Prominent among them are state governors who are custodians of land at the state level as entailed in the Nigeria Land Use Act, 1978.
The Act states that “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.”
Checks by The ICIR to ascertain the existence of any legal provision reflecting grazing routes in the 1963 Republican Constitution proved abortive. No part of the sections deals with grazing routes.
Though chapter three of the referred constitution reflects sections such as fundamental human rights, freedom of movement, and freedom from discrimination, it does not capture the issues surrounding the grazing routes or reserves.
Buhari had earlier made the debated announcement on grazing routes when he appeared at an exclusive interview with Arise Television.
During the interview session, he announced that he had already directed the Minister of Justice and Attorney-General of the Federation Abubakar Malami to dig up the 1963 Gazette which established grazing routes across the country. He gave no specifics as to the day, month or the volume number of the said gazette.
“What I did was to ask him to go and dig the gazette of the First Republic when people were obeying laws. There were cattle routes and grazing areas. Cattle routes were for when they (herdsmen) were moving upcountry, north to south or east to west. They had to go through there,” Buhari disclosed at the interview.
The designated routes were used to move cattle from up north to several other parts of Nigeria, he had claimed.
Southern governors kick
However, amidst the controversy, state governors, who questioned the idea, argued that some of the states were nonexistent as of the period the said gazette was created.
The governors of Ondo, Delta, Cross River, Enugu, Ekiti, Akwa Ibom, among others, from the southern part of the country all insisted on their position, disproving open grazing as part of measures to reducing random killings attributed to the herdsmen.
Benue is first on the list of states that banned open grazing in the country.
Last month, leaders of the ruling All Progressives Congress (APC) from the South-West also threw their weight behind the decision of the South-South governors on the open grazing ban.
After about four hours of meeting, the leaders, including former Governor of Lagos State Bola Ahmed Tinubu and former interim national chairman of the APC Bisi Akande, reached the consensus in a communique read to the media.
“We endorse the position of the southern governors taken at their May 11, 2021 summit in Asaba, Delta State, regarding ranching. We do so because such a decision will lessen tensions between farmers and herders,” Akande stated after the closed-door meeting.
Meanwhile, if grazing land is recovered, as initiated by the president, land on the designated routes, which had been converted for use by the respective state governments or approved for residential purposes, could be forfeited for grazing purpose.
Still, the controversy has continued to stir up concerns on the legality of the president’s directive since state governors are land administrators, and the grazing route is not recognised by the 1999 Constitution.
While some experts blamed Malami to have wrongly advised the president, others argued Buhari’s declaration was no law and had no constitutional basis.
Lawyers speak – say no federal legislation on grazing routes
A Senior Advocate of Nigeria (SAN) Wole Olanipekun, in his reaction, said the Land Use Act passed by the National Assembly (NASS) displaced whatever gazette Buhari might have referred the attorney-general to.
Olanipekun, a former attorney-general of old Ondo State, said no specific federal law was enacted for the country on grazing routes, except the northern region.
“If there is any gazette, it can’t apply to the entire country. There is a difference between order and law. There is no law that universally applies to Nigeria on grazing routes.
“Section 4(2) of the 1999 Constitution empowers the National Assembly to make laws for the good of the country. There is no law made by the National Assembly regulating grazing routes in Nigeria and I say this on good authority,” he said, in an interview
He continued that he was “…not aware of any gazette that established grazing routes in Nigeria. I listened to Mr President and I have checked the books and no law sanctions grazing routes. I’m not unaware of the law establishing grazing reserves in Kwara State which was exclusive to the state.
“I’m also not unaware that under the regional system, northern region had something similar which was exclusive to the region. I know in places like Igbaja, Okuta, Omu-Aran, Kaiama, Oro, there were grazing reserves different from grazing routes.
“When you look at Nigeria as a whole, the law on land matters is the Land Use Act and it is entrenched in the 1999 Constitution. The law vests all powers on land issues all over the country in governors and not the Federal Government.”
The lawyer emphasised that with respect to land and its use, the Federal Government could not legislate on how land was controlled and distributed in any part of the country.
According to him, even if it was assumed, without conceding, that laws for grazing routes made under the Northern Region of Nigeria covered everywhere, the Land Use Act already superseded both routes and the law establishing them.
Chairman of the Senate Committee on Media and Public Affairs Ajibola Basiru shared the same position with Olanipekun, stressing that there was no such law as Grazing Act or Federal Grazing Law upon which the president’s directive could be implemented.
He noted that except for a decree on reserve and grazing routes promulgated by the premier of defunct northern region Ahmadu Bello, such law was not applicable and enforceable to other parts of the country.
His words: “It is regrettable that the president has not been properly advised by his attorney-general and the legal team. They need to go and check their facts. If anybody will implement any law, it is the states where those routes are applicable that can do so.
“Grazing routes law is not applicable in any state in southern Nigeria. Southern Nigeria has its own law on cattle and other related matters. With respect, it is unfortunate that we have a situation whereby the president of a country is being misadvised by his legal and policy teams for whatever reason it is.”
Human Rights lawyer Femi Falana also criticised the move and accused Malami of misleading the president.
Another lawyer Solomon Okedara also questioned the legality of the gazette and its compliance with the constitution.
He told The ICIR that though certain laws such as the Ordinance Law of 1922, was still valid only in Lagos State, “if the constitutionality of regular laws could be challenged in the court of law, how much more a gazette which is not recognised by the 1999 Constitution.”
“Gazetting the instrument does not confer validity or constitutionality. That is, the legal instrument or document must have been constitutionally passed and must not be in contradiction with the constitution.”
Ranching, National Livestock Plan solution to open grazing
Inaugurated by the Vice President Yemi Osinbajo in 2019, the National Livestock Transformation Plan was launched by the Federal Government as part of deliberate measures to reduce the farmer-herder crisis, which has claimed over 1,300 lives since January 2018.
It is a 10-year plan designed to develop the livestock sector, improve dairy needs of the country and cater to the affairs of the pastoralists. While the 36 state governors are expected to partner in the project implementation, it is mostly accepted by state administrators from the north.
It is to be piloted in Adamawa, Benue, Kaduna, Plateau, Nasarawa, Taraba and Zamfara.
Indirectly, if well implemented, it is expected to discourage open grazing and promote ranching.
Modernising the livestock sector, according to the International Crisis Group, would help address the lingering herder-farmers conflict, “which threatens Nigeria’s political stability and food security.”
“In this plan, the State Government or private investors provide the land, the federal government does not and will not take any land from a State or local government.
“Any participating state will provide the land and its own contribution to the project. The federal government merely supports,” Osinbajo stated during the inauguration.
“It is a plan that hopes to birth tailor-made ranches where cattle are bred, and meat and dairy products are produced using modern livestock breeding and dairy methods.”