Legal options to end perennial herders, farmers’ conflicts

Clashes between herders and farmers have assumed a frightening dimension with national security implications.
Hundreds of people have lost their lives due to these clashes. Properties worth millions of naira have been lost, while many people have fled their communities and have been displaced as a result.

Accusing fingers are being pointed in several directions, thereby jeopardizing the already fragile national unity and national security situation of the country. Efforts to address this menace both at federal and state levels through policy and legislative actions appear not to be yielding national consensus.

Clashes are known to have occurred across all the states, although the frequency of the conflicts seems to have increased in the middle-belt and in many states in the south.

Despite the conspiratorial theories ascribed to such clashes, available studies show that they are provoked by several factors which may be categorized as immediate and remote triggers, all linked to land use disputes/claims between herders and sedentary farmers on the one hand; and the result of years of (state) government failure to implement existing policy/legislative measures aimed at striking a balance between these two apparently legitimate but competing claims.

LEGAL OPTIONS
In order to effectively tackle this national crisis, the federal government may wish to consider possible legal interventions in forms enforcement of extant law, mandating or directing relevant public bodies to functions as required or pass fresh legislation to deal with the situation in order to achieve lasting solutions. In this regard, the federal government may wish to consider the following specific options:

Securing Life and Property
The federal government has the requisite constitutional power to secure life and property nationwide. Measure to achieve this can include the deployment of the armed forces to maintain peace in any conflict area and to provide essential supply and services to secure life and property in addition to the power to legislate exclusively for policing.

This is the net implications of section 11 (1), section 14 (2) (b), sections 214-216 and section 217 (2) (c) (d) of the 1999 Constitution. Section 14 (2) (b) provides the policy context for legislative actions to maintain the security of lives and property.

Section 11 (1) broadly empowers the National Assembly to “make laws for the Federation or any part therefore with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly”.

Sections 214-216 deal with the power of administration and control of the Nigeria Police Force, which body is specially declared as the only police organization in Nigeria under the overriding control of the federal government.

With specific reference to section 217 (2) (c), the National Assembly is empowered to enact an Act for the Federation to, among other things, “equip and maintain the armed forces” for purposes of “suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such condition as may be prescribed by the National Assembly”.

Pursuant to section 217 (2) (d), the armed forces can also be empowered to “perform such other functions as may be prescribed by an Act of the National Assembly.”

Therefore, the President may wish to exercise his powers in this regard in order to cause the maintenance of law and order in the course of routine herding activities or in the routine intercourse between farmers and herders. However, this is more of a reactive approach, which can only deal with the immediate threat to national security. So far, this approach alone has not yielded the desired results of ending the clashes.

Fresh Legislation (s)
There is undisputed empirical evidence showing that conflicting land-use claims between herders and farmers mainly triggers these clashes. While herders are in dire need of pastures and fresh water for their herds especially during the dry season, sedentary farmers are unwilling to yield their land for such pastoral needs, albeit temporarily.

The result is frequent clashes, which have erupted over the years. What is clear from studies is that the clashes now seem to occur more in the south-ward part of the country which has an abundance of pasture and freshwater available even beyond the dry season. With the onset of unfavourable weather conditions in the savannah belt and the Sahel area, in addition to land use policy and acquisitions, which have made previously uncultivated grazing land unavailable for pasture, herders are forced to move their herd south-ward to seek pastures.

Federal government’s attempts to intervene have been resisted on several grounds, including grounds of constitutional legislative competence. However, despite this opposition and in view of the far-reaching implications of incessant clashes between herders and farmers, there is an urgent need for federal intervention through legislation using existing powers within the constitution, without provoking any conflict of federal/state legislative competence. In particular, the National Assembly may wish to take the following legislative steps:

Regulation of Interstate Livestock Commerce
Herding activities have obvious interstate commerce implications. Therefore, to regulate herding of cattle across states and minimize clashes between herders and farmers, the National Assembly may wish to enact an Act pursuant to its powers in item 62 (a) of the Exclusive Legislative List contained in the Second Schedule Part I to the Constitution which empowers the National Assembly to make law in respect of “Trade and commerce, and in particular trade and commerce between Nigeria and other countries including import of commodities into and export of commodities from Nigeria, and trade and commerce between states.”

The National Assembly can also justify such regulation as part of security measures within its competence pursuant to section 11 (1) of the Constitution. Such an Act can prescribe regulations with regards to the movement of cattle across states; regulation for the branding of cattle to identify owners involved in such activities; registration of owners involved in such activities with their brand names and all such measures to prevent anonymity of cattle owners and herders, among other regulations.

All relevant ministries and departments, as well as security forces, should be availed data generated through this means. Appropriate sanctions should be included in the law to punish those who fail to comply, or supply/share the required data information.

Creation of Special Unit of the Nigeria Police Force
Given the enormous national security implications of interstate livestock commerce, a special unit or marshal of the Nigeria Police Force should be created through an amendment of the Police Act with a specific mandate to monitor interstate movement/transportation of cattle and ensure compliance with any legislation, which regulates such movement or transportation.

In view of the fact that cattle- rustling is a criminal phenomenon identified as a major trigger of the clashes, the special unit or marshal of the Nigeria Police Force should also forestall such criminal activities and apprehend perpetrators for prosecution under the relevant criminal laws of the various states or federal legislations.
Federal Grant to States

Abundant empirical studies have shown that pastoralism or herding of cattle is not a matter of choice but a survival measure forced upon the herder by his instinctive quest to ensure the survival of his herds on which he too depends for his own survival. This debunks the apparent uninformed claim that pastoralism is a way of life. It is also a fact that herders are “victims” of displacement caused by increasingly limited access to uncultivated grazing lands. This situation has been caused by many factors relating to land use, land administration, urbanization and the impact of desertification resulting from climate change.

Under the current condition of the herder, he appears not to have any alternative than to continue to herd his cattle to any location he can find pastures and freshwater. Therefore, given the year-long abundance of pasture and freshwater in the southern and middle belt parts of the country, these locations remain attractive to the herder.

In response to these challenges, the government of the defunct Northern Region had in the past passed the Grazing Reserve Law of 1964 to provide strategic support which enables herders graze their herds and provide them fresh water in public grazing fields/reserves. This was in furtherance of the vertical constitutional responsibility placed on the regions at the time (now still a part of states’ responsibilities) to handle such matters.

Unfortunately, most states in the north where this law still exists have not taken enough proactive actions to sustain the initiatives contained in the law. In fact, there are verifiable reports that many of such reserves have since either been abandoned or the land meant for them reallocated to private individuals for private ranches, thereby leaving herders to their own fate.

Nevertheless, federal support for such initiative is unavoidable given the urgent national security implications of continuous clashes between herders and farmers. It is in this context that the federal government should consider providing financial support to states by way of conditional grants to enable them to develop the necessary infrastructure for grazing within their various domains. This will reduce further herding activities across states and the clashes resulting from them.

However, in deference to the principle of subsidiarity in the federal system, the federal government must resist the temptation of getting directly involved in implementing this policy suggestion. At best, it should retain a monitoring role and leave each state to devise a workable approach suitable to its local circumstances.

Such conditional grants should be preceded by an Act of the National Assembly (possibly in the Appropriation Act). Needless to say that all states should be able to benefit from it since cattle can be raised in any state. The grant can be justified by virtue of item 1 (b) of the Concurrent Legislative List contained in the Second Schedule Part II to the 1999 Constitution which permits the federal government to, by an Act, make provisions for “grant or loan from the imposition of charges upon the Consolidated Revenue Fund or any other public funds of the Federation or for the imposition of charges upon the revenue and assets of the federation for any purpose notwithstanding that it relates to a matter with respect to which the National Assembly is not empowered to make laws.”

This proposed conditional fiscal transfers may be designated as loans to the states (which so desire) to resuscitate the model initiated under the Grazing Reserve Law of the Northern Region or any other viable model; or to such states (as grantees/guarantors of the loan) to disburse to interested livestock owners (collectively or as individuals) who are willing to give up pastoralism for modern and more sustainable approach to cattle-rearing. Through such states, the loan can also be available to local business people in any part of the country who, though not pastoralists themselves, are now known to be involved in the business of cattle-rearing, engage herders as paid hands.

Professor Omoregie is the Head, Legal Research Division, National Institute for Legislative and Democratic Studies (National Assembly), Abuja