Open grazing: Malami wrong, lawyers say

THE Attorney-General of the Federation and Minister of Justice Abubakar Malami came under withering criticism from Inner Bar colleagues on Thursday, for tagging the ban on open grazing by southern governors unconstitutional. 

Malami is a Silk, popularly known as Senior Advocate of Nigeria (SAN) and the Chief Law Officer of the Federation. But his colleague-Silks took umbrage at his position that as chief executive of their states, southern governors cannot restrict the movement of herders who are mostly Fulani like himself and President Muhammadu Buhari. 

Following national and international outcries against the killings across the country, some of them attributed to killer herdsmen, southern governors took a cue from the position of the Nigeria Governors’ Forum and emphasised the ban on open grazing. 

At a virtual meeting on February 11, 2021, all the 36 state governors agreed that nomadic cattle rearing should end. 

Their communique reads in part: “Following an update from governors on the various initiatives taken by state governments to address the rising insecurity in the country, due to the activities of herdsmen, members reached a consensus on the need for the country to transition into modern systems of animal husbandry that will replace open, night and underage grazing in the country. State governments are encouraged to put in place systems to accelerate the grazing initiative of the National Livestock Transformation Plan (NLTP) and ranching in the country.” 

Three months after, at its own meeting in Asaba, Delta State on May 11, 2021, the Southern Governors’ Forum reiterated the decision of the Nigeria Governors’ Forum to ban open grazing in the country. 

While the February 11 meeting did not elicit any response from the federal authorities, northern political actors, both state and non-state, have taken up cudgels against the southern governors for reinforcing the collective decision of all the 36 state governors. Aside the opposition from the President of the Senate, Ahmad Lawan and a couple of northern governors, the Chief Law Officer of the Federation weighed in on Wednesday night, casting the southern governors’ re- enforcement of the 36 governors’ consensus as illegal. 

Appearing as a guest on Channels TV, Malami said of the ban: “it is about constitutionality. Within the context of the freedoms enshrined in our constitution, can you deny a right of a Nigerian? It is as good as saying may be the northern governors coming together to say that they prohibit spare parts trading in the North. Does it hold water? Does it hold water for a northern governor to come and state expressly that he now prohibits spare parts trading in the North? 

“If you are talking of a constitutionally-guaranteed right, the better approach to it is perhaps to go back and ensure that the constitution is amended. The freedom and liberty of movement, amongst others, is established by the constitution. 

“If by an inch, you want to have any compromise, the better approach is to go back to the National Assembly for open grazing to be prohibited and see whether you can have the desired support for the constitutional amendment in that respect, but it is a very dangerous position for any governor in Nigeria to think that he can bring about any compromise on the freedom and liberty of individuals to move around.” 

Malami wrong, grazing under residual power of govs —Olanipekun 

Foremost lawyer and former Attorney-General of old Ondo State, Chief Wole Olanipekun, also a SAN, argued that governors have residual power to ban not only open grazing but regulate eco- nomic activities like the sale of spare parts in their states. 

He said: “With due respect to the Attorney General, the examples he made are not apt. It is not a question of constitutionally guaranteed right to movement by Nigerians. It is a question of whether or not, under a federal system of government, a governor can use, or fall back on his residual power, relating to agriculture, the mode and means of carrying out farming and agriculture in the state, to say he doesn’t want open grazing. 

“It has nothing to do with any northern governors banning sale of spare parts. Let’s be reminded that under the constitution and by virtue of the Land Use Act, which is an entrenched part of the constitution, the governor exercises dominion over all land in the state. 

“Every state in the South-West have Forestry Law and the law has been copied and reproduced with some amendments, right from the old law of the Western Region and I can humbly claim knowledge of the law, because as Attorney General of Ondo State between 1992 and 1993, I used it to safeguard and protect all forests in Ondo State against trespassers and this included even the indigenes. 

“And that was under the military regime of Ibrahim Babangida and nobody questioned my authority and that of the governor. The law is still there, but no governor or AG can exercise it again. 

“We are all talking about Biden (US President) defeating then incumbent Trump (immediate President) but it was because some states in America exercised their residual right to determine procedure on how presidential election in their states would be conducted and when Trump challenged the outcome up to the Supreme Court, the apex court upheld the presidential election result. 

“Grazing is under the residual power of governors and they have the right to determine how it is conducted. This is my advice to the governors; each of them should back the ban up with necessary law and the Federal Government should go to court to challenge it, if it feels aggrieved. In Balewa Vs Doherty, the Supreme Court, under Ademola CJN (Justice Adetokunbo Ademola) held that 1960 Constitution reflects a truly federal constitution because residual power is retained in the regions.

“And who says governors or even local government chairmen do not have power to regulate how spare parts business can be done in their domains? I am not even talking of southern or northern governors here. Governors have powers to regulate how businesses are done in their states. What if a governor says he doesn’t want spare parts sold in Government Reserved Area (GRA) for some reasons? What if a governor says he doesn’t want spare parts sold in certain areas of the state? Will that be unconstitutional? What about governors declaring curfew in their states, to protect lives and property? Are they constitutionally empowered to so do or not? So, why can’t governors say we don’t want open grazing as a means of protecting the people, because of what we are witnessing in Nigeria today?” 

AGF doesn’t have judicial power —Rotimi-Williams 

Scion of the Rotimi-Williams dynasty, Chief Ladi Williams, another SAN, was aghast over the AGF’s position. 

He said: “Malami is Attorney General of the Federation and Minister of Justice and without doubt, he has executive power, because he is part of the executive. But he doesn’t have judicial powers under our constitution. If he has doubts about the stance of the southern governors, he should bring an application (to court), and join the 36 states. 

“Each governor is sovereign in his own right within his state, so the Federal Government cannot impose any policy. It will take us a long time before we can get out of military mentality of administration. Some people are still under the impression we are still under the military. I disagree with Malami’s position.” 

Northern govs first to ban open grazing —Falana 

Leading rights lawyer and SAN, Mr Femi Falana, went down memory lane in replying the AGF. In a statement sent to the Nigerian Tribune, he called the attention of Malami to the fact that northern governors first pronounced ban on open grazing, before their southern counterparts reinforced it. 

Quoting him: “The Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami SAN was reported yesterday to have condemned the ban on open grazing by the Southern Governors’ Forum. The AGF stated that the ban on open grazing is unconstitutional as it affects the right of herders to move freely in the country. 

“With respect, the ban on open grazing has not affected the rights of herders to move freely and acquire land in any state for the establishment of ranches in line with the provisions of sections 41 and 43 of the Constitution. Since the Constitution does not cover the right of animals to move freely and destroy farmlands, it is grossly misleading to give the impression that the ban on open grazing has abrogated the right of herders to carry out their business. 

“With respect to the movement of animals in the country, the Animal Diseases (Control) Act and similar laws applicable in the states have empowered the Minister of Agriculture and relevant state commissioners to make appropriate regulations to regulate the movement of animals and prevent them from transmitting diseases. 

“The AGF equally said that banning open grazing is like banning the sale of spare parts. The comparison is not applicable as the sellers of motor parts who operate in shops and markets in all states have not been accused of engaging in the killing of fellow citizens and destruction of their properties. Besides, those who sell spare parts outside their states of origin either acquire properties or pay rent for their lawful business.” 

The senior lawyer laid out before the minister, the sequence of events leading to the Asaba Declaration, which is now attracting the ire of the federal authorities. 

He said: “In order to halt the incessant violent clashes between farmers and herders which had led to mindless killings and wanton destruction of properties in many parts of the country, the Federal Government and the 36 state governments have, at various fora, banned open grazing in all states of the federation and the Federal Capital Territory. In view of the desperate moves of some members of the geopolitical class to divide the Nigerian people along regional basis, it is pertinent to draw the attention of the members of the public to the following reports: 

“On April 27, 2018, the members of the National Economic Council resolved to ban open grazing and adopt the Livestock Transformation Plan of the Federal Government. The National Economic Council is constituted by the Vice President, the 36 state governors, the Minister of Finance and the Central Bank Governor. 

“On February 9, 2021, the Northern Governors’ Forum banned open grazing in all states in Northern Nigeria. 

“On February 11, 2021 the Nigeria Governors’ Forum banned open grazing in all the 36 states of the federation. 

“On May 14, 2021 the Southern Governors’ Forum banned open grazing in the 17 states in Southern Nigeria. 

“On May 18, the PDP Governors’ Forum endorsed the decision to ban open grazing in the entire country. 

“Based on the ban on open grazing, not fewer than 24 state governments have submitted applications to the Federal Ministry of Agriculture for grant to facilitate the establishment of ranches in line with the Livestock Transformation Plan of the Federal Government. 

“Meanwhile, Governor Umar Ganduje of Kano State has invited herders who are adversely affected by the ban on open grazing to settle down in the Ruga Settlement established by the state government. While commissioning the first batch of 25 housing units out of the 200 earmarked for RUGA settlement, the governor said that his government engaged in the project to avoid clashes between farmers and herders and secondly to avoid movement of herders which is the source of conflict and to avoid cattle rustling.” 

He then advised Malami that in making statements, he should always take due regards of the sensibilities of every part of the country and respect all legitimate interests of the entire people of the country. 

Courts, not Malami, can interpret constitution —Adegboruwa 

Constitutional and rights advocate, Mr Ebun-Olu Adegboruwa (SAN), knocked the AGF for taking on the interpretative role of the judiciary, while asking the southern states to go ahead with the implementation of the ban. In an electronic statement on Thursday, he said: “The proponents of open grazing support it with the right to freedom of movement granted under Section 41 of the Constitution. 

This section cannot be interpreted to violate other constitutional provisions, especially Section 43 that grants the right to private or public property. 

“You cannot deploy the right to movement of person and cattle to violate the right of another citizen to own property, such as land or farmland, or else you become a trespasser. It is in this regard that I disagree with the Attorney-General of the Federation, when he said that the ban on open grazing is unconstitutional. That cannot represent a proper interpretation of the Constitution, with all due respect. 

“The AGF is a member of the Executive arm of government, under Section 5 of the Constitution. The Constitution has not assigned any role to the AGF to make proclamations for the country. To that extent, his comment is ultra vires, being beyond and outside his office as a minister. The role of interpreting the constitution is the exclusive preserve of the courts under the Constitution. “Let the Houses of Assembly of the states that have proscribed open grazing go ahead to make laws to support their declarations. It is only after then that the AGF can approach the court for judicial interpretation. I urge the governors to proceed speedily, with the implementation of their lawful and courageous declarations and not be misled, intimidated or distracted by the comments from the Federal Government. 

“There is no doubt that we cannot generalise, to say that all ‘Fulani herdsmen’ are guilty of violence and destruction, but we must tackle those criminals who have invaded their ranks, for other purposes other than grazing. Truth is, genuine Fulani herdsmen offer food, dairy, employment and prosperity for the land and this is desirable. The ban on open grazing is, therefore, necessary to protect the genuine herdsmen and help preserve their vocation from the marauders.” 

Malami can’t be complainant and judge —Ubani 

Former second vice-president of the Nigerian Bar Association (NBA), Monday Onyekachi Ubani, condemned the AGF for trying to be the complainant and judge in his own case. 

He said: “I will advise the AGF to commence a suit in the Supreme Court of Nigeria and let the Supreme Court decide the issue if he feels strongly that there is a legal dispute between the states over the ban which he termed unconstitutional. He, the AG, cannot be the complainant and the judge over the case.” 

Malami’s statement less than patriotic —Senator Basiru 

The senator representing Osun Central senatorial district, Dr Ajibola Basiru, knocked his fellow lawyer for “‘less than dignifying” argument of equating open grazing with southerners selling spare parts in the North. 

Basiru, former Osun State Attorney-General and Commissioner for Justice, who spoke in his personal capacity, said statements of the kind made by Malami “have made Nigeria a laughing stock in the comity of nations and, in fact, ridiculed the administration of President Buhari. These statements are not giving hope to those at the receiving end of the activities of the herdsmen.” 

He argued that equating the activities of archaic nomadic herdsmen destroying people’s means of livelihood with others legitimately carrying on businesses by selling spare parts in their shops stood logic on its head. He wondered if the AGF had forgotten that Nigeria is a federal system with the state governments empowered to make and implement laws for the peace, order and good government of or any part of their respective state. 

This power, Basiru argued, “is derived from the constitution, which with the Land Use Act vested on the governors, the management of all land within the territory of the state.” 

He challenged the AGF to cite relevant sections of the constitution which allowed the herders to trespass on other people’s land and destroy the crops in the guise of freedom of movement, add- ing that the AGF’s comment was less than patriotic. 

He, thereafter, advised those who have no meaningful contributions to the national discourse on the basis of equity and justice to keep quiet and stop rubbishing the Buhari-led government. 

We will implement ban with vigour —Akeredolu 

Chairman of the SouthWest Governors’ Forum and the Ondo State governor, Mr Rotimi Akeredolu, chided Malami for likening  the ban on open grazing by southern governors in the South to prohibiting spare parts trading in the North. 

Akeredolu, therefore, said the resolve of the southern governors to ban open grazing is irreversible and will be enforced with vigour. The governor described the statement credited to Malami as not only strange and annoying, but one that also betrays a terrible mindset, as he urged the AGF to approach court if he is not satisfied with the decision of the southern governors. 

Akeredolu, in a statement he personally signed, said: “It is most unfortunate that the AGF is unable to distil issues as expected of a Senior Advocate. Nothing can be more disconcerting.” “This outburst should, ordinarily, not elicit response from reasonable people who know the distinction between a legitimate business that is not in any way injurious and a certain predilection for anarchy. 

“Clinging to an anachronistic model of animal husbandry, which is evidently injurious to harmonious relationship between the herders and the farmers as well as the local populace is wicked and arrogant. 

“Comparing this anachronism, which has led to loss of lives, farmlands and property, and engendered untold hardship on the host communities, with buying and selling of auto parts is not only strange but it, annoyingly, betrays a terrible mindset. 

“The decision to ban open grazing stays. It will be enforced with vigour.” 

Ogunye to Malami: Ban on open grazing not abrogation of man’s right 

Another lawyer, Jiti Ogunye, in a Facebook post on Thursday, said, “cattle graze, humans don’t. Ban on open grazing of cattle is, thus, restriction of movement of animals, not abrogation of right of man to move in freedom. Similarly, restriction of commercial motorcycles in our cities is not restriction of movement of their riders. The learned must know this.” 

Malami’s statement embarrassing —Middle Belt Forum 

The Middle Belt Forum said Malami’s analogy of comparing baning of open grazing to spare parts business in the North was abnormal and also an embarrassment to Nigeria. 

Speaking with Nigerian Tribune, the national chairman of the forum, Dr Bitrus Pogu, said the position of the southern governors did not contradict free movement, adding that the governors were simply saying that open grazing has become a threat to peace in their region. 

“Nobody is stopping the Fulani from living in the South but the governors are saying open grazing has become a threat to peace. Most of these foreign herders hide under cover of ECOWAS protocol to come and perpetrate evil. 

“But the position of the Attorney General is surprising, he is funny. He has gone sentimental and ethnic because those selling spare parts are Igbo. How will one compare spare parts dealers with herders? Where is the analogy?” he said. 

Pogu said open grazing has become outdated and no longer in vogue, adding that even farmers in the northern part are complaining about open grazing and want it banned. 

Malami’s statement divisive, resentful —Abaribe 

The senator representing Abia South and Minority Leader, Enyinnaya Abaribe, described Malami’s statement as divisive. 

Abaribe, in a statement, said there is no correlation between the murderous activities of the herdsmen and spare parts sellers who rent apartments to ply their trade. 

He said: “While the local ‘bureau de change’ business mostly done by the Fulani are operating in all parts of Nigeria, why have they not elicited any resentment of other Nigerians? 

“It is simply because they live and do their business peacefully without any problem. It is the murderous activities of Fulani herders that have given rise to the current demand for laws that will bring about peaceful coexistence of all Nigerians. 

“What’s the correlation between spare parts sellers in a rented shop or government properly designated area and marauding Fulani herders destroying farms, killing and raping thus trampling on people’s private properties and means of livelihood? Such a divisive statement from a top Federal Government official, in fact the chief legal adviser to the Federal Government at that, exposes a very dangerous mindset. This disposition has no doubt raised the tension in Nigeria to a frightening level.” 

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