Legal Perspective of Asaba Accord on Open Grazing

Norrison I. Quakers, SAN

Introduction

The myriad of security challenges particularly stemming from tribal and religious groups in recent times in our fatherland, is worrisome. Cattle grazing is predominant amongst those in the Sahel and parts of the Savannah regions of Nigeria, particularly the Fulani ethnic group, since livestock is crucial in their socio-economic structure. However, the nomadic nature and transhumance tradition of local herdsmen, such as Fulani herdsmen in particular, some of whom resort to militia expeditions against farming communities, have made their activities worthy of checkmate since farmers and herdsmen clashes is the most topical issue we have today. Admittedly, unregulated open grazing has been exacerbated by climate change.

This discourse will accordingly examine the legal framework on Open Cattle grazing in view of the commotion generated by the Resolutions made on Tuesday 11th May, 2021 by the 17 Governors of Nigeria’s Southern States based on what was termed- ‘various national issues including security and restructuring’ culminating in the adoption of a resolution to place a ban on open grazing of animals in Southern Nigeria, in view of the incursions of armed herders, criminals and bandits, whilst adding that Nigeria needed to be restructured to reflect true Federalism.

Background: Grazing Reserve vis-à-vis Ranching

Ranching System in agricultural parlance, refers to a system of breeding and raising of cattle, sheep, or horses on rangeland, that is the demarcation of an area of land, including various structures, given primarily to the practice of raising/grazing livestock, as opposed to Grazing Reserves System wherein there are areas in a country or State specifically set aside for the use of pastoralists and intended to be the foci of livestock development.

From a historical perspective, the traditional cattle management system in Nigeria tend more towards Open Cattle Grazing, albeit Cattle Ranching has gained a wider acceptance in recent times, as a timely solution to address the growing crisis threatening national security due to the shortfalls of Open Cattle Grazing, even over Grazing Reserves. This is evidenced by the vehement opposition of creation of Grazing Reserves, in their respective territory by some States making up the Federation. Hence, the rumour of plans by the Federal Government to establish “Grazing Reserves” in all States of the Federation as a means of stopping the feud between nomadic cattle breeders and farmers, was greeted with wide condemnation.

Open Grazing and Nomadic Cattle Rearing, is common practice amongst nomadic pastoralists in Nigeria. The activities of Fulani herdsmen grazing their cattle across the country has been a focal point at different fora in recent times being a legal cum political problem, particularly as it relates to the need to place restrictions on activities of nomadic herdsmen for the good of the larger populace vis-à-vis protecting the individual rights of nomadic herdsmen.

The Causes of Mass killings and Destruction by Herdsmen

Different reasons have been adduced, as causes of killings cum destruction attributed to activities of nomadic herdsmen. Whilst farmers claim rights over their farmlands, nomadic herdsmen claim right of passage for grazing; others claim killings occur as a result of cattle rustling (cattle stealing); whereas, some claim killings are based on ethnic grounds and/or are religiously motivated; others on the other hand, view this as failings of Government in prioritising the welfare of the masses resulting in the retention of the traditional cattle management system in Nigeria, as opposed to what obtains in developed climes; likewise there are some who see the crisis as a failure of the practice of true Federalism in Nigeria.

The Need to Address the Excesses of Herdsmen

The need to address this menace is expedient, despite that cattle rearing is the common socio-cultural and socio-economic means of survival of the average Fulani man, in view of the following: communities now resort to self help by confiscating cattle found on sight, whilst herdsmen have equally gain grounds treading on foreign soil whilst leaving a trail of blood on the grass they tread; Governors have come out issuing threats to defaulters of laws criminalising Open Grazing; the Miyetti Allah Cattle Breeders Association is opposing any bid to restrict their movement, on the ground that the Constitution of Nigeria guarantees their free of movement into any part of the country; the Federal Government is being seen as forcing State Governors to provide grazing land for the herdsmen; some herdsmen recklessly pillage and terrorise local farmers, vandalising their farmlands, whilst they go on desecrating sources of livelihood of these farming communities; the media was constantly awash with reports of Ondo State Governor, Rotimi Akeredolu’s quit notice to the herdsmen from the reserve forests, thereby placing him at logger heads with Federal Authorities; Sunday Igboho is spitting fire, due to invasion of some villages in the South West by herdsmen; these are amongst many cases too many to recount, likewise the casualties. Infractions resulting from activities of herdsmen. Of note, some of the notable infractions resulting from activities of herdsmen in Nigeria are:

Civil Infractions – Trespass to person since Law of Tort protects the inviolability of the human person; trespass on land in possession of farmers; breach of fundamental human rights of others, such as right to own property, dignity of human person, and of greater concern, the right to life which is recognised by Section 33(1) of the 1999 Constitution of Nigeria (as amended), Article 3 of the Universal Declaration on Human Rights (UDHR) 1948, Article 6 of the International Covenant on Civil and Political Rights 1966, and Article 4 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983; amongst others.

Criminal Infractions – Genocide which is defined in Article II of the Convention for the Prevention and Punishment of the Offence of Genocide 1948 as – ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; and (b) Causing serious bodily or mental harm to members of the group’; act of murder; arson; terrorism punishable under the provisions of the Terrorism (Prevention) Act (as amended); act of kidnapping; criminal assault; amongst others.

Legislations on Grazing

There have been legislative efforts geared towards addressing the concern in time past, such as: that of the Northern Regional Government enacting the Grazing Reserves Law in 1965, of which some Northern States still have in place even after the Northern Region ceased to exist. Same though seeks preservation and control of grazing reserves, it does not however, cater for pastoralists migration.

Also, the National Environmental Standards and Regulation Enforcement Agency Act, 2007 birthed National Environmental (Watershed, Mountainous, Hilly and Catchment Areas) Regulations, 2009. Though Item 5 (4)(a) of the Regulation states that the Local Government in conjunction with the State Government and the Agency shall designate areas to be reserved for grazing and any other activities necessary to conserve the resources of areas, threatened by degradation, however, no area has been designated as a watershed, mountainous, hilly and catchment areas for same to be operational.

Grazing Bills

Already, the National Assembly has in times past been confronted with Bills for grazing reserves and related issues such as – the first National Grazing Reserve Commission Bill of 2008, sponsored by Senator Zainab Kure; “A Bill for an Act for the Establishment of Grazing Areas Management Agency and for other related matters, 2016 (SB 292)”, sponsored by the former Governor of Kano State, Senator Rabiu Musa Kwankwaso; Senator Barnabas Gemade’s “A Bill for an Act to provide for the Establishment of National Ranches Commission for the Regulation, Management, Preservation and Control of Ranches and for connected purposes, 2016 (SB 293)”, Senator Chukwuemeka Utazi’s (PDP Enugu North) “A Bill for an Act to Control the Keeping and Movement of Cattle in Nigeria and for related Matters thereto, 2016 (SB 311)”; and the ‘Bill for an Act to Establish the National Grazing Route and Reserve Commission, to establish and control Grazing Routes and Reserves in all parts of Nigeria and other incidental matters’, which was sponsored by Honourable Sunday Karimi from Kogi State. Also, a draft Bill for a National Forestry Act evolved in October 2001 to accord legislative backing to forest policy initiatives, but its finalisation into law suffered setbacks.

Laws by States on Anti-Grazing

Some Laws by States on Anti-Grazing are: the Benue State Open Grazing Prohibition and Ranches Establishment Law 2017, albeit challenged in Court in The Incorporated Trustees of Miyetti Allah Kautal Hore Socio-Cultural Association & 2 Ors v The National Assembly & 13 Ors Suit No. FHC/ABJ/CS/527/2017. Sections 19-20 of same, makes provision for offences under the law to the effect that no individual or group shall, after the commencement of the law, engage in open nomadic livestock herding or grazing in the State outside the permitted ranches. Where an individual or group of persons contravenes this provision, the penalty is stated as imprisonment for a term of five years or a fine of one million Naira only. Movement of livestock on foot from one destination to another, as well as rustling of animals from any ranch is also prohibited by the law.

Oyo State law on the subject in 2019 prohibited open rearing and grazing of livestock in the State. Taraba and Ekiti also have anti-grazing laws, to curb the menace posed by nomadic pastoralists. Of note, the Ekiti State Open Grazing Prohibition and Ranches Establishment Law 2017 states in part, that – “no person shall cause or permit any cattle or other ruminants belonging to him or under his control to graze on any land in which the Governor has not designated as ranches, no cattle or other ruminants shall by any means move or graze at night and that cattle movement and grazing are restricted to the hours between 7:00 am and 6:00 pm”.

The Taraba State Anti-Open Grazing Law, likewise, banned open-rearing and grazing of livestock. By virtue of the Taraba State Anti-Open Grazing Law, anyone who openly grazes livestock or moves livestock by means other than in a Motor vehicle or moves without permit commits an offence and shall be liable upon conviction to: (a) For any first offender, a fine not exceeding N500, 000 or imprisonment of 1 year; (b) For any Subsequent offences, a fine of not less than N1, 000,000:00 or imprisonment not exceeding two years.

Position of the Law on Cattle Grazing Colonies cum Ban on Open Grazing

In an attempt to eliminate the menace of open grazing, different suggestions have been proffered, the most contentious being – the establishment of cattle grazing colonies in States of the Federation for the Fulani herdsmen. Of note, the position of the law on this in particular, is as captured in Wuyah v Jama’a Local Govt, Kafanchan (2013) All FWLR (Pt. 659) wherein the Court admonished that Government should not compulsorily acquire any land that belongs to a person and alienate to another private individual or body for his/its private use. Thus, Section 51(1)(h) of the Land Use Act which permits acquisition of land by Governor “for obtaining control over land required for or in connection with economic, industrial or agricultural development” would not support the proponents of Cattle Colonies in States in this regard, since the herdsmen like farmers are private businessmen.

Nonetheless, arguments of critics and proponents of cattle colonies and open grazing, have pitched Nigerians against primordial lines. Some Southern State Governors, at their last meeting held in Asaba, Delta State capital on May 12, 2021 rose above partisan politics to adopt 12-point resolutions which addresses this. The move is definitely laudable, since the commitment of the Federal Government for Convocation of a National Dialogue/Conference to address pressing national issues is in doubt. Legal cloak is not lacking in the Asaba Resolutions on the subject, considering the following provisions of law as hereunder examined.

Section 37 of the Constitution provides that: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications, is hereby guaranteed and protected.”. Section 14(2)(b) of the Constitution expressly provides that – ‘the security and welfare of the people shall be the primary purpose of government’. Likewise, every citizen of Nigeria is entitled to the right to life, which is guaranteed by Section 33 of the Constitution. Article 3 of the Universal Declaration of Human Rights recognises that – “Everyone has the right to life, liberty and security of person”.

Looking at it from the point of view of the rights of the herdsmen, admittedly, Section 41 (1) of the Constitution provides that – “every citizen is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen shall be expelled from Nigeria or refused entry thereto or exit therefrom’’.

Hence, flowing from the provision of Section 41(1) of the Constitution, there have been arguments in some quarters on infractions of the right to freedom of movement of the herdsmen who are equally Nigerian citizens, as a result of the anti-open grazing laws. It would appear that the different anti-grazing laws infringe on the right of the herders to move freely across Nigeria, but this is not the correct position of the law, when extrapolated against the direct consequences of unrestrained open grazing on others, since the various anti-grazing laws were primarily enacted to prevent the destruction of lives cum properties of the larger populace; as such, same will fall under the purview of Section 45 of the Constitution which allows any law that is reasonably justifiable in the interest of public safety to override the ‘right to freedom of movement’.

Of note, there is a subsisting judgement delivered by Hon. Justice Adewale Thompson of Abeokuta Division of the High Court on 17th April, 1969 in Suit no AB/26/66 which is binding and is not subject of an appeal, banning open grazing for being inimical to peace and tranquility. Therein, the Learned Judge held as follows:

“I do not accept the contention of Defendants that a custom exists which imposes an obligation on the owner of a farm to fence his farm, whilst the owner of cattle allows his cattle to wander like pests and cause damage. Such a custom if it exists, is unreasonable, and I hold that it is repugnant to natural justice, equity and good conscience and therefore, unenforceable…in that it is highly unreasonable to impose the burden of fencing a farm on the farmer, without the corresponding obligation on the cattle owner to fence in his cattle. Sequence to that I ban open grazing, for it is inimical to peace and tranquility and the cattle owners must fence or ranch their animals for peace to reign in these communities”.

Role of State Government in Conflict Resolution

The term – ‘Conflict Resolution’ can be regarded as any process that resolves disputes via resolution processes that are varied which may be- fact-oriented, legally binding, participatory, informal, amongst others. The role of State Governments in conflict resolution between Fulani herdsmen and farmers is very significant, since they are the Chief Executives of their respective States.

In a democratic setting as ours, such resolution must be fair, just and legal, hence, should become self-supporting and self-enforcing; consequently, the Governors of Southern Nigeria’s Asaba Resolutions of May 12, 2021 banning open grazing in their region cannot be faulted, since the Resolutions are ideal to achieve an enduring outcome in the region against the backdrop of recurrent herdsmen attacks.

Of note, Section 2(2) of the Constitution provides- ‘Nigeria shall be a Federation consisting of States and a Federal Capital Territory’. Also, Section 5(2) of the Nigerian Constitution provides-“Subject to the provisions of this Constitution, the executive powers of a State: (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State”. This is in line with Section 176(2) of the Constitution which provides that, the Governor of a shall be the Chief Executive of that State. It is in the light of this that Section 215(4) of the Constitution makes it mandatory for a Commissioner of Police to carry out the lawful direction of the Governor of a State.

Remarkably the power of the State House of Assembly to make laws bordering on ‘grazing’ is accorded legal cloak by a conjunctive reading of Section 4(7) and Item 18 Part II Second Schedule (Concurrent Legislative List) – ‘industrial, commercial or agricultural development of a State’ of CFRN 1999. Likewise, Item 40 of Part 1 Second Schedule (Exclusive Legislative List) of CFRN 1999 provides expressly that, States are to consent before the National Assembly can by legislation designate any portion of their State as a national park.

Furthermore, the management of land is under the control of the State Governor, as such, the Governor is in charge of allocation of land, since the Land Use Act of 1978 vests all land in the territory of a State on the Governor of that State, and gives the Governor the power to grant statutory right of occupancy to persons.

Environmental Degradation Resulting From Unregulated Cattle Grazing

Open cattle grazing and rearing is one of the causes of environmental degradation, since land in itself is a natural resource that requires a sustainable management. There is no particular Act of the National Assembly to checkmate the nomadic pastoralism causing degradation of the environment, though there are several laws on the protection of the environment, hence the legislations by States in this regard appear to be timely, considering that nomadic pastoralism is a threat to the Sustainable Development Goal 15 precisely. Also, the livestock sector generates greenhouse gas emissions, resulting in land and water degradation; not forgetting to mention other secondary practices such as bush burning, to improve pasture lands for cattle.

Conclusion

The issue of open grazing requires an unbiased approach to resolve, hence the Asaba Resolution cannot be faulted; short-term and long-term measures are required, in addressing the menace of open grazing. Adopting a change in some of our agricultural practices is required. Government should encourage large-scale farming by the herdsmen by a public private partnership scheme, since intensive farming of livestock offers many advantages over traditional methods; age-long crude methods of animal husbandry should be mechanised, and herdsmen must embrace modern “sedentary and industrial” grazing and pasturing methods. There should be enlightenment of herdsmen on the need to equally acquire or lease land for the purpose of grazing, whilst Government should facilitate low-interest loans for them.

The Federal Government must accept the importance of adhering to true Federalism, in recognition of the powers of State Governors. A large number of people are in unfortunate conditions and suffer deprivation in Nigeria due to activities of these herdsmen, hence the Southern State Governors cannot be faulted, considering the extant legal framework on the subject. States should be allowed to exercise control over their region; a Committee of stakeholders should be promptly set up by the Southern State Governors to deliberate on how to implement their lofty resolutions.

There is need for proper documentation of foreign herders as provided for by the ECOWAS Protocol, which requires transhumant herders to obtain the International Transhumance Certificates (ITC). All concerned States in Nigeria should have laws banning open grazing with provisions for ITC, and should ensure public participation in enacting same.

State Environmental Protection Agencies must provide mechanism that will ensure compliance with Anti-Open Grazing laws, such as the Ekiti Grazing Enforcement Marshall (EGEM) who has teamed up with the Police, to implement the State’s Anti-Grazing Law.

The activities of the herdsmen should be constantly monitored by the Government, likewise the Nigerian borders. Casualties of the crisis should be provided with timely and adequate reliefs. Currently, the failure of the Nigerian Government in fulfilling its constitutional responsibility of protection of lives and property by decisively dealing with this menace, is fuelling same, hence Government at all levels must live up to their responsibilities. Likewise, Government should investigate all allegations of complicity, and other failures of security forces to protect Nigerians.

The Great Green Wall Initiative for the Sahara and Sahel programme initiated and adopted by the Head of Governments and States of the African Union in 2005, to improve food security in about twenty-one countries of the Sahel region in Africa amongst others, culminating in the enactment of National Agency for the Great Green Wall (Establishment) Act, 2015 in Nigeria, is being threatened by the activities of herdsmen. Consequently the Asaba Declaration of the Southern Governors Forum, is not misplaced from a continental periscope.

Norrison I. Quakers, SAN