Continuing open grazing of cattle confirms Nigeria’s 1999 Constitution to be ‘a la carte’!
On 12 May 2021, Governors of the 17 states of southern Nigeria made a declaration to ban open grazing of cattle in their states. Abubakar Malami, the Attorney General of Nigeria and Minister of Justice, later challenged this decision as illegal on the grounds that grazing was a constitutionally guaranteed right. He implied that Governors of the northern states would be justified in a tit-for-tat to ban ‘importation’ of spare parts from the south. Mr Malami’s objection to the banning of grazing was apparently rooted in his interpretation of the freedom of movement provision of Nigeria’s 1999 Constitution.
Section 15(3) of the 1999 Constitution provides that ‘For the purpose of promoting national integration, it shall be the duty of the State to: (a) provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation...’ Furthermore, Section 41(1) of the constitution provides that ‘Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof…’.
The right to freedom of movement is not absolute, however. First, the right is guaranteed only to citizens of Nigeria. It is a frequent claim that the Fulani herdsmen who are invading southern Nigeria were not indigenous Nigerians. Second, the 1999 constitution derogates the freedom when public safety, public order, public morality, and public health are concerned or threatened, or when the rights and freedom of others are infringed. According to Section 41(2 of the constitution, ‘Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society.’
The herdsmen are from the Fulani ethnic group who say that it is their custom, and by implication their right, to walk cattle from place to place and graze them openly. Their custom however does not immune them from the criminal charge of trespass in Northern Nigeria. Indeed, Section 342 of the Penal Code (applicable to Northern Nigeria) provides that ‘Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy a person in possession of that property, or, having lawfully entered into or upon that property, unlawfully remains there with intent thereby to intimidate, insult or annoy such person or with intent to commit an offence, is said to commit criminal trespass’.
Open grazing has caused widespread desertisation of land in the northern states. The herdsmen, after causing this ecological disaster in the north, have decided to export same to the south. The herdsmen deliberately use their cattle to destroy established farms. They carry AK47 and swords which they use to kill and dismember farmers, like Dr Borode, who object to cattle grazing on their land. Even when unprovoked, they still kill and dismember, or maim people including children. They rape any girls or women that they encounter. They have made farming impossible in some areas of the south, thereby causing food shortage. They make motorists in towns and villages fight with their cattle for the right of road.
The fact of the matter is that the 17 Southern Governors have unfettered constitutional powers to manage their state lands. Section 1 of the Land Use Act says: ‘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.’ In addition, Section 20 of the 1999 constitution promised Nigerians that ‘The State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.’
The 17 states also have the legislative powers to act. Section 4(7) of the 1999 Constitutions provides that: ‘The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:- (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and (c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution...’
Section 4(8) of the constitution says: ‘Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.’ Paragraph 18 Second Schedule Part 2 says: ‘Subject to the provisions of this Constitution, a House of Assembly may make Laws for that State with respect to industrial, commercial or agricultural development of the State.’
The Southern Governors have not been alone in banning open grazing. On 9 February 2011, the Northern Governors Forum banned open grazing in all states within the northern region. On 11 February 2021, the Nigeria Governors Forum banned open grazing in all 36 states of the federation.
Between 2016 and 2017, Ekiti, Edo, Benue and Taraba states passed anti-grazing laws. Other states including Oyo, Ondo and Abia have since done the same. The Benue version (Open Grazing Prohibition and Establishment of Ranches Act 2017) provides at its Section 19(1) that: ‘Any person or group of persons who contravenes sub-section (1) of this section above shall be guilty of an offence and shall on conviction be liable to five years imprisonment or 1 million fine or both.’
And it provides at 19(3) that: ‘Where such contravention causes (a) Damage to farm crops or property of any person, the owner or manager of such livestock shall after evaluations by the department of the damage pay the prevailing value of the monetary compensation of the farm crops or property so damaged, to the owner. (b) Injury to any person within the state, the owner or manager of such livestock shall be guilty of an offence and upon conviction be liable to two years imprisonment in addition to footing the medical bills of the victim and paying relevant compensation as the court may determine. (c)Where such contravention causes the death of any person within the state, the owner or manager of such livestock shall be guilty of an offence of culpable homicide punishable under the penal code law.’
The decision of Mr Justice Adewale Thompson (Suit no AB/26/66; 1969), which made open grazing of cattle illegal, is the prevailing law of Nigeria until the courts reverse it. The Land Use Act and Section 4(7) of the 1999 Constitution makes it impossible for the National Assembly to interfere. In promulgating the law, Mr Justice Adewale Thompson said this: ‘I do not accept the contention of Defendants that a custom exists which imposes an obligation on the owner of 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 banned 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.’
If Mr Malami, the Attorney General and Minister of Justice, disagrees, he should go to court!
Without the support of the Nigeria state, there would be no open grazing of cattle anywhere in Nigeria. The Nigeria army openly protects Fulani herdsmen as they walk and graze their cattle and wantonly trespass on other people’s farmlands and communities. The Nigeria military deploys against any group, particularly in Igboland, that tries to protect their people from horrific deaths, and their forests, farms, and villages from destruction at the hands of Fulani herdsmen. The government permits the Fulani herdsmen as the only civilian group in Nigeria to openly carry offensive and military grade weapons. Federal government support for the Fulani herdsmen signals yet again that the Nigeria 1999 Constitution is an ‘a la carte’ constitution not a constitution with supremacy. The southerners and middlebelters being constitutionalists have the entitlement, and indeed the right, to divorce from a Nigeria that is so lacking in constitutionalism.