Legality or Otherwise of the Southern Governors’ Decision to Ban Open Grazing

Sir Kayode Ajulo, PhD

Abstract

At the meeting of the 17 Southern Governors held in Asaba, Delta State, the Governors resolved among others to ban open grazing in the Southern Part of Nigeria, as a step to tackle Farmers-Herders crisis in the South.

No sooner had the meeting lapsed that comments, criticisms and paroxysms ensued in different quarters of the Federation, particularly from political pundits, legal minds and concerned members of the society.

While some sections have argued that placing a ban on open grazing was a step in the right direction to palliate the spate of farmers-herders crisis, others have criticised the decision of the Southern Governors, labelling same as an infringement of fundamental rights to freedom of movement and ownership of property. And some have even noted that the banning of open grazing by the Southern Governors, is analogous to proscription of sale of goods and services by some section of the country in the North.

I have carefully and pensively spectated the intent and purport of the decision of the Governors, and everyone with a right thinking mind should commend the Southern Governors who, without prejudice to their various political divides, ideologies and idiosyncrasies have presented a common front to ensuring a prompt and lasting amelioration to the spate of insecurity which has beleaguered the country like cascading tumults.

Introduction

As a preliminary point, it is pertinent to state that while it seems that the country has been pushed to the brink of a precipice by the trajectory of banditry, kidnapping and attempted treason, collegial efforts must be put in place to safeguard the country from the dire quagmire which we have found ourselves.

What the Southern Governors have assiduously displayed is a great milieu of nationalism. A fore-runner idea that what has been happening in the country in the past few years is not an ethnic affair, nor is it right to call it an inter-party face-off”. It baffles the mind, how persistently we fall prey to the divide-and-rule tactics!

To be sure, we must admit that the actions and utterances of some sections of the country, have lent credence to this unfortunate tribalisation of issues in Nigeria. The “our-son, our-own” syndrome, so prominent and agog in the Nigerian Political landscape, has aided an increasing sectionalisation of national issues.

Let us be clear on a point: I believe the issue at hand is one of constitutionalism and rule of law, not sectional or regional issues. We must eliminate the blindness which still obscures the truth of that position.

Legality or Otherwise of the Ban on Open Grazing

In addressing the pantomime generated by some self-acclaimed panjandrums, to the effect that the ban on open grazing is in violation of the right to freedom of movement and right to own property, I am inclined to note that the right to freedom of movement and ownership of property though clearly guaranteed under Section 41 and 43 of the 1999 Constitution of the Federal Republic of Nigeria, are not absolute rights, and the protection of individual rights must be considered in line with overriding national interest.

The absoluteness or otherwise of fundamental rights of individuals, has been severally subjected to judicial interpretation by the Apex Court. In the case of Chike Obi v D.P.P (1961) 1 ANLR 186 Ademola C.J.N (as he then was) described the freedoms as “ordered freedom”. In the case of N.U.E.E v B.P.E (2010) 7 NWLR (Pt. 1194) 538 at 575, the Supreme Court, per Chukwuma-Eneh JSC, held: The fundamental right under Section 40 as well as other rights i.e under Sections 37, 38, 39 and 41 has to be read subject to what is reasonable within a democratic society…that is to say, the Defendants/Appellants’ right under Section 40 among other fundamental rights under the 1999 Constitution, are not absolute. They have to be exercised to the limits of the ambit of Section 45 of the 1999 Constitution.

For instance, Section 41(2) (a) of the 1999 Constitution provides that a person’s right to freedom of movement may be negated by imposing restrictions on his movement, where he has committed or is reasonably suspected to have committed a criminal offence. Section 45 of the same Constitution further provides that all fundamental rights can be circumscribed in the interest of defence, public safety, public order, public morality or public health, or for the purpose of protecting the rights and freedom of other persons.

By way of comparison, an individual right to freedom of expression is guaranteed only to the extent that he does not make defamatory, scandalous or derogatory statements against another person. Also, an individual right to ownership of property is guaranteed only to the extent that he pays the requisite fee for the acquisition of same. Hence, fundamental rights are only fundamental, and not absolute!

The case of Dokubo-Asari v FRN (2007) LPELR-958 (SC) easily comes to mind in this regard, wherein the Apex Court hinted as follows: “The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist”.

Acts Which Culminated in the Ban of Open Grazing

Be that as it may, what is more crucial, more fundamental, are the acts which culminated in the proscription of open grazing by the Southern Governors. It is an open secret that the herdsmen -farmers crisis in the Southern part, is one of the underlying issues of insecurity in Nigeria.

Considering the nomadic nature of the business of open grazing, many atrocities have been reportedly been perpetrated by these herders who encroach and invade on farm lands, forest reserves and properties of private citizens, occasioning economic loss, damage to properties and lives without remorse.

Arising from this migration and other factors, roaming cows, sheep and goats, scavenging around school playgrounds, government residential areas, private properties both at night and during the day, have become common place in our cities. They hinder traffic flows, endanger human and vehicular movement.

While I understand the nomenclature of the business of the herders, and having been a Legal Consultant to the Miyetti Allah between 2005 and 2008, however, placing a ban on open grazing will keep at bay the incessancy of the encroachments and anarchy attributable to open grazing.

The provisions of the Land Use Act are clear to the point that, all lands in a State are vested in the Governor of that State. The Governor holds the lands, for and on behalf of the people of the State. Section 1 (1) of the Land use Act provides: “Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the Provisions of this Act”.

Section 2(1)(a) and (b) of the Act further provides as follows: “2(1) As from the commencement of this Act (a) All land in urban areas shall be under the control and management of the Governor of each state; and (b) All other land shall, subject to this Act, be under control and management of the Local Government within the area of jurisdiction of which the land is situate”.

That all lands comprised in the territory of each State of the Federation vests in the Governor of the State by the Land Use Act has been re-affirmed by the judicial pronouncement of the Supreme Court in the case of Calabar Central Cooperative Thrift and Credit Society Ltd & Ors v Bassey Ebong Ekpo (2008) 6 NWLR (Pt. 1083) 362 at 395 where it was held that the Land use Act vests all land comprised in the territory of each State, except land vested in the Federal Government or its agencies, solely in the Governor of the State who holds such land in trust for the people, and is responsible for allocation of land in all urban areas to individuals and organisations for residential, agricultural, commercial and other purpose.

In Savannah Bank of Nigeria Ltd & Anor v Ajilo & Anor (1989) 1 NWLR (Pt. 97) 305 the Court of Appeal held that the main purpose of the Land Use Act, is to achieve a fusion between the Land Tenure System in the then Northern Nigeria and the South, whereby absolute ownership of land by families, communities and individuals became abolished, while all land within each State became vested in the Governor of that State. Hence, any person or organisation who desires to be granted a right of occupancy in respect of any land, shall apply for such grant to the Governor or the Local Government as the case may be. Upon being satisfied that an applicant is qualified to be granted a right to occupy any parcel of land, the Governor or the Local Government, may grant such right of occupancy, and a certificate of occupancy shall be issued to the applicant.

Similarly, the various Forestry Laws have granted imprimaturs to the Governors of the State to exercise authority over the forests in the State. For instance, Section 42 (1) (e) and (g) of the Forestry Law of Ondo State provides that whosoever in any forest reserve, except with authority in writing of the prescribed officer, digs, cuts, turns or cultivates the soil or makes a farm or plantation; pastures cattle or permits cattle to trespass or trespasses in any part of forest reserves in which trespass, shall be prohibited by an order of the Governor.

I cannot, for instance, say because I am basking in the euphoria of being a Legal Practitioner, proceed to Aso Villa and pitch my tent as a chambers there, on the footing that I have freedom of movement without obtaining permit from relevant allied authorities. From all indications, any attempt to criticise the actions of the Governors, is clearly calculated to fan into flames the embers of sectionalism, and to polarise people along ethnic lines to the detriment of national security.

Conclusion

In the light of the current social, economic implications including psychological intimidations and the overall depressing atmosphere which open grazing has permitted, it is my belief that the action of the Governors is a step in the right direction.

Whatever angle the present issue tilts, one thing is certain, open grazing is archaic, anachronistic and out of synch with modern day realities. What is more itinerate rearing of animal and breeding animals on crops, grass and other plants which might be dangerous to the health of the animals and allowing animals to wander for several kilometres and miles, are forms of cruelty to animals punishable under our Penal laws. For instance Section 495 of the Criminal Code prohibits cruelty to animals.

Ranching offers more benefits to both the herders and farmers, and to the peaceful co-existence of the nation. The benefits of ranching as evidenced in other parts of the world, include the production of healthier animals, production of better products and protection of the ecosystem.

Sir Kayode Ajulo, PhD, Managing Partner, Castle of Law, Abuja