without some measure of luggage or personal belongings – even if that luggage or belongings are a herd of cattle? This might be akin to playing the Devil’s Advocate, but the point is that the issues are far more nuanced than a cursory or emotional/sentimental reading of the ban might suggest.

And, then, Malami’s Bombshell…

The Hon. Attorney-General’s intervention is, to say the least, unfortunate, if not unwarranted. Since when did cattle become equal to spare parts? Some have accused him of betraying a certain (anti-South?) mind-set in that position, given the preponderance of Igbos (from the South East) in the auto spare parts business. However, the unbiased, objective observer will certainly be scratching his head to try to make the link between spare parts and cattle – especially because, unlike cattle, the former are typically sold in shops in markets and elsewhere. While they are to be found in virtually every nook and cranny of Nigeria, their purveyors are hardly nomadic or itinerant.

The Other terms of the Declaration

As previously noted, critics of the Declaration have pointed out that the issues of federalism, restructuring, federal character in federal appointments and convoking a national conference are constitutional at best, or (in the case of the conference), somewhat otiose. On federal character, the relevant constitutional provision – Section 14(3) – needs to be amended to make it justiciable. The same goes for restructuring (including State Police), as well as so-called ‘true federalism’. On the National Conference, respected constitutional Lawyer and fiery Buhari critic, Chief Mike Ozekhome, SAN, has opined – correctly – that, given the non-implementation of the report of previous Conferences (most notably that of 2014), calling for another one in the circumstances, is both misplaced and unfounded.

Conclusion

On the vexed issue of the ban on open grazing, mercifully, the courts are there as the arbiter of all disputes – both real and imagined. The Hon. Attorney-General hardly needs to be told that, he can challenge the ban by invoking the original jurisdiction of the Supreme Court. If and when we get to that bridge, we shall see how the combatants shall negotiate its crossing. Hopefully, it won’t be a bridge too far.