By Aloy Ejimakor
Days ago, Abubakar Malami
(SAN), the Attorney-General of the Federation (AGF) granted an interview to
Channels Television in which he faulted Southern Governors’ ban on open
grazing. The AGF is wrong; Southern Governors are right, and here’s why:
Before one can graze, he must be a cattle rearer or a herdsman. The herdsman would have to enter another person’s land. If the herdsman is grazing on his own land, it does not implicate any legal, safety or economic issues because the land belongs to him. But when he goes upon another man’s land to graze without permission or some leave and license, he commits trespass, civil and criminal trespass to boot.
Conversely, there is no written law in Nigeria that permits herders
to enter into another man’s land without the owner’s permission. Not even the
Nigerian Constitution cited Malami. The part of the Constitution he relied on
allows freedom of movement of persons, not animals, whether goats, pigs or
cattle. And such freedom must be exercised in a peaceable and legal manner, not
by force, not by trespass, not by terror.
Most people think that trespass is only a civil wrong in which you
go to a civil court to claim monetary damages and have the trespasser expelled
from your property through a civil court order. It is much more than that.
In Northern Nigeria where the Attorney-General
and these herdsmen hail from, Section 342 of the Penal Code (applicable to
Northern Nigeria) provides that ‘Whoever enters into or upon property in the
possession of another with intent to commit an offence or to intimidate, insult
or annoy a person in possession of that property, or, having lawfully entered
into or upon that property, unlawfully remains there with intent thereby to
intimidate, insult or annoy such person or with intent to commit an offence, is
said to commit criminal trespass’.
Open grazing intimidates, insults and annoys. And in this era, it
terrorizes, kills and destroys properties. What more do you need before
understanding that it’s a crime in all its ramifications.
Criminal trespass is punishable by arrest, arraignment, prosecution
and imprisonment. Again, this is northern Nigeria where these herders hail
from. There are other laws of Nigeria that border on assault, manslaughter,
murder, malicious destruction of property, disorderly conduct, breach of the
peace and laws on land use that are violated whenever herdsmen graze without
permission and oftentimes with violence.
So, without any new law banning open grazing, Southern Governors can
assert their authority under these extant laws, including particularly under
Section 1 of the Land Use Act, which provides that “Subject to the provisions
of this Act, all land comprised in the territory of each State in the
Federation are hereby vested in the Governor of that State ... ”.
Additionally, AGF Malami appears to be unaware of the highly
celebrated 1969 ruling by Justice Adewale Thompson. That the ruling was never
set aside or varied makes it part of the laws of Nigeria when it comes to open
grazing. It’s pertinent to state that the ruling was made in the context of the
‘farmer-herder conflict’ of that era. That is what we used to have then. What
we have now is ‘herder-terrorism’ that requires new measures that should more
drastic than the purports of that ruling.
In the ruling, Adewale’s court heard that it is the custom of the
Fulani to move cattle from place to place and graze openly. The judge ruled
that if that is the custom, it is a bad one because it is against public
policy; that the custom has the tendency to lead to breach of law and order and
unconscionable destruction of another’s property. You might add that, in this
day and age, it has gone from mere destruction of property to destruction of
lives.
That judgment is sound because it is consistent with the common law
of Nigeria that says that any custom that is against public policy shall be set
aside. A custom is not cast in stone. Nigerian laws only allow good customs.
Bad customs like killing of twins are no longer allowed. In the same vein, bad
customs like open grazing that destroys properties and human lives should be
banned.
That something is a custom does not automatically make it legal.
Therefore, that open grazing is customary to the Fulani does not make it legal
or permissible, especially if it comes with the prospects of criminal trespass
or terror. And in comparison to the spare parts dealers Malami mentioned, he
forgot that they rent their shops and they conduct their business sans
trespass, violence, rape and terror.
Further, as a Northerner and a high-ranking government official with
access to intelligence, AGF Malami should not pretend that he doesn’t know that
a significant number of these herdsmen are foreigners. Some notable Northern
leaders (including the Presidency) have publicly confirmed as such. On this
score, did AGF Malami consider what happens to Nigeria’s sovereignty when he
argued that banning open grazing is unconstitutional? Is he suggesting that
foreigners now have more constitutional rights than Nigerians, especially
Southern Nigerians?
Not just that, these foreign herdsmen come into Nigeria with a swag
to graze on Nigerian lands without permission and they are ever prepared to
kill their host if he dares resist such brazen criminal trespass. And the
federal government does nothing to check it. But once the herders get in
trouble, such as now with Southern Governors, the same federal government jumps
to their defense, as AGF Malami just did.
That’s unfair because you are stoking a situation where States
(especially Southern States) will be propelled to resort to self-help, which is
exactly what Southern Governors have done by banning open grazing.
Ejimakor, a lawyer wrote in from Alaigbo.
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