President Buhari Inspectig His
Herds Of Cattle In Daura
Whereas almost every national policy or national discourse more
often than not, seems to wear the heavy toga and coloration of
ethnic and religious insinuations; in recent time, no other issue
can rival the extremely contentious RUGA policy, in terms of
controversy, disaffection and distrust. Whilst a sharp divide are
clearly pro-RUGA, a vocal and certainly balanced divide on the
other side of the aisle have voiced their disdain and disaffection
to what they consider an obnoxious policy.
What is heart wrenching however is the religious and ethnic
divide this national issue has since towed. It is almost impossible
to find a Muslim northerner that is solidly against RUGA or a
Christian Southerner that is pro-RUGA. It therefore appears that
passion and emotion has since overtaken reason and logic.
Aside these two warring sides, there is the silent majority, the
‘I Don’t Care’s’ of Nigerian politics, the ‘non voters’, ‘non
social commentators’; who rest their political fate on the whips
and caprices of the vocal minority.
Sadly, as far as RUGA is concerned, I am squarely in the last
category, my views and opinions are of no consequence and I have I
only undertaken this academic voyage for the advancement of our
jurisprudence and the integrity of the constitution. I consider
myself to be a dogged believer in the sacredness, sanctity and the
supremacy of the constitution over and above any and every other
law enacted by men.
It is tidy practice to begin any write up with definition of the
topic in hand, however this seemingly simple task, seems rather
herculean owing to (a). The sensitivity of the topic; and (b). My
approach to tow the path of a blind and unbiased onlooker, be that
as it may, allow me to take a rather scanty approach in the
definition.
What Is RUGA?
Etymologically Ruga stems from the Fulani Language and has been
largely adopted by several tribes in northern Nigeria to mean a
temporal settlement, consisting of a few tents, and basic
necessities of life wherein the settle tend to their
cattle/livestock. The very nature of RUGA suggests a transient
settlement as against permanent structure.
However the federal government is resolute that Nigerians should
ignore the coincidence and accept the fact that RUGA is an acronym
for RURAL GRAZING AREA, even though the acronym could very well
have been RUGRAR, or even RGA, but somehow a wise and discerning
mind choose RUGA and every other person must sit still and accept
that no mischief or clandestine scheme is intended, as some
speculators have since echoed.
What is RUGA POLICY?
This is a federal government agriculture policy, where large
expanse of lands are mapped out, wherein nomadic herdsmen are free
to tend to their stocks, and are confined to range freely, it is
basically a collection of cattle colonies, in area where there is
enough lush green and preferable far from farming and other urban
and rural activities.
Since we have attempted to define the term RUGA, we are now
faced with the other half of the topic, i.e. ‘unconstitutionality’.
This on the other hand is easily defined as, any law or policy,
that is contrary to the express provision of the constitution. In
other words, the law, policy or practice, runs counter to the
express provision of the constitution and not just any other act or
law. Any action, practice or policy that is illegal is by default
unconstitutional since all powers flow from the constitution; so
whereas we can say everything thing is unconstitutional is illegal,
we cannot say everything that is illegal is unconstitutional
stricto sensu. This seems to be the position of the apex
court in Bello & ors V AG Oyo (1986) LPELR-764
(SC), where the court held that the execution of a convict
before his appeal was unconstitutional and therefore illegal.
In practice however the line is harder to draw, especially since
it can be argued that every law proceeds from the power of the
constitution, hence technically a breach of such law is therefore a
breach of the constitution also not ignoring the reality that for
an act to be illegal it has to be specifically written and not
merely inferable since illegality has the backing of sanctions
attached thereto. However the argument and contradistinction
between constitutionality and Illegality is a battle for another
day, our definition of unconstitutional would simply be anything
that runs counter to the express provision or the spirit and letter
of the constitution. The constitution protects her sanctity with
the all important supremacy clause to wit;
SECTION 1 (3) 1999 Const (as amended) IF ANY LAW IS
INCONSISTENT WITH THE PROVISIONS OF THIS CONSTITUTION, THIS
CONSTITUTION SHALL PREVIAL, AND THAT OTHER LAW SHALL TO THE EXTENT
OF ITS INCONSISTENCY BE VOID (italics mine)
As regards other laws, the constitution has a somewhat coconut
and egg relationship, wherein the egg must always break when faced
with the coconut, whether the coconut, hits the egg or the egg
falls on the coconut. In like manner, every other enactment/policy
bows to the constitution. This approach has since gotten the
backing of the courts in a plethora of cases, including
Kayili V Yilbuk & Ors (2015) LPELR 24323 (SC) &
Ugba & Anor V Suswan (2014) LPELR 22882 (SC) .
That being settled, our next point of duty, would be to examine
the presidential powers, since the RUGA policy is a presidential
directive that purportedly flows from the powers of the president.
The presidential powers certainly flow from the constitution
specifically Section 5 thereto. I shall proceed to reproduce this
section for clarity.
SECTION 5 1999 Const (as amended) Subject to
the provisions of this constitution, the executive powers of the
federation;
(a) Shall be vested in the president……
(b) Shall extend to the execution and maintenance of this
constitution, all laws made by the National Assembly, and to all
matters with respect to which the National Assembly has for the
time being powers to make law.
From the foregoing, one can easily glean that the president’s
powers is not limitless, and cannot exceed the parameters set by
the constitution; simply put, the President can only act on matters
that the National Assembly can legislate over.
In that case, to fully appreciate the extent of the President’s
powers, we must take another excursion to the constitution, and
unearth the power of the National Assembly.
SECTION 4 of the 1999 Constitution (as amended)
vests the legislative powers on the federation on the National
Assembly which shall consist of a senate and house of
representative. SECTION 4 (2) further gives the
Nation Assembly exclusive power to make laws in respect to matters
listed in part 1 of the 2nd schedule to the
constitution, i.e. the exclusive legislative list.
Furthermore SECTION 4 (4) (a), gives the
National Assembly powers to make laws in any matter in the
concurrent legislative list set out on the FIRST COLUMN of
PART II OF THE 2ND SCHEDULE to this
constitution to the extent prescribed in the second column opposite
thereto.
From the foregoing, we can itemize our summation in the
followings;
- RUGA is product of the President’s powers
- The President’s powers flows from the constitution
- The constitution limits the President’s powers to only matters
that the National Assembly can make laws over. - Only the National Assembly can make laws in the exclusive
legislative list, however in the concurrent legislative list, the
National Assembly can only make laws to the extent prescribed
thereto.
Our next voyage would be to examine the concurrent legislative
list. However it is pertinent to state that by virtue of section 4
of the constitution, the State House(s) of Assembly can make laws
on only maters listed in the concurrent list.
Since our focus is on RUGA and for the avoidance of doubt, RUGA
is an agricultural policy since it deals with the rearing of farm
animals; we have to take a clever look at the concurrent list,
since agriculture is conspicuously missing in the exclusive
list.
SECTION 17, OF PART II TO 2ND SCHEDULE of the
1999 CONST, states lucidly that the National Assembly may
make laws for the federation or any part thereof with respect
to;
(c) The establishment of research centers for agricultural
studies; and
(d) The establishment of institution and bodies for the
promotion or financing of industrial, commercial, or agricultural.
(I only reproduced the portion relevant to agriculture)
The subsequent section helps to shed more light on this matter
in that SECTION 18 OF PART II OF THE 2ND
SCHEDULE states that; “a State House of Assembly may make
laws for that state in respect to industrial, commercial or
agricultural development. I.e. anything to develop or advance
agriculture is the duty of the state and not the federal
government. The federal government has been limited by this
constitution to only establishing academic facilities, or research,
or promoting agric or financing, not developing i.e. the nitty
gritty of the agriculture per se.
In AG FEDERATION V AG ABIA &35 ORS (2002)4 SCNJ 1,
Kalgo JSC held that; subsections (1) (4) of Section 4
above set out all the powers of the National Assembly to legislate
for the peace, order and good government of the federation of
Nigeria. The Legislative powers set therein do not cover everything
or every topic under the sun which affects the whole Nigerian
nation.
For the purpose of emphasis permit me to further reproduce parts
of Section 4 of our sacred constitution without sounding like a
cracked record. SECTION 4 (4) (a), gives the
National Assembly powers to make laws in any matter in the
concurrent legislative list set out on the FIRST COLUMN of
PART II OF THE 2ND SCHEDULE to this
constitution ‘TO THE EXTENT PRESCRIBED IN THE SECOND
COLUMN OPPOSITE THERETO’(emphasis mine).
Please notice that as it relates to the exclusive legislative
list, there are no limits and extent
constitutionally imposed on the powers of the National Assembly to
make laws. But as it relates to the concurrent list, there are
limits and extents, meaning that it is not a carpeted power and the
National Assembly cannot exceed the limits imposed thereto.
So what are the limits attached to the National Assembly as
regarding her concurrent powers to deal on agriculture? The answer
is in the provisions itself. The schedule listed research
facilities e.g. National Institute for Oil Palm Research (NIFOR),
or Academic Institutions e.g. University of Agriculture, Makurdi or
financial institutions like the Agric Development Bank, or an agric
promotional agency and NOTHING ELSE. You cannot
import any other duty not listed! Better put, the National Assembly
is limited to the expressly listed functions in respect of
Agriculture in regards the Concurrent Legislative List.
Since RUGA does not fall under the schemes listed in the
concurrent list, as it is a scheme for private cattle farmers
to thrive and carry out their business, the federal government
policy, is glaringly ultra vires, null and void.
It is in this light we urge the federal government to jettison
this idea, since it cannot stand the light of the day in any court
room. The project has only been suspended and not jettisoned, it is
therefore extant; hence it can be challenged in court.
You will notice that I have limited myself to the express
provisions of the constitution in making the gamut of my point; the
reason is because the constitution can rescue itself, and it mostly
speaks for itself, all powers flows directly from the constitution
in Nigeria any other law or policy that is either competing or
conflicting with the constitution shall be void.
No matter how deeply entrenched a practice or law is or has
been, the moment it can be deciphered that that law runs fouls to
the constitution, that day the law or policy dies naturally. I
believe firmly that in light of the exposed sections we can
conclusively agree that RUGA as it is runs fowl to our constitution
and therefore dead on arrival!
Osigwe Ahmed Momoh opines from Abuja
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