The Existence of Grazing Routes in Nigeria: Fact or Fiction (Part 3)

Introduction

Last week, we saw how the kite flown by President Buhari expectedly provoked reactions from different quarters across Nigeria. Today’s discourse shall be on the existence of grazing law in Nigeria.

The Existence of Grazing Laws in Nigeria: Facts

From the totality of the above arguments, it can safely be said that whether grazing routes actually existed in the past or not, that practice is certainly no longer tenable, as the way forward is modern ranching.

In Nigeria, the Grazing Reserve Law of 1965 was enacted in Northern Nigeria and made possible grazing routes. It allowed Herdsmen to transport livestock from one place to another. This law however, also criminalised open grazing in States that had domesticated the Grazing Reserve Law in Nigeria. This therefore, armed State laws with sanctions for Herders who failed to adhere by such laws.

It is pertinent to note that, the Grazing Reserve Law of 1965 was established far before the Land Use Act of 1978. The later Act did not take into consideration or make mention of any grazing laws. This however, did not stop other States from domesticating this law. For example, Cap 3 of the Laws of Kwara State adopted the provisions of the Grazing Reserve Law. This, added to the fact that the law was enacted mainly for the Northern States, appears to be the reason why there are only 141 gazetted grazing reserves in Nigeria. There are therefore, a total of 141 grazing routes in Nigeria. 138 of those routes, are found in the Northern part of Nigeria. Only two are found in the Southern parts of Nigeria, in the States of Ogun and Oyo.

Thus, the Grazing Reserve Law of 1965 which is not in itself a Federal Act but a State law, only had effect in those States in the Northern part of Nigeria that were affected. It was not enforced in other States, except those States that sought to enact such laws, or States that had grazing reserves located in them. For the Grazing Reserve Law to affect the whole country, it must first be enacted as a Federal Act by the National Assembly, in accordance with the provisions of Section 4(2) of the Constitution. It could also come under the provision of Section 315(1) of the Constitution which provides that:

“315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –

(a)an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws.

(b)a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2)The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
(4) In this section, the following expressions have the meanings assigned to them, respectively –
(a)”appropriate authority” means –
(i)the President, in relation to the provisions of any law of the Federation,
(ii)the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or
(iii)any person appointed by any law to revise or rewrite the laws of the Federation or of a State;
(b)”existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date; and
(c)”modification” includes addition, alteration, omission or repeal.
(6) Without prejudice to subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution”.

In the matter of AG ABIA STATE & ORS v AG FEDERATION (2003) LPELR-610(SC), the Apex Court, per Honourable Justice Michael Ekundayo Ogundare, JSC, Pp 58 – 59, Paras B – B, in interpreting the provisions of Section 315(2) of the Constitution, held that:
“Section 315(2) enjoins the President to effect such modifications in the text of an existing law as he may consider necessary or expedient, to bring the law into conformity with the provisions of the Constitution. The word “text’ is not defined in the Constitution, but in its ordinary dictionary meaning the word means – the original words and sentences of an author or document; the main body of a book or other piece of writing as distinct from appendices, illustrations, etc; the wording of anything written or printed; the very words, phrases and sentences as written. And the word “modification” is defined in the Constitution to include “addition, alteration, omission or repeal. Thus, in exercising his power under Section 315(2), the President may add to, alter, make omissions in or completely repeal any provision of an existing law, in so far as it is necessary or expedient to bring such existing law into conformity with the provisions of the Constitution. The power given to an appropriate authority (such as the President is) by subsection (2) of Section 315 cannot, in my respectful view, mean just dotting the “i’s” and crossing the “t’s” in an existing law. It goes further than that. It is precisely that the substance of an existing law, or part of it, is not in conformity with the Constitution that the appropriate authority is empowered to modify it either by way of “addition, alteration, omission or repeal” to bring the law into conformity with the Constitution. Hence, the limit to the power given in subsection (2) of Section 315, is conformity with the provisions of the Constitution”.

See also the case of the GOVT OF PLATEAU STATE & ORS v NWAOKORIE (2014) LPELR – 23368(CA).

Consequently, the combined power of Section 4(2) of the Constitution as relates to the power of the National assembly to enact Federal laws in Nigeria, and the provisions of Section 315 of the Constitution as relating to extant laws already enacted before the coming of the 1999 Constitution, signpost the appropriate procedure for the enactment of the Grazing Reserve Law to be transformed into a Federal Act. Section 315(2) further gives the President the power to modify these existing laws.

Voodoo Argument

Winnie-Lai Solarin’s argument appears to be a fiction. She failed to state when and under what instrument those alleged routes were acquired by the Federal Government, for these Herders in the past.

It is important to note that, after Independence, private ownership of land by individuals, families and communities was the predominant land tenure system in the Southern States of Nigeria, on the contrary, all lands in the territory comprising the Northern States of Nigeria were regarded as owned by the State, based on the provisions of the Land Tenure Law of 1962. After, Independence, two principal legislations were enacted to regulate land ownership in Nigeria. They are:
I. The Land Tenure Law of Northern Nigeria of 1962; and
II. The Land Use Act of 1978.

The Land Tenure Law of Northern Nigeria of 1962

The customary tenure in Northern Nigeria had suffered early disruptions by the Fulani jihadists, who introduced a kind of feudal tenure under which they claimed overlords of land after the Islamic conquest. When Nigeria became a colony of Britain, the colonial officials under the leadership of Lord Lugard, to whom land rights were ceded in 1903, introduced statutory regulation of land rights under the Lands and Native Rights Ordinances of 1910, as amended in 1916. The 1916 Ordinance was later amended and substantially reenacted in the Land Tenure Law of 1962.

The Land Tenure law of Northern Nigeria had provided that all the land in Northern Nigeria, whether occupied or unoccupied, are “native lands”. They were placed under the control, and subject to the disposition of the Minister responsible for land matters, who held and administered them for the use and common benefits of the “natives”. The “Natives” were persons whose fathers were members of any tribes indigenous to each State in Northern Nigeria.

This means that all other persons who were not indigenous to each of such States, were regarded “non-natives”. Under this law, no title to the occupation and use of any such lands by a non-native was ever valid without the Minister’s consent. The natives of Northern Nigeria were granted right of occupancy to land, for a limited number of years. For the purpose of the law, a right of occupancy meant a title to the use and occupation of land, and included both customary and statutory right of occupancy. An occupier enjoyed exclusive right to his land against all persons, other than the Minister. He may, with the Minister’s consent, sell, mortgage or transfer any lawful improvement on the land. The Land Tenure law of 1962 was later repealed, and replaced by the Land Use Act of 1978. As could be deduced above, the use of parcel of land by the natives was only for a definite duration.

The Land Use Act of 1978

The Land Use Act of 1978 (“Act”; “LUA”) completely changed Land acquisition in Nigeria. This Act applies to the entire Federation. The Act, by its Section 1, vests all land comprised in the territory of each State in the Federation in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.

Section 4 of the Act refers to land acquisition under the Land Tenure Law of Northern Nigeria. It states that:
“Until other provisions are made in that behalf and, subject to the provisions of this Act, land under the control and management of the Governor under this Act shall be administered-
a. in the case of any State where the Land Tenure Law of the former Northern Nigeria applies, in accordance with the provisions of that Law; and

b. in every other case, in accordance with the provisions of the State Land Law applicable in respect of State land in the State, and the provisions of the Land Tenure Law or the State Land Law, as the case may be, shall have effect with such modifications as would bring those Laws into conformity with this Act or its general intendment.”

Section 6(1) (b) of the Act provides that it shall be lawful for a Local Government in respect of land not in an urban area, 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.
As provided under Section 4 of the Land Use Act, all land under the control and management of the Governor of each state shall be administered under the provisions of laws, and not under an indelible mark or monument whose origin is shrouded in mystery. Even when these laws are found, they shall have effect with such modifications as would bring them into conformity with this Act or its general intendment.

Serious and Trivial
“Don’t let age change you. Change the way you age.” – Anonymous

THOUGHT FOR THE WEEK
“The government solution to a problem, is usually as bad as the problem.” (Milton Friedman)