The second part of this article, published, Friday, examined the powers granted to Governor Akeredolu under the 1999 Constitution as amended
By Chief Mike Ozekhome
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 Akeredolu’s reasons for tackling 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 seven 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 ensure 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 January 19, 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” terrorising citizens and states in Nigeria.
Consequently, the categorisation of every Fulani within the herdsmen bracket or the categorisation 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.
Paintbrush of criminality
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 Sabongari 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 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 seven-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.
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 the unceasing influx of migrants from neighbouring countries, such as the Niger Republic, Chad and the 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 to 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 the 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 the 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 improve 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 challenges 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 meets 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.