Interrogating the constitutionality of retracing old grazing routes

Finding a permanent solution to the open grazing crisis, which has been a major problem to successive governments over the years, appears intractable. While most Nigerians believe that ranching would permanently resolve the perennial conflict between herders and farmers, the government of President Muhammadu Buhari thinks otherwise. The government believes that the only solution to the problem is to recover what it called “open grazing routes”.

Before the government settled for grazing routes, there had been unsuccessful efforts to tackle the problem. In 2018, the Federal Government attempted to establish cattle colonies for herdsmen across the country. But, many states kicked against the initiative, describing it as a ploy to forcefully snatch lands for the use of armed Fulani herders, whom they feared would later unleash terror on their host communities.

Consequently, the government introduced the Rural Grazing Area (RUGA) initiative. The then Minister of Agriculture and Rural Development, Chief Audu Ogbeh, who unveiled the initiative, had stated that President Buhari approved the programme, which was called the Ruga settlement. Again, most southern states rejected this.

The Federal Government subsequently came up with the National Livestock Transformation Plan (NLTP), under which some states like Adamawa, Benue, Ebonyi, Edo, Kaduna, Nasarawa, Oyo, Plateau, Taraba and Zamfara agreed to set up cattle ranches together with the Federal Government. The programme was planned to cost N179 billion over a period of 10 years. The two tiers of government were to jointly spend N70 billion, in the first three years of the pilot phase.

However, some stakeholders kicked against the NLTP, describing it as a clone of the rejected RUGA. The NITP was set for launch in the first quarter of 2020, but the sudden emergence of COVID-19, the resultant lockdown and its associated revenue crunch apparently put paid to its take-off.

In a bid to address this ugly trend, which has claimed thousands of lives, 17 Southern Governors met at Asaba, the Delta State capital and issued a communiqué thereafter, placing a ban on open grazing. In a swift reaction, the AGF, Abubakar Malami (SAN) proclaimed the ban as unconstitutional. Malami said the decision of the governors “does not align with the provisions of the Constitution, hence it holds no water.”

He erroneously likened it to barring citizens from carrying out their businesses legitimately. In his analogy, he queried the decision and insisted that it is illegal to do so. He said: “It is as good as northern governors coming together to say, they prohibit spare parts trading in the North. Does it hold water for a northern governor to state expressly that he now prohibits spare parts trading in the North?”

However, President Buhari insisted that the only solution to the problem is to revert to old grazing routes. According to him, the Federal Government would reclaim grazing routes for herders. The grazing routes, which he insists on recovering, was a creation of the National Grazing Reserve Law said to be publicly gazetted in the ’60s in some northern states.

In an exclusive interview with Arise TV aired June 10, 2021, President Buhari said that he has given approval for the return of open grazing practiced during the First Republic, where herdsmen used designated grazing routes to move cattle to different parts of the country.

The position of the president has raised questions about the constitutionality of open grazing routes, which he so much relies on.

Renowned professor of law, Akin Oyebade said the Federal Government is supporting open grazing under the guise of freedom of movement guaranteed by the Constitution without recognising exemptions to the right to movement. “The catch, though, is that such exercise of freedom must recognise the equal freedom of others such as farmers, motorists and school children to enjoy undisturbed movement.

“In a constitutional democracy, there should be a balance of interests. As it is often said, your right to smoke ends where my nose begins. There is a need to work out an arrangement that would accommodate the interests of herders and that of farmers, hence ranching is the best way out,” he suggested.

According to him, herders would have to change their way of life and accept the modern way of animal husbandry as it is practised in the U.S, Argentina, Australia and others. The unrestrained movement of cattle through long distances, he said, is antediluvian, archaic and no longer sustainable.

“Even the ECOWAS Protocol on Movement of Persons is of no avail where herding is concerned. The earlier everyone realises that we are living in the 21st century, the better for all concerned,” he stressed.

Constitutional lawyer and human rights campaigner, Chief Mike Ozekhome (SAN) lamented that the President is stoking controversy by desiring to recover old grazing routes. Ozekhome, who admitted that there existed a Grazing Law of Northern Region of Nigeria (NN Law of 1965), argued that it applied only to the defunct Northern Region. He said, although it is still an existing law by virtue of Section 315(1) of the 1999 Constitution and Section 4 of the Land Use Act, 1978, it is not federal legislation.

“However, apart from the provision of Section 6 of the Land Use Act, which provides for the power of the Local Government to grant the customary right of occupancy for grazing purposes, there is no known federal legislation on grazing.

“In Nigeria, the Grazing Reserve Law of 1965 was enacted in Northern Nigeria and made grazing routes possible. It allowed herdsmen to transport livestock from one place to another. This law, however, also criminalised open grazing in states that had domesticated the Grazing Reserve Law in Nigeria. This, therefore, armed state laws with sanctions for herders who failed to adhere to such laws.

“It is pertinent to note that the Grazing Reserve Law of 1965 was established far before the Land Use Act of 1978. The later Act did not take into consideration or make mention of any grazing laws. This, however, did not stop other states from domesticating this law. For example, Cap 3 of the Laws of Kwara State adopted the provisions of the grazing reserve law. This, added to the fact that the law was enacted mainly for the Northern States appear to be the reason there are only 141 gazetted grazing reserves in Nigeria. There are therefore a total of 141 grazing routes in Nigeria. 138 of those routes are found in the Northern part of Nigeria. Only two are found in the Southern parts of Nigeria, in the states of Ogun and Oyo,” he said.

Therefore, he explained that the Grazing Reserve Law of 1965, which is not in itself a Federal Act but state law, only had an effect in those states in the Northern part of Nigeria that was affected. According to him, they were not enforced in other states, except those states that sought to enact such laws, or states that had grazing reserves located in them.

For the Grazing Reserve Law to affect the whole country, he argued, it must first be enacted as a Federal Act by the National Assembly in accordance with the provisions of Section 4(2) or 315(1) of the Constitution. He insisted that by the clear provisions of the Land Use Act of 1978, the President does not have any power to recover existing grazing routes.

His words: “Same have since transferred to the governors of states by the Land Use Act. The Federal Government no longer plays any role in land administration matters, except in relation to federal land, which these grazing routes do not fall under. Consequently, it is only the governor of a state that has the discretional power to grant such grazing routes. Neither the president nor the Federal Government can forcefully and unilaterally recover extinct grazing routes, or forcefully seize lands belonging to farmers, indigenous peoples or states.”

Also, Theophilus Orumor of The Law House, Lagos said, while he concedes that the President may have expressed the desire ostensibly to provide a panacea to the lingering issue of the frequent farmers/herders clash, which has claimed so many lives in the recent past, there are constitutional issues, which need to be clarified.

He wondered if the National Grazing Reserve Law is still valid today. “The said law, I gathered, was enacted in 1965. I have personally searched the current laws of the Federation of Nigeria, 2004. I did not find any National Grazing Reserve Law/Act that would qualify the said law as a pre-existing Act/Law of the federal application.

“Assuming without conceding that the said law was indeed in existence (I stand to be corrected though), the condition precedent for the survival of any pre-1999 existing law/act is specified in section 315 of the 1999 Constitution.

“So, the question would be: is the National Grazing Reserve Law/Act a law that could have been enacted by the National Assembly under the present dispensation? This requires examining the exclusive legislative list of the aforementioned 1999 Constitution. A perusal of the 68 items on the exclusive legislative list does not indicate any subject matter dealing with grazing or animal husbandry.

“With the exception of items 17(c) (d) and 18 of the concurrent legislative list, which makes mention of research centres for agricultural, institution or bodies for the promotion or financing of agricultural projects and agricultural development of a state respectively, there is nothing mentioning “grazing” as to warrant a so-called National Grazing Reserve Law.”

According to him, if examined on the aforesaid position, the issue of grazing routes can conclusively be said to be unconstitutional, null and void.

This vexed issue of the constitutionality of grazing routes, he argued, would also require the dissection of the Land Use Act, which 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 would hold such land in trust for the people and would be responsible for allocation of land in all urban areas to individuals resident in the state and to organisations for residential, agricultural, commercial and other purposes, while similar powers with respect to non-urban areas are conferred on Local Governments.

According to him, Section 6 of the said Land Use Act, on the powers of local government in relation to land not in urban areas, states that: (1) It shall be lawful for a local government in respect of land not in an urban area to- (a) grant customary rights of occupancy to any person or organisation for the use of land in the local government area for agricultural, residential and other purposes; (b) grant customary rights of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned.

“Section 6(2) of the Land Use Act provides that no single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Governor.

“Although the Governor/Local Government are vested with almost absolute powers with respect to land under their respective domain, it is important to note the provisions of section 28(4) of the said Land Use Act by which the Governor of a state is duty-bound to revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes,” he declared.

He insisted that Section 51 of the said Land Use Act defines “public purposes” as including- (a) for exclusive Government use or for general public use; (b) for use by anybody corporate directly established by law or by anybody corporate registered under the Companies and Allied Matters Act (CAMA) as entities, which the Government owns shares, stocks or debentures; (c) for or in connection with sanitary improvements of any kind; (d) for obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government, among others.

Orumor argued that the governor of a state is duty-bound to revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the government for public purposes.

“The almighty question would then be; is the issue of grazing routes/animal husbandry a matter of public purposes as to warrant the kind of interest recently shown by the Federal Government?” He asked and declared that recovering existing grazing routes has no legal basis.

Former National Publicity Secretary of the Nigerian Bar Association (NBA), Kunle Edun, maintained that the law that governs land use and management in Nigeria is the Land Use Act, which has been judicially acknowledged by the Supreme Court to have constitutional flavour. By virtue of the Land Use Act, he explained, state governors are put in charge of the management and use of all lands in their states, while the only land that the President of Nigeria has control over are lands within the Federal Capital Territory and lands given to the Federal government in other states.

“Except a state governor designates by law any land in his state as a grazing reserve, no other authority has the vires to do so, not even the President of Nigeria. The power of the state governor to authorise the use of land is still subject to overriding public interest. If the designation of grazing reserves is not in the interest of the people, the governor’s power is limited and can be challenged by the citizens of the state.

“Land is an economic asset and a factor of production. Poultry and pig farmers also use the land for their activities. I am not aware of any state governor allocating free land to poultry farmers or pig farmers. Cattle rearers should buy land like any other businessman, to rear their cattle. Governments must not rob Peter to pay Paul,” he stated.

According to him, the Open Grazing Prohibition Law enacted by many states in the South is a good effort at protecting land from being exploited in a manner that will cause economic hardship and insecurity. Any imposition of grazing reserves by the Federal Government, he said, would be unconstitutional and may cause a crisis in the country.

In his own view, a human rights lawyer, Festus Ogun stressed that the grazing routes policy is grossly illegal and unconstitutional. Ogun said he has carefully read through the pages of the Constitution to see whether the President is indeed empowered by law to implement his grazing routes policies, but found none.

“I daresay, without any fear of contradiction, that the purported resuscitation of grazing reserves in 2021 Nigeria cannot stand the test of legal and constitutional validity. Section 1 of the Land Use Act, 1978 vests all land in the territory of each state solely in the governor of the state, who would hold such land in trust for the people. Clearly, only state governors can exercise dominance and control over lands within their territories. As hallowed as the office of the President appears, his powers under the Constitution do not extend to the administration of lands in states of the federation.

“Given the fact that the Land Use Act is part and parcel of the Constitution by virtue of Section 315(5) (d), the President lacks the power, authority and right to whimsically interfere in land administration in states. That would be tantamount to abuse and is capable of brewing a needless constitutional crisis,” he argued.

He pointed out that the Grazing Law of Northern Region of 1965 relied on by the Federal Government was only applicable in the Northern states and cannot in 2021 become a statute of general application. Ogun stated that it has become obsolete, anachronistic, inoperative and void for being inconsistent with the Land Use Act, which is a part and parcel of the 1999 Constitution. He added that his position is further fortified by the provision of Section 1(3) of the 1999 Constitution.

He said: “I respectfully believe that the President’s desperate moves to shield some of his kinsmen causing unrest in the country are bound to fail; legally, constitutionally and politically. What is expected of the President is to support the patriotic and people-centred moves by Southern Governors to ban open grazing.”