The Legality or Otherwise of Nomadic Grazing in Nigeria

INTRODUCTION/ DEFINITIONS

The issue of nomadic grazing has lingered over the decades. The positive and negative consequences thereof have been under debate for as long as we all can remember. Attempting a definition however, a nomad is member of a society or class who herd animals from pasture to pasture with no fixed home. Grazing on the other hand means the action of animals eating, mainly of grass in a field or on other grassland. Thus, nomadic grazing is the act of herding animals from one pasture or grassland to another, to such extents permitted by law.

HISTORY

Historically, nomadic grazing (otherwise known as nomadic pasturalism) was a result of the Neolithic revolution and the rise of agriculture. At that time, humans began domesticating animals and developing agriculture for food. Certain communities invested more time in animal rearing and had to herd their animals to greener pastures to find food. It became a beneficial idea for these community of herders to engage in symbiotic trading with other settled cultures, trading animals and other animal products like milk, hides, cheese etc in exchange for manufactured products. The growth and success in such business relationship of course encouraged the herders to rear more animals, and to do that, more pastures must be covered for food. Over time, the herders became itinerant, in search of greener pastures for their animals.

In Africa however, the Fula people, often described as the Fulani, are regarded as the world’s largest nomadic group, with over 15 million people dispersed across Western Africa. They have grazed in lands around the arid Sahel regions of West Africa, partly because of the environmental conditions that limit the amount of pastureable land in their community for agricultural purposes. However, after recurrent droughts in the arid Sahel regions, Fulani herders gradually moved southwards to the Guinea savanna and the tropical forest areas, resulting in competition for grazing routes with farmers. 

THE CONFLICT

Fulani herdsmen started migrating into northern Nigeria from the Senegambia region around the thirteenth or fourteenth century. After the Uthman dan Fodio jihad, the Fulani became integrated into the Hausa culture of Northern Nigeria. During the dry season,  Fulani herdsmen drive their cattle into the Middle Belt zone dominated by non-Hausa groups, only returning to the north before the rainy season. During the course of grazing, destruction of crops and farmland occur, hence becoming a source of conflict. While the conflict has underlying economic and environmental reasons, it has also acquired religious and ethnic dimensions. Thousands of people have died since the conflict began.

LEGAL PROVISIONS REGULATING GRAZING IN NIGERIA.

There are two fundamental laws that regulate grazing in Nigeria. They include:

1. The 1999 Constitution of the Federal Republic of Nigeria 

2. The Land Use Act of 1978.

Before exposing the relevant contents of these laws, it benefits to run through the provisions of The National Grazing Reserve (Establishment) Bill 2016 that was presented before the National Assembly to be passed into Law. This proposal has occasioned serious cause for worry and suspicion especially in the Southern regions. Creating grazing routes is perceived as an attempt to covert lands belonging to farmers and transferring same to the herdsmen to rare their livestock. A critical analysis of the Bill shows that a Commission is to be established as a corporate body, with well-defined governance structures and systems. In Part II of the Bill, the functions of the Commission were spelt out, which include the establishment, management, maintenance and control of cattle routes, farm camps and grazing reserves in different parts of the country, prescribing persons who may use the grazing reserve, number and type of stocks that may be permitted therein. The Commission also has the power to grant grazing permits; demarcate or advise on the boundaries of the grazing route and reserves; prescribe fees for the usage of the routes and reserves; regulate conditions of entry; impose penalties for breach of its regulations, and prosecute those in breach. Part IV details the procedure for acquiring Grazing Routes and Reserves and it includes. Here, State Governors were mandated to corporate with the Commission towards accomplishing the spirit of the Bill. In other words, the Bill requires all Governors identify and transfer lands to the Commission for use as grazing land. The Governor shall then issue an Order stipulating the limits of the land acquired and the interest transferred therein. Affected land owners are to be given notices and compensated as well. These are few provisions of the Bill however. 

At this point it suffices to consider the provisions of the supreme law – the 1999 Constitution of Nigeria, as well as the Land Use Act of 1978, vis-à-vis the intention of the 2016 Bill (protecting the grazing rights of nomads and encouraging economic benefits from livestock rearing). We can achieve this by attempting the posers below:

  1. Is the Grazing Bill compatible with the Land Use Act?
  2. Does the Grazing Bill satisfy the public interest requirement for the compulsory acquisition of land under the Land Use Act?
  3. What are the implications of the Grazing Bill on constitutionally-protected rights, especially the right to life and the right to non-discrimination?
  4. Are land owners whose lands are expropriated by the Commission availed with effective legal remedies?

The Grazing Bill is Incompatible with the Land Use Act!

Several provisions in the Grazing Bill are time bombs awaiting explosion. Land Use Act is the principal land policy that governs the administration of land in Nigeria. Section 1(1) of the Land Use Act vests the entire landmass in the territory of each state of the federation in the State Governor. Transferring parts of the governor’s powers to the Commission, without constitutional approval, represents an usurpation of statutory authority. Secondly, the power conferred on the Commission to identify suitable land for grazing, and the requirement for state governors to transfer the identified land to the Commission, evidently showcases the Governors as subordinates to the Commission- a rape in the anus of the constitution! Thirdly, the Commission’s power to “identify land” is inherently dicey and prone to abuse, and will potentially provoke social unrests especially where the choicest arable land are identified and set aside for nomads and grazing rights.

The Grazing Bill Fails to Satisfy the Public-interest Requirement.

Section 28 of the Land Use Act vested the Governor with such power to revoke a right of occupancy for overriding public interest. Considering the above, the vital question to ask is whether the establishment of a grazing reserve or grazing routes for nomadic herdsmen is in the overriding interest of the public or for purposes beneficial to the public. To determine what amounts to public purpose, section 51 (Interpretation Section) emphasis on paragraph (1) (h) of the Land Use Act defines “public purposes” to include – “…for obtaining control over land required for or in connection with economic, industrial or agricultural development.” 

Since the Land Use Act recognizes agriculture as falling within the public use category under which land can be compulsorily acquired, this means that cattle-rearing which is the sole business of nomadic herdsmen can be described as an agricultural activity. However, the Grazing Bill will not pass the test because the activity displaces people from their homes and community, for a purpose that may not be beneficial to the land owners and also capable of destroying their means of livelihood. 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 grazing reserves that will benefit a few. The Court in Ibafon Company Ltd  vs. Nigerian Ports Authority PLC, held that the alienation of land compulsorily for public purposes to person who used it for private business was illegal. Since the purpose of revocation is for public good and not for the benefit of an individual, any such revocation for the interest of an individual is null and void and of no effect. 

The Grazing Bill Offends Constitutionally-protected Rights.

The Bill evidently runs against the intendment of section 33 (1) of the Constitution which protects the right to life of citizens. The sections provides that every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria. The argument here is that the Bill did not spell out viable means to resolve the problem, prevent subsequent attacks, stop the incessant killing of farmers and land owners by the herdsmen. It only provided for punishment and compensation. Hence, the approval of grazing routes and ranches in another man’s land will continuously result to bloodshed and more deaths.

Also, according to section 43 of the Constitution, every citizen has the right to acquire and own immovable property anywhere in Nigeria. Section 44 (1) further provides that 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.

We can conclude that since law makers are yet to make a generally acceptable law that will vest grazing rights on foreign lands on nomads, any attempt to possess or make use of another’s land for grazing without authority should be considered a trespass, and thus illegal and unconstitutional.

What is the Way Forward?

While not denying that cattle-rearing is a viable economic enterprise with huge potential for revenue generation, farming on the other hand remains one of the best economic live-wire of the country, hence must not be destroyed, to make way for the grazing routes.

The setting up of a workable dispute resolution mechanism that would be proactive in resolving farmers and nomadic settlers’ differences will greatly enhance the relationship between herders and farmers, and prevent resort to self-help.

More so, instead of opting for outright acquisition of the proposed land for grazing, negotiations could be made by relevant authority for long leases. In this case, the communities still retain the reversionary interests in the land. 

Finally, civilized societies like America, Australia, Canada, South Africa, have since adopted the ranching system where the livestock are kept in a location with perimeter  fencing. This could be practiced locally and supported by our laws. It will also encourage regional livestock rearing, and checkmate clashes between nomads and farmers.

Written by Otikpa Desmond C.

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