Appraisal of Legality and Propriety of Ondo Govt’s Restriction on Herdsmen within The State….by Femi Emodamori

AN APPRAISAL OF THE LEGALITY AND PROPRIETY OF THE ONDO STATE GOVERNMENT’S RESTRICTION ON HERDSMEN WITHIN THE STATE.

Expectedly, the recent pronouncement by the Ondo State Government that herdsmen should vacate Forest Reserves within the State, and stop night grazing or movement of cattle, has raised the bar in the fight against insecurity. Also, as part of security measures, such herders must be formally registered with the Government, to curb the alarming rate of kidnapping, banditry and armed robbery within the State by some people masquerading as herdsmen.

This directive has been generating different reactions across different segments and interest groups within the nation. Such reactions are expected. Regrettably, a lot of the reactions are simply betraying the ethno-religious bigotry and sentiments of some individuals and groups, rather than setting a robust discourse of the legality, propriety and/or necessity of the pronouncement of the State Government.

Be that as it may, a thorough and dispassionate examination of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Land Use Act as well as the existing relevant Laws of Ondo State, shows clearly that the pronouncement of the State Government is absolutely in order. It is in accordance with our laws, some of which have been lying dormant in our statute books for more than half of a century.

The pronouncement of the Governor of Ondo State would, therefore, seem to be nothing more than the activation of dormant but potent laws that are most suitable for dealing with the security challenges at hand. Clearly, if not urgently addressed, the current challenges may consume the entire nation (God forbid!).

An attempt shall me made herein to examine concisely, the often quoted and misquoted Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Land Use Act, 1978 (which is also an integral part of the Constitution), and the Trade Cattle Tax Law, (Cap. 153, Vol. 4, Laws of Ondo State of Nigeria, 2006), in analyzing the legality of the bold declarations and actions of the Ondo State Government on the subject matter. In doing so, it is proper to start with the organic law of the land, the Constitution.

RELEVANT PROVISIONS OF THE CONSTITUTION ON SECURITY, FREEDOM OF MOVEMENT, AND CONTROL OF LANDS.

Section 14(2) (b) of the Constitution unambiguously states that “the security and welfare of the people shall be the primary purpose of government”, while Section 318 (1) of the Constitution clearly states that “government” includes “the Government of the Federation or of any State, or a local government council or any person who exercise power or authority on its behalf”.

The security and welfare of the people or residents of Ondo State must, therefore, be the primary purpose of the State Government, like every other responsible government in the nation, whether at the Federal, State or Local Council level. The Governor of Ondo State, as a Senior Advocate of Nigeria, obviously fully understands the above provision of the Constitution when he declared that he was not just elected to execute projects, but to equally provide for the security and welfare of the people.

Again, Section 41(1) of the Constitution provides that “Every Nigerian is entitled to move freely throughout Nigeria and reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.”

Much allusion has been made to this fundamental rights provision by those who appear to have deliberately or unconsciously misunderstood or twisted the directive of the Ondo State Government to the herdsmen.

The clear directive of the Ondo State Government is that the herdsmen should vacate the State Forest Reserves within seven days, stop night grazing as well as movement of cattle along the highways, and that herdsmen who want to reside in the State and carry on their legitimate businesses must register with the State Government.

It would be clearly unreasonable for anyone to interpret the above directive of the State Government as tantamount to expulsion of all herdsmen from Ondo State. It would be much more unreasonable to argue that herdsmen, or any other Nigerians, including the indigenes of Ondo State, have the right to invade and occupy areas that have been designated by Law as Forest Reserves within the State.

Fundamental Rights are not, and can never be, absolute. A Fundamental Right without any form of limitation is, in fact, another definition of anarchy. It is for this this reason that S.45 (1) (a)-(b) of the same Constitution provides that:

“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the right and freedom of other persons.”

It is therefore incontestable that laws and regulations made in a democratic society in the interest of public safety, public order, or for the purpose of protecting the right and freedom of other persons, would be proper and justifiable, even if such laws and regulations appear to delimit the Fundamental Rights of individuals.

Two of such laws which fully back the pronouncement of the Ondo State Government on herdsmen’s activities within the State are (1) The Land Use Act, 1978; and (2) The Trade Cattle Tax Law of Ondo State, promulgated as far back as 1969.

POWERS OF STATE GOVERNORS TO CONTROL THE USE OF LAND UNDER THE LAND USE ACT 1978.

Section 315(5) of the Constitution specifically states that nothing in the Constitution shall invalidate enactments listed under items “a” to “d” thereof, one of which is the Land Use Act. In other words, nothing in the Constitution, including the Fundamental Rights provisions therein, can invalidate the provisions of the Land Use Act.

Section 1 of the said Land Use Act categorically states that “…all land comprised in the territory of State in the Federation are hereby vested in the Governor of that State and such land shall be administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.” Section 12 (1) of the same Act also states that:

“It shall be lawful for the Governor to grant a licence to any person to enter upon any land…”, while subsection 5 thereof clearly states that “The Governor may cancel any such licence if the licensee fails to comply with any of the conditions of the licence.” The word “license” here simply means permit. Basically therefore, it is within the powers of a State Governor to grant a licence, or permit, or right to anyone to enter any land within the State, and to cancel or withdraw such permit or licence if the holder violates any condition attendant to same. It goes without saying, therefore, that the Governor can impose conditions for anyone to enter, and/or be licensed to enter any land within the State.

Consequently, the Governor of Ondo State has the power to order herdsmen, or any other person(s) carrying on any other business on lands within the territory of the State, to apply for permit or license to do so, under the above clear provisions of the Land Use Act. That cannot in any way be interpreted as a violation of the Fundamental Right to freedom of movement.

THE POWERS OF THE STATE GOVERNMENT TO CONTROL CATTLE MOVEMENT WITHIN THE STATE, UNDER THE TRADE CATTLE TAX LAW OF ONDO STATE.

The Trade Cattle Tax Law of Ondo State, as earlier stated, was promulgated as far back as 1969, with a commencement date of 3rd July, 1969. The Law is contained in Chapter (Cap.) 153, Vol. 4, Laws of Ondo State of Nigeria, 2006. It has eighteen (18) sections.

Section 2 of the Law talks about “movement permit”, which is defined as: “a movement permit issued in the State under the Control Trade Cattle Regulations or a permit relating to the movement of trade cattle issued by any authority having power to issue the same under any law in force in any other part of Nigeria.”

The expression “any law in force in any other part of Nigeria” in this context of course includes the Land Use Act, as earlier established. In the same vein, “Trade Cattle” is defined in Section 2 of the Law as “any of the type of animals specified in the First Schedule hereto which are in the possession of or under the control of any person within the State for the purposes of the trade or business of that person or any other person as a dealer in such animals, but does not include any animal which is possessed by or under the control of any person for any domestic purpose or animals proceeding to grazing grounds or which are for use only as pack animals.”

Among the animals listed in the First Schedule to the Law are cows, bulls, sheep and goats. So, the Law applies to those who carry on the business of herding such animals, other than as domestic animals.

Section 5 of the Law again recognizes the legitimacy of issuing trade cattle movement permit “along recognizable trade cattle route”, while Section 4 thereof provides for the establishment of “a cattle control post or inspection station, as the case may be, for the purposes of the Law.”

Section 6 of the Law goes further to state that “Trade cattle tax shall be payable at the prescribed rates at the appropriate control post or inspection station described in section 5”, while Section 9 of the Law makes it a criminal offence punishable, upon summary conviction, with a fine of Fifty Thousand Naira, or to imprisonment for three years, or to both such fine and imprisonment for any person who, being the owner or agent of the owner or one in charge of trade cattle, fails to pay any trade cattle tax, or fails to take such trade cattle to the appropriate control post or inspection station in accordance with the Law.

Instructively, Section 16 of the Law gives the State Executive Council the power to make Regulations for the purpose of enforcing the Law.

From the totality of this Law, as highlighted above, it is submitted that:

The Ondo State Government has the statutory power to require owners of trade cattle, or herdsmen in this context, to apply for and be duly issued permits in order to carry on their business anywhere within Ondo State;

All herders or owners of trade cattle in the State are bound by law to present themselves and their cattle to the appropriate cattle control posts or inspection stations for inspection, permit and taxation;

It is actually a criminal offence for any herdsmen or trade cattle owner or his agent to operate anywhere in the State, without first presenting themselves and their cattle at the appropriate cattle Control Post or Inspection Stations created under the Law.

“Recognizable trade cattle route(s)” could be created and enforced under the Law. In other words, cattle grazing could be restricted to only certain parts or routes within the State;

The Ondo State Executive Council has the power to make Regulations for the purpose of enforcing the provisions of the Law.

On the premise of the foregoing, would it not be legal for the State Government to ban night grazing and movement of cattle along the Highways, as part of the measures to enforce the law? Definitely, the State Government has the power to do so under the law. If herdsmen who enter the State are legally bound to first present themselves and their cattle to the trade Cattle Control Posts or Inspection Stations, would it be reasonable to allow the movement of such herdsmen or cattle in the night and allow them to escape the statutory inspections and surveillance?

Most importantly however, it must not be forgotten that the action of the State Government became imperative to checkmate the increasing rate of kidnapping, banditry, armed robbery and murder by criminals who often disguise as herdsmen and, by so doing, tarnish the image of genuine herdsmen in the State.

If the primary purpose of the government is the security and welfare of the people, as stated by the Constitution, it is only an irresponsible government that would fail to activate the clear provisions of the law. It becomes more meaningful and helpful, if such activated laws are those that empower the State to take definite actions to stem crime.

Let us stop playing politics with the lives of Nigerians. We are all victims of the satanic siege on this Nation by criminals, and we must all support practical solutions to curb the menace.

Signed.

Femi Emmanuel Emodamori

(An Akure-based Legal Practitioner)

21st January, 2021

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