Aare Afe Babalola SAN Founder/President , ABUAD
OPEN GRAZING: CHALLENGES (1)
IN recent times, one of the most deep-seated security challenges plaguing Nigeria is the menace of some murderous Fulani herdsmen who pillage, plunder and terrorise local farmers, vandalising their farmlands, desecrating their sources of livelihood, and killing those who dared to challenge their nefarious activities. Beyond the economic ramifications of the activities of these herdsmen, which will no doubt lead to famine, food insecurity and unemployment if left unchecked, there is an immediate security challenge which calls for an urgent attention.
It is common knowledge that Nigeria is bedevilled by a myriad of security challenges particularly stemming from armed conflicts relating to inter-community conflicts, herders’-farmers’ conflicts, Boko Haram, clashes between socio-cultural and religious groups, among others. However, the most ubiquitous security challenge facing Nigeria is the menace of the Fulani herdsmen whose nomadic nature and transhumance tradition transcends the borders of Nigeria’s geopolitical delineations, often pitting them against sedentary farmers and proprietors of largescale, mechanised farming. In recent history, Fulani herdsmen have been accused of various forms of attacks, especially ransom kidnappings and militia expeditions against farming communities considered antagonistic to their herding and pasturing activities. The nonchalance of the Nigerian government despite the international classification of these herders as terrorists seems to have emboldened these Fulani herders who now wield automatic rifles and assorted ammunitions in their nefarious escapades.
Ceaseless Reports of Herdsmen Attacks
The media is constantly awash with reports of ceaseless, unprovoked and unrepressed attacks on individual farmers and farming communities, which then makes one conclude that the Nigerian government has failed in its primary responsibility of the protection of lives and properties; and to question the effectiveness or even the enthusiasm of the Nigerian security apparatus in curbing the spate of these wicked, sadistic, borderline psychopathic attacks. Late last year, the British Broadcasting Corporation made the following caption: Dozens of Farm Workers Killed in ‘Insane’ Nigeria Attack. It reported that more than 43 agricultural labourers working in rice fields were slaughtered in Borno State; while 6 were reported to be seriously wounded and 15 women kidnapped. The CNN however stated that the number was 110. In a recent newspaper report captioned Ibadan Farmer Dies After Fulani Herdsmen Allegedly Set His Cashew Farm Ablaze, the media reported that without any provocation, the herdsmen set a farmer’s cocoa and cashew farm ablaze and in an attempt to put out the fire, the farmer’s body caught fire and was burnt alive! In another news, Chief Olu Falae, an Afenifere chieftain, granted a media interview which was captioned How Fulani Herdsmen Killed My Farm Guard, Took Away His Heart, Rifle, narrating the incidence of his own kidnap and the attack of his farm guard. He further added that a number of other herdsmen vandalised farms not because of grazing their cows but because of malice and deliberate sabotage. Another report reads thus Again, Fulani Herdsmen Strike in Ondo, Kill Cousin of Akeredolu’s Media Aide In Ondo. As you would have guessed by now, the deceased is equally a farmer. In fact, the details of his murder is so gory as the herdsmen overpowered him and twisted his neck backward in order to asphyxiate him. Yet again, in another news report captioned Suspected Kidnappers Kill OPC member, Abduct Farmer in Ondo, it was reported that a member of OPC was killed by Fulani herdsmen when he joined a search party to rescue a farmer who had been kidnapped. In fact, the report of these incessant killings is overwhelming and hardly does any day go by without any such incidence. Equally tragic was the murder of Dr Fatai Aborode in Igangan, Oyo State. The deceased, a candidate at the 2015 elections into the House of Representatives, was a PHD holder and farmer who was reported to have made it a cardinal point of his operations to cultivate friendship with the Fulani in the area. Many of them were employed on his farm and he in addition gave regular gifts including maize for the feeding of their cattle. Despite it all, he was killed in a gruesome manner as reported by his manager thus:
“We were on the way from farm when, on getting to the point of the incident, we were forced to stop. Two gunmen came out from the bush and forced us to stop. Two others blocked us at the back to ensure that we did not escape. Behind us was another motorcyclist with his wife on board. They were also stopped and we were ordered to come down from the motorbikes. They didn’t manhandle the rest of us apart from my boss. At first, we thought that they were kidnappers so he asked if they wanted money. They told him that they didn’t need his money. Meanwhile they took me about 500 meters away from where my boss was taken. The other man and his wife were in between where I was and where my boss was held down. One of them kept watch on me while they were dealing with my boss. As he was being macheted, I heard the voice of the other man who was on the bike with his wife pleading that they should not kill my boss but they turned deaf hears. At a point, the man who held me down left me to meet the others so I had the opportunity to bolt away. “
The Government’s Response
Sometimes ago, the federal government set up a committee comprised of the Vice President and some state governors with a view to bringing about an immediate cessation to the attacks by Fulani herdsmen. Also, the government announced an additional measure which it believes will help in reducing the friction between herdsmen and farmers; the establishment of cattle colonies across the states of the Federation. Announcing this decision, the former Minister of Agriculture, Audu Ogbeh, was reported to have stated as follows:
One of the most topical issues we have today is that of farmers and herdsmen clashes. If we do not deal with it quickly, we run the risk of damaging the harmony and the co-existence of Nigeria as a country. The killings are getting too many. In our attempt to solve the problem, we have proffered certain solutions but perhaps we were not sensitive enough to Nigeria’s fragile sensitivities and suspicions. When we spoke of colonies, we were immediately greeted with reactions that this was an attempt to seize Nigeria’s land and give to the Fulanis to colonise. The intention is not for Fulanis or anyone to colonise any territory. It is to provide a haven for cattle to graze in peace under controlled environments to prevent the conflicts between farmers and herdsmen. Only yesterday, a committee was set up by the Vice President with members, most of them, state governors discussing this matter and resolving that states that are interested will begin work on this matter as soon as next week.
The solution proposed by the former Minister of Agriculture, i.e. the use of state lands for the establishment of cattle grazing colonies for the Fulani herdsmen is not only impracticable, but has no premise under the extant Nigerian laws. In fact, it betrays the intention of the Nigerian government to tolerate the herdsmen rather than prevent further heinous attacks on innocent Nigerians; to placate rather than punish the murderous Fulani herdsmen. At a time, the Presidential spokesman, Femi Adesina, reportedly stated, infamously, that “your ancestral land for grazing or your life”.
One thing which is clear, however, is that even if state lands are acquired for the establishment of grazing colonies, there is no guarantee that the Fulani herdsmen will not seek to extend their domain by forcefully acquiring other lands because, by their nature, they are nomads. There is also the possibility that whatever expanse of land designated for the herdsmen may be overgrazed by the cattle, and therefore leading to the irresistible temptation to forcefully take further territories which have vegetation. These considerations are notwithstanding whether these ranches are privately or publicly managed.
Beyond the political and security considerations dictating a restraint in the acquisition and allocation of state lands for the establishment grazing settlements, there are equally legal impediments to such acquisition. To meet up with the expected quota of 10,000 hectares required from each state, the states would inevitably have to acquire land from private citizens and thereafter allocate it for the establishment of the colonies which, if considered, qualify as private interests. While the Land Use Act empowers the governors of the states to acquire land for public purpose(s), the Courts have held on several occasions that governments cannot acquire land from a private individual only to make same available for the use of another private individual as this would not amount to “public purpose”. In Wuyah v. Jama’a Local Govt, Kafanchan (2013) All FWLR (Pt. 659), the Court stated as follows:
The law does not give license to anybody, an individual, constituted authority or government, such as the respondent, to acquire, compulsorily or otherwise, any land that belongs to a person and alienate or transfer it to another private individual or body for his/its private use. To do so will run foul of the aforementioned sacrosanct provisions of the Land Use Act. The aim of the Act is not to divest citizens of their pre-existing titles to land. No doubt, the Land Use Act is an expropriatory legislation which must be construed fortissime contra preferentes – strictly against the acquiring authority, but sympathetically in favour of the person whose property rights are being taken away.
Applying the foregoing to the suggestion of the establishment of cattle colonies, I do not see how any acquisition of land by any state government for the establishment of the cattle colonies would qualify as a public purpose. The approach of the Courts is to strictly construe any statute by which government can or purports to exercise the expropriation of the proprietary rights of the citizens. Therefore, as herdsmen are in reality businessmen engaged in the business of cattle rearing for their own personal financial gain, I do not see how the provision of land for the grazing of their cattle, even at the payment of a fee, would satisfy the provisions of the law if the land is acquired from other private individuals.
In stating the above, I am not unmindful of the provisions of Section 51(1)(h) of the Land Use Act which permits acquisition “for obtaining control over land required for or in connection with economic, industrial or agricultural development” This, in my estimation, contemplates a situation in which the land is acquired for the use by the government of its own plans for agricultural development. What is however clear from the stated intention of government is a plan to make the land available for the use of the herdsmen and their cattle.
To be continued
AARE AFE BABALOLA, OFR, CON, SAN, LL.D (Lond.), D.Litt.