BY Runsewe Solomon & Damilola Akinmolayan
Hot on the heels of the proclamation by the southern governors to ban open grazing, as already legally done in Benue, Oyo and other states of the federation with enabling laws enacted by the state Houses of Assembly, the unanswered question relates to the issue of alternative means.
The Hope classics spoke with some lawyers on the matter. Excerpts:
The recent ban on open grazing system by the southern governors is not only legal but a step to curb the menace of the rampaging criminal herdsmen. There is no doubt that farmers and herders had been at loggerhead long ago but the recent introduction of sophisticated weapons into the hitherto minor clashes has escalated the security challenge thereby threatening the corporate existence of Nigeria.
I do not want to go into whether there exist a gazette which created cattle routes in Nigeria or otherwise. All we need to look into is the Constitution and see whether the action of the southern governors are legal or not. It is an elementary legal knowledge for a Land Law student that the Land Use Act, 1978 vested all lands in each state in the state governor who hold same in trust for the people. Section 1 of the Land Use Act, 1978 states that: *”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 and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”* This clearly shows that the governor (and not the president or the Presidency) is empowered to administer the land for the benefit of Nigerians.
So if the southern governors in their wisdom are of the opinion that open grazing system is detrimental to their efforts in administering lands in the states for the benefit of all Nigerians, then it is lawful for them to ban it. It should be noted that Land Use Act is part of the Constitution of Federal Republic of Nigeria, 1999 as amended and cannot be altered or amended except in accordance with the procedure of altering or amending the Constitution. Section 315 (5) of the Constitution provides that: “Nothing in this Constitution shall invalidate the following enactments, that is to say –
(a) the National Youth Service Corps Decree 1993;
(b) the Public Complaints Commission Act;
(c) the National Security Agencies Act;
*(d) the Land Use Act,*
and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9 (2) of this Constitution.” From the above stated provisions of the Constitution, the law is clear that the Land Use Act, where the governors derive their powers to exclusively deal with lands in their various States, is part of the Constitution. So in my humble opinion the banning of open grazing system by the southern governors is legal.
I was shocked by the level of opposition, especially from some northern leaders over the resolutions, stressing none of the issues reached at the meeting undermined the progress of the nation.
One I find funny is the position canvassed by Senator Ndume, kicking against the ban on open grazing, because the constitution allows for free movement.
I started laughing because, at times when you want to defend the indefensible, you end up exposing a high level of ignorance.
If the constitution provided for freedom of movement, does it also provide for freedom of animals or is he trying to equate human beings with animals?
Governors should not to relent in the meeting, because they would not only be helping to unify the country, but also providing solutions to certain challenges confronting the Southern part of the country.
They are supposed to meet regularly because some of the problems in the south are things they can handle if they have synergy.
I also like the fact that they proposed to meet with the senators and members of the House of Representatives from the south and they have shown concern about it that they are prepared to go to Abuja to meet with them to interface with them. It should be done more regularly because it will help to bring national unity.
The ban on open grazing is not only legal, it is also moral. As a matter of fact, the Federal High Court, Abuja on Thursday, the 20 day of May reportedly affirmed the right of Nigerian states to implement anti-grazing laws in their domains.
The position of the Hon. Attorney-General of the federation and the Presidency that banning of Open Grazing breaches the Fundamental Human Right of freedom of movement, with due respect, is stretching the right of freedom of movement to an irresponsible limitation. The general principle of responsible human right is the dictum that the right of a citizen ends where another person’s right begins.
Thus, it is unlawful for an herdsman to graze his animals to the detriment of another. It is an act, conduct or enterprise that is capable of causing deadly breach of peace and break down of law and order. One of the purposes for establishing (State) government is to ensure that there is peace in the society.
Nigerians should be concerned over whether the Nigerian President is actually getting the correct legal advice from his Attorney General and the legal team.
As far as I am concerned, as a legal practitioner, there is nothing like grazing routes or grazing reserve law, in the laws of the Federation of Nigeria. There is nothing like that.
“There is no federal legislation that the President can implement over such matter.
The executive powers of the President merely rely on the powers of the National Assembly to make laws, when you look at Section 5 of the Constitution.
Any area where the National Assembly cannot make laws, and there are no express grants of powers to the president under the Constitution, a purported exercise of power by the President in that regard, will be null and void because it is inconsistent with the Constitution by Section 1(3) of the 1999 Constitution.
I have painstakingly looked at the laws of the Federation of Nigeria and I did not see a copy of any law that is called federal grazing law, or grazing Act or any other title relating to the issue.
I am aware that there is a northern Nigerian law on reserve and grazing routes which was promulgated by a 1964 decree by the premier of the defunct northern Nigeria region.
It is not a federal law unless the legal adviser to Mr President is equating a northern Nigeria law, which is not applicable in the West, Mid-West, and Eastern region or in anywhere in the southern part of Nigeria, to be a federal or a Nigerian law.
The President does not have the power to implement that law because it is not a federal law.
He can only implement federal legislation made by the National Assembly or deemed to have been made by the National Assembly.
The grazing routes law is not a National Assembly law, so there is nothing for the president to implement.
It is regrettable that the president has not been properly advised by his Attorney General and the legal team.
If anybody will implement any law, it is the states where those routes are applicable that could do so.
Grazing routes law is not applicable in any state in the southern Nigeria. The southern Nigeria has its own law on cattle.
It is unfortunate when we have a situation whereby the President of Nigeria is being misadvised by his legal and policy team, for whatever reason it is.
There has been informed legal opinion on this issue. So there is no federal law regarding grazing routes.
Even by the allocation of power, under the Nigerian legislation, the National Assembly and by virtue of that, the president does not have power to do anything about grazing routes.
This is because the management of land in the entire territory of a state, by Section one of the Land Use Act, is vested in the governor.”
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