In Defence Of States’ Anti-Open Grazing Law By AKEEM NAFIU
Some senior lawyers have hailed the resolution and determination of Governors in the Southern region of the country to tackle the issue of insecurity headlong.
The lawyers were impressed with the September 1, 2021, deadline set by the governors for the promulgation of anti-open grazing laws in the region saying such legislation is long overdue considering the challenges posed by worsening insecurity not only in the region but the entire country.
The 17 Governors of the Southern region had at the end of their deliberations in Lagos on July 5, 2021, resolved to ensure that laws banning open grazing become operative across all member states by September 1, 2021.
The meeting was a follow-up to the one earlier held in Asaba, Delta State on May 11, 2021, where they all agreed to ban open grazing of cattle by herdsmen in the region.
A communique issued at the end of the Lagos meeting which was signed by the Chairman of the Southern Governors’ Forum (SGF), Governor Oluwarotimi Akeredolu of Ondo State indicated that the governors reached a consensus on a number of issues, prominent among which is the issue of insecurity.
On this, the following resolutions were reached: *The governors reaffirmed their commitment to the unity of Nigeria on the pillars of equity, fairness, justice, progress and peaceful coexistence between and amongst its people.
*While reviewing the security situation in the country, the governors commend security operatives for their relentless efforts in restoring security and safety and commiserates with families and loved ones of those who have fallen in the line of duty.
*The governors while re-emphasising the need for state police also resolved that if for any reason, security institutions need to undertake an operation in any state, the Chief Security Officer of the state must be duly informed.
*The Forum equally frowned at selective criminal administration of Justice and resolved that arrests should be made within the ambit of the law and fundamental human rights. A timeline of Wednesday, 1st September, 2021, was set for the promulgation of the anti open grazing law in all member states.
*The Forum also resolved that funds deducted from the Federation Account for the Nigeria Police Security Trust Fund should be distributed among the States and Federal Government to combat security challenges.
Presidency faults open grazing ban
In the meantime, the Presidency had questioned the legality of the plans by the Southern Governors’ Forum to enforce the ban on open grazing. A statement signed by an aide to the president, Garba Shehu, indicated that banning of open grazing is not the solution to persistent herders/ farmers’ clashes in the country.
Shehu said the herders/farmers’ clashes will be addressed with the rehabilitation of grazing reserves approved by President Mohammadu Buhari.
He said: “The president had approved a number of specific measures to bring a permanent end to the frequent skirmishes as recommended by Alhaji Sabo Nanono, the Minister of Agriculture, in a report he submitted and the president signed off on it back in April, well before the actions of the Southern Governors’ Forum which attempts to place a ban on open grazing and other acts of politicking intended by its signatories to demonstrate their power.
“It is very clear that there was no solution offered from their resolutions to the herder-farmer clashes that have been continuing in our country for generations.
“But the citizens of the southern states – indeed citizens of all states of Nigeria – have a right to expect their elected leaders and representatives to find answers to challenges of governance and rights, and not to wash their hands off hard choices by, instead, issuing bans that say: “not in my state”.
“It is equally true that their announcement is of questionable legality, given the Constitutional right of all Nigerians to enjoy the same rights and freedoms within every one of our 36 states (and FCT) -regardless of the state of their birth or residence.
“Fortunately, this declaration has been preempted, for whatever it is intended to achieve and Mr. President, who has rightly been worried about these problems more than any other citizen in consultation with farmers and herders alike, commissioned and approved an actionable plan of rehabilitating grazing reserves in the states, starting with those that are truly committed to the solution and compliant with stated requirements.
“With veterinary clinics, water points for animals and facilities for herders and their families including schooling – through these rehabilitated reserves, the Federal Government is making far-reaching and practical changes allowing for different communities to co-exist side-by-side, supporting farmers to till their fields, herders to rear their livestock and Nigerians everywhere to be safe”.
Amidst the unfavourable disposition of the Federal Government to the ban on open grazing by the Southern Governors’ Forum, some senior lawyers have urged the governors not to be deterred in doing all that is necessary to rid the region of killer herdsmen.
The lawyers while speaking on the issue at the weekend emphasized that the views and position of the Southern Governors are well founded, properly conceived and sound against the backdrop of escalating insecurity in the country. They argued that the Federal Government has no known constitutional, legal or even moral high grounds to dictate to the states not to protect their citizens
The men of the wig and gown also charged the governors to seek legal redress at the Supreme Court pursuant to Section 232 of the Constitution should the Federal Government stand in their way to legitimately promulgate the anti open grazing laws. Speaking on the issue, a rights activist and Senior Advocate of Nigeria (SAN),
Chief Mike Ozekhome, disclosed that in as much as security is not on the exclusive legislative list, the governors are entitled legally and constitutionally, to protect the lives and property of their citizens, and afford them maximum welfare.
He added that the governors have rightly, properly and legally given September 1, 2021, as deadline for the promulgation of their various states anti-open grazing laws.
He said: “Every federating unit (state) in Nigeria is separate from and independent of the Federal Government of Nigeria because Nigeria operates a federal system of government.
The anti-open grazing laws to be promulgated by the Houses of Assembly of the Southern States as decided by Southern State Governors are meant to curb the lingering menace of insecurity and unprovoked violent acts of carnage, rape, killings, kidnappings and maiming being perpetrated against their citizens.
“Security is certainly not an item on the exclusive legislative list. Therefore, the “doctrine of covering the field” to the effect that once the National Assembly legislates on a matter, State Houses of Assembly are debarred from legislating on the same matter, does not apply in this case.
“Governors are, by virtue of Sections 214 and 215 of the 1999 Constitution, the Chief Security Officers of their various states.
They are therefore entitled legally and constitutionally, to protect the lives and property of their citizens, and afford them maximum welfare by virtue of Section 14 of the same Constitution.
“Surely therefore, the governors have rightly, properly and legally given September 1, 2021, as deadline for the promulgation of their various states anti-open grazing laws.
They are perfectly within their constitutional rights to do so. There is absolutely nothing confrontational or belligerent against the Federal Government in taking this step.
“The laws are not to be enforced against the Federal Government or its agencies such as to disingenuously drag in the notions of confrontation or constitutional crisis of any sort.
The laws are to be promulgated against fully armed AK-47 wielding nomads and pastoralists who, quite unprovoked, descend on innocent citizens’ homes, farms and along highways and lonely alleys, and maim, kill, rape, kidnap and disposess them of their rightful belongings.
“What is wrong in states enacting such laws? I cannot see it. Or, can you? The freedom of movement enshrined in section 41 (1) of the Constitution is for human beings; not for cows, goats and sheep.
“The states should go ahead to enact the anti-open grazing laws. The Federal Government has an option if it is dissatisfied with such laws. It should approach the Supreme Court of Nigeria, invoking its original jurisdiction under Section 232 (1) of the Constitution, to interpret and determine if the states have gone beyond their boundaries.
“In a democracy, disputes are settled in a civilized manner through due process in courts of law and not by resort to arbitrariness,
whimsicality, capriciousness, intimidation, brute force or threats of deployment of sheer federal might to accomplish its desires. So, the Federal Government should stop grandstanding, using utmost brinkmanship, viet armis, to enforce compliance with what it wrongly believes is its right.
There is no such right under the present circumstances”. In his own submissions, Mr. Olukayode Enitan (SAN), said the governors must demonstrate the will to enforce the anti-open grazing law once it is enacted.
“Each state has its legislature responsible for making laws that are to serve the best interest of the citizens of the state. Where the governor sends an executive Bill to the legislature who in the wisdom of its members passes the Bill and the governor signs it, a valid law would have been enacted.
“To say that the governors are grandstanding is to show a lack of appreciation for the concept of federalism. To base such opinion on the alleged opposition of the federal government is a further display of ignorance. There’s no problem with enforcing laws as long as there’s a will to enforce it.
“The law when passed shall be enforced in the same manner as other laws are being enforced, whoever openly grazes cattle after the promulgation of the law shall be arrested and made to face the appropriate court as may be stated in the law and where guilt is established beyond reasonable doubt, the individual shall receive whatever punishment is prescribed.
“The best the Federal Government can do where someone is charged for open grazing is to provide the individual with counsel and nothing more. Whilst the Federal Government is powerful, its relationship with the states is not that of master and servants such that the states are to kowtow to it in all things.
Remember that the Land Use Act actually vests all land within the territory of a state on the governor in trust for the people. Remember also that the Supreme Court has decided in the case of Lagos v AG Federation & Ors. that the physical planning in a state is squarely the responsibility of the state and not the Federal Government”, Enitan said.
Speaking in the same vein, a former National President of the Committee for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu, also commended the governors for their resolve to enact anti-open grazing laws saying it is the only way to go in the face of the daunting challenges posed by the worsening insecurity in the country.
Malachy said: “The views and position of the Governors of Southern Nigeria are well founded, properly conceived and sound against the backdrop of escalating insecurity in the country. Sections 1 and 2 of the Land Use Act vest all lands in the Federation, except those in the FCT or under the control of the Federal Government or its agency in each Governor of the Federating Units.
“Thus, if for any exigency particularly on account of mounting violence against a section of the country, the governors of that region manage to build a consensus around an important challenge and develop a collective strategy of dealing with that challenge, I do not see the deadline of September given as grandstanding.
“Indeed, if the Federal Government stands in the way of the state governments to legitimately promulgate the anti-open grazing laws, they can as well approach the Supreme Court pursuant to Section 232 of the Constitution of FRN 1999(as Amended) to determine the propriety of such resistance in view of their powers pursuant to extant laws and statutes”.
Dr. Fassy Yusuf was also in support of the enactment of anti-open grazing laws by Southern Governors saying it is within their constitutional rights to do so. “This is a federal republic and states are at liberty to legislate on certain issues, including the issue of grazing of cows.
In fact, I remember that a committee set up by the Federal Government recommended that state governors should take measures to plan for ranching. However, if any state still allows grazing, so be it.
But, if some governors have come together to give themselves an ultimatum, so be it. “I think this issue should not be politicised. The important thing is that open grazing is archaic, uncivilized and wreaking a lot of havoc in the country.
Therefore, responsible governments should provide alternatives and also see to it that the business of a group does not affect the business of a larger group. The anti-open grazing law is overdue and it should be encouraged”, Yusuf said.