The Attorney-General of the Federation (AGF)’s recent comments on the matter of the ban on open grazing in some parts of the country has raised the question of the constitutionality or otherwise of the policy.
Malami’s intervention was, ostensibly, in reaction to a recent decision by the governors of the 17 southern states to ban open grazing of cattle and other ruminants in their states.
The governors said their decision was a measure to curb the challenge of insecurity, to which the activities of herders has been said constitutes a major element.
Reacting to the development on Wednesday, Malami queried the legality of the policy, arguing that it violates the constitutionally guaranteed right to freedom of movement, adding that it “does not hold water” within the context of human rights as enshrined in the constitution.
Malami added: “It is about constitutionality within the context of the freedoms expressed in our constitution. Can you deny the rights of a Nigerian?
“For example, it is as good as saying, perhaps, maybe, the northern governors coming together to say they prohibit spare parts trading in the North.
“Does it hold water? Does it hold water for a northern governor to come and state expressly that he now prohibits spare parts trading in the North?”
The AGF said those seeking to ban open grazing should first, facilitate the amendment of the constitution to that effect.
“If you are talking of constitutionally guaranteed rights, the better approach to it is to perhaps go back to ensure the constitution is amended.
“Freedom and liberty of movement among others established by the constitution, if by an inch you want to have any compromise over it, the better approach is, go back to the national assembly to say open grazing should be prohibited and see whether you can have the desired support for the constitutional amendment.
“It is a dangerous provision for any governor in Nigeria to think he can bring any compromise on the freedom and liberty of individuals to move around,” Malami said.
Herdsmen and crime
It has been said that some persons among Fulani herders have, over the years and in seeking to exercise their supposed rights to freedom of movement, to inhabit and conduct business in any part of the country, gradually metamorphosed from the once benign minders of cows and related animals, usually armed with sticks, to murderous criminals, armed with AK47 rifles and other dangerous weapons, with which they kill and maim fellow countrymen and women.
In 2015, the Sydney, Australia-based Institute for Economics and Peace (IEP), in its Global Terrorism Index (GTI), labelled Fulani herdsmen as the fourth deadliest global terror organisation after Book Haram, the Islamic State in Syria and Iraq (ISIS) and al-Shabab in Somalia.
Another global body, the International Crisis Group (ICG), in its September 2017 report, noted that violent conflicts between nomadic herders from northern Nigeria and sedentary agrarian communities in the central and southern zones have escalated in recent years and are spreading southward, threatening the country’s security and stability.
In its 2018 report, titled: “Harvest of Death: Three years of bloody clashes between farmers and herdsmen”, Amnesty International (AI) documented cases of killings and destruction in many communities in the country.
AI blamed the state for failing in its responsibilities of protecting citizens’ lives and property and also identifying lapses, deliberate indolence among other professional misconduct on the part of security agents.
The AI report showed “how government’s inaction fuels impunity, resulting in attacks and reprisal attacks, with at least 3,641 people killed between January 2016 and October 2018, 57 per cent of them in 2018 alone.”
The group also documented about seven cases, in which it claimed, security forces were aware of attacks but did nothing. “Many attacks lasted for hours, in some cases days, even in communities where security forces were not far away. The response of security forces in some of the instances in Adamawa, Kaduna, Taraba, Benue, Plateau, and Zamfara states was so slow and poor that villagers accused them of complicity in the attacks.
“In some cases, especially in Adamawa and Taraba states, security forces knew attacks were about to happen and saw the attackers but refused to act. Despite these attacks and the killing, which have gone on for years, there has been reluctance on the part of the government to investigate and prosecute perpetrators and this has only encouraged more attacks and killing,” the report said.
History of open grazing ban
Observers who queried Malami’s motive wondered why he opposed the southern governors, which came after open grazing bans by other groups.
The Federal Government had, as far back as 2018, indicated its support for the abolition of open grazing when the National Executive Council (NEC) on April 26, 2018, accepted the recommendation of its sub-committee that open grazing of cattle be banned across the country and opted for the establishment of ranches.
President Muhammadu Buhari, in February 2018, constituted the sub-committee on herdsmen/farmers clashes, led by Ebonyi State Governor Dave Umahi. The committee was, among others, mandated to unravel the causes of herdsmen/farmers clashes and to dialogue with relevant stakeholders on ways to end the killings of innocent citizens.
Members of the Northern Governors’ Forum, at a virtual meeting held on February 9, 2021, chaired by their Chairman and Governor of Plateau State, Simon Lalong, were unanimous that the “current system of herding conducted mainly through open grazing is no longer sustainable because of growing urbanization and the population of the country.” They agreed on other methods like ranching and urged other governors to consider their position.
As if taking a cue from the norther governors, all the 36 governors, at the virtual meeting of the Nigeria Governors’ Forum (NGF) held on February 11 2021 unanimously agreed to end nomadic and pastoral cattle wandering, to address the rising insecurity, the activities of herdsmen and the need for the country to develop modern systems of animal husbandry that will replace open, night and underage grazing in the country. They identified ranching as an alternative to open grazing.
Also, in February this year, Kano State Governor, Abdullahi Ganduje, at a meeting with President Buhari and other APC Governors, openly supported adopting anti-open grazing measures, arguing among others, that such a ban would not only solve incessant clashes between farmers and herders but also prevent cattle rustling.
Shortly after the 17 southern governors, on May 11, 2021, announced their resolution to ban open grazing, support for the decision came from the Arewa Consultative Forum (ACF) and later from the leading herders’ group – the Miyetti Allah Cattle Breeders Association of Nigeria (MACBAN).
ACF, in a statement issued on May 17, 2021, said it did not see any reason to object to a decision taken in the best interest of all.
Its Chairman, Audu Ogbeh was quoted as saying: “The fact of the matter is that the crisis emanates from the belief by most herdsmen that they are free to enter any farm, eat up the crops or kill anyone raising objections. Nobody or society can accept that.”
MACBAN, at a press briefing in Kaduna on May 20, 2021, by its National Patron, Senator Walid Jibrin, argued that any measure to modernise cattle rearing should be supported in view of the fact the open grazing was no longer sustainable in the face of present reality.
Jibrin, who is the Sarkin Fulani Nasarawa, noted that because of existing international concern on cattle rearing in Africa especially Nigeria, adding that there is an urgent need to evolve a better way of rearing cows.
“As a Fulani leader in Nigeria, I have a free mind on anyone recommending a ban on open grazing, free movement herders and cattle in Nigeria, because the practice is getting outdated internationally,” he said.
States with anti-open grazing laws
About seven states now have laws banning open grazing in the country despite the AGF’s position. Yet the AGF has not taken steps to challenge the laws made against open grazing by states like Ekiti, Taraba, Benue, Bayelsa, Abia, Ondo among others.
In Ekiti, there is the Prohibition of Cattle and other Ruminants Grazing Act 2016; in Taraba, there exists the Anti-Open Grazing Prohibition and Ranches Establishment Act 2017, while Benue has the Open Grazing Prohibition and Ranches Establishment Act 2017.
Bayelsa State has the Livestock Breeding and Marketing Regulation Law 2021; Abia State has worked on the Control of Nomadic Cattle Rearing and Prohibition of Grazing Routes/Reserve Law, while in Ondo, there exists Section 42(e) and (g) of the Ondo State Forestry Law, which prohibit cattle trespassing and cattle pasteurisation without the authority in writing of a prescribed government official. Other states are currently working on similar laws.
Incidentally, the court has since 1969 pronounced on the constitutionally of the ban on open grazing. Justice Adewale Thompson, who was then of the Abeokuta (Ogun State) Division of the High Court, declared the practice of open grazing unlawful and banned it in a judgment delivered on April 17, 1969, in the suit marked: AB/26/66.
Justice Thomson held: ”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 tranquillity and the cattle owners must fence or ranch their animals for peace to reign in these communities.”
On May 20 this year, Justice Ijeoma Ojukwu of the Federal High Court in Abuja upheld the validity of the anti-open grazing law enacted by Benue State in a judgment on a suit by Matthew Tile Nyiutsa, in which he sought to compel President Buhari to instruct security agencies in the country to enforce the Benue State law.
Justice Ojukwu was of the view that the Benue anti-grazing law, having been validly made by the state’s House of Assembly, and having not been invalidated by any competent court, remains a valid law, which is enforceable by the state, using all legitimate law enforcement agencies.
Ojukwu held: “There is no contest that the Open Grazing Prohibition and Ranching Establishment Law 2017 was validly passed by the Benue State House of Assembly and that the law is still in force, especially as the law has not been struck down by any court of law or court of competent jurisdiction.
“The implementation, therefore, lies with the machinery of the state and law enforcement agencies like the police, whose duty is to maintain law and order and to secure lives and properties in accordance with Section Four of the Police Act.
“It behoves the people of Benue State and law enforcement agencies, task force, etcetera to employ all legitimate means to implement that law. It is not the duty of the defendant on record. It is only where there is an infraction of the provision of that law that the court may be invited to impose the prescribed sanctions. In so far as the President has not issued any Executive Order, which runs contrary to the said law, this court cannot hold him accountable.”
Incidentally, lawyers from the office of the AGF, who represented President Buhari (the sole defendant) in the case, did not query the validity of the law. They only questioned the propriety of the suit and the reliefs sought, which the court upheld on the grounds that not only was the suit wrongly constituted, it lacked the jurisdiction to adjudicate on the issues relating to whether or not the President abide by his oath of office.
Blow to FG’s RUGA initiative
As a measure to address farmers-herders conflict, the Federal Government, some years back, conceptualised the Rural Grazing Area (RUGA) policy, which allows the creation of settlements for herders in any part of the country. The policy, which did not enjoy popular support, was later challenged by the Benue State Government before the Federal High Court, Makurdi.
Delivering judgment on February 4, 2020, in the case filed in the name of the Attorney-General of Benue State against the AGF, Justice Mobolaji Olajuwon held that any move by the government to acquire land for RUGA or cattle colony in Benue State, without the permission of the state government, was null and void.
Justice Olajuwon, who cited many constitutional provisions such as sections 5(6), 9(2), 20, 44(1), 58 and 315(5) and 6(b), and sections 1, 2, 5, 6, 26, 28 and 49 of the Land Use Act, as well as sections 4, 5, 6, 7 and 19(c) of the Benue State anti-grazing law, granted an order nullifying every action of the government to establish RUGA or cattle colony.
How legal is the ban on open grazing?
Many law experts including Femi Falana (SAN), Mike Ozekhome (SAN) and Tunde Falola faulted Malami, arguing that it was wrong of him to seek to equate animal rights with human rights, arguing that open grazing of cattle has become hazardous to peaceful co-existence across the length and breadth of the country that there should be no legal squabbles on whether or not the practice should be scrapped because it belongs to a bygone era.
They noted that a governor of a state, by the provisions of sections 176 (1) and 214-216 of the Constitution, remains the Chief Executive and Chief Security Officer of that state, in addition to the provision of Section 1 of the Land Use Act, 1978 which vests all land in the territory of each state in the governor, to the extent that such land shall be held in trust and administered for the use and common benefit of all Nigerians, thereby making the governor the ultimate decider of the usage of the land in his state.
Falana added that the power to approve the physical planning of the land in every state was the exclusive responsibility of state governments, noting that forest reserves owned by state governments are equally regulated by laws enacted by the Houses of Assembly.
“Under such laws, it is stipulated that it is a criminal offence to occupy any part of such reserve without authorisation of the state government. By the combined effect of the Land Use Act, Regional Planning laws and Forest Laws applicable in all the states of the federation.
“Thus, pursuant to such laws the Federal Government has directed state governments to take charge of all the forests in all states. It is, therefore, grossly misleading to argue that herders have unquestionable power to graze their cattle on any land without the authorisation of the appropriate authorities.
“No doubt, every citizen is entitled to the fundamental right to freedom of movement and right to own and acquire land in any part of Nigeria by virtue of sections 41 and 43 of the Nigerian Constitution respectively. To that extent, herders, like other citizens, are at liberty to acquire land for cattle business under the Land Use Act.
“Those who are encouraging herders to reject modern animal husbandry are advised to learn from Botswana, South Africa, Mozambique, Kenya and Ethiopia that have effectively adopted ranching to end clashes between herders and farmers. In those countries, herders live on the ranches with family members including their children and wards who attend schools in the neighbourhood.”
On his part, Ozekhome argued that in deserving circumstances, the right to movement in Section 42 of the constitution can be overridden by Section 45 of the constitution which allows any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health.
He said: “Considering the incessant cases of Boko Haram killings, maiming, stealing, kidnappings, rape, armed banditry and robbery foisted on the southern part of the country, southern leaders have rightly taken it upon themselves to put in place laws and measures that will protect their citizens.
“To this end, it is safe to assert that individual rights to movement have not in any way been violated by the various states’ anti-grazing laws because the laws were enacted in the interest of public safety, public order, public defence and public morality.
“The laws of and declaration by the southern governors are also to protect the peace, privacy and homes of southerners as highlighted in section 37 of the 1999 Constitution. They are also for the purpose of protecting the rights and freedom of other persons.
“It must be emphasized that the decision of the southern governors does not in actuality impede the rights of cow rearers to own cattle. It merely limits their ability to openly graze on lands that are not theirs in the first place and inflict misery on the indigenous owners. The ban will also ignite more anti-grazing laws in other states in Nigeria.
“By banning open grazing, the governors are merely putting a stop to one of the greatest known sources of wars and terrorist convergence in their respective states. In my humble opinion, the governors’ call is part of their responsibilities to the people of their states as the main mandate of each and every governor is to protect the lives and property of the people of the states they govern.”
Falola argued that the position as argued by the AGF was misleading and devoid of any legal reasoning, contending that by being the AGF, Malami ought to see himself as the Chief Law officer of the federation and not Chief Law officer of any particular ethnic group.
“The Honourable Attorney-General has equally forgotten the fact that the freedom of movement he is talking about is not absolute under the same Constitution. Admittedly, Section 41 (1) of the 1999 Constitution provides that: ‘Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.’
“The question is, did the southern governors ban movement of Fulani herdsmen from their regions? The answer is no.
“What the governments of these states banned was the movement of cattle from one place to another otherwise known as open grazing; the Attorney-General, with respect, missed this point.
“Again, all the fundamental rights guaranteed by the 1999 Constitution are not absolute; Section 45 (1)(a) & (b) of the same constitution provide exceptions.
It states: “Nothing in sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:
- a) in the interest of defence, public safety, public order, public morality or public health, or
b ) for the purpose of protecting the rights and freedom of others.’
“Now, should these southern states decide to enact a law to ban open grazing in the interests of public safety within the regions or for the purpose of protecting the rights and freedoms of their people, particularly farmers, majority of whom are the victims of incessant attacks and kidnapping by the herdsmen, will our Attorney-General still contend that banning open grazing is unconstitutional? With due respect, the Attorney-General cannot be right.”