The Proposed National Grazing Bill: The Human Rights Perspective

ABSTRACT

Tracing the history of Nigeria and the customary land tenure systems that existed before colonization and independence, the Nigerian economy survived mainly on agricultural resources. These agricultural activities varied from region to region and grazing was common to the Northern nomads who were mainly involved in cattle rearing. Sadly, after over 100 years, this grazing activity threatens the very existence of the Nigerian society and the safety and rights of its citizens. This paper examines the effect of the proposed National Grazing Bill in relation to the Land Use Act and Fundamental Human Rights guaranteed under the 1999 Constitution of the Federal Republic of Nigeria.

INTRODUCTION

The uproar caused by the news of the proposed National Grazing Reserve (Establishment) Bill, is very much still alive after the second reading of the bill. Landowners, farmers and other citizens have vehemently expressed their displeasure at the proposed law. Especially with provisions that allow acquisition of land without notice and without authorization by the
herdsmen.

Over the past few months, tales of woes and the destruction of lives and property caused by the herdsmen have constantly filled the news without any form of intervention from the Federal Government. Thus, in order to curb the menace of these herdsmen many states began to enact anti-grazing laws prohibiting grazing within the states.

Even the Bible, in Exodus 22: 5 says that

If a man causes a field or a vineyard to be grazed over, or lets his beast loose and it feeds on another man’s field, he shall make restitution from the best in his own field and in his own vineyard

However, this grazing bill, seeks to grant the herdsmen unlimited access to land whenever and wherever they want to graze their cattle, which is an anomaly compared to other jurisdictions, which practice ranching.

Section 43 of the Constitution provides for the right to acquire and own immovable property in
Nigeria. Although this right is not an absolute right, the constitution, further provides for instances where the right to property becomes derogable. Section 44 of the constitution provides thus:

No moveable property or any interest in an immovable property shall be taken possession of compulsorily
and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria
except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefore and
(b) gives to any person claiming such compensation a right of access for the determination of his interest
in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction
in that part of Nigeria.

Although the constitution provides that there can be compulsory acquisition of property for purposes prescribed by a law, the grazing laws however, confer enormous power on the grazing
commission, which seems to be an infringement on the fundamental right to own property.

Section 28, of the Land Use Act provides the right of occupancy of land, can only be lawfully revoked for the purpose of overriding public interest. Subsection 2 of the same section provides for what overriding public interest in the case of a statutory right of occupancy means.

This paper seeks to examine the provisions of the grazing bill with respect to the fundamental
human rights guaranteed under the constitution and the provisions of the Land Use Act.

THE NATIONAL GRAZING BILL

The intendment of the bill is stated in the introductory part of the bill as:

an act to establish grazing reserves in each of the states of the federation Nigeria, to improve agricultural yield from livestock farming and curb incessant conflicts between cattle farmers and crop farmers in Nigeria.

On the surface, the intendment of the act seems very genuine especially with regard to the constant and incessant clashes between cattle farmers and crop farmers in Nigeria. However, one does not need to read very far before discovering that the proposed bill seems to intend to do more harm than good especially with respect to the acquisition of property.

Part I of the proposed bill, provides for the establishment and objectives of the National Grazing Reserve Commission, its membership and composition, tenure of membership, funds of the commission and functions of the commission.

However, Section 11 provides that the commission may make regulations for carrying out its functions.

Part II of the bill provides for the financial provisions of the commission including annual estimates and accounts, audit, and requirement of an annual financial report.

Part III of the bill provides for the establishment and constitution of grazing reserves and stock routes. This part of the bill provides for lands, which are subject to the provisions of the bill on such agreements that may be agreed between the commission and the state government in question. The commission is also required to pay compensation for any land that is compulsorily acquired. Section 19 of the bill provides for means of settlement of disputes concerning compensation on any land that has been acquired.

Part IV of the Bill provides for regulations, restrictions, offences and other penalties covered in Sections 21 to 23. These provisions govern both the grazing reserve commission and the users of the grazing reserves. It also prohibits persons who have no authorization from entry and use of the grazing reserves. The Bill prescribes a fine of #50,000 or imprisonment for 5 years or both for any person who is in breach of the provisions of the bill.

Part V of the Bill provides for miscellaneous provisions. Section 24 particularly provides for a limitation on bringing an action against the commission without giving adequate notice to the commission.

THE HUMAN RIGHTS PERSPECTIVE

Although, there is no fundamental human right that is absolute under the constitution, it is only fair and equitable that such rights only are derogated as permitted by law and the requirements for the derogation of such rights as provided by the law be strictly adhered to. Whenever such procedures are ignored, it becomes a cause for discomfort among the citizens. Section 42(1) of the Constitution forbids taking any action, or applying any law that favors any particular community or group, and it is undoubtedly discriminatory to create any sort of “reserved” areas for members of any ethnic group. The powers which the Bill would confer on the Commission to identify “suitable” land which Governors must hand over, is both contrary to the Land Use Act (1978) and also a constitutional aberration which subordinates Governors to the Commission. There has been no law in Nigeria under which land belonging to the citizens is forcefully acquired and given out for private benefits.

Section 28(1) of the Land Use Act, provides that a revocation of a right of occupancy by a Governor will only be lawful where the revocation is done for “overriding public interest.” Noteworthy is that section 51 of the Land Use Act defines “overriding public interest” to include the requirement of the land by the Government of the Federation for “public purposes of the
Federation”. Same goes for “overriding public interest” in the case of customary right of occupancy—requirement of the land by the Government of the Federation for public purposes of
the Federation.

The above is affirmed by the Supreme Court in Osho v Foreign Finance Corporation (1991) 4 NWLR (Pt. 184)157 where the Supreme Court defined “public purposes” as:

(a) for exclusive Government use or for general public use;

(b) for use by anybody corporate directly established by law or by anybody corporate registered under the Companies and Allied Matters Act;

(g) for obtaining control over land required for or in connection with planned urban or rural development or settlement;

(h) for obtaining control over land required for or in connection with economic, industrial or agricultural development;

(i) for educational and other social services.

Furthermore, in Lawson v. Ajibulu (1997) 6 NWLR (Pt.507), the Supreme Court held that a Governors power to revoke land for overriding public interest does not include revoking an individual’s interest in land and giving such right to another for private purposes. The apex court further held that

…it would definitely not be in the interest of the general public for farmers to be displaced from their farming and fishing activities to pave way for the establishment of grazing routes or grazing reserves that benefit a few.

Since the purpose of revocation is for public good, and not for the benefit of any individual, any such revocation for the interest of an individual is null and void and of no effect. From the decision above, it is trite law that although a revocation made in compliance with the Land Use Act is valid, it may be declared void by the court if the acquisition was not made to fulfill the legitimate ends of the government, but transferring the acquired land to an individual or group of persons with certain vested interests which either by accident or design, are similar to the purpose for which the state may acquire property. By implication, it would definitely not be in the interest of the general public for farmers to be displaced from their farming and fishing activities to pave way for the establishment of grazing routes or reserves that will benefit a few.

However, the Bill confers arbitrary power on the Commission to take and possess any land in any part of the country. It does not provide room for refusal on the part of the landowner.

Although the Bill provides for compensation, it does not state the basis on which such compensation is to be prorated although such compensation is to be adequate and paid to the original owners of the land in consonance with the provisions of the Land Use Actor land legislation in force at the time of acquisition.

According to Section 42(1), 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 be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any such administrative or executive action of the government, to disabilities or restrictions to which other citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or
political opinions are not made subject, or be accorded either expressly by, or in the 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 citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.

The effect of the above provisions of the Constitution is to prohibit the enactment or application of any law, or the taking of any administrative or executive action that may favour any particular community or group. This then raises the question of if the intendment of the proposed bill by granting herdsmen which are from a particular community and a particular tribe, to acquire grazing reserves not just within their community but in any state in Nigeria constitutes discrimination under Section 42 of the constitution. The purport of the Bill seems to favour the Fulani ethnic group at the expense of all other ethnic groups in Nigeria.

Furthermore, due to the effect of the customary land tenure system in Nigeria, practiced by different ethnic groups and tribes across Nigeria, land is often times collectively owned and not easily transferrable. Because of the cultural, socio-political values, spiritual and generational value placed on land by the customary land tenure system, compensation alone may seem grossly insufficient to placate individuals or communities which are likely to be displaced from their ancestral homes to create room for grazing routes. The proposed bill contains no plans for
resettlement of displaced individuals who may refuse to accept compensation.

On the value of compensation, based on the provisions of the Land Use Act, revocation of the right of occupancy or compulsory acquisition of land by government is often aggravated by a
compensation regime that is prorated based on an arbitrary valuation of structural or economic crop improvement on the land. Often times, these payments are rarely made and even when they are, it is always untimely and usually is of no effect in assuaging the losses of the individuals who have lost their land. Thus, the proposed bill seems very deficient in legal remedies. Although the Commission would be mandated to pay compensation, there is nothing the owners can do if they have no desire to sell or relinquish their land.

Although the Constitution provides for fair hearing and grants general access to the courts for redress of dispute between citizens and government. However, the proposed bill seems to be in serious violation of the principles of fair hearinrightthe bill quite ridiculously provides that anyone proposing to take the Commission to Court would first have to get permission from the Attorney-General of the Federation. If the permission is refused, then such a person is denied his right to any legal remedy. Thus, not only does the bill provide for compensation as its only remedy, it also prevents land owners from accessing any other form of remedy from the courts by reserving the right to determine who goes to court through the discretion of the Attorney
General.

CONCLUSION

Enacting such a law is a recipe for disaster. To quote Thomas Jefferson “when injustice becomes law, resistance becomes duty”, the Bill is repugnant to natural justice and resistance to it is justified by our existing laws and Constitution. It is of no doubt based on the current reception of the bill and the heinous activities of the herdsman is doing is fanning the embers of the fire of disaster if the Bill is passed into law. The government is urged to try to strike a balance between livestock and crop farming without necessarily favouring one over the other and in a manner that doesn’t cause further problems like that of the grazing bill.

In addition, to make the grazing bill more acceptable, the government should set up a multi stakeholder committee of experts to streamline the provisions of the bill and give all the affected groups a sense of belonging especially with the host communities.

Oyibotha Ewomazino is a student of the Faculty of Law, University of Lagos. She is very passionate about greatness, perfection, excellence, and hard work. She has served as the Deputy Head of Chambers for the Justice Kayode Eso students Chamber and has worked on several committees in faculty. She is a lover of books and arts and is passionate about Human Rights. She aspires to be an environmentalist and a tax expert based on her love for environmental law and taxation.