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Grazing Reserve Bill Is Unconstitutional—Says HURIWA

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The Human Rights Writers Association of Nigeria (HURIWA) is worried by the dangerous precedence that the current Federal Government is on the verge of setting by seeking to pass a legislation that would out rightly deprive other Nigerians especially farming communities of their constitutional rights to own landed property as enshrined in Section 44(1) of the constitution.

It is our considered opinion that the decision of the President Muhammadu Buhari’s administration to ensure the passage of the grazing reserves bill into law of the Federal Republic of Nigeria is an imminent national security threat and must be discarded. The grazing reserves bill if passed will undermine the concept of law and order because of its inherent destabilizing capacity.

Nigeria has over the years witnessed confrontations in various parts between the Fulani herdsmen and farmers/settlers of different communities to an all-time high in the present administration that it is the belief in some quarters that they have the blessing of the President who is their kinsman. This is besides the incessant threats posed to lives on our transports routes including the airports which have even become free grazing routes. These problems which solution will enhance the development of Nigeria or at least ensure peace of many communities and the salvation of many lives. However the road to this end is even more a challenge occasioned by a myriads of reasons. A National Grazing and Routes Commission Bill is now been proposed. This work is a review of that bill.

The National Grazing Reserve and Routes Commission (NGRC) Bill

There have been at least three grazing reserves bills in Nigeria with essentially the same provisions as if it were the first bill that is being reproduced afterwards with slight modification. The first was presented in 2008 by wife of the former Niger State Governor, Mrs Zainab Kure representing Niger Central at the Senate. The second was presented at the 7th Senate in 2011 and the third and most recent is the one presented earlier this year at the 8th Senate by Hon. Karim S. Sunday. This last bill is the one prominently considered herein.

Although a Press Statement released by the 8th Senate of the Federal Republic of Nigeria dated April 19, 2016 and signed by Senator Babajide Omoworare, Chairman, Senate Committee on Rules and Business, denies that there is currently before the Senate a “National Grazing Bill” in the following words:

“Several Distinguished Senators of the Federal Republic of Nigeria have been inundated with request by members of the public concerning the pendency of a National Grazing Bill in the Senate.

This is to clarify that no such bill has been presented by the Executive Arm of Government and none has so far been filed by any Senator of the Federal Republic of Nigeria of the 8th Senate.

For the avoidance of doubt, “A National Grazing Reserve Establishment and development Commission Bill” (SB.60) was presented by Senator Zaynab Kure (Niger Central) during the 7thSenate (2011-2015) which has now expired by the operations of law on 6thJune 2015 in furtherance to Section 64(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”

Our attention is not the debate of whether the bill is still pending at the National Assembly or not but a critical evaluation of the proposed law to the extent of its consistency with extant laws and practicability. It is apposite to point out that laws are not made for fun or in vain. The legislative duty is one serious business which should not be taken lightly. Every proposed bill should be carefully analyzed and scrutinized against public policy, legal status and practicability.

The Content of the Bill
The long title of the bill was, ‘An Act To Provide For The Establishment Of The National Grazing Reserve (Establishment And Development) Commission For The Preservation And Control Of National Grazing Reserves And Stock Routes And Other Matters Connected Therewith’.

The last paragraph of the bill:
The essence of this Bill is to establish a National Grazing Routes and Reserve Commission which shall acquire lands in all the thirty-six (36) states of the Federation for the purpose of grazing and ranching. This is to curb incessant conflicts between nomadic herdsmen and Livestock Farmers and settlers in Nigeria. The central objective is to foster national cohesion and reduce/eliminate intra-state conflicts.”

First the bill provides for the establishment of the National Grazing Reserve Commission as the regulatory authority with enormous powers to ensure the enforcement of grazing reserve laws across the country.

The Establishment Section provides thus:
“There is hereby established a body corporate to be known as the National Grazing Reserve Establishment and Development Commission (hereinafter referred to as “the Commission”).

“The Commission shall be a body Corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.”

The Commission is made up of a Chairman appointed by the President and subject to confirmation by the Senate; a secretary; a representative each from the 36 states and the Federal Capital Territory, a representative from the National Boundary Commission and the Border Committee Development Agency.

The duties of the commission includes:
(a) Designating, acquiring, controlling, managing and maintaining the National Grazing Reserves and Stock Routes established under this Bill.

(b) Constructing dams, roads, bridges fences and such other infrastructures the Commission may consider necessary for the purpose of the National Grazing Reserves and Stock Routes.

(c) Identification, retracing, demarcating, monumenting, and surveying of primary, secondary and tertiary stock routes.

(d) Conserving and preserving in its natural state the National Grazing Reserves and Stock Routes.

The Commission is clothed with disguised immunity such there can be no execution of a court order against it without the consent of the Attorney General of the Federation.

In this respect the bill provides that:
“No Court of law shall carry out execution of its judgment or attachment of court process issued against the Commission in any action or suit without obtaining the prior consent of the Attorney General of the Federation.”

Also each state is mandated to establish an office for the commission in their respective Ministry of Land or Ministry of Agriculture.

Another basic and perhaps most essential feature of the bill is the land grabbing power of the Commission it seek to create. The relevant provision of the bill states:

“The following lands may be subject to the provisions of the Act to be constituted as National Grazing Reserves and Stock Routes:

(a) Lands at the disposal of the Federal Government of Nigeria.

(b) Any lands in respect of which it appears to the Commission that grazing in such land should be practiced.

(c) Any land acquired by the Commission through purchase, assignment, gift or otherwise howsoever.”

The bill further provides that there shall be no improvement, bush burning, hunting, use of chemicals, felling of trees, by any person inside lands acquired and demarcated as National Grazing Reserves and Stock Routes.

By the bill contravention of any of the provisions constitute an offence punishable by a fine of 50,000 or imprisonment of 5 years or both.

Comparative analysis of the Bill
It has to be stated from the outset that the Constitution of Nigeria 1999 is the country’s grund norm from which all other laws derive their lives. To that extent any law inconsistent with it dies to the extent of the inconsistency as stated in Section 1(3) of the Constitution. A corollary point has to be made straightway that the Land Use Act Cap.L15, LFN2004 is the primary legislation that governs the administration of land in Nigeria. It is not only a primary legislation in respect of land tenure system in Nigeria, it is given the status of the Constitution by Section 315(5) of the Constitution. The section provides:

“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 Commission 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.”

What this means is that the provisions of the Land Use Act as to land tenure system in Nigeria is sacrosanct as the provisions of the Constitution to the matters it relates or governs.

One most notable innovation of the National Grazing Reserve Commission (NGRC) Bill is the paragraph (b) quoted above. That provision is in express conflict with Section 1 of the Land Use Act, which vests all lands in any state in the Governor of that state as trustee for the benefit of all Nigerians. The section provides:

“Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is 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 position is reinforced by Section 2 (1) of the Land Use Act which provides as follows:

“As from the commencement of this Act-

(a) All land in urban areas shall be under the control and management of the Governor of each State; and

(b) All other land shall, subject to this Act, be under the control and management of the local government within the area of jurisdiction of which the land is situated.”

The NGRC attempts to rob the Governors of the States of control of land that they are made trustees by law for the benefit of all Nigerians. It does not only deprive the Governor and by extension respective states of the ownership of lands within their territory, it limits the beneficiaries of such lands from “all Nigerians” as provided in the LUA to a few ie those who rare cattle. This is in the view of the writer discriminatory since there are only a section/a group of the Nigerian population that rear cattle.

The practical application of the provision contravenes section 42(1) of the Constitution. The section provides:

“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –

(a) Be subjected either expressly by or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or, restrictions to which citizen of Nigeria of religious or political opinions are not made subject; or

(b) Be accorded either expressly by, or in practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizen of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.”

Very remarkable and worthy of note in the foregoing provisions is the repeated use of the term “practical application”. Who will deny the fact that the bill is intended to give the Fulani access to lands throughout Nigeria. The motive may be lofty, it is unrealistic and to say the least, illegal.

Provision of grazing reserves across the country and criminalization of contravening acts seem to indirectly redefine the concept of overriding public interest in Nigeria. Cattle rearing is essential but just like any kind of trade. No trade qualifies for overriding public interest. It is a private sector driven enterprise and therefore using governmental and/or legal instrument to favor just one type of privately run business venture such as cattle rearing is unconstitutional, illegal, null and void.

Dr Ismail Iro, Founder of Gamji.com, in making a case for grazing reserve outlines a number of things about the grazing reserve which are helpful as to whom the intended beneficiaries are. According to him:“Grazing reserve is a piece of land that the government acquires, develops and releases to the pastoral Fulani. The state and the local governments have gazetted and obtained grazing land varying from fifty to one hundred hectares. The federal government shoulders seventy percent of the burden of developing the grazing reserves, the state governments shoulders twenty percent, and the local government carry ten person(Suleiman n.d)……

HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA ) thus agrees with Azuka Onwuka in his article on the subject in the Punch that, the only thing that will make this bill reasonable is if the cattle to be reared by these private citizens will be sold and shared just like crude oil is sold and shared at month FAAC meetings.

In concluding this point, one must not undermine a vital point provided in Section28 (2)(b) of the Land Use Actthat the government can acquire land for public purposes or overriding public interest. Attempts are obviously being made to define the concept of public purposes or overriding public interest now to include grazing. For instance, while deliberating on the bill when it was first introduced at the 6thSenate, Senator Gyang Dantong (PDP, Plateau North) said the acquisition of land for public purposes like schools, hospitals, markets and grazing reserves were very important issues of development that should be at the front burner of policy making and implementation.

Attempts like this to unwittingly include grazing among list of public purposes, is with respect, very strange to our understanding of the concept. Even a lay man can never consider grazing reserve as overriding public interest. However for benefit of the doubt let us consider the legal definition of the concept per the judiciary.

In the case of GOLDMARK (NIG.) LTD V. IBAFON CO. LTD. [2012] 10 NWLR (PT.1308)291 AT 365, paras A-C, the Supreme Court held that:

“The law empowers acquisition of land by the government when it is required for public purposes. What is public purpose is not defined in the Public Land Acquisition Act, but has been identified by the courts in numerous purpose. It is suggested that for a particular purpose to qualify as public purpose or public interest, it must not be vague and the way it benefits the public at large must be capable of proof. The test is whether or not the purpose is meant to benefit the public and not just to aid the commercial transaction of a company or a group of people for their own selfish or financial purpose.”

Even if any law defines the concept of public purpose or overriding public interest to include grazing reserve, it is, with respect, perverse and anti-common sense, public opinion and policy in the light of reality and practical implication and application to Nigeria.

In the light of the foregoing, namely that the intended object and practical application of the bill are discriminatory and unconstitutional, acquisition of land pursuant to same cannot be acquisition in tandem with law that is allowed under section 44 of the Constitution. In other words it equally contravenes section 44 of the Constitution which forbids the compulsory acquisition of moveable and immoveable property in any part of Nigeria except in the manner and “for purposes” prescribed by law. (emphasis provided). An illegal and unconstitutional purpose cannot be a purpose prescribed by law.

The bill has capacity to displace farmers from farm lands and legalize rivalry. It seems to be a case for the Fulani against farmers. If the government considers that just like the cattle are precious to the Fulanis, the lands are equally precious to the farmers and settlers, this bill will never be conceived, let alone passed into law. It would be left to those who own the lands to determine what they do with it and not unwittingly allow what other people own to determine the use of other people’s lands. The writer may not therefore disagree with the view that the National Grazing Reserve Commission (NGRC) Bill will be the new Gestapo… Hitler’s police.

Again it will incur huge financial responsibility to the Governments especially the Federal Government to acquire and develop large expanse of land for grazing purposes. The writer agrees entirely with Saatah Nubari writing for the Scoop that the bill unnecessarily increases government’s recurrent expenditure and adds to the number of redundant and out-rightly useless commissions/agencies/parastatals already existing, without contributing tangibly to the growth and development of the country.

If ever a time, there was the need for a grazing reserve, it is not now that the government can hardly afford the most basic need of its citizenry. The failure of the criminal justice system to address the feuds involving the Fulani herdsmen should not be blamed on Nigerians and no indirect attempt should be made to make them pay for it by subverting and diverting their scarce resources to building hurts and tents for Fulani herdsmen who are rated fourth most deadly terrorist organization by Terrorism Index. It is not here intended to demean the Fulani but to boldly state that the motive of the socalled grazing reserve providing peace is utopian and intent for colossal waste. The bill if passed and implemented would inevitably lead to prolonged civil wars since land in most Nigerian communities are looked upon as an eternal heritage.

In any case, should we even leave out the finance burden of the Commission, the Commission is created to usurp the powers of the Land Use and Allocation Committee established under Section 2 (2) of the Land Use Act which has, among others, the duty under paragraph (a),(b) and (c) to advise the Governor on any matter connected with the management of land in urban areas, resettlement and determining compensation for revocation and the Land Use and Advisory Committee established under Section 2(5) with similar functions in respect of land in rural areas.

Again, the bill breaches the principle of Federalism by mandating the states to establish an office for the commission in their respective states’ Ministry of Land or Ministry of Agriculture.

Besides the bill if considered will be clearly against public opinion and interest as shown in the Senate Press release. We feel that their denial that the bill exists is an indirect concession to this fact.

These possibly account for why the then Senate President, David Mark cautioned the presenter of the Bill at the 6thSenate to critically analyze and cross check the incompatibility of the bill with the Land Use Act to avoid conflictions and duplications.

HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) holds the view that a National Grazing Reserve and Stock Routes Commission Bill is incompatible with the Constitution, extant law and public opinion and policy. The representatives of the people of Nigeria must not toy with the destiny of Nigeria by seeking to reward the dastardly criminal activities of armed Fulani herdsmen by forcefully taking over landed assets of other people to hand over to the Fulani. The best way is for government to encourage owners of cattle to set up ranches in their original states of origin and/or if the herdsmen intend to do their activities outside their places of origin then they can purchase or hire land to set up ranches.

*Comrade Emmanuel Onwubiko a former federal commissioner of the Nigerian National Human Rights Commission is the National Coordinator of the Human Rights Writers Association of Nigeria (HURIWA) and blogs @ www.huriwa.blogspot.com .

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Articles by Emmanuel Onwubiko