Essay
By Mike Ozekhome, SAN
INTRODUCTION
LAST week, we started our discourse on this vexed issue. We saw how the Governors had met to rescue the sinking ship of state from hitting the very bottom of disintegration. They desired that it is better to stay together as one big country than to split into smithereens. But, under one condition: social justice and equity. Will Buhari break this Accord Concordial? Will he save the country? Today, we shall further x-ray what the law says about individual rights as against majority rights; and what the state Governors must do. These and many more will be discussed today.
THE LAW INDIVIDUAL RIGHTS VS. MAJORITY RIGHTS (continues)
Section 41(1) of the 1999 Constitution (Article 12(1) of the African Charter on Human and People’s Rights; Article 13 of the Universal Declaration of Human Rights; Article 45 of the European Charter of Fundamental Rights) provides for freedom of movement of all persons within such geographical zones.
However, notwithstanding the beauty of the above dicta, section 41 and the rights guaranteed thereunder are not absolute at all. Section 45 is pretty straightforward as regards derogation from section 41. It provides:
“(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invaluidate any law that is reasonably justifiable in a democratic society:
- in the interest of defence, public safety, public order, public morality or public health; or
- for the purpose of protecting the rights and freedom of other persons.”
Thus, although the right to movement in section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), appears on the surface to have been violated by the anti-grazing laws and the Southern Governors’ stance, section 45 of the Constitution allows any law to override it if such a law is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health. Considering the incessant cases of Boko Haram killings, maiming, stealing, kidnappings, rape, armed banditry and robbery foisted on the Southern part of the country, Southern leaders have rightly taken it upon themselves to put into place laws and measures that will protect their citizens. To this end, it is safe to assert that individual rights to movement have not in any way been violated by the anti-grazing laws because the laws were enacted in the interest of public safety, public order, public defence and public morality. The laws and declaration are also to protect the peace, privacy and homes of Southerners as highlighted in section 37 of the 1999 Constitution. They are also for the “purpose of protecting the rights and freedom of other persons”.
Indeed, the same intermediate court in the case of KALU v. FRN & ORS (2012) LPELR-9287(CA), made it clear that the rights to personal liberty and freedom of movement are not absolute and can be derogated from:
“The rights to personal liberty and freedom of movement, guaranteed respectively by Sections 35 and 41 of the 1999 Constitution, are not absolute…Section 41(2)(a) of the Constitution says that the right to freedom of movement may be deprived under a law that is reasonably justifiable in a democratic society that imposes restrictions on the “movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria”. An application for enforcement of a party’s fundamental right presupposes the right has been, is being or is likely to be violated otherwise than in accordance with the procedure permitted by law. That argument will be defeated when it is apparent that the right has been deprived of in accordance with the procedure permitted by law.” Per EJEMBI EKO, JCA (as he then was) (Pp 44 – 45, Paras G – E).
The above position of the law is further strengthened by the combined effect of the provisions of sections 4(7), 5(2), 11(2), 14(2) and 176(2) of the 1999 Constitution. Section 4(7) states that the House of Assembly of a State shall have powers to make laws for the peace, order and good government of the State. Section 5(2) provides that the executive powers of a State shall be vested in the Governor of that State. Section 11(2) gives the Governor of a State powers over the maintenance of supplies and services. Section 14(2)(b) enjoins the Governor to ensure that “the security and welfare of the people shall be the primary purpose of government”. So, where have the Governors of Southern States gone wrong? I cannot see it. Or, can you?
In ASARI DOKUBO V. FRN (2007) NGSC 106 (decided June 8, 2007), the apex court of Nigeria held that national security overrides personal individual rights, where it is discovered that the individual’s right poses threats to national security. Substitute for this, States’ and groups’ rights supersede the individual rights of few rampaging, fully armed, AK-47-clutching and wandering Fulani herdsmen who are not merely grazing their cattle but actually on a predetermined mission of conquest, expansionism and neo-colonialism of other ethnic nationalities. Such must be fully resisted within all legal boundaries as the Southern Governors are now doing.
WHAT THE STATE GOVERNORS MUST DO
The 17 Southern Governors can sue the Federal Government, invoking the original jurisdiction of the Supreme Court under section 232 of the 1999 Constitution. They should ask for a determination of their right to preserve their States from insecurity. However, as held by the Supreme Court in AG OGUN STATE V. AG FEDERATION (1982) LPELR-11(SC), the making of law for the maintenance of law and order and securing of public safety and public order is the responsibility of both the National Assembly and the State Houses of Assembly. Consequently, for the ban by the Governors to have legal effect and be clothed with legality and constitutionality, the bill must first pass through the House of Assembly of each of the Southern States to become a law. The Governors should therefore not be burdened by the opinions of other Northern States Governors, as to do so will be limiting the Executive powers of the Governors as regards the states which they govern.
By banning open grazing, the governors are merely putting a stop to one of the greatest known sources of wars and terrorist convergence in their respective states. In my humble opinion, the Governors’ call is part of their responsibilities to the people of their states as the main mandate of each and every Governor is to protect the lives and property of the people of the states they govern. The openness of the Governors to the idea of yet another National dialogue to curb the insecurity (which I however consider unnecessary in view of the unused recommendations of the 2014 National Conference) can be seen as a honest bi-partisan call to see to the end of insecurity menace in Nigeria.
SHOULD SOUTHERN GOVERNORS HAVE FIRST CONSULTED THE NOTHERN ESTABLISHMENT?
It must be emphasized that the decision of the Southern Governors does not in actuality impede the rights of cow rearers to own cattle. It merely limits their ability to openly graze on lands that are not theirs in the first place and inflict misery on the indigenous owners. The ban will also ignite more anti-grazing laws in other states in Nigeria.
Those Northern elites arguing that consultation ought to have been first made by Southern Governors before making such resolutions have not advanced any plausible argument anchored on the Constitution. In fact, they ought to applaud the Southern Nigerian Governors for willfully choosing to dialogue with their Northern counterparts and avoiding an impending doom.
The few Northern elites have not explained to Nigerians why they never consulted their Southern counterparts before passing and enforcing Sharia Law in their States; or passing the various Hisbah laws. Did some of these Governors not cut off citizens’ hands for various offences, to the angst and condemnation of international communities? Did they not order for some others to be stoned? Recall the unfortunate cases of Buba Jangebe (2000), Auwalu Abubakar (23), Lawalli Musa (22), Abubakar Aliyu (15), Attahiru Umaru, Sani Rodi, Sarimu Baranda, Safiya Hussein, Amina Lawal and many others for merely either stealing a cow, bull, N32,000 or committing adultery. Did the Northern Governors consult their Southern counterparts? They did not explain why Southern Governors who are the Chief Security Officers of their States should first obtain their permission (like a pupil from a Headmaster) before dealing with security matters in their various States. It only shows their mindset of a relationship of masters and servants; conquerors and vassals; slave owners and slaves. They failed to tell Nigerians that all the Northern Governors had actually pro-actively taken a unanimous position to ban open grazing, at its virtual meeting held on February 9, 2021, presided over by their Chairman, Simon Lalong Governor of Plateau State. They had unanimously agreed that the “current system of herding conducted mainly through open grazing is no longer sustainable in view of growing urbanization and population of the country”. While urging all the Governors to meet over this matter, they agreed on other methods such as ranching. These critics of the Southern Governors hid the fact that in response to the Northern Governors’ call, the entire Nigerian Governors’ Forum of the 36 State Governors held a virtual meeting on February 11 (two days later) and unanimously agreed to end nomadic and pastoral cattle wandering, “to address the rising insecurity in the country and the activities of herdsmen…and the need for the country to transition into modern systems of animal husbandry that will replace open, night and underage grazing in the country”. They also encouraged ranching as alternative. The Northern elites carefully screened away the fact that Governor Abdullahi Ganduje, Kano State Governor’s had openly supported adopting anti-grazing measures.
Ganduje had argued in February 2021, during his meeting with President Buhari and other APC Governors that such a ban would not only solve incessant clashes between farmers and herders, but also prevent cattle rustling. Inspite of attempts by some Northern groups to cow in, Ganduje stuck to his guns. (To be continued).
THOUGHT FOR THE WEEK
“Good governance, safety, a chance to grow economically and professionally – those are important things.” (Dana Perino).
– June 8, 2021 @ 10:35 GMT |
Tags: GOVERNOR Abdullahi Ganduje The Southern Governors’ meant to rescue Nigeria’s sinking ship (Part 2)
