Re-Examining The Constitutionality Of Retracing Of Grazing Routes In Nigeria

By Theophilus Orumor, Esq,LSC

The issue of   retracing of   national grazing route was stirred by the President sometime ago in his televised interview where he indicated  the federal government’s  intension of revitalizing/retracing of a so called ‘grazing routes/reserves’  which was a creation of the National Grazing Reserve Law,  some of which routes are said to be  publicly gazetted .

While it is conceded that the President  may have expressed  the desire above  ostensibly  to provide a panacea to the lingering   issue of  the now frequent farmers/herders clash which has claimed so many lives in the recent past, there are however, constitutional /legal issues which need to be clarified in this matter.

Firstly, is the National Grazing Reserve Law  a valid law as at today? The said law is said to  have been  enacted in 1965. A searched through the current laws of the Federation of Nigeria 2004  did not reveal  any National Grazing Reserve Law/Act, that would qualify the said law as a pre-existing Act/Law of   federal application. Assuming without conceding that the said law was indeed in existence (I stand to be corrected though),the condition precedent for the survival of any pre-1999 existing  law/act are specified in section 315 of the  1999 Constitution of the Federal Republic of Nigeria  .

One of the condition precedent for the survival of any law under the above mentioned section 315 is   the question   of whether the said law is  a law that could have been enacted by the National Assembly under the present dispensation?  So, the question would then be: “is the National Grazing Reserve Law/Act” an Act that could have been enacted by the present day National Assembly? This requires examining the exclusive legislative list of the aforementioned 1999 constitution. A perusal of the 68 items on the exclusive legislative list does not  indicate any subject matter dealing on grazing or animal husbandry as to warrant the current policy direction of the Federal Government. With the exception of items 17(c) (d)and 18 of the concurrent  legislative list which makes mention of  research centers for agricultural, institution or bodies for the promotion or financing of agricultural projects and agricultural development of a state  respectively, there  is nothing mentioning  “grazing” as to warrant  a so called “National Grazing Reserve Law”. If examined on this sole prism, the issue   of “grazing routes” can conclusively be said to be unconstitutional, null and void.

This vexed issue of  the constitutionality of   the retracing grazing routes would also require the brief dissection of the Land Use Act 2004  which act vest all lands comprised in the territory of each State (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who  holds such land in trust for the people and is responsible for the  allocation of lands in all urban areas to individuals resident in the State and to organisations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments.

Section 6 of  the said Land Use Act  on the powers of local government in relation to land not in urban areas states that

(1) It shall be lawful for a local government in respect of land not in an urban area
to-

(a)              grant customary rights of occupancy to any person or organisation for the use
of land in the local government area for agricultural, residential and other pur-
poses;

(b)             grant customary rights of occupancy to any person or organisation for the use
of land for grazing purposes and such other purposes ancillary to agricultural
purposes as may be customary in the local government area concerned.

Section 6(2) of the said Act  provides that  no single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Governor.

Although the Governor/Local Government are vested with almost absolute powers with respect to land under their respective domain, it is important to note  the provisions of section 28(4) of the said Land Use Act  by which the Governor  of a state is duty bound  to  revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.

Section 51 of the said Land Use Act defines “public purposes”  as including-

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

     (b)               for use by any body corporate directly established by law or by anybody corporate registered under the Companies and Allied Matters Act as respects
which the Government owns shares, stocks or debentures;

(c)            for or in connection with sanitary improvements of any kind;

      (d)               for obtaining control over land contiguous to any part or over land the value of
which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;

(e)              for obtaining control over land required for or in connection with development
of telecommunications or provision of electricity;

(f)              for obtaining control over land required for or in connection with mining pur-
poses;

(g)              for obtaining control over land required for or in connection with planned ur-
ban 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;

The above section also defines “grazing purposes”  as including  only such agricultural operations as are required for growing fodder for livestock on the grazing area.

The reasonable deductions  that can be made from the above outlined provisions of the  Land Use Act is that

1. The Local Government, in respect of land not in an urban area
   has the power to grant customary rights of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural
   purposes as may be customary in the local government area concerned.
2. The Governor of a state is duty bound  to  revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.Please note that the operative word used in  the said section 28(4) of the  land Use Act is “shall”.The effect of this in well known.

The almighty question would then be “ is the issue of  retracing  of grazing  routes/animal husbandry  a matter of public purposes as to warrant the kind of interest recently shown by the federal government? I will leave this question for our conscience to answer!

Theophilus Orumor, Esq,LSC
info@thelaw-house.com
Theophilus Orumor, Esq,LSC
The Law House