The Constitutionality or Otherwise of Governor Akeredolu’s 7-Day Quit Order on Herdsmen in Ondo

By Chief Mike Ozekhome, SAN, FCIArb, OFR, Ph.D.

INTRODUCTION

As a well cultured Nigerian and Catholic Christian, I abhor criminality in all its ramifications. I have been a serial victim. But God has always delivered me from the snares of all evils (Psalm 23). As a constitutional lawyer and Human Rights Activist, I speak not just for today, but for tomorrow and posterity. I do not simply jump into the fray of issues and take the popular and most convenient route. Many do. Without weighing the possible negative effect of such populist positions. Such may be good music to the ears in the short measure. I prefer to look at, not just the short, but the medium and long term effects and consequences of such delicate matters. That is why over 98% of my postulations have always come to pass. Not a few Nigerians have wondered aloud whether I am a prophet, seer or Nostradamus. I am neither. Some Nigerians have, on the trending issue, been vociferously in support of the Ondo State’s blanket order given to herders, by my good friend, Governor Rotimi “Aketi” Akeredolu, to quit Ondo forest reserves within 7 days. Many have applauded it. Many endorsed; clapped. There is some sense in this, éclat though. But, have we stopped for a moment, to look at the possible manifold and ponderous effects of such a blanket order on other tribes and indigenes living in other parts of Nigeria other than their own? Have we analysed and interrogated the issues?

When my good friend, Governor Nyesom Wike of Rivers State ordered the demolition of a hotel for the owner’s violation of covid-19 rules, I intervened, arguing that he should have done it through a court order. I suggest that the owner of the hotel should go to court for redress. In the same measure, I argued that Governor Nasir-El-Rufai should not have rolled out bulldozers and caterpillars to demolish a hotel in Kaduna simply because it was alleged that the owner had desired to use it for a nude party, a matter never proved. It was simply political. But, I believed it should have been done through a court order; not through brute force.

We cannot use illegality to fight illegality; just as it is wrong to use corruption to fight corruption. Can we really stop Nigerians from plying their trade in any part of Nigeria, if done legitimately and in accordance with extant laws? I think not. I hope not. I pray not. We must learn, in a constitutional democracy, to be a country governed by laws, not men. We must build a country of strong institutions, not strong men.

This was why America only just recently defeated a strongman, performer president Donald Trump, with strong institution. It is in this context I will now proceed to critically analyse and interrogate, whether Governor Akeredolu’s 7 days Quit Notice for herders to quit Ondo State forest reserves is legal, constitutional and proper.

THE LEGAL REGIME

The Land Use Act of 1978 (LUA) has since laid the issue to rest as to who controls land in Nigeria. The provisions of Sections 1 and 2 of the Land Use Act, provides that “all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that State such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act”. The Act says “all Nigerians”, not only indigenes of a state. The case of NZENWATA & ORS V. NZENWATA (2016) LPELR-410 89(CA) gives a detailed explanation of the control and management of land under the Land Use Act, 1978, in the following words:

“By the provisions of Sections 1 and 2 of the Land Use Act, 1978, all land comprised in the territory of each State in the Federation were/are vested 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 1 of the Act).

Also as from the commencement of the Act, all land in the urban areas shall be under control and management of the Governor of each State and all other land shall, subject to the Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated. (Section 2(a) and (b) of the Act). By the provisions of Sections 5 (1) and 6(1) of the Act which deal with the Principles of Tenure, Powers of the Governor and Local Governments and Rights of Occupiers: It shall be lawful for the Governor in respect of land, whether or not in an urban Area- (a) to grant statutory rights of occupancy to any person for all purposes.” Section 5(1) (a) Section 6 (1) of the Act on the other hand provides that: It shall be lawful for a Local Government in respect of land not in an urban area- (a) to grant customary rights of occupancy to any person or organization for the use of land in the Local Government Area for agricultural, residential and other purposes.” The combined effect of the provisions of all the Sections of the Act above quoted is that all lands in urban areas as well as the Rural Areas are either vested in the Governors or Local Government Chairmen and all citizens of this Country who hitherto owned land or not are mere beneficial occupiers or owners as the State Governor in cases of land in Urban areas hold such land in trust for them. See Savannah Bank of (Nig) Ltd. & Anor v. Ajilo & Anor (1989) LPELR-3019 (SC) Per Belgore, JSC (as he then was) at pages 84-85, Paragraphs A-C).” Per AGUBE, J.C.A. (Pp. 32-34, Paras. D-D).”

In accordance with Section 1 of the Land Use Act 1978, State Governors can exercise the power to grant statutory rights of occupancy in any part of the State, at which point a proof of the right of occupancy, which is known as a Certificate of Occupancy, is issued by the State Governor. From the above provisions, it is crystal clear that my good friend, the Ondo State government and its Governor, Arakunrin “Aketi” Rotimi Akeredolu has control over all lands within his State territory. It is also clear that “all citizens of this country who hitherto owned land or not are mere beneficial occupies or owners as the state Governor in cases of land in urban areas hold such in trust for them”.

Additionally, section 28 of the LUA, 1978, provides for the powers of the Governor to revoke a right of occupancy already granted for overriding public interest. Similarly, the instances in which these rights can be revoked are provided for in the same section (28). From the aforementioned, it is within the powers of the Ondo State Governor to exorcise and expel occupants of lands within its territories, if it is shown to be in the overriding interest of the public, such as security matters. Governor Akeredolu can therefore, in exercising the rights granted to him by virtue of his position as Governor of Ondo State, issue the order asking herders to vacate the forests reserves within seven days, simply on the ground that the reserve belongs to the Ondo State government. Indeed, the Governor can compulsorily acquire such lands as occupied by the ungovernable herdsmen, in accordance with section 44 of the 1999 Constitution. In such a lawful event, the Governor is expected to make prompt payment of compensation to the herdsmen, who have lawfully been in occupation without criminal records in accordance with section 44(1)(a) of the Constitution. See AIGORO V. COMMISSIONER OF LANDS AND HOUSING, KWARA STATE (2011) LPELR-9112(CA).

The Governor has duly exercised his powers under the Land Use Act by giving the 7 days quit notice to the herdsmen. This is constitutional and legal. It is also correct to state that something drastic needed to be done to tackle the increasing menace of crimes and violent acts faced in Ondo State forest reserves, which the Governor adduced as his reason for the order. Said Hippocrates (the father of Medicine), “desperate diseases require desperate remedies”. Akeredolu’s primary function as Governor of Ondo State is the security and welfare of his people (section 14(2)(b) of the 1999 Constitution). However, it is trite law that the Governor’s powers are only effective up to the extent that they do not arbitrarily affect a citizen’s fundamental rights under the 1999 Constitution, without resort to due process of law. The Constitution of the Federal Republic of Nigeria (1999) as amended, supersedes the provisions of the Land Use Act. It is the highest law of the land, the grundnorm, the fontact origo, and supreme law. See ABACHA & ORS V. FAWEHINMI (2000) LPELR-14(SC). Thus, where any law or provisions of laws conflict with the Constitution, such a law is null and void to the extent of its inconsistency.

Inherently, Governors are bound by their oath of office to obey and uphold the Constitution and all other laws that uphold it. No Governor can therefore unilaterally, arbitrarily, whimsically and capriciously order a group of people, tribe or religion to vacate, by fiat and ultimatum, any part of a state which they govern, without resort to due process and the law courts, as this will amount to encroaching on the fundamental rights of citizens as guaranteed by the Constitution. These rights include right to freedom of movement (section 41); right to freedom from discrimination (section 42); and right to own movable and immovable property (section 44). How fair and equitable is a 7 day quit notice from a habit where people have lived all their lives, some for decade? I think it is not!

RIGHT TO OWN LAND

It is arguable that the herdsmen, who have been issued quit notice by Governor Akeredolu are actually being arbitrarily sent away from lands over which they have since legally acquired title and possession over. Where it is proven that some herdsmen have peacefully lived on their occupied lands for a significant time without committing crimes, then they are deemed to have a bonafide title to such lands occupied by them under the law. The case of IDUNDUN AND ORS V. IKUMAGBA AND ORS (1976) 9-10 S.C. 227, reflects this legal position, as it posits five ways in which title to land can be proven:

i. By traditional evidence in the form of traditional history.

ii. By production of documents of title

iii. By proving acts of ownership and possession over a sufficient length of time which are numerous and positive enough as to warrant the inference that the person is the true owner.

iv. By proving acts of long possession and enjoyment of land; and
By proof of possession of connected and adjacent land, in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.

The above five ways to prove title to land are not mutually connected. Ergo, proving one of these ways is sufficient enough to prove title. See the case of BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOIYI & ORS (2011) LPELR. Where any of these are proved, the government’s order could be successfully challenged as constituting a breach of those herders’ title or possessory rights. However, section 28 of the Land Use act bestows title over all lands of a state on the Governor, to hold in trust for the people. Consequentially, Governor Akeredolu can lawfully give out lands in a state, just as he can also lawfully take them back. This is the dilemma – striking a delicate balance between Nigerians’ right to live and carry out business wherever they desire, and the need that they live peacefully, without criminal tendencies, in such places. Can the individual ownership or possessory rights of these herders override the need for the Governor to maintain law and order as the Chief Security Officer of his state (section 215(4) 1999 Constitution); and to give maximum security to his people (section 14(2)(b) 1999 Constitution)? I think not.

But, can he do so by fiat, without resort to due process through a court of competent jurisdiction? I think not.

FREEDOM OF MOVEMENT

The Constitution of the Federal Republic of Nigeria, 1999 (as altered) provides the citizen’s right to freedom of movement throughout Nigeria. He is also allowed to reside in any part thereof. Section 41 (1) of the Constitution of the Federal Republic of Nigeria, in very clear and precise words, provides as follows:

“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 thereto or exit therefrom”.

This fundamental right is widely applied, as citizens are thereby permitted to move about and across all corners, nooks and crannies within Nigeria, as was aptly held in the case of OKAFOR v. LAGOS STATE GOVT & ANOR (2016) LPELR-41066(CA). It is of no effect whether the citizens live where the land is located, or whether they are mere nomads. This position has been clearly reiterated by the apex court in IBRAHIM V. MOHAMMED (2003) FWLR (PT. 156) 902, where Lordship Kalgo, JSC, stated thus:

“The Land Use Act was promulgated as a whole with a view to making land available to all Nigerians irrespective of where they live”.

Do you hear that please?

See also the case of AROWOLO V. AKAPO & ORS (2002) LPELR-7063(CA).

The only exception/limitation to this is, where restrictions have been placed on the movement or residence of such a person, if he commits a crime, or is suspected to have committed a crime with a view to ‘preventing him from leaving Nigeria’. Thus, applying the literal rule, this limitation appears to apply in an instance such as the present case, where the crime is committed, or is expected, or foreseen, as was Governor’s Akeredolu’s reasons for tackle the increasing spate of violent crimes perpetrated by herders in the forest reserve of Ondo State.

The Governor is legally correct and competent to demand that herders should register for proper identification. Why will they not want to do this, when this will actually help the genuine herders to be separated from the violent and criminally-minded ones, such as kidnappers and armed bandits? This registration will determine how many herders are actually operating in the forest reserves and also separate the authentic herders from invading terrorists who spill in from neighbouring countries.

WHAT MUST AKEREDOLU DO TO QUIT THE HERDERS?

Legally speaking, the right channel available for Governor Akeredolu, in my humble legal opinion (if he must demand their exit within 7 days), is for the Governor to file an action at the Federal High Court, Akure, stating the reasons as to his request to oust and quit the herdsmen from the Ondo forest reserves. His reasons are strong and cogent enough, and courts would readily agree with him. This will enure his acts with legal and constitutional imprimatur; not resort to self-help. Freedom of movement, in any case, is not absolute; though courts of law in Nigeria rarely grant applications that breach the fundamental rights of citizens. In KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287(CA), the issue for determination was whether the rights to personal liberty and freedom of movement as guaranteed by the Constitution of the Federal Republic of Nigeria, are absolute. There, EKO, J.C.A. (as he then was), in pages 44-45, paragraphs F-E, concisely and unambiguously stated:

“The courts, including the Federal High Court, know the law and would not do things to whimsically undermine the rights of parties guaranteed by the Constitution. 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.”

Consequently, once the Governor can demonstrate to the court that the peace and order of Ondo State have been serially breached by the herders, the constitutionality of Governor Akeredolu’s order will not be faulted by a court of law; and same will be held to be constitutional; and not unconscionable, arbitrary, oppressive, discriminatory, illegal or ultra vires his gubernatorial powers. This is the best route to follow.

FREEDOM FROM DISCRIMINATION

In discussing this fundamental right, I would refer to the Punch Newspaper publication of 19th January, 2021, in which the Senior Special Assistant to the President on Media and Publicity, Garba Shehu, replied Governor Rotimi Akeredolu’s order thus:

“Governor Rotimi Akeredolu, a seasoned lawyer, Senior Advocate of Nigeria and indeed, a former President of the Nigerian Bar Association, has fought crime in his state with passion and commitment, greater sensitivity and compassion for the four years he has run its affairs and, in our view, will be the least expected to unilaterally oust thousands of herders who have lived all their lives in the state on account of the infiltration of the forests by criminals”.

I completely agree with this opinion. It is important to note that not every Fulani herder living in Ondo state is a criminal. Some, or many, who have lived there for decades, do not fall into the category of the rampant, blood-lusty “herdsmen” terrorizing citizens and states in Nigeria. Consequently, the categorization of every Fulani within the herdsmen bracket, or the categorization of every and all herdsmen in the blood-lusty herdsmen bracket will, in my humble view, appear to be blanketly discriminatory. This is contrary to freedom from discrimination as guaranteed by section 42 of the 1999 Constitution. It is a court of law that can sift the chaff from the seeds. I do not agree with the tarring of a whole race or occupation with the besmearing paintbrush of criminality. Let me give an example: if some Igbo or Edo or Yoruba indigenes (permit my example) living outside their states, are fond of committing crimes in the Sagon Gari area of Kano City, it will be wrong, unconstitutional and even immoral, will it not, to term Igbos, Edos and Yorubas living in Kano as criminals who must be evicted within seven (7) days. What about the majority of the innocent ones, many of whom are living in Kano in their third generation? My simple thesis is that criminals must be separated from the innocent ones. I therefore agree with the compulsory registration exercise introduced by Akeredolu, to sift the good from the bad; the beautiful from the ugly; the clean from the tainted, and the innocent from the guilty.

WAS THE PRESIDENCY RIGHT IN ITS REACTION TO AKEREDOLU QUIT NOTICE?

The Presidency in my view, is right to be gravely worried about the Governor’s 7 day quit notice, seeing that this would infringe on the fundamental rights of Nigerian citizens, without a valid court order to that effect. A court order, I repeat, is necessary. We must carefully guide against ethno-religious reprisals in a volatile, mutually suspicious country of major religions and ethnic fault-lines as we have. By the way, why will Governors abdicate their solemn duties of protecting their people through short cuts? What stops Governor Akeredolu and other South West Governors from deploying their local vigilante groups such as AMOTEKUN, to flush out the identified criminals and prosecute them? What are they paid for? Why use the crimes of some (whether in the minority or majority) to deal with every herdsman, including the innocent ones? I don’t agree with this, even if my view is unpopular. Afterall, I am not in any popularity contest with anyone.

HOW BEST STATES CAN TACKLE THIS ISSUE OF INSECURITY

SOME IDENTIFIED PROBLEMS

– Bad governance and poor leadership
Bad governance and poor leadership still remain Nigeria’s bane and fundamental cause of insecurity from the past till date. It is the duty of every government anywhere to see its primary function as providing basic services such as security, welfare, water, electricity, good road network, quality education, and general infrastructure. Our governments do not.

– Overpopulation
Nigeria’s population has grown from 33 million in 1950 to about 208 million today [UNO, mid-June, 2020]. This phenomenal increase of the population has put enormous pressure on land and water resources used by farmers and pastoralists. This pressure has led to the blockage of transhumance routes and loss of grazing land to agricultural expansion, while the increased southward movement of pastoralists has led to increased conflict with local communities, with the latter (e.g. Ondo State) being at the receiving end.

– Porous Borders
One major immediate factor which has enhanced insecurity in Nigeria is the porous borders of the country, where individual movements are largely untracked. Given the porous borders, as well as the weak security system, weapons easily find their way into Nigeria from other countries. Small arms and light weapons proliferation have enabled militant and criminal groups to have unhindered access to arms. Nigeria is estimated to host over 70 percent of about 8 million illegal weapons in West Africa. The porosity of Nigerian borders has also led to unceasing influx of migrants from neighbouring countries, such as Niger Republic, Chad and Republic of Benin. These migrants who are mostly young men constitute the perpetrators of major crimes in the country.

– Rural /Urban Drift
The migration of jobless youths from rural areas to urban centres is a major cause of insecurity in Nigeria. Nigeria is one of the countries in the world with very high rural/urban drift.

– Lack of social irresponsibility of companies
Companies engage in corporate social responsibility to enable them offset corporate social irresponsibility. The rise of terror groups in some parts of the country is directly related to the abysmal neglect of social responsibility by companies to the community where they operate. This has been the case of the Niger Delta, leading to crisis.

– Acts of Terrorism
Acts of terrorism have become the most fundamental source of insecurity in Nigeria. Its primary base and source have been squarely located in religious and ethnic fanaticism and intolerance. There is fear, destruction and death, especially against unarmed targets, property and infrastructure in states.

RECOMMENDED PANACEA

1. Establishment of Grazing Reserves – The establishment of permanent grazing reserves provides the opportunity for practising a more limited form of pastoralism and constitutes a pathway towards a better template of animal husbandry. Nigeria has a total of 417 grazing reserves out of which only about 113 have been gazetted. It is clear that pastoralism, at least in the short and medium term, may help to prevent seasonal migration of herders from dry to wet season grazing areas.

2. Law and Policy – There is an emerging conflict between the constitutionally guaranteed freedom of movement of persons and goods, and laws emerging in some States which restrict movement. Some States have, rightfully, enacted laws or are still processing bills to prevent open grazing on their territory. There are some initiatives so far in Benue, Ekiti, Taraba and Edo States. Could such laws be effective in prohibiting nomadic pastoralism, which is practised by millions of Nigerians, especially of the Fulani stock? We shall find out sooner than later.

3. Community policing should be immediately established within states of Nigeria for effective management of insecurity. Nigeria’s behemoth Police Force (sections 214 and 215 of the 1999 Constitution) should be dismantled in favour of states, LGAs and community policing.

4. There is an urgent need to create an enabling economic environment that allows for social, security, economic and physical infrastructure. This will allow for business and industrial growth.

5. Creation of job opportunities for the teeming youth is a sine qua non to prevent rising crime.

6. Adequate punishment e.g. barring for life, politicians who use thugs for politics, should be encouraged. This will help our electoral system.

7. There must be good governance, transparency and accountability.

8. Security systems must be strengthened – Our weak security system can be attributed to a number of factors which include corruption, inadequate funding of the Police (and other security agencies), lack of modern equipment, poor welfare of security personnel, and inadequate personnel. There is therefore the need to imrpove our security architecture through the training of security officers, sufficient training in modern security methodologies, provision of state-of-the-art equipment and appropriate remuneration, good service conditions, and a convenient pension scheme. Modern methods of intelligence gathering, and intelligence sharing, training, logistics, motivation, and deploying advanced technology in managing security challenge should be introduced immediately.

9. Poverty reduction is a must. A realistic social security programme must be vigorously pursued and implemented, to ensure that the teeming populace meet their basic needs.

10. There should be mutual trust, respect and accommodation by all ethnic and religious groups in Nigeria. No section should claim superiority over others whom they unfortunately regard as vassals.