The controversy and tensions over the rights and behaviour of herdsmen in Nigeria have been excessively coloured by sectional interest and prejudice. They have not been shaped by objectivity and core principles as one would expect in any civilised nation.
Let’s be clear. As Nigerians, herdsmen are entitled to rear their cattle and transact their business anywhere in Nigeria, subject to local laws. But, equally, farmers and other citizens are entitled to peaceful enjoyment of their possessions and to peaceful lives.
But what happens when AK47-wielding herders routinely kill farmers and other innocent people, savage communities and forcefully seize farmlands? Well, the above assumptions no longer hold; one group is abusing its rights and trampling on the rights of other groups. In that case, we must respond to the situation fairly and objectively, guided by core principles. But, as I said, the herders problem is viewed only through an ethnic lens.
Unfortunately, the presidency promotes this sectionalism. Rather than being an impartial umpire, the federal government is utterly biased on the issue. It is as if the presidency sees itself as the defender of Fulani herdsmen, regardless of their heinous crimes.
For instance, each time killer-herdsmen launch genocidal attacks on farmers in the Middle Belt or communities in the South, the presidency has not a word of condemnation for the attackers or even commiseration to their victims. But once a Southern governor asks the killer-herdsmen to leave his state or threatens to ban open grazing of cattle, the presidency is suddenly up in arms, condemning the governor for violating the Constitution.
Sadly, the presidency is full of sophists. In ancient Greece, sophists were captious or fallacious reasoners, who were paid to make weak arguments appear strong through rhetorical devises. Plato hated them passionately for prizing rhetorical success over philosophical truth. The main sophists in the Buhari government are Garba Shehu, Femi Adesina and Abubakar Malami. They are experts in specious reasoning and false arguments.
But while one can dismiss Shehu and Adesina, Buhari’s spokesmen, as media hacks and spin doctors, what can we say about Malami, a senior advocate of Nigeria, SAN, who is Nigeria’s attorney general and minister of justice, and thus the country’s chief law officer and the federal government’s chief legal adviser? Yet, Malami has always indulged in sophistry, putting a wrong interpretation on provisions of the Constitution for sectional interests.
The most recent of Malami’s legal sophistry was his response to the Southern governors’ decision, at their Asaba summit, to ban open grazing of cattle throughout their states. Malami rashly condemned the decision as “unconstitutional.” 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?”
In a false comparison, one of the tools of sophistry, Malami said banning open grazing in the South was akin to banning “spare parts trading in the north.” So, for Malami, a senior advocate of Nigeria, spare parts – inanimate objects – are not different from cows or cattle – animate objects, with the capacity to cause harm, such as destroying farms.
Of course, the presidency followed Malami’s “legal” advice and issued an utterly insensitive and divisive statement, condemning the Southern governors’ ban on open grazing. In the statement, issued by Garba Shehu, the presidency described the ban as “an act of politicking intended by its signatories to demonstrate their power”, adding: “It is equally true that their announcement is of questionable legality, given the Constitutional right of all Nigerians to enjoy the same rights and freedoms within every one of our 36 states (and FCT) –regardless of the state of their birth or residence.”
But what exactly is the so-called “constitutional right” that Malami and the presidency based their reasoning on? Well, it is, supposedly, enshrined in section 41(1) of the Constitution, which states thus: “Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof.”
Well, what does the above 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.” The fact that the federal government banned certain Nigerians from traveling from one state to another during the COVID-19 lockdown shows that, even for law-abiding citizens, the right to move freely throughout the country is not absolute, it can be constrained on public safety grounds.
So, what principles should govern the handling of the herdsmen problems? Well, three principles must be respected and, if necessary, reconciled. Let’s start with the first two. They are federalism and freedom of movement. The first principle means that the federal government must respect the rights of every governor to regulate land use, as provided under the Land Use Act 1978, and to protect lives and property in his state. But the second principle 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.”
Surely, the US case law suggests that not all inter-state activities can be allowed; some can be restricted under certain circumstances. So, under what conditions can a state restrict an inter-state activity?
Well, the answer lies in 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 own dogs and walk them on the streets, 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 anywhere in Nigeria. But really?
Consider this scenario. If there’s a gang war, and a gang of youths from one state goes to fight a gang of youths in another state. The police can order one gang of youth from one state not to enter another state. Can that gang claim a right to move freely throughout the country? Well, not in the US, not in the UK!
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.”
Surely, on public safety grounds, AK47-wielding Fulani herdsmen have no constitutional rights to move from the North to destroy lives and livelihoods in the South! The harm principle must govern the handling of the herders’ problem in Nigeria!
