By Prof Mike Ozekhome SAN

INTRODUCTION

The Economic Community of West African States (ECOWAS) Protocol on Transhumance adopted in 1998, was designed to facilitate the free movement of pastoralists and their livestock across West Africa (ECOWAS Transhumance Protocol (1998) (Decision A/DEC.5/10/98)). However, given Nigeria’s escalating insecurity—particularly farmer-herder conflicts, banditry and terrorism, the Protocol’s continued relevance and effectiveness have come under close scrutiny. The present intervention carefully examines the implications of the Protocol, making a case for its review, while analyzing the historical and contemporary challenges of pastoralism in West Africa, with specific focus on Nigeria.

TRANSHUMANCE: HISTORICAL BACKGROUND AND CONTEMPORARY CHALLENGES

Transhumance, particularly among the Fulanis, has existed for centuries, with seasonal migration between the Sahel and savannah regions. It is their socio-professional venture designed to maintain the productivity of livestock. This practice, which they have found effective in maintaining the productivity of livestock, is highly lucrative. In a paper published in 2019 by the International Organization for Migration titled, “Regional Policies and Response to Manage Pastoral Movements within the ECOWAS Region”, it was noted that Sahelian
“Transhumant pastoralism supplies an estimated 65 per cent of beef, 40 per cent of mutton and goat meat, and 70 per cent of milk in this region. In Mauritania, livestock breeding contributes to 70 per cent of the total agricultural GDP. In Niger, livestock is the second most important export product behind uranium. In Mali, Burkina Faso and the Niger, the livestock sector contributes to more than 25 per cent of the total GDP”.

What started positively later became sour with the advent of colonialism. Colonial policies disrupted traditional grazing routes, creating tensions that persist till date. Post-independence governments neglected pastoralist welfare, leading to marginalization and conflicts.

Several sources however indicate a growing call for a review of the ECOWAS Protocol, specifically concerning the deadly movement of herders. These calls are often linked to reports that some herders have since formed armed gangs, engaging in cattle rustling, kidnappings and banditry. Some Fulani militias have been serially implicated in communal violence, thereby complicating conflict resolution.

It is pertinent to note that pastoralists are mostly itinerant illiterates who rely on knowledge passed down to them by their fathers or family members from one generation to another. Due to their lack of Western education, most pastoralists often experience political marginalization and social stigmatization. In environments where natural and public resources are reserved to “indigenous” populations, they remain strangers and “non-citizens” who are excluded from basic rights. In the coastal States, there is considerable hostility towards mobile herders and their animals due to their predatory nature. In public discourse, they are also associated with armed groups and violence, leading to the stigmatization of an entire socio-professional group (International Organization for Migration, “Regional Policies and Response to Manage Pastoral Movements within the ECOWAS Region”).

THE ECOWAS PROTOCOL

With a view to addressing the challenges highlighted in the preceding paragraph, the Economic Community of West African States (ECOWAS), in 1998, came up with a protocol. Article 3 of the protocol provides for the right to free passage of all animals across the borders of all Member States. Also, the protocol introduced what is termed “ECOWAS International Transhumance Certificate” for each herd, providing information on the composition of the herd, the vaccinations given, the itinerary of the herds, the border posts to be crossed, and the final destination. This certificate is issued by the livestock department and initiated by the local administrative authorities in the country of origin. The International Transhumance Certificate enables authorities to monitor the herds before they leave the country of origin, to protect the health of local herds, and to make it possible to inform the host communities of the arrival of transhumant animals. This certificate, upon presentation, shall be verified and counter-signed by the competent authorities at the entry and exit points in the host country under Article 6. Also, under the protocol, the herders must follow the routes defined by Member States in accordance with the itinerary indicated on the ECOWAS International Transhumance Certificate. The herders must also enter and leave each country at official border crossings, and may not pass the border at night.

The establishment of the Economic Community of West African States (ECOWAS) in 1975 marked a significant step towards regional integration in West Africa. It is important to note that ECOWAS is the only regional economic community in Africa with specific regulations governing transhumance. Its regulations aim to improve livestock productivity and food security, enhance the environment and reduce poverty. However, these regulations (protocols), inspired by the vision of a unified and prosperous West Africa, aimed to dismantle colonial-era borders, foster economic growth, and promote a sense of shared citizenship among member states.

While the protocol lays the foundation for a borderless West Africa, it also recognizes the sovereign rights of member states to maintain public order, public health, and security. As a matter of fact, some coastal states do not allow pastoralists into their countries. For instance, Benin Republic recently banned the entry of foreign herders into its territory. Togo and Côte d’Ivoire also monitor and control the number of herders that enter their territories annually (https://theconversation.com/ecowas-rules-to-protect-pastoralists-discourage-investments-in-modern-livestock-farming-213493).

CHALLENGES BEDEVILLING THE ECOWAS PROTOCOL ON TRANSHUMANCE

1. FREE MOVEMENT VS. NATIONAL SECURITY

The ECOWAS Protocol on transhumance was inter alia, inspired by the vision of a unified and prosperous West Africa, aimed to dismantle colonial-era borders and foster economic growth among member states. By progressively removing restrictions on the movement of citizens within the community, ECOWAS has indeed facilitated trade, tourism, and cultural exchange, contributing to the interconnected sub-region.

However, the implementation of this protocol has not been without its challenges, particularly for a large and geographically central nation like Nigeria. As Nigeria is faced with a complex and intensifying insecurity crisis, fueled by banditry, terrorism, kidnapping, and various forms of organized crime, the potential for the unchecked movement of criminal elements across its extensive and often poorly managed borders has become a significant concern. The ease of entry afforded by the free movement protocol, coupled with porous borders and inadequate security infrastructure, creates a fertile ground for transnational criminal networks to operate within Nigeria, intensifying existing security challenges and introducing new dimensions of threat.

It has been often stated, in defence of the pastoralists, that some of the pastoralist are themselves victims of banditry and that militias use them, under duress, to smuggle arms into the country. It is pertinent to note that weak border controls enable the influx of foreign herders, exacerbating conflicts over land and resources in Nigeria. Rather than an outright abrogation of the protocol, which may amount to throwing the baby out with the bath water, the government of each state may have to look inward and address the weaknesses in its borders and frontally attack. See the cases of Abu v. State (2024) LPELR-62381(SC), and Apph & Ors v. Oturie (2019) LPELR-46301 (CA). (To be continued).

THOUGHT FOR THE WEEK

Almost half of the population of the world lives in rural regions and mostly in a state of poverty. Such inequalities in human development have been one of the primary reasons for unrest and, in some parts of the world, even violence. (A. P. J. Abdul Kalam).

By Prof Mike Ozekhome

INTRODUCTION

Democracy, often touted as the best form of government, promises a system of governance in which power is vested in the people. It is heralded for its promotion of equality, freedom, and participation, where leaders are chosen through free and fair elections. For Nigeria, the journey toward democratic governance has been tumultuous. After decades of military rule, Nigeria transitioned to civilian governance in 1999, ushering in the Fourth Republic. This return to democracy raised hopes for the country’s political stability, economic growth, and social development. However, despite over two decades of democratic rule, many Nigerians still question whether democracy has translated into good governance. This article critically examines the extent to which democracy has led to good governance in Nigeria, analyzing both its successes and failures in addressing the country’s myriad challenges.

CONCEPT OF DEMOCRACY

The idea of democracy, or government by the people, is very old, dating back to ancient Greece. The word itself comes from the Greek words: demos, meaning “the people”, and kratos, meaning “authority”. Macionis (2005), simply defines democracy as “a type of political system that gives to the people as a whole”. Abraham Lincoln, one time president of United States gave a classic definition of democracy as the government of the people, by the people and for the people. This definition of democracy has remained popular to date. This is because it captures the real essence of the practice of democracy as a kind of government that has popular power in which the people are free, happy, duly represented and people decide what happens through their representatives.

In a democratic state, authority is rooted in the consent of the people, that is, in the belief that people have the right to run or at least to choose their government. Democracies impose clear, legally established limits to what elected officials can do. All participants in the system must obey the rules regarding such principles as open, free and fair elections, one person, one vote, and acceptance of majority decisions while respecting a minority’s right to dissent. Calhoun et al (1997), describe democracy as a system in which “the law guarantees extensive civil liberties, including the freedom to associate with whomever one chooses, freedom of speech and the press, and freedom from unreasonable search and seizure”. A democracy does not claim exclusive, unquestioning loyalty from its people; in fact, if those in power overstep their authority, the people have a right, even a duty, to vote them out of office or impeach them through their representatives. Democracy is increasingly getting attention globally and with globalization it is not losing momentum in popularity. However, democracy in Nigeria is relatively young with a lot of challenges facing its survival and growth. (See: Okoroafor, Ejike .C. (2010) ‘DEMOCRACY AND GOOD GOVERNANCE: INGREDIENTS FOR SOCIOECONOMIC DEVELOPMENT IN NIGERIA’ https://www.ajol.info/index.php/ijdmr/article/view/56237/44682.

DEMOCRACY IN NIGERIA: A HISTORICAL OVERVIEW
Nigeria is presently under democratic rule which came on board on May 29, 1999, about a decade ago. Ordinarily speaking, democracy should lay the foundation for good governance to strive in any nation. But neither democracy nor good governance can be said to be on strong grounds in Nigeria today.

The history of Nigeria’s political system has been marred by instability. Since its independence in 1960, the country has oscillated between civilian and military rule. Military regimes were marked by authoritarian control, corruption, and human rights violations, while civilian governments, though democratic in structure, struggled with inefficiency, widespread corruption, and poor governance.

In 1999, Nigeria made a historic transition from military rule to a civilian government with the election of Olusegun Obasanjo as president. This period marked the beginning of the Fourth Republic, and for the first time in the country’s history, power was peacefully transferred from one civilian administration to another. This peaceful transition raised hopes that democracy would foster good governance in Nigeria.

Despite the formal structures of democracy being in place, such as regular elections, freedom of speech, and civil liberties, the country has continued to face significant challenges. These include corruption, inadequate infrastructure, insecurity, poverty, and social inequality. Thus, the fundamental question arises: Has democracy truly led to good governance for Nigerians?

NOW THIS

DEMOCRACY AND THE PROMISE OF GOOD GOVERNANCE
The essence of good governance lies in the principles of accountability, transparency, responsiveness, inclusiveness, and the rule of law. For democracy to lead to good governance, it must ensure that these principles are realized. In the Nigerian context, there have been notable improvements in some areas, but there have also been persistent problems that undermine the potential of democracy to deliver good governance.
1. Accountability and Transparency
Accountability is where an individual or organization is responsible for their actions and decisions. Cambridge Dictionary describes accountability as “the fact of being responsible for what you do and able to explain it when asked”. “The Macmillan Dictionary defines accountability as “the fact of being responsible for what you do and for the results of your actions.” In essence, accountability involves being answerable for one’s actions and ensuring that there is transparency and responsibility in fulfilling duties or obligations.

One of the primary tenets of democracy is accountability, where elected officials are answerable to the electorate for their actions. In theory, democracy should allow citizens to hold their leaders accountable through elections and other democratic processes such as civil society activism and the media. In Nigeria, elections have been held regularly, and power has been transferred peacefully between governments.

However, the reality is that electoral processes are often marred by irregularities, fraud, and manipulation. The Independent National Electoral Commission (INEC), tasked with overseeing elections, has been criticized for not adequately addressing voter fraud, ballot stuffing, and vote buying, which have eroded public trust in the electoral system. (See. Olusola, S. (2018). “Electoral Integrity and Governance in Nigeria.” African Political Review, 24(2), 33-46).

There is a broad agreement that “transparency” is closely tied to the right to know and the public’s access to information. The Cambridge Online Dictionary defines transparency as “the quality of being easy to see through,” “the practice of being open and without secrets,” and “a situation where business and financial activities are conducted openly, ensuring fairness and honesty.” Similarly, the Macmillan Online Dictionary describes it as “the state of being clear enough to see through” and “a straightforward approach that allows others to understand exactly what is being done.” Transparency is a key measure of governance effectiveness and impact, emphasizing openness, honesty, and clarity. “Good governance” encompasses several key attributes: it is participatory, consensus-driven, accountable, transparent, responsive, effective, efficient, equitable, inclusive, and adheres to the rule of law. It ensures the minimization of corruption, considers minority views, and ensures that the voices of society’s most vulnerable are heard in the decision-making process.

There are two types of transparency. The first is proactive transparency, which involves publishing information of public importance before the public demands it. This approach is based on the belief that all information of public significance belongs to the public and is only held by governmental bodies. It asserts the public’s general right to know, and proactive transparency serves as a mechanism for exercising that right.

This concept is supported by public administration theorists and international organizations, such as the World Bank. The second type is reactive transparency, which also concerns the public’s right to know, but is carried out in response to popular demand. The goal of achieving full transparency stems from the belief that democracy is rule by the people and that elected representatives are temporary agents who are accountable to the citizens.

Defined this way, reactive transparency requires public authorities to ensure that citizens are given equal access to information as decision-makers and to share information with the public at the same time as it is shared within the administration. For public administration to respond efficiently and professionally to citizens’ needs and provide quality public services according to the principles of “good governance,” it is crucial to increase transparency and improve ethical standards. A government that is open and accessible is more likely to be transparent. This realization has led to a global movement for more openness in government operations. Michael Johnston defines transparency as the “capacity of outsiders to obtain valid and timely information about the activities of government or private organizations.” He further notes that the enactment of the Freedom of Information Act in the United States in 1966, which provided limited guarantees of citizen access to government information, was a milestone in transparency.

AND THIS

This model has been adopted in other countries. Democratic and market reforms, along with the growing anti-corruption movement, have significantly contributed to the establishment of transparency as a key governance concept. Transparent political processes are viewed as more accountable and democratic, while transparency in the economy facilitates free-market operations. In both contexts, rights to access information and the corresponding obligations of institutions to uphold those rights are considered safeguards against abuses and vital components of good governance.

Transparency is seen as essential to various political goals, such as combating corruption, ensuring fair election financing, enhancing democracy, strengthening democratic institutions in transitional societies, and reducing international conflicts. Despite significant changes in Nigeria’s federal structure over time, the country still faces challenges related to transparency and accountability. Power in Nigeria is concentrated within the executive branch, led by the President and his Ministers, and party discipline often means minimal legislative opposition to government policies. The lack of transparency and accountability has undermined the legitimacy of the government. In Nigeria, the need to enhance transparency and accountability in intergovernmental relations is especially urgent due to widespread corruption and the lack of adequate checks on the powers of officials.

Transparency is closely linked with accountability and other fundamental principles of modern democratic societies, such as open justice, open government, freedom of information, and public consultation.

To be continued

THOUGHT FOR THE WEEK

“We’ve seen over time that countries that have the best economic growth are those that have good governance, and good governance comes from freedom of communication. It comes from ending corruption. It comes from a populace that can go online and say, ‘This politician is corrupt, this administrator, or this public official is corrupt.” – Ramez Naam

By Prof Mike Ozekhome SAN

INTRODUCTION
The dramatic on/off attempt to recall the Senator representing Kogi central Senatorial District in the National Assembly has focused public attention on that hitherto obscure and seldom used process. While the public has been regaled (if not quite transfixed) with the apparently determined and desperate attempt by her supposed constituents to recall her (and her equally robust push-back), the body at the centre of it all – the electoral umpire – has been no less up-to-the-job with its prompt assessments and verdicts (so far, in her favour). INEC roundly rejected the recall process on the ground that it has not met the constitutional requirements of section 69(a) of the 1999 Constitution.

However, what few observers have noticed (much less commented on) is the legal framework which underpins the entire process – INEC’s Guidelines for Recalling Members of the National and State Houses of Assembly, 2024. I will get to the details shortly, but it is quite interesting that a similar handicap, in my opinion, afflicts an even more sensitive regulatory document, the NJC’s (National Judiciary Council) Regulations for the Discipline of Judicial Officers. I believe both documents are potentially problematic for the following reasons, starting with that of INEC as aforesaid.

INEC’S RECALL GUIDELINES, 2024
This would-be sledgehammer which Senator Natasha’s traducers sought to deploy for her removal is expressed on its face to have been made by INEC pursuant to Sections 69, 110 and 160 of the Constitution, Sections 2(c) and 113 of the Electoral Act, 2022, “and all other powers enabling it in that behalf”. At its foot (its conclusion), it bears the signature of Prof. Mahmood Yakubu, INEC’s Chairman. Therein, in my view, lies the problem. This is because, an enactment which is supposedly made by a multi-member body cannot validly be endorsed or executed by only one of them – without an express authorization to that effect. Administrative bodies must act within the scope of their statutory powers and follow administrative due process. See the cases of Ajiboye V. Attorney-General of the Federation (1994) 5 NWLR (Pt. 345) 765 and Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.

The relevant law is Section 27(2) of the Interpretation Act, which provides that where a body established by an enactment comprises three or more persons and is empowered to make subsidiary instruments, for any such instrument to be valid, it should be “executed under the hand of any two of the members thereof as may be authorized by such body generally for that purpose or specially or any particular occasion”.

Now, by virtue of Paragraph 14(1) of the Third Schedule to the 1999 Constitution, INEC consists of a Chairman and twelve members (called “National Electoral Commissioners”). Section 148 of the Electoral Act, 2022 empowers INEC to make regulations, guidelines or manuals for the purpose of giving effect to the Act. Even though Section 147 of the Act empowers the Commission to delegate “any of its powers and functions to any National Electoral Commissioner, Resident Electoral Commissioner, electoral officer, or any other officer of the Commission or any other officer appointed under the provisions of (the) Act,” curiously, not only are the Guidelines themselves not expressed to have been made pursuant to the aforesaid provisions of Section 148 of the Electoral Act, more importantly, they are silent on any delegation of the power to enact them by the Commission to its Chairman, as contemplated by Section 147 of the Electoral Act.

The implication of this defect is glaring: the Recall Guidelines are ultra vires the sole executor thereof, INEC’s Chairman, because by virtue of the aforesaid combined provisions of Section 27(2) of the Interpretation Act and Paragraph 14(b) of the Third Schedule to the Constitution, they should have borne the imprimatur (been “executed under the hand”) of at least two of INEC’s Commissioners or officers. There are limits to statutory and constitutional powers due to the supremacy of due process over the ultra vires acts of public officers. See the cases of Attorney-General of Lagos State v. Attorney-General of the Federation (2003) 12 NWLR (Pt. 833)1 and Minister of Internal Affairs v. Shugaba Darman (1982) 3 NCLR 915. This ought to have completely put paid to Senator Natasha’s entire recall saga, and forcing INEC to go back to the drawing-board. This remains to be seen, of course. The “wahala” of reviewing without supposed ballot papers of recall. The law might yet hand her a technical victory – seemingly without firing a shot.

NJC’S JUDICIAL DISCIPLINE REGULATIONS 2017
This document appears to be even more problematic than INEC’s Guidelines. How is that so? This is so because even though the Regulations were expressly made by the NJC on the 9th day of March, 2017, there is nothing on their face to indicate to suggest that they were executed by any officer of that distinguished body of Jurists – not even the Honourable Chief Justice of Nigeria who is its head by virtue of Paragraph 20(1) of the 3rd Schedule of the 1999 Constitution. The same paragraph provides that the NJC consists of twenty-three members.

Indeed, similar provisions in Section 27(2) of the Interpretation Act prescribe that the NJC Regulations ought to bear the imprimatur of at least two of its members. Its failure in this regard, with the greatest respect, is even worse because I am not aware of any provision – similar to those of Section 147 of the Electoral Act, 2022 – which empowers the Council to delegate any, some or all its powers (especially of enacting subsidiary instruments such as the Regulations) to any of its members (presumably the Hon. CJN). This lacuna is too obvious to be over-emphasized – much less overlooked. It should be squarely addressed by concerned authorities.

RULES OF EVIDENCE
Beyond the foregoing fatal structural defect, a fundamentally more worrisome aspect of the NJC Regulations, in my humble view, are the provisions of Regulation 21(3) thereof which stipulate that the rules of evidence do not apply to the Investigating Committee’s hearings. This provision is curious, to say the least, given that the Regulations are meant to guide an investigation into judicial misconduct – to probe allegations of ethical violations and malfeasance against judicial officers who, by their very calling, are trained to apply (and have been applying virtually throughout their entire careers) the rules of evidence codified in the Evidence Act, 2011.

This provision is problematic because by virtue of the provisions of Item 23 of the Exclusive Legislative List of the Constitution, only the National Assembly is competent to legislate on evidence. See the case of AG Abia State v. AG Federation (2002) LPELR-611 (SC). That being the case, the broader question becomes whether the other evidence-related provisions of the NJC’s said Regulations – namely Regulation 21(2), (4), (5), (7) and (8) might legitimately come under scrutiny. They stipulate as follows:-

<span;><span;>- (2): “All testimony taken at the hearing shall be given under oath or affirmation and recorded”;

<span;><span;>- (4): “The complainant shall be given an opportunity to produce evidence and call witnesses”;

<span;><span;>- (5): “At any hearing of the Investigating Committee, the subject judge has the right to present evidence, to compel the attendance of witnesses and to compel the production of witnesses and to cross examine, in person or by Counsel, Committee Witness”;

<span;><span;>- (7): “The Investigating Committee may take oral evidence if it considers it necessary to do so”;

<span;><span;>- (8): “The Investigating Committee must arrange for any evidence given orally to be recorded in a transcript or by electronic recording”.

The significance of the foregoing is underscored by the fact that the NJC is not one of the bodies which are specifically excluded from the application of the Evidence Act, 2011, under the provisions of Section 256 of the Evidence Act. The maxim is expresso uniu est exclusio alterius (the express mention of a thing in a statute implies the exclusion of others which otherwise might be included). See P.H.C.S. LTD VS MIGFO LTD. (2012) All FWLR Pt. 642 pg. 1615.

I humbly submit that the foregoing view is buttressed by Item 68 of the Exclusive Legislative List of the Constitution which stipulate that the power of the National Assembly to legislate on the substantive subject matters of the preceding Items (1-67) in that List includes “any matter incidental or supplementary to any matter mentioned elsewhere in (the) List.”
CODE OF CONDUCT FOR PUBLIC AND JUDICIAL OFFICERS
Yet, another interesting issue is the Code of Conduct for Judicial Officers 2016. Is the fact that it appears to be co-extensive with the Code of Conduct for Public Officers under the Constitution in the Fifth Schedule thereof anomalous in any way?. Has the Constitution covered the field or can the more detailed and specific provisions of the latter co-exist with it? Is enacting a Code of Conduct for Judicial Officers among the powers donated to the NJC under Paragraph 21 of the Third Schedule to the Constitution? That is the question.

This issue is somewhat topical given the ongoing story about the propriety of the chairmanship of the Board of Trustees of the IBB golf club, Abuja, by the President of the Court of Appeal. Given the provisions of Rule 9.3 of the said Code of Conduct for Judicial Officers 2016 which expressly permits judicial officers to join sporting organisations. One wonders whether Hon. Justice Monica Dongban-Mensem breaches any Code of Conduct to so act. I very doubt if the Code of Conduct for Public Officers under the Constitution bans such engagements. Although she may be on sure footing, to so act, this must be subjected to public perception of the Head of the Intermediate Court intermingling with the hordes of politicians that daily patronize the Golf Club. And perception is invariably reality. With Justice Emeka Nwite’s restraining order against her and others from being nominated and presented pending the determination of the Originating suit – the many peels of the onions are just unfolding.

In all, the non-endorsement of the foregoing vital regulatory instruments (including the Code of Conduct for Judicial Officers) in the manner required by law might make them vulnerable to challenge by ambitious counsel and litigants who might fall back on such complaints in the absence of more fundamental objections or defences. Let those in charge of amendments to these laws do the needful immediately.