Fulani herdsmen; herdsmen; hoodlums; intruders from Chad and neighbouring countries or whatever appellation ascribed to their murderous activities, these names emit fumes of terror, anguish and fear.

The fear they evoke is well founded. What started out as recurrent violent clashes between nomadic herdsmen and their host farming communities in Kaduna, Plateau, Kaduna, Nasarawa, Adamawa, Benue and more recently, Enugu and Abia states, have now assumed genocidal dimensions. The clashes are largely rooted in violent disputes over land spaces needed for grazing and cattle rearing.

Currently undergoing parliamentary deliberation is a proposed legislation – National Grazing Routes and Reserve Bill 2016 – that aims to bring the incessant herders-farmers clashes to an end, through the establishment of grazing routes and reserves across the country. The proposal for the establishment of grazing routes has stirred ethnic tensions, especially in the southern part, where the bill continues to raise suspicion. Creating special grazing routes is widely perceived as an attempt to grab land from farming communities and hand it over to the nomadic herdsmen, with not a few vowing to resist any move by the Federal Government to endorse, by legislation, the creation of such routes.

A cursory look at the contentious 35-claused bill shows that a Commission is to be established as a corporate body, with well-defined governance structures and systems (Part I). As enumerated in Part II of the bill, the functions of the commission 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: (a) physical/geographical analysis of the land use to ascertain the best locations within the states for such routes or reserves. It also stated that the 36 state governors should cooperate with the commission to accomplish this objective. The bill requires governors to transfer identified land 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. The bill provided for notices to be issued and or served on the affected citizens. Clause 21 of the bill mandates the commission to pay “the compensation necessary” to persons and communities whose interest in the land are affected by the transfer.

The Nigerian 1999 Constitution and the Nigeria’s land use policy – the Land Use Act of 1978 – provide a prism through which the competing economic interests of the nomadic Fulani herdsmen and farming settlements can be explored. Along these lines, any attempt at the exploration of solutions to the herdsmen-farmers menace must answer these four germane questions:

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 non-discrimination?

4. Are land owners whose lands are expropriated by the commission availed with effective legal remedies?

Several provisions in the Grazing Bill are tension triggers. The first tension trigger is the evident contradiction between the Land Use Act and the Grazing Bill. The 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, with strong potential to aggravate social tension, and upset state-federal collaborations.

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, subordinates state governors to the commission – another constitutional aberration! This also means that affected landowners and communities have practically no say in the making of land takeover determinations.

Thirdly, the Commission’s power to “identify land” is inherently prone to abuse, and will potentially provoke social unrests especially where the choicest arable land are identified and set aside for special use by “foreigners’.

Section 28 of the Land Use Act empowers the governor to revoke a right of occupancy for overriding public interest. The question for an answer 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 consider what amounts to public purpose, we look no further than in section 51 of the interpretation section particularly paragraph (1) (f) of the LUA where public purposes was interpreted to include, “for obtaining control over land required for or in connection with economic, industrial or agricultural development (emphasis mine).”

Since the Land Use Act recognises agriculture as falling within the public use category under which land can be compulsorily acquired, this connotes that cattle rearing which is the stock-in-trade of nomadic herdsmen can be described as an agricultural activity. However, for two main reasons, the test of public interest collapses when the nature and benefit of the agricultural activity proposed under the Grazing Bill is further scrutinised. First, the activity in question is for the benefit of a particular group who has been identified with a particular economic activity. Secondly, the activity seeks a federal fiat to displace hundreds of thousands from their ancestral home for an economic activity that is structured in a manner that may not be beneficial to them and also destructive to their means of livelihood.

A long list of judicial authorities has clarified what overriding public interest means. Shedding light on the nature of public interest, the Supreme Court in Lawson vs. Ajibulu [ (1991) 6 NWLR (pt 195) 44] held that the governor’s power of revocation for overriding public interest does not cover any revocation of an individual’s interest in land and granting same to another for a private purpose. 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 court stated:

“But I conceive that the acquisition must primarily be made to fulfill the legitimate ends of government and not directly or indirectly for the sole and personal benefit of any individual or group of persons with certain vested interests which either by accident or design tally with the purpose government(emphasis) is empowered by law to compulsorily acquire other people’s land.”

From the decision above, it is trite law that although a revocation made in compliance with the relevant provision of the Act is valid, it may be declared void by the court if the acquisition was not made to fulfill the legitimate ends of government, but simply to transfer 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 other people’s 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 grazing reserves that will benefit a few.

Ohaeri, a lawyer, is the Executive Director, Spaces for Change, Lagos

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