Olu Fasan
The current Attorney General and Minister of Justice of Nigeria, Abubakar Malami, SAN, is a sophist who puts a wrong interpretation on the Constitution ostensibly for sectional interests. His specious reasoning and false arguments have not gone well with his fellow lawyers, but that hasn’t stopped him from engaging in sophistry.
Recently, Malami condemned the Southern governors’ decision, at their Asaba summit, to ban open grazing of cattle in their states. Speaking on Channels Television after the Asaba Declaration, Malami said: “It is about constitutionality within the context of the freedoms expressed in our Constitution”, adding: ”Can you deny the rights of a Nigerian?”
The so-called Constitutional “right”is in section 41(1) of the Constitution, which states: “Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof.”
But what does that provision mean? Does the phrase “every citizen of Nigeria” include animals? Surely, the drafters wouldn’t have intended animals to be citizens of Nigeria. Even for a citizen of Nigeria, the section 41 right cannot be absolute. For instance, a suicide bomber, even though a citizen, cannot be “entitled to move freely throughout Nigeria”.
We will expand that argument later. First, we must call out the crude Fulanisation of the herdsmen’s issue. For truth is, Malami’s legal sophistry, the presidency’s blatant bias and other Northern leaders’ tendentiousness are shaped by strong sectional interests in promoting the cause of herdsmen against those of farmers in the Middle Belt and communities across the South that are victims of their atrocities.
In 2016, a Northern senator, Zaynab Kure, introduced the controversial national grazing reserve bill in the Senate. At a subsequent Senate public hearing, the then Chairman of the Senate Committee on Agriculture, Abdullahi Adamu, told stakeholders, who opposed the grazing bill: “The government is free to establish grazing reserves anywhere”, adding: “Government is government. If anybody thinks he is violent, government has the monopoly of violence”. So, for many Northern leaders, the cause of the herdsmen is one on which they are willing to bully and impose their will on the South.
That, of course, includes President Buhari himself. In 2000, after a herder-farmer clash in Oyo State, Buhari, then a former military head of state, led a delegation of Arewa leaders to the then governor, Lam Adesina, and toldhim:”Your people are killing my people.” In 2016, at the palace of the Emir of Kastina, President Buhari said, in response to agitations against herdsmen in the South: “It would be foolhardy for someone to just say he would chase us away. So where do we go?”
For Buhari, even as president, when it comes to issues concerning Fulani herdsmen, it’s “us” against “them”, “my people” versus “your people”.His government ignores the herdsmen’s heinous crimes. As widely reported, the presidency condemned the Southern governors’ ban on open grazing and wants to establish the controversial cattle colonies or so-called rural grazing areas, RUGA.
But if the herders’ problem is to be tackled fairly, three fundamental principles must be respected and reconciled. The first two are federalism and freedom of movement. The first means that the Federal Government must respect the rights of governors to regulate land use and protect lives and property in their states. The second principle, however, means that state governments cannot hinder the free movements of legitimate businesses and law-abiding citizens regardless of the latter’s ethnicity or state of birth.
The US Constitution and Supreme Court struck the right balance between the two principles. The Constitution contains the “Commerce Clause”, which allows Congress to enact overriding national laws to facilitate inter-state commercial and social interaction. But to prevent Congress from undermining the principle of federalism, the US Supreme Court held in US v Lopez that Congress may only invoke the commerce power to regulate, inter alia, “activities which have a substantial relation to interstate commerce”.
What the US case suggests is that the right to free inter-state movement is not absolute. While US states must facilitate inter-state commercial and social interaction, they can restrict them under certain circumstances.
Which brings us to the third principle: the harm principle. John Stuart Mill, the 19th-century English philosopher, propounded the harm principle, which says that it’s only legitimate to constrain any person or activity to prevent harm to others. Thus, for example, no civilised country allows animals to move freely in public places and pose threats to lives and property. For instance, in the UK, where most people have dogs, there are over 20 laws that apply to dog ownership and handling, most designed to protect the public. So, why would the harm principle not apply to open grazing of cattle, given its evident harmfulness?
Of course, the harm principle applies to citizens. Last year, Governor Rotimi Akeredolu of Ondo State gave violent Fulani herdsmen an ultimatum to leave the state. The presidency condemned the quit notice on the ground that the killer-herdsmen have a constitutional right to live in any part of Nigeria. But really?
In a recent landmark case, the UK Supreme Court ruled that a British-born girl who went to Syria and married a member of the Islamic State terrorist group has no right to return to Britain. According to the Court, her right to citizenship “does not trump other considerations, such as the safety of the public”. If a citizen could be prevented from returning to her country of birth on grounds of public safety, surely anyone can be prevented from moving from one state to another within a country for the same reason.
Appellate courts usually consider persuasive arguments from other jurisdictions; thus, Nigeria’s Supreme Court could consider the US and UK cases, and reconcile the three principles, in interpreting section 41 of the Constitution. The logic is simple: Cattle and herders have no constitutional rights to move from one part of Nigeria to destroy lives and livelihoods in another part of Nigeria!
