By Professor ‘Gbenga Bamodu, FCIArb, gbenga@phillipsonslaw.com
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Background
On Wednesday 5th June, a legislative bill titled the National Ranches Commission Bill, 2024 (sponsored by Senator Titus Zam) passed second reading in the Nigerian Senate and was referred by that body for committee deliberation. The committee is expected to report within one month from the referral and it is expected that there will be public consultation after the committee report. This essay in contributing to the public discourse assesses the Bill from the perspectives of its constitutionality, appropriateness and the utility and effectiveness of its proposed substantive provisions.
Constitutionality and Appropriateness of the Bill
There have already been interventions by two eminent contributors propounding the argument that the National Assembly does not have the power, under the Nigerian 1999 Constitution, to enact legislation establishing ranches. This argument that has been proposed by retired Justice Ejembi Eko (formerly of the Supreme Court) and Chief Sebastian T Hon (SAN, FCIArb), is predicated on the basis that ranching and/or animal husbandry is not provided for under the exclusive legislative list and/or cannot be accommodated within the provisions of Item 17(d) of the concurrent legislative list of the Constitution. The said Item 17(d) empowers the National Assembly to make laws for the country or any part of it with respect to ‘the establishment of institutions and bodies for the promotion or financing of industrial, commercial or agricultural projects.’
The matters raised by these two highly respectable commentators pose a very serious challenge to the Bill that is currently under consideration by the Senate, particularly in its present form, as the main object of the Bill is principally to provide for the establishment of a National Ranches Commission and for the regulation, preservation, management and control of ranches throughout Nigeria. Nevertheless, it is possible and perhaps likely that the Senate will continue with progress on the Bill and that it might be enacted into law in spite of these arguments. Almost inevitably, challenges to the constitutionality of such eventual legislation will follow and it will be ultimately for the courts to decide conclusively.
There is attraction in the argument that in the absence of any other provision of the Constitution on which the subject matter of the Bill can be predicated (which this article only assumes without conceding), that subject matter is not covered by Item 17(d). Retired Justice Eko is reported to have argued that Item 17 cannot be stretched to include animal husbandry and ranching – https://saharareporters.com/2024/06/17/national-assembly-lacks-constitutional-powers-legislate-open-grazing-bill-retired. A more detailed and more forceful argument is presented by Chief Sebastian Hon in a 36-page opinion document. He argues that for a body to be lawfully established under the provisions of Item 17(d) that body must be established for the promotion and financing of industrial, commercial or agricultural projects; and, that the current Bill is not so limited in that ‘it is stated to be for the “establishment, management, preservation and control” of Ranches throughout Nigeria.’ It is further argued that the putative functions of the proposed National Ranches Commission as listed in the Bill go beyond promotion and financing. (Emphases as in original document)
On the other hand, it is just possible that the courts will place their own emphases on the interpretation of Item 17(d) of the concurrent list of the Constitution elsewhere, for example on the power to establish institutions, and then also that they might possibly be elastic in their approach to the interpretation of the phrase ‘the promotion or financing of industrial, commercial or agricultural projects.’ There is at least an arguable case that can possibly be made that the establishment of ranches fall within the idea of promotion of an industrial or agricultural project. It is possible that the courts may see the setting up of ranches as an industrial or agricultural project and the creation of a commission regarding such a project as the promotion of the project. It is conceded that the foregoing is conjecture and no prediction is being proffered as to the likely direction that the courts, especially, the Supreme Court, will tilt.
In examining the putative functions of the proposed Commission and, even more importantly, in considering the wider background and socio-economic issues underlying and creating necessity for a bill relating to ranching throughout Nigeria, it is difficult not to question whether such a bill is a proper one to be introduced as a private member’s bill rather than a government sponsored bill. In brief, the Bill is proposed against the background that in recent years Nigeria has been embroiled in a serious crisis of conflict between pastoralist herders who typically engage in what is known as ‘open grazing’ on the one hand and other communities, especially farmers, whose property the herders’ cattle might traverse. The conflict has resulted in tragic loss of many lives as well as physical and psychological injuries, damage and loss of property, and considerable economic and social damage nationally.
In light of the seriousness of the herder-farmer conflict crisis, both the Federal Government and several State governments have been seeking solutions to the problem. Many States have already enacted legislation in recent times to prohibit or curtail open grazing and to promote a shift to some form of ranching pastoralism. The Federal Government has also been making efforts to seek out solutions at the national level for the herder-farmer conflict. While Federal Government action is still being awaited and anticipated, the Federal Government itself has in the recent past indicated a preference for a shift away from open grazing pastoralism and also towards a ranching system. As such, a private member’s bill as the one currently going through the Senate will pre-empt properly formulated government policy and considered action. It is considered that such pre-emption is undesirable and would be both unfortunate and counter-productive if the Bill currently going through the Senate were to be enacted.
In the first place, considering the delicate nature of the herder-farmer crisis and the polarisation that has occurred among communities and ethnic groups in the country, a national approach that seeks to engage and to carry along the various stake-holders is to be preferred and has been long recommended. In undertaking its own action, it is expected that the federal government would be working in concert with state governments, particularly in the states most affected, with the various communities involved, with experts, and even with neighbouring countries, particularly in light of the government’s commitments under the ECOWAS and that body’s regional international instruments relating to transhumant pastoralism. The Bill currently going through parliament falls short on these matters; it is particularly limited and lacking in clarity in relation to the most critical issue of open grazing. Additionally, federal government action will involve that government undertaking significant financial commitments; again, the Bill currently going through parliament also falls short on this point as will be seen in a consideration of some of its key substantive provisions below.
The Contemplated Ranches System and the Proposed National Ranches Commission
- The Bill provides for the establishment of a ‘National Ranches Commission’. An immediately arising concern is how this Commission is to be funded. The Bill is not explicit or specific on this point and there is no clear indication that the Federal Government will be obligated to provide funding. Instead, clause 14(1) of the Bill provides that the Commission is to maintain a fund while clause 14(2)(a) provides that such sums as may be provided by the government of the Federation shall be paid and credited into the fund. Additionally, the Bill provides in clause 7 that the Commission may accept gifts, on terms provided by the donor organisation for that matter, though not being contrary to the objectives and functions of the Commission. It is also provided in clause 8 that the Commission may borrow money by way of overdraft or loan subject to ministerial approval and, in clause 14(2)(b), that any fees that the Commission charges for its services as well as any gift, endowment etc shall also be paid and credited to the fund.
The lack of clarity in relation to obligatory sources of funding for the Commission is an alarming concern, especially considering that one of the causes of the failure of previous efforts to steer away from open grazing pastoralism towards a reserve system was inadequate funding. If the funding of the system and Ranches contemplated by the Bill is lacking or inadequate, the result once again would be predictable failure of the objectives of the Bill and lack of resolution of the issues that the Bill supposedly seeks to address.
- The Bill contemplates the establishment of ‘National Ranches’ which are, among other things, to be managed by the proposed National Ranches Commission. National Ranches as contemplated by the Bill ‘means any area constituted or established as National Ranch under’ the proposed legislation. It is further provided in Clause 6(c) of the Bill that one of the functions of the intended National Ranches Commission is ‘determining the number of ranches to be established per state.’
The Bill does not seem to address, at least not directly or clearly, whether and how the ‘National Ranches’ are to operate alongside other ranches, either entirely private ranches or those established under ‘anti-grazing’ legislation enacted by States, for example the Prohibition of Cattle and other Ruminants Grazing in Ekiti State Law 2016. The Ekiti State’s legislation clearly provides by its terms that it is prohibited to allow cattle ‘to graze on any land in which the Governor has not designated as ranches’. Thus, the question of how National Ranches established under the proposed legislation are to operate alongside those ranches designated as such by the Governor of Ekiti State (as one example) really needs to be addressed, whereas the current Bill does not do so.
- The Ekiti State’s anti-grazing law permits grazing, during permitted hours, in lands designated as ranches by the governor. On the other hand, the Bill going through the Senate provides in clause 22(7) that no livestock or cattle shall be allowed to wander, roam, move and or graze outside the National Ranches. Evidently, in the absence of modification or clarification, there is going to be what should be an entirely avoidable conflict with the Ekiti State’s legislation and similar legislation of other states. Additionally, and again without modification or clarification, the potential effect of clause 22(7) of the current Bill would seem to be to inhibit the operation of private ranches. It is rather doubtful that this is a deliberate intended outcome of the Bill and the contemplated legislation. In any event, it is considered that the provisions of clause 22(7) are not sufficient if intended as a prohibition on open grazing nationally. Fuller, more explicit, better considered and better integrated drafting of intended prohibition of open grazing on a national basis is considered desirable.
Omission to Address and Reflect Nigeria’s International Obligations under the ECOWAS Protocols Relating to Transhumance
As a member state of ECOWAS Nigeria has obligations under some of that organisation’s instruments, including instruments on free movement of persons and relating to transhumance. The ECOWAS Protocol Relating to Free Movement of Persons, Residence and Establishment introduced in 1979 provides that ECOWAS ‘Community Citizens’ have the right to enter, reside and establish in the territory of Member States. A supplementary Protocol obliges Member States to grant right of residence to nationals of other Member States for the purpose of seeking and carrying out income earning employment. Another provides, additionally, that seasonal and itinerant workers shall enjoy all rights to which they are entitled through their presence and their work in the territory of the host Member State. A further supplementary Protocol sets out provisions concerning the right of establishment, access and ability to carry out economic activities, by nationals of one member state in another.
Beyond the free movement of persons, ECOWAS also has instruments relating to transhumance. Transhumance generally refers to seasonal movement of livestock in directions more amenable to finding pasture in particular seasons. ECOWAS Decision A/DEC.5/10/9895, widely referred to as the ‘ECOWAS Transhumance Protocol’, as supplemented by the Transhumance Implementation Protocol, provides for a right of free passage of cattle across the borders of member states at entry and exit points, subject to possession of an ECOWAS International Transhumance Certificate.
The Transhumance Certificate is to detail, among other things, the itinerary of the herd, the border posts to be crossed and the final destination, while transhumance herds are to follow the routes ‘defined by Member States in accordance with the itinerary indicated on the ECOWAS International Transhumance Certificate.’ Further, member states must define the areas where transhumant animals may be stocked and are to organise information and training campaigns, inter alia, for herdsmen and other actors in respect of ‘the departure, transit and host zone of transhumant herds’. Alongside the member states, the ECOWAS itself also has obligations under the transhumance instruments including to organise information, enlightenment and training for herders, establish pastoral organisations and breeders’ associations, establish national committees to manage, monitor and appraise transhumance, and to ensure strict compliance with relevant ECOWAS instruments and national laws.
It is notable that these obligations relating to the implementation of the ECOWAS transhumance instruments cannot be said to have been carried out and, as Chief ST Hon points out, many of them remain ‘stubbornly unfulfilled so far’.
Relating the foregoing to the current National Ranches Commission Bill, the following observation can be made. Enacting the Bill in its current form will amount to the creation of an inadequate framework to address the issues relating to open grazing pastoralism. A federal legislation seeking to address open grazing and potential replacement with ranching needs to be a comprehensive instrument that addresses both the national and transnational dimensions and interests and obligations of the country. It has also been pointed out in related literature that some of the provisions of the ECOWAS Transhumance Protocol and the Implementation Regulation can be profitably borrowed and adapted for efficient provision for and regulation of domestic nomadic pastoralism and transhumance. The proposed Bill falls far short of all of these and only makes a passing reference to transhumance in clause 6(g) which merely provides in effect that one of the general duties of the National Ranches Commission is fostering ‘in the mind of the general public, particularly the Pastoral and transhumance population the necessity for the establishment and development of National Ranches ….’
Concluding Remarks
This contribution has focused on some of the key provisions of the extant National Ranches Commission Bill and demonstrated some shortcomings in those provisions as well as another significant shortcoming of the Bill in the omission to address or incorporate Nigeria’s obligations under ECOWAS instruments concerning transhumance. This approach is informed by a desire to concentrate on some of the most critical issues of concern about the Bill. There are other concerns that have been expressed in relation to the Bill such as, among others, whether the Bill ‘offends the African Charter on Human and People’s Rights’, and whether some of the provisions of the Bill are in conflict with provisions of the Land Use Act 1978.
The Bill also evinces, among other things, a few grammatical issues that can be easily fixed, a need for greater clarity in the drafting of some of its provisions, and a stray use of ‘reserves’ apparently instead of ‘Ranches’. There is certainly scope for improvement on such seemingly superficial matters. Beyond these at any rate and for the more fundamental shortcomings highlighted earlier it is difficult to support this Bill for enactment into law in its present form.
Professor ‘Gbenga Bamodu, FCIArb is a partner in the firm of Phillipsons Legal Practitioners & Arbitrators. He is the author of ‘The ECOWAS Protocols on Freedom of Movement and Transhumance: Any Role in the Farmers/Herdsmen Conflict?’, chapter 2 in CC Ohuruogu, C Oguamanam & M Baderin (eds), Emerging Legal Frontiers in Nigeria: Cross-cutting Issues on Governance, Security and Politics vol 2 (Malthouse, 2023). He can be contacted by email at gbenga@phillipsonslaw.com
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