Legal Perspective Of Asaba Accord On Open Grazing

By Norrison I. Quakers, SAN

Introduction

The myriad of security challenges particularly stemming from
tribal and religious groups in recent times in our fatherland, is
worrisome. Cattle grazing is predominant amongst those in the Sahel
and parts of the Savannah regions of Nigeria, particularly the
Fulani ethnic group, since livestock is crucial in their
socio-economic structure. However, the nomadic nature and
transhumance tradition of local herdsmen, such as Fulani herdsmen
in particular, some of whom resort to militia expeditions against
farming communities, have made their activities worthy of checkmate
since farmers and herdsmen clashes is the most topical issue we
have today. Admittedly, unregulated open grazing has been
exacerbated by climate change.

This discourse will accordingly examine the legal framework on
Open Cattle grazing in view of the commotion generated by the
Resolutions made on Tuesday 11th May, 2021 by the 17 Governors of
Nigeria’s Southern States based on what was termed- ‘various
national issues including security and restructuring’ culminating
in the adoption of a resolution to place a ban on open grazing of
animals in Southern Nigeria, in view of the incursions of armed
herders, criminals and bandits, whilst adding that Nigeria needed
to be restructured to reflect true Federalism.

Background: Grazing Reserve vis-à-vis
Ranching

Ranching System in agricultural parlance, refers to a system of
breeding and raising of cattle, sheep, or horses on rangeland, that
is the demarcation of an area of land, including various
structures, given primarily to the practice of raising/grazing
livestock, as opposed to Grazing Reserves System wherein there are
areas in a country or State specifically set aside for the use of
pastoralists and intended to be the foci of livestock
development.

From a historical perspective, the traditional cattle management
system in Nigeria tend more towards Open Cattle Grazing, albeit
Cattle Ranching has gained a wider acceptance in recent times, as a
timely solution to address the growing crisis threatening national
security due to the shortfalls of Open Cattle Grazing, even over
Grazing Reserves. This is evidenced by the vehement opposition of
creation of Grazing Reserves, in their respective territory by some
States making up the Federation. Hence, the rumour of plans by the
Federal Government to establish “Grazing Reserves” in all States of
the Federation as a means of stopping the feud between nomadic
cattle breeders and farmers, was greeted with wide
condemnation.

Open Grazing and Nomadic Cattle Rearing, is common practice
amongst nomadic pastoralists in Nigeria. The activities of Fulani
herdsmen grazing their cattle across the country has been a focal
point at different fora in recent times being a legal cum political
problem, particularly as it relates to the need to place
restrictions on activities of nomadic herdsmen for the good of the
larger populace vis-à-vis protecting the individual rights of
nomadic herdsmen.

The Causes of Mass killings and Destruction by Herdsmen

Different reasons have been adduced, as causes of killings cum
destruction attributed to activities of nomadic herdsmen. Whilst
farmers claim rights over their farmlands, nomadic herdsmen claim
right of passage for grazing; others claim killings occur as a
result of cattle rustling (cattle stealing); whereas, some claim
killings are based on ethnic grounds and/or are religiously
motivated; others on the other hand, view this as failings of
Government in prioritising the welfare of the masses resulting in
the retention of the traditional cattle management system in
Nigeria, as opposed to what obtains in developed climes; likewise
there are some who see the crisis as a failure of the practice of
true Federalism in Nigeria.

The Need to Address the Excesses of
Herdsmen

The need to address this menace is expedient, despite that
cattle rearing is the common socio-cultural and socio-economic
means of survival of the average Fulani man, in view of the
following: communities now resort to self help by confiscating
cattle found on sight, whilst herdsmen have equally gain grounds
treading on foreign soil whilst leaving a trail of blood on the
grass they tread; Governors have come out issuing threats to
defaulters of laws criminalising Open Grazing; the Miyetti Allah
Cattle Breeders Association is opposing any bid to restrict their
movement, on the ground that the Constitution of Nigeria guarantees
their free of movement into any part of the country; the Federal
Government is being seen as forcing State Governors to provide
grazing land for the herdsmen; some herdsmen recklessly pillage and
terrorise local farmers, vandalising their farmlands, whilst they
go on desecrating sources of livelihood of these farming
communities; the media was constantly awash with reports of Ondo
State Governor, Rotimi Akeredolu’s quit notice to the herdsmen from
the reserve forests, thereby placing him at logger heads with
Federal Authorities; Sunday Igboho is spitting fire, due to
invasion of some villages in the South West by herdsmen; these are
amongst many cases too many to recount, likewise the casualties.
Infractions resulting from activities of herdsmen. Of note, some of
the notable infractions resulting from activities of herdsmen in
Nigeria are:

Civil Infractions – Trespass to person since Law of Tort
protects the inviolability of the human person; trespass on land in
possession of farmers; breach of fundamental human rights of
others, such as right to own property, dignity of human person, and
of greater concern, the right to life which is recognised by
Section 33(1) of the 1999 Constitution of Nigeria (as amended),
Article 3 of the Universal Declaration on Human Rights (UDHR) 1948,
Article 6 of the International Covenant on Civil and Political
Rights 1966, and Article 4 of the African Charter on Human and
Peoples’ Rights (Ratification and Enforcement) Act 1983; amongst
others.

Criminal Infractions – Genocide which is defined in Article II
of the Convention for the Prevention and Punishment of the Offence
of Genocide 1948 as – ‘any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such: (a) Killing members of the
group; and (b) Causing serious bodily or mental harm to members of
the group’; act of murder; arson; terrorism punishable under the
provisions of the Terrorism (Prevention) Act (as amended); act of
kidnapping; criminal assault; amongst others.

Legislations on Grazing

There have been legislative efforts geared towards addressing
the concern in time past, such as: that of the Northern Regional
Government enacting the Grazing Reserves Law in 1965, of which some
Northern States still have in place even after the Northern Region
ceased to exist. Same though seeks preservation and control of
grazing reserves, it does not however, cater for pastoralists
migration.

Also, the National Environmental Standards and Regulation
Enforcement Agency Act, 2007 birthed National Environmental
(Watershed, Mountainous, Hilly and Catchment Areas) Regulations,
2009. Though Item 5 (4)(a) of the Regulation states that the Local
Government in conjunction with the State Government and the Agency
shall designate areas to be reserved for grazing and any other
activities necessary to conserve the resources of areas, threatened
by degradation, however, no area has been designated as a
watershed, mountainous, hilly and catchment areas for same to be
operational.

Grazing Bills

Already, the National Assembly has in times past been confronted
with Bills for grazing reserves and related issues such as – the
first National Grazing Reserve Commission Bill of 2008, sponsored
by Senator Zainab Kure; “A Bill for an Act for the Establishment of
Grazing Areas Management Agency and for other related matters, 2016
(SB 292)”, sponsored by the former Governor of Kano State, Senator
Rabiu Musa Kwankwaso; Senator Barnabas Gemade’s “A Bill for an Act
to provide for the Establishment of National Ranches Commission for
the Regulation, Management, Preservation and Control of Ranches and
for connected purposes, 2016 (SB 293)”, Senator Chukwuemeka Utazi’s
(PDP Enugu North) “A Bill for an Act to Control the Keeping and
Movement of Cattle in Nigeria and for related Matters thereto, 2016
(SB 311)”; and the ‘Bill for an Act to Establish the National
Grazing Route and Reserve Commission, to establish and control
Grazing Routes and Reserves in all parts of Nigeria and other
incidental matters’, which was sponsored by Honourable Sunday
Karimi from Kogi State. Also, a draft Bill for a National Forestry
Act evolved in October 2001 to accord legislative backing to forest
policy initiatives, but its finalisation into law suffered
setbacks.

Laws by States on Anti-Grazing

Some Laws by States on Anti-Grazing are: the Benue State Open
Grazing Prohibition and Ranches Establishment Law 2017, albeit
challenged in Court in The Incorporated Trustees of Miyetti Allah
Kautal Hore Socio-Cultural Association & 2 Ors v The National
Assembly & 13 Ors Suit No. FHC/ABJ/CS/527/2017. Sections 19-20 of
same, makes provision for offences under the law to the effect that
no individual or group shall, after the commencement of the law,
engage in open nomadic livestock herding or grazing in the State
outside the permitted ranches. Where an individual or group of
persons contravenes this provision, the penalty is stated as
imprisonment for a term of five years or a fine of one million
Naira only. Movement of livestock on foot from one destination to
another, as well as rustling of animals from any ranch is also
prohibited by the law.

Oyo State law on the subject in 2019 prohibited open rearing and
grazing of livestock in the State. Taraba and Ekiti also have
anti-grazing laws, to curb the menace posed by nomadic
pastoralists. Of note, the Ekiti State Open Grazing Prohibition and
Ranches Establishment Law 2017 states in part, that – “no person
shall cause or permit any cattle or other ruminants belonging to
him or under his control to graze on any land in which the Governor
has not designated as ranches, no cattle or other ruminants shall
by any means move or graze at night and that cattle movement and
grazing are restricted to the hours between 7:00 am and 6:00
pm”.

The Taraba State Anti-Open Grazing Law, likewise, banned
open-rearing and grazing of livestock. By virtue of the Taraba
State Anti-Open Grazing Law, anyone who openly grazes livestock or
moves livestock by means other than in a Motor vehicle or moves
without permit commits an offence and shall be liable upon
conviction to: (a) For any first offender, a fine not exceeding
N500, 000 or imprisonment of 1 year; (b) For any Subsequent
offences, a fine of not less than N1, 000,000:00 or imprisonment
not exceeding two years.

Position of the Law on Cattle Grazing Colonies cum Ban
on Open Grazing

In an attempt to eliminate the menace of open grazing, different
suggestions have been proffered, the most contentious being – the
establishment of cattle grazing colonies in States of the
Federation for the Fulani herdsmen. Of note, the position of the
law on this in particular, is as captured in Wuyah v Jama’a Local
Govt, Kafanchan (2013) All FWLR (Pt. 659) wherein the Court
admonished that Government should not compulsorily acquire any land
that belongs to a person and alienate to another private individual
or body for his/its private use. Thus, Section 51(1)(h) of the Land
Use Act which permits acquisition of land by Governor “for
obtaining control over land required for or in connection with
economic, industrial or agricultural development” would not support
the proponents of Cattle Colonies in States in this regard, since
the herdsmen like farmers are private businessmen.

Nonetheless, arguments of critics and proponents of cattle
colonies and open grazing, have pitched Nigerians against
primordial lines. Some Southern State Governors, at their last
meeting held in Asaba, Delta State capital on May 12, 2021 rose
above partisan politics to adopt 12-point resolutions which
addresses this. The move is definitely laudable, since the
commitment of the Federal Government for Convocation of a National
Dialogue/Conference to address pressing national issues is in
doubt. Legal cloak is not lacking in the Asaba Resolutions on the
subject, considering the following provisions of law as hereunder
examined.

Section 37 of the Constitution provides that: “The privacy of
citizens, their homes, correspondence, telephone conversations and
telegraphic communications, is hereby guaranteed and protected.”.
Section 14(2)(b) of the Constitution expressly provides that – ‘the
security and welfare of the people shall be the primary purpose of
government’. Likewise, every citizen of Nigeria is entitled to the
right to life, which is guaranteed by Section 33 of the
Constitution. Article 3 of the Universal Declaration of Human
Rights recognises that – “Everyone has the right to life, liberty
and security of person”.

Looking at it from the point of view of the rights of the
herdsmen, admittedly, Section 41 (1) of the Constitution provides
that – “every citizen is entitled to move freely throughout Nigeria
and to reside in any part thereof, and no citizen shall be expelled
from Nigeria or refused entry thereto or exit therefrom’’.

Hence, flowing from the provision of Section 41(1) of the
Constitution, there have been arguments in some quarters on
infractions of the right to freedom of movement of the herdsmen who
are equally Nigerian citizens, as a result of the anti-open grazing
laws. It would appear that the different anti-grazing laws infringe
on the right of the herders to move freely across Nigeria, but this
is not the correct position of the law, when extrapolated against
the direct consequences of unrestrained open grazing on others,
since the various anti-grazing laws were primarily enacted to
prevent the destruction of lives cum properties of the larger
populace; as such, same will fall under the purview of Section 45
of the Constitution which allows any law that is reasonably
justifiable in the interest of public safety to override the ‘right
to freedom of movement’.

Of note, there is a subsisting judgement delivered by Hon.
Justice Adewale Thompson of Abeokuta Division of the High Court on
17th April, 1969 in Suit no AB/26/66 which is binding and is not
subject of an appeal, banning open grazing for being inimical to
peace and tranquility. Therein, the Learned Judge held as
follows:

“I do not accept the contention of Defendants that a custom
exists which imposes an obligation on the owner of a 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 ban open grazing,
for it is inimical to peace and tranquility and the cattle owners
must fence or ranch their animals for peace to reign in these
communities”.

Role of State Government in Conflict
Resolution

The term – ‘Conflict Resolution’ can be regarded as any process
that resolves disputes via resolution processes that are varied
which may be- fact-oriented, legally binding, participatory,
informal, amongst others. The role of State Governments in conflict
resolution between Fulani herdsmen and farmers is very significant,
since they are the Chief Executives of their respective States.

In a democratic setting as ours, such resolution must be fair,
just and legal, hence, should become self-supporting and
self-enforcing; consequently, the Governors of Southern Nigeria’s
Asaba Resolutions of May 12, 2021 banning open grazing in their
region cannot be faulted, since the Resolutions are ideal to
achieve an enduring outcome in the region against the backdrop of
recurrent herdsmen attacks.

Of note, Section 2(2) of the Constitution provides- ‘Nigeria
shall be a Federation consisting of States and a Federal Capital
Territory’. Also, Section 5(2) of the Nigerian Constitution
provides-“Subject to the provisions of this Constitution, the
executive powers of a State: (a) shall be vested in the Governor of
that State and may, subject as aforesaid and to the provisions of
any Law made by a House of Assembly, be exercised by him either
directly or through the Deputy Governor and Commissioners of the
Government of that State or officers in the public service of the
State”. This is in line with Section 176(2) of the Constitution
which provides that, the Governor of a shall be the Chief Executive
of that State. It is in the light of this that Section 215(4) of
the Constitution makes it mandatory for a Commissioner of Police to
carry out the lawful direction of the Governor of a State.

Remarkably the power of the State House of Assembly to make laws
bordering on ‘grazing’ is accorded legal cloak by a conjunctive
reading of Section 4(7) and Item 18 Part II Second Schedule
(Concurrent Legislative List) – ‘industrial, commercial or
agricultural development of a State’ of CFRN 1999. Likewise, Item
40 of Part 1 Second Schedule (Exclusive Legislative List) of CFRN
1999 provides expressly that, States are to consent before the
National Assembly can by legislation designate any portion of their
State as a national park.

Furthermore, the management of land is under the control of the
State Governor, as such, the Governor is in charge of allocation of
land, since the Land Use Act of 1978 vests all land in the
territory of a State on the Governor of that State, and gives the
Governor the power to grant statutory right of occupancy to
persons.

Environmental Degradation Resulting From Unregulated
Cattle Grazing

Open cattle grazing and rearing is one of the causes of
environmental degradation, since land in itself is a natural
resource that requires a sustainable management. There is no
particular Act of the National Assembly to checkmate the nomadic
pastoralism causing degradation of the environment, though there
are several laws on the protection of the environment, hence the
legislations by States in this regard appear to be timely,
considering that nomadic pastoralism is a threat to the Sustainable
Development Goal 15 precisely. Also, the livestock sector generates
greenhouse gas emissions, resulting in land and water degradation;
not forgetting to mention other secondary practices such as bush
burning, to improve pasture lands for cattle.

Conclusion

The issue of open grazing requires an unbiased approach to
resolve, hence the Asaba Resolution cannot be faulted; short-term
and long-term measures are required, in addressing the menace of
open grazing. Adopting a change in some of our agricultural
practices is required. Government should encourage large-scale
farming by the herdsmen by a public private partnership scheme,
since intensive farming of livestock offers many advantages over
traditional methods; age-long crude methods of animal husbandry
should be mechanised, and herdsmen must embrace modern “sedentary
and industrial” grazing and pasturing methods. There should be
enlightenment of herdsmen on the need to equally acquire or lease
land for the purpose of grazing, whilst Government should
facilitate low-interest loans for them.

The Federal Government must accept the importance of adhering to
true Federalism, in recognition of the powers of State Governors. A
large number of people are in unfortunate conditions and suffer
deprivation in Nigeria due to activities of these herdsmen, hence
the Southern State Governors cannot be faulted, considering the
extant legal framework on the subject. States should be allowed to
exercise control over their region; a Committee of stakeholders
should be promptly set up by the Southern State Governors to
deliberate on how to implement their lofty resolutions.

There is need for proper documentation of foreign herders as
provided for by the ECOWAS Protocol, which requires transhumant
herders to obtain the International Transhumance Certificates
(ITC). All concerned States in Nigeria should have laws banning
open grazing with provisions for ITC, and should ensure public
participation in enacting same.

State Environmental Protection Agencies must provide mechanism
that will ensure compliance with Anti-Open Grazing laws, such as
the Ekiti Grazing Enforcement Marshall (EGEM) who has teamed up
with the Police, to implement the State’s Anti-Grazing Law.

The activities of the herdsmen should be constantly monitored by
the Government, likewise the Nigerian borders. Casualties of the
crisis should be provided with timely and adequate reliefs.
Currently, the failure of the Nigerian Government in fulfilling its
constitutional responsibility of protection of lives and property
by decisively dealing with this menace, is fuelling same, hence
Government at all levels must live up to their responsibilities.
Likewise, Government should investigate all allegations of
complicity, and other failures of security forces to protect
Nigerians.

The Great Green Wall Initiative for the Sahara and Sahel
programme initiated and adopted by the Head of Governments and
States of the African Union in 2005, to improve food security in
about twenty-one countries of the Sahel region in Africa amongst
others, culminating in the enactment of National Agency for the
Great Green Wall (Establishment) Act, 2015 in Nigeria, is being
threatened by the activities of herdsmen. Consequently the Asaba
Declaration of the Southern Governors Forum, is not misplaced from
a continental periscope.

Written By Norrison I. Quakers, SAN

By Norrison I. Quakers, SAN

Introduction

The myriad of security challenges particularly stemming from
tribal and religious groups in recent times in our fatherland, is
worrisome. Cattle grazing is predominant amongst those in the Sahel
and parts of the Savannah regions of Nigeria, particularly the
Fulani ethnic group, since livestock is crucial in their
socio-economic structure. However, the nomadic nature and
transhumance tradition of local herdsmen, such as Fulani herdsmen
in particular, some of whom resort to militia expeditions against
farming communities, have made their activities worthy of checkmate
since farmers and herdsmen clashes is the most topical issue we
have today. Admittedly, unregulated open grazing has been
exacerbated by climate change.

This discourse will accordingly examine the legal framework on
Open Cattle grazing in view of the commotion generated by the
Resolutions made on Tuesday 11th May, 2021 by the 17 Governors of
Nigeria’s Southern States based on what was termed- ‘various
national issues including security and restructuring’ culminating
in the adoption of a resolution to place a ban on open grazing of
animals in Southern Nigeria, in view of the incursions of armed
herders, criminals and bandits, whilst adding that Nigeria needed
to be restructured to reflect true Federalism.

Background: Grazing Reserve vis-à-vis
Ranching

Ranching System in agricultural parlance, refers to a system of
breeding and raising of cattle, sheep, or horses on rangeland, that
is the demarcation of an area of land, including various
structures, given primarily to the practice of raising/grazing
livestock, as opposed to Grazing Reserves System wherein there are
areas in a country or State specifically set aside for the use of
pastoralists and intended to be the foci of livestock
development.

From a historical perspective, the traditional cattle management
system in Nigeria tend more towards Open Cattle Grazing, albeit
Cattle Ranching has gained a wider acceptance in recent times, as a
timely solution to address the growing crisis threatening national
security due to the shortfalls of Open Cattle Grazing, even over
Grazing Reserves. This is evidenced by the vehement opposition of
creation of Grazing Reserves, in their respective territory by some
States making up the Federation. Hence, the rumour of plans by the
Federal Government to establish “Grazing Reserves” in all States of
the Federation as a means of stopping the feud between nomadic
cattle breeders and farmers, was greeted with wide
condemnation.

Open Grazing and Nomadic Cattle Rearing, is common practice
amongst nomadic pastoralists in Nigeria. The activities of Fulani
herdsmen grazing their cattle across the country has been a focal
point at different fora in recent times being a legal cum political
problem, particularly as it relates to the need to place
restrictions on activities of nomadic herdsmen for the good of the
larger populace vis-à-vis protecting the individual rights of
nomadic herdsmen.

The Causes of Mass killings and Destruction by Herdsmen

Different reasons have been adduced, as causes of killings cum
destruction attributed to activities of nomadic herdsmen. Whilst
farmers claim rights over their farmlands, nomadic herdsmen claim
right of passage for grazing; others claim killings occur as a
result of cattle rustling (cattle stealing); whereas, some claim
killings are based on ethnic grounds and/or are religiously
motivated; others on the other hand, view this as failings of
Government in prioritising the welfare of the masses resulting in
the retention of the traditional cattle management system in
Nigeria, as opposed to what obtains in developed climes; likewise
there are some who see the crisis as a failure of the practice of
true Federalism in Nigeria.

The Need to Address the Excesses of
Herdsmen

The need to address this menace is expedient, despite that
cattle rearing is the common socio-cultural and socio-economic
means of survival of the average Fulani man, in view of the
following: communities now resort to self help by confiscating
cattle found on sight, whilst herdsmen have equally gain grounds
treading on foreign soil whilst leaving a trail of blood on the
grass they tread; Governors have come out issuing threats to
defaulters of laws criminalising Open Grazing; the Miyetti Allah
Cattle Breeders Association is opposing any bid to restrict their
movement, on the ground that the Constitution of Nigeria guarantees
their free of movement into any part of the country; the Federal
Government is being seen as forcing State Governors to provide
grazing land for the herdsmen; some herdsmen recklessly pillage and
terrorise local farmers, vandalising their farmlands, whilst they
go on desecrating sources of livelihood of these farming
communities; the media was constantly awash with reports of Ondo
State Governor, Rotimi Akeredolu’s quit notice to the herdsmen from
the reserve forests, thereby placing him at logger heads with
Federal Authorities; Sunday Igboho is spitting fire, due to
invasion of some villages in the South West by herdsmen; these are
amongst many cases too many to recount, likewise the casualties.
Infractions resulting from activities of herdsmen. Of note, some of
the notable infractions resulting from activities of herdsmen in
Nigeria are:

Civil Infractions – Trespass to person since Law of Tort
protects the inviolability of the human person; trespass on land in
possession of farmers; breach of fundamental human rights of
others, such as right to own property, dignity of human person, and
of greater concern, the right to life which is recognised by
Section 33(1) of the 1999 Constitution of Nigeria (as amended),
Article 3 of the Universal Declaration on Human Rights (UDHR) 1948,
Article 6 of the International Covenant on Civil and Political
Rights 1966, and Article 4 of the African Charter on Human and
Peoples’ Rights (Ratification and Enforcement) Act 1983; amongst
others.

Criminal Infractions – Genocide which is defined in Article II
of the Convention for the Prevention and Punishment of the Offence
of Genocide 1948 as – ‘any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such: (a) Killing members of the
group; and (b) Causing serious bodily or mental harm to members of
the group’; act of murder; arson; terrorism punishable under the
provisions of the Terrorism (Prevention) Act (as amended); act of
kidnapping; criminal assault; amongst others.

Legislations on Grazing

There have been legislative efforts geared towards addressing
the concern in time past, such as: that of the Northern Regional
Government enacting the Grazing Reserves Law in 1965, of which some
Northern States still have in place even after the Northern Region
ceased to exist. Same though seeks preservation and control of
grazing reserves, it does not however, cater for pastoralists
migration.

Also, the National Environmental Standards and Regulation
Enforcement Agency Act, 2007 birthed National Environmental
(Watershed, Mountainous, Hilly and Catchment Areas) Regulations,
2009. Though Item 5 (4)(a) of the Regulation states that the Local
Government in conjunction with the State Government and the Agency
shall designate areas to be reserved for grazing and any other
activities necessary to conserve the resources of areas, threatened
by degradation, however, no area has been designated as a
watershed, mountainous, hilly and catchment areas for same to be
operational.

Grazing Bills

Already, the National Assembly has in times past been confronted
with Bills for grazing reserves and related issues such as – the
first National Grazing Reserve Commission Bill of 2008, sponsored
by Senator Zainab Kure; “A Bill for an Act for the Establishment of
Grazing Areas Management Agency and for other related matters, 2016
(SB 292)”, sponsored by the former Governor of Kano State, Senator
Rabiu Musa Kwankwaso; Senator Barnabas Gemade’s “A Bill for an Act
to provide for the Establishment of National Ranches Commission for
the Regulation, Management, Preservation and Control of Ranches and
for connected purposes, 2016 (SB 293)”, Senator Chukwuemeka Utazi’s
(PDP Enugu North) “A Bill for an Act to Control the Keeping and
Movement of Cattle in Nigeria and for related Matters thereto, 2016
(SB 311)”; and the ‘Bill for an Act to Establish the National
Grazing Route and Reserve Commission, to establish and control
Grazing Routes and Reserves in all parts of Nigeria and other
incidental matters’, which was sponsored by Honourable Sunday
Karimi from Kogi State. Also, a draft Bill for a National Forestry
Act evolved in October 2001 to accord legislative backing to forest
policy initiatives, but its finalisation into law suffered
setbacks.

Laws by States on Anti-Grazing

Some Laws by States on Anti-Grazing are: the Benue State Open
Grazing Prohibition and Ranches Establishment Law 2017, albeit
challenged in Court in The Incorporated Trustees of Miyetti Allah
Kautal Hore Socio-Cultural Association & 2 Ors v The National
Assembly & 13 Ors Suit No. FHC/ABJ/CS/527/2017. Sections 19-20 of
same, makes provision for offences under the law to the effect that
no individual or group shall, after the commencement of the law,
engage in open nomadic livestock herding or grazing in the State
outside the permitted ranches. Where an individual or group of
persons contravenes this provision, the penalty is stated as
imprisonment for a term of five years or a fine of one million
Naira only. Movement of livestock on foot from one destination to
another, as well as rustling of animals from any ranch is also
prohibited by the law.

Oyo State law on the subject in 2019 prohibited open rearing and
grazing of livestock in the State. Taraba and Ekiti also have
anti-grazing laws, to curb the menace posed by nomadic
pastoralists. Of note, the Ekiti State Open Grazing Prohibition and
Ranches Establishment Law 2017 states in part, that – “no person
shall cause or permit any cattle or other ruminants belonging to
him or under his control to graze on any land in which the Governor
has not designated as ranches, no cattle or other ruminants shall
by any means move or graze at night and that cattle movement and
grazing are restricted to the hours between 7:00 am and 6:00
pm”.

The Taraba State Anti-Open Grazing Law, likewise, banned
open-rearing and grazing of livestock. By virtue of the Taraba
State Anti-Open Grazing Law, anyone who openly grazes livestock or
moves livestock by means other than in a Motor vehicle or moves
without permit commits an offence and shall be liable upon
conviction to: (a) For any first offender, a fine not exceeding
N500, 000 or imprisonment of 1 year; (b) For any Subsequent
offences, a fine of not less than N1, 000,000:00 or imprisonment
not exceeding two years.

Position of the Law on Cattle Grazing Colonies cum Ban
on Open Grazing

In an attempt to eliminate the menace of open grazing, different
suggestions have been proffered, the most contentious being – the
establishment of cattle grazing colonies in States of the
Federation for the Fulani herdsmen. Of note, the position of the
law on this in particular, is as captured in Wuyah v Jama’a Local
Govt, Kafanchan (2013) All FWLR (Pt. 659) wherein the Court
admonished that Government should not compulsorily acquire any land
that belongs to a person and alienate to another private individual
or body for his/its private use. Thus, Section 51(1)(h) of the Land
Use Act which permits acquisition of land by Governor “for
obtaining control over land required for or in connection with
economic, industrial or agricultural development” would not support
the proponents of Cattle Colonies in States in this regard, since
the herdsmen like farmers are private businessmen.

Nonetheless, arguments of critics and proponents of cattle
colonies and open grazing, have pitched Nigerians against
primordial lines. Some Southern State Governors, at their last
meeting held in Asaba, Delta State capital on May 12, 2021 rose
above partisan politics to adopt 12-point resolutions which
addresses this. The move is definitely laudable, since the
commitment of the Federal Government for Convocation of a National
Dialogue/Conference to address pressing national issues is in
doubt. Legal cloak is not lacking in the Asaba Resolutions on the
subject, considering the following provisions of law as hereunder
examined.

Section 37 of the Constitution provides that: “The privacy of
citizens, their homes, correspondence, telephone conversations and
telegraphic communications, is hereby guaranteed and protected.”.
Section 14(2)(b) of the Constitution expressly provides that – ‘the
security and welfare of the people shall be the primary purpose of
government’. Likewise, every citizen of Nigeria is entitled to the
right to life, which is guaranteed by Section 33 of the
Constitution. Article 3 of the Universal Declaration of Human
Rights recognises that – “Everyone has the right to life, liberty
and security of person”.

Looking at it from the point of view of the rights of the
herdsmen, admittedly, Section 41 (1) of the Constitution provides
that – “every citizen is entitled to move freely throughout Nigeria
and to reside in any part thereof, and no citizen shall be expelled
from Nigeria or refused entry thereto or exit therefrom’’.

Hence, flowing from the provision of Section 41(1) of the
Constitution, there have been arguments in some quarters on
infractions of the right to freedom of movement of the herdsmen who
are equally Nigerian citizens, as a result of the anti-open grazing
laws. It would appear that the different anti-grazing laws infringe
on the right of the herders to move freely across Nigeria, but this
is not the correct position of the law, when extrapolated against
the direct consequences of unrestrained open grazing on others,
since the various anti-grazing laws were primarily enacted to
prevent the destruction of lives cum properties of the larger
populace; as such, same will fall under the purview of Section 45
of the Constitution which allows any law that is reasonably
justifiable in the interest of public safety to override the ‘right
to freedom of movement’.

Of note, there is a subsisting judgement delivered by Hon.
Justice Adewale Thompson of Abeokuta Division of the High Court on
17th April, 1969 in Suit no AB/26/66 which is binding and is not
subject of an appeal, banning open grazing for being inimical to
peace and tranquility. Therein, the Learned Judge held as
follows:

“I do not accept the contention of Defendants that a custom
exists which imposes an obligation on the owner of a 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 ban open grazing,
for it is inimical to peace and tranquility and the cattle owners
must fence or ranch their animals for peace to reign in these
communities”.

Role of State Government in Conflict
Resolution

The term – ‘Conflict Resolution’ can be regarded as any process
that resolves disputes via resolution processes that are varied
which may be- fact-oriented, legally binding, participatory,
informal, amongst others. The role of State Governments in conflict
resolution between Fulani herdsmen and farmers is very significant,
since they are the Chief Executives of their respective States.

In a democratic setting as ours, such resolution must be fair,
just and legal, hence, should become self-supporting and
self-enforcing; consequently, the Governors of Southern Nigeria’s
Asaba Resolutions of May 12, 2021 banning open grazing in their
region cannot be faulted, since the Resolutions are ideal to
achieve an enduring outcome in the region against the backdrop of
recurrent herdsmen attacks.

Of note, Section 2(2) of the Constitution provides- ‘Nigeria
shall be a Federation consisting of States and a Federal Capital
Territory’. Also, Section 5(2) of the Nigerian Constitution
provides-“Subject to the provisions of this Constitution, the
executive powers of a State: (a) shall be vested in the Governor of
that State and may, subject as aforesaid and to the provisions of
any Law made by a House of Assembly, be exercised by him either
directly or through the Deputy Governor and Commissioners of the
Government of that State or officers in the public service of the
State”. This is in line with Section 176(2) of the Constitution
which provides that, the Governor of a shall be the Chief Executive
of that State. It is in the light of this that Section 215(4) of
the Constitution makes it mandatory for a Commissioner of Police to
carry out the lawful direction of the Governor of a State.

Remarkably the power of the State House of Assembly to make laws
bordering on ‘grazing’ is accorded legal cloak by a conjunctive
reading of Section 4(7) and Item 18 Part II Second Schedule
(Concurrent Legislative List) – ‘industrial, commercial or
agricultural development of a State’ of CFRN 1999. Likewise, Item
40 of Part 1 Second Schedule (Exclusive Legislative List) of CFRN
1999 provides expressly that, States are to consent before the
National Assembly can by legislation designate any portion of their
State as a national park.

Furthermore, the management of land is under the control of the
State Governor, as such, the Governor is in charge of allocation of
land, since the Land Use Act of 1978 vests all land in the
territory of a State on the Governor of that State, and gives the
Governor the power to grant statutory right of occupancy to
persons.

Environmental Degradation Resulting From Unregulated
Cattle Grazing

Open cattle grazing and rearing is one of the causes of
environmental degradation, since land in itself is a natural
resource that requires a sustainable management. There is no
particular Act of the National Assembly to checkmate the nomadic
pastoralism causing degradation of the environment, though there
are several laws on the protection of the environment, hence the
legislations by States in this regard appear to be timely,
considering that nomadic pastoralism is a threat to the Sustainable
Development Goal 15 precisely. Also, the livestock sector generates
greenhouse gas emissions, resulting in land and water degradation;
not forgetting to mention other secondary practices such as bush
burning, to improve pasture lands for cattle.

Conclusion

The issue of open grazing requires an unbiased approach to
resolve, hence the Asaba Resolution cannot be faulted; short-term
and long-term measures are required, in addressing the menace of
open grazing. Adopting a change in some of our agricultural
practices is required. Government should encourage large-scale
farming by the herdsmen by a public private partnership scheme,
since intensive farming of livestock offers many advantages over
traditional methods; age-long crude methods of animal husbandry
should be mechanised, and herdsmen must embrace modern “sedentary
and industrial” grazing and pasturing methods. There should be
enlightenment of herdsmen on the need to equally acquire or lease
land for the purpose of grazing, whilst Government should
facilitate low-interest loans for them.

The Federal Government must accept the importance of adhering to
true Federalism, in recognition of the powers of State Governors. A
large number of people are in unfortunate conditions and suffer
deprivation in Nigeria due to activities of these herdsmen, hence
the Southern State Governors cannot be faulted, considering the
extant legal framework on the subject. States should be allowed to
exercise control over their region; a Committee of stakeholders
should be promptly set up by the Southern State Governors to
deliberate on how to implement their lofty resolutions.

There is need for proper documentation of foreign herders as
provided for by the ECOWAS Protocol, which requires transhumant
herders to obtain the International Transhumance Certificates
(ITC). All concerned States in Nigeria should have laws banning
open grazing with provisions for ITC, and should ensure public
participation in enacting same.

State Environmental Protection Agencies must provide mechanism
that will ensure compliance with Anti-Open Grazing laws, such as
the Ekiti Grazing Enforcement Marshall (EGEM) who has teamed up
with the Police, to implement the State’s Anti-Grazing Law.

The activities of the herdsmen should be constantly monitored by
the Government, likewise the Nigerian borders. Casualties of the
crisis should be provided with timely and adequate reliefs.
Currently, the failure of the Nigerian Government in fulfilling its
constitutional responsibility of protection of lives and property
by decisively dealing with this menace, is fuelling same, hence
Government at all levels must live up to their responsibilities.
Likewise, Government should investigate all allegations of
complicity, and other failures of security forces to protect
Nigerians.

The Great Green Wall Initiative for the Sahara and Sahel
programme initiated and adopted by the Head of Governments and
States of the African Union in 2005, to improve food security in
about twenty-one countries of the Sahel region in Africa amongst
others, culminating in the enactment of National Agency for the
Great Green Wall (Establishment) Act, 2015 in Nigeria, is being
threatened by the activities of herdsmen. Consequently the Asaba
Declaration of the Southern Governors Forum, is not misplaced from
a continental periscope.

Written By Norrison I. Quakers, SAN