The Asaba Declaration: No Going Back

For quite a while, the South has endured and tolerated the devastation of their crops and agricultural produce, occasioned by the nomadic activities of Herders. But, when some Herders, and criminals disguised as Herders, took things a notch higher, by starting to bear arms and committing what can only be referred to as atrocities, such as rape, kidnapping, and killing, the 17 Governors of the Southern States were compelled to come together on May 11, 2021 at Asaba, the Delta State Capital, to take a firm decision to ban open grazing in their individual States, among other decisions. Is what has now been coined as “the Asaba Declaration” legal and constitutional? One of the South West Governors, Oluwarotimi Akeredolu, SAN, Chief Ferdinand Orbih, SAN, Norrison Quakers, SAN, Ebun-Olu Adegboruwa, SAN, Dr Kayode Ajulo and Felix Sugaba write in this Discourse, that banning open grazing was not only inevitable, but absolutely necessary to protect the lives and property of the citizens of the 17 Southern States

Our Decision is Irreversible and Will be Enforced

Oluwarotimi Akeredolu, SAN

I have just read the press statement credited to the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN on the resolution of the Southern Governors Forum to ban open grazing in their respective States. The AGF is quoted to have said that this reasoned decision, among others, is akin to banning all spare parts dealers in the Northern parts of the country, and is unconstitutional.

It is most unfortunate that the AGF is unable to distill issues as expected of a Senior Advocate. Nothing can be more disconcerting. This outburst should, ordinarily, not elicit response from reasonable people who know the distinction between a legitimate business that is not in any way injurious, and a certain predilection for anarchy. Clinging to an anachronistic model of animal husbandry, which is evidently injurious to harmonious relationship between the herders and the farmers, as well as the local populace, is wicked and arrogant.

Comparing this anachronism, which has led to loss of lives, farmlands and property, and engendered untold hardship on the host communities, with buying and selling of auto parts is not only strange, it annoyingly, betrays a terrible mindset.

Mr. Malami is advised to approach the court to challenge the legality of the Laws of the respective States banning open grazing, and decision of the Southern Governor Forum taken in the interest of their people. We shall be most willing, to meet him in court.

The decision to ban open grazing stays. It will be enforced with vigour.

Oluwarotimi Odunayo Akeredolu, SAN, Governor of Ondo State, Federal Republic of Nigeria

The Asaba Declaration: Nigeria at Cross-Roads

Ferdinand O. Orbih, SAN, FCArb

History was made when on the 11th of May, 2021 when the Governors of fifteen of the seventeen States of Southern Nigeria met at Asaba to deliberate on the state of the Nation. The meeting which was held under the auspices of Southern Governors Forum, was followed by a communique containing many important decisions on

critical issues affecting Nigeria and her peoples. Some writers have called those decisions the Asaba Accord, perhaps, borrowing a leaf from the Aburi Accord. We prefer to refer to the decisions collectively as the Asaba Declaration.

The Asaba Declaration is historic in many respects. While the Nation has over the years (during both during

Military and Civilian regimes) grown accustomed to periodic meetings of Governors of Northern States and the communiques that usually accompany such meetings, their Southern counterparts have remained in deep slumber until they exploded at Asaba. At Asaba, the Southern Governors irrespective of their political, ethnic and religious persuasions, met to deliberate as a body on critical national issues.

The Declaration

At Asaba, the Southern Governors called on President Buhari to convene a “national dialogue” and backed the call for “restructuring the country” to attain true federalism. They also called on the Federal Government to reflect federal character in federal appointments. Of the many decisions taken by the Governors at the Asaba meeting, the one that has generated the most controversy and rumblings in the polity, is the ban placed on open grazing and movement of cattle by foot in the region, following rampant cases of kidnappings and killings traced to criminal elements amongst the herders.

While Senators from Southern States of Nigeria have backed the Asaba Declaration, some prominent politicians and Senators from the North have come down hard on the Southern Governors on it.

Malami,SAN’s Missile to the Southern Governors

The Attorney-General and Minister of Justice of the Federation, Abubakar Malami, SAN (AGF), stated on Channels Television that the Declaration of the Governors is not in alignment with the provisions of the Constitution. He started by attacking the call by the Governors on the Federal Government, to restructure the country. According to the AGF, the Governors cannot deny local government and legislatures in their States financial autonomy, and be talking of restructuring.

Speaking about the ban on open grazing and movement of cattle by foot in Southern Nigeria, the AGF said:

“It is about constitutionality within the context of the freedoms expressed in our Constitution, enshrined in our Constitution. Can you deny the rights of a Nigerian? For example: It is as good as saying perhaps, maybe, the Northern Governors coming together to say they prohibit spare parts trading in the North. Does it hold water? Does it hold water for a Northern Governor to come and state expressly, that he now prohibits spare parts trading in the North? Freedom and liberty of movement among others established by the Constitution, if by an inch you want to have any compromise over it, the better approach is to go back to the National Assembly to say open grazing should be prohibited, and see whether you can have the desired support for the constitutional amendment. It is a dangerous provision (sic) for any Governor in Nigeria, to think that he can bring any compromise on the freedom and liberty of individuals to move around”.

And Governor Akeredolu’s Sharp Response

Governor Rotimi Akeredolu, SAN, did not waste time in replying the AGF, for faulting the ban placed on open grazing of cattle in Southern Nigeria. The Governor of Ondo State who himself is a Senior Advocate of Nigeria and Chairman of the Southern Governor’s forum, fired a reply salvo (which is stated in his statement above).

The Constitutional Position

The main issue arising from the Asaba Declaration, the AGF’s missile outlined above and Governor Akeredolu’s reply salvo is; whether on a calm and dispassionate consideration of relevant sections of the Constitution and the laws of the land, the Declaration, especially as it pertains to the ban on open grazing and movement of cattle by foot, is legal.

The law is settled that by virtue of Sections 1 and 2 of the Land Use Act, the ownership and control of land is vested in the Governor of a State, and such land shall be held in trust for the use and benefit of all Nigerians, in accordance with the provision of the Act. It is important to point out at this juncture, that the Land Use Act was incorporated into the Constitution by the Military Regime of General Abdulsalami Abubakar that midwifed it. It is therefore, sound in law, logic and common sense, to argue that since the Asaba Declaration wasp proclaimed by Governors of the Southern States of Nigeria on whom the ownership of land in their States is vested, the ban on open grazing and movement of cattle by foot is constitutional, and therefore, legal.

The law is equally settled that by Section 41 of the same Constitution “every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom”. The proponents of the argument that the Asaba Declaration is unconstitutional, including the AGF, anchor their argument on this constitutional provision.

With the greatest respect to the learned AGF, he seemed to have glossed over some elementary but fundamental principles of law, in canvassing his position. Firstly, the right to life is the first and foremost right enshrined in the Constitution. A man or woman must be alive, before he or she can enjoy any other right. In Nigeria today, there is no gain saying the fact that, the biggest threat posed to lives of the citizens is the rampaging, gun totting menacing herdsmen terrorising every part of the country through kidnapping, raping of women, murder and other forms of outrageous criminality. If as the Constitution says “the security and welfare of the people shall be the primary purpose of government”, should the Federal and State Governments stand in helpless resignation and surrender to this menace? Of course not. That is why the Southern Governors must be applauded and commended, on the ban placed on open grazing and movement of cattle by foot. It is a first step, in the right direction. Several other steps need to be taken, to give it the necessary bite and force to it.

Secondly, there are no limitless rights in the Constitution. In other words, all rights guaranteed under the Constitution are circumscribed in one form or the other. Consequently, no right enshrined in the Constitution should be taken in isolation, and applied as such. On the contrary, they must be taken and read within the context of the whole Constitution. For instance, the provisions of Section 41 of the Constitution, cannot be taken in isolation. They must be read together with the provisions of Sections 43 and 44 of the same Constitution which guarantees every citizen the right to own both moveable and immovable property. The Cattle herders freedom of movement must come to a screeching halt, when it interferes with other citizens’ right to their farmlands, as well as other moveable and immovable property. That is in accord with both common sense, and the Constitution. The AGF’s views are legally unsustainable.

Attorney-General As Spokesman of the Federal Government

Many have called for the resignation of the AGF, for condemning the ban on open grazing of livestock imposed by the Governors of Southern States of Nigeria. I laughed at those calls, because those making them do not understand how the Government of Nigeria works. The AGF in condemning the ban, was expressing the position of the Federal Government of Nigeria. His was a strong message, from the highest level of the Federal Government to the Southern Governors, that their ban on open grazing was of no moment. He was stating in clear terms, that the Federal Government of Nigeria who has the monopoly of all the law enforcement agencies (including the Armed Forces and the Police) will not enforce the ban. The position stated by the AGF and Minister of Justice on the ban, once more brings to the fore, the need to separate the office of the Attorney-General from that of Minister of Justice and Commissioner for Justice at the Federal and State levels of governance, respectively.

We do not have any doubt in our minds that, if Malami, SAN were to speak as Attorney-General of the Federation and not as a Government Minister, his views on the ban on open grazing would have been different. It makes little or no sense at all, to put the largely legitimate law abiding business of trading in spare parts, on the same pedestal as the business of grazing cattle on farmlands owned by others while carrying arms and ammunition to perpetuate all sorts of crimes. The ethnic undertone embedded in the comparison, is not lost on any discerning mind. There is simply no basis for that despicable analogy, and I will say no more on it.

Enforcing the Ban

Since the Federal Government has stated in clear terms that it will not enforce the ban, the gauntlet has been thrown back to the Governors of the Southern States. It is hereby suggested that the various State Houses of Assembly should pass bills to give legal effect to the ban, and set up the security architecture to enforce it.

There is already a precedent for this. When some States in the Northern Nigeria passed their Sharia Laws banning the sale of alcohol, they also gave it legal bite by setting up their law enforcement agencies- Hisbah to enforce them, and the heavens did not fall. What is good for the goose is good for the gander! The consumption of alcohol is not as serious a problem as the killings, kidnapping and the general insecurity associated with killer herdsmen bedeviling our dear country Nigeria now. All hands must be on deck, to solve the problem.

Chief Ferdinand O. Orbih, SAN, FCArb