Lawyers disagree over Akeredolu’s ultimatum to herders
Can a governor give quit notice to occupants of forest reserves as being done in Ondo State? Lawyers say no, yes. AKEEM NAFIU reports
Some senior lawyers have sharply disagreed on the legality of Ondo State Governor, Mr. Rotimi Akeredolu’s directive to herders occupying government’s forest reserves in the state to vacate the place within seven days.
To some of the lawyers, the ultimatum which expires today is unconstitutional, unconscionable, arbitrarily, oppressive, discriminatory, illegal and ultra vires as no governor had powers to unilaterally order a group of people, tribe or religion to vacate with an ultimatum any part of the state in which he govern.
However, proponents of the governor’s action lauded the initiative, saying he was empowered by Section 1 of the Land Use Act which vested land in a state in governor’s custody. Governor Rotimi Akeredolu had Monday last week ordered Fulani herdsmen in Ondo State to vacate forest reserves in the state within seven days. He gave the ultimatum at a meeting he had with leaders of Hausa/Fulani and Ebira Communities in the state.
The governor noted with regrets that the activities of the herdsmen had been causing a threat to security in the state. A statement shared by Governor Akeredolu about the ultimatum to the herdsmen on his official Twitter handle reads: “Today we have taken major steps at addressing the root cause of kidnapping in particular and other nefarious activities detailed and documented in security reports, the press and debriefings from victims of kidnap cases in Ondo State.
“These unfortunate incidents are traceable to the activities of some bad elements masquerading as herdsmen. These felons have turned our forest reserves into hideouts for keeping victims of kidnapping, negotiating for ransom and carrying out other criminal activities.
“As the Chief Law and Security Officer of the State, it is my constitutional obligation to do everything lawful to protect the lives and property of all residents of the state. In light of the foregoing, the following orders are hereby issued:
*All Forest Reserves in the State are to be vacated by herdsmen within the next 7 days with effect from today, Monday 18th January, 2021.
- Night-grazing is banned with immediate effect because most farm destruction takes place at night.
- Movement of cattle within cities and highways is prohibited. * Under-age grazing of cattle is outlawed.
“Our resolution to guarantee the safety of lives and property within the state shall remain utmost as security agencies have been directed to enforce the ban.
“In its usual magnanimity, our administration will give a grace period of seven days for those who wish to carry on with their cattle-rearing business to register with appropriate authorities.”
Akeredolu in Presidency’s black book
Less than 24 hours after Governor Akeredolu handed down the 7-day ultimatum to herders occupying forest reserves in the state to leave, the Presidency faulted the directive, saying the governor “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”.
A statement signed by Garba Shehu, the Senior Special Assistant to the President on media and publicity indicated that the governor’s action could lead to a breach of herders’ rights in Ondo State.
Shehu advised Governor Akeredolu to rather engage the leadership of the Fulani communities in Ondo state for a good understanding that will bring an urgent end to the security challenges facing the state.
He said: “Rather than the ultimatum and contradiction that may follow the order, the state government and the leadership of the Fulani communities in Ondo state should dialogue for a good understanding that will bring to an urgent end, the nightmarish security challenges facing the state.
“Mr Akeredolu 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.
“If this were to be the case, rights groups will be right in expressing worries that the action could set off a chain of events which the makers of our constitution foresaw and tried to guard against. Insecurity is not alien to any group, the language they speak, their geographical location or their faith.
“We need to delink terrorism and crimes from ethnicity, geographical origins and religion to isolate the criminals who use this interchange of arguments to hinder law enforcement efforts as the only way to deal effectively with them.
“The government of Ondo, and all the 35 others across the federation must draw clear lines between the criminals and the law-abiding citizens who must equally be saved from the infiltrators.
Beyond law and order, the fight against crime is also a fight for human values which are fundamental to our country.”
Meanwhile, the Ondo State Government had insisted that the Federal Government’s opposition to the quit notice would not change its position. Speaking on the issue, Commissioner for Information and Orientation, Donald Ojogo, noted that the order was in the interest of all residents of the state, including the Fulani herdsmen.
He added that the governor’s directive should not be misinterpreted to mean quit notice for the Fulani tribe that reside in Ondo State.
He said: “Insecurity is a national issue and no part of the country is exempted. Now kidnapping and banditry are now becoming a pandemic so to say. If actually Garba Shehu issued the statement, then he owes the nation explanation to let people know why he must take up the fight of criminal elements.
I do not believe that with his pedigree, he might want to offer himself as spokesperson for the people masquerading as herdsmen and committing crimes.
“Government did not say Fulani people should leave Ondo State. Some herdsmen have occupied the forest reserves and in this case, the forest reserves are different from the natural forests. Government has not come out to say that the Fulani should vacate all the forests in Ondo State.
The focus here is the forest reserves. “There are specific purposes that forest reserves have been earmarked for.
There are thousands of hectares of land in the thick forest. Unfortunately, some of those criminal elements have gone to mingle with Fulani herdsmen who have occupied portions of these forest reserves and settlements.
In any case, anytime victims are kidnapped, they take them into the depth of forest reserves, and security agencies have had enough evidence to show that victims are taken into the forests.
“So what government is trying to do is to clear the mess by a way of regulating the activities of herdsmen and not only Fulani people are herdsmen.The governor was explicit in his directive.”
In the meantime, Governor Akeredolu’s action had elicited divergent of opinions from some senior lawyers.
In their comments on the issue at the weekend, the lawyers could not speak with one voice on the propriety of the governor’s action. Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, faulted Akeredolu’s action saying he lacks the power to unilaterally make such directive. He said: “The governor has duly exercised his powers under the Land Use Act.
This is factual. It is also true that something needs to be done to tackle the increasing number of crimes and violent conduct faced in the area (forest reserve), which the governor stated was his reason for the request.
However, as is trite law, the governor’s powers are only effective up to the extent that they do not affect a citizen’s right(s) under the 1999 Constitution.
“The Constitution of the Federal Republic of Nigeria (1999) as amended supersedes the provision of the Land Use Act. It is the highest law of the land, the grundnorm and supreme law.
Thus, where any law or provisions of laws conflict with the Constitution, such law is null and void to the extent of its inconsistency. Inherently, governors are bound to obey and uphold the Constitution and its other laws that support it.
“No governor can unilaterally order a group of people, tribe or religion to vacate, by an ultimatum, any part of the state in which they govern, nor can he intervene or encroach on the fundamental rights of citizens as guaranteed by the Constitution.
“Providing for removal of any person from any part of Nigeria where such person has not be proven to commit an offence under law is contrary to the provisions of the 1999 Constitution, and is thereby illegal, unconscionable, void, null and of no effect whatsoever and howsoever”. Another silk, Dr. Biodun Layonu, also faulted Akeredolu’s action.
“A simple Executive Order, that all those in government forest reserves without licence, approval or permit are to be evicted as being unlawful occupants or residents or labourers or trespassers of government forest reserves would have been better.
“Absolutely, no need to mention herders or otherwise, we must be conscious of our political environment and avoid unnecessary controversies in achieving our set objective.
I wonder how any reasonable person would have faulted that? No one is entitled to carry out any activity on a government forest reserves without permission,” he said. A rights activist, Mr. Kabir Akingbolu, was also not in support of the governor’s action.
He said: “It beats no repetition that the governor of a state is the Chief Security Officer of that state; but as the Chief Security Officer of the state, he doesn’t possess the unilateral power to issue quit notice to any citizen of Nigeria living in his state because we are not in a military or totalitarian state where anything goes. “In the instant case, Governor Akeredolu’s stand is wrong both in law, moral and humanity.
This is because the governor or anybody cannot say with precision that all the Fulanis are bad people. Thus, if all of them cannot be labelled as criminal or bad, then it behooves the governor to put measures in place to fish out the bad eggs causing problems or disharmony in the state rather than attempting to do the illegality or impossibility to throw all fulanis out of his state”.
However, another member of the Inner Bar, Mr. Seyi Sowemimo, believed the governor was right in his action.
Sowemimo said: “I believe that a governor is entitled to issue such notice if the security of the state demands such action.
He bears ultimate responsibility for the safety of citizens living in the state especially as governors have authority for the control and management of land within their territory and they also have paramount authority in relation to the administration of criminal law within their states”.
Mr. Yemi Candide-Johnson (SAN) also threw his weight behind the governor’s ultimatum to herders.
“We are missing the point. Granted that there is no legal reason to impede peaceful integration and the internal mobility of people within a federation, we must be cautious not to fan public excitement which can lead to hysteria.
“However, it is the responsibility of government to clearly and decisively target criminal elements who threaten peace and security and who have no legal or legitimate right to be. This is the context for your inquiry and the simple legal answer is yes.
The land is vested in the state and any trespasser can be evicted,” the silk said. Mr. Hakeem Afolabi (SAN) also believed Governor Akeredolu’s directive is in order.
He said: “The Governor’s directive is in order. Section 1 of the Land Use Act vests all Land in a state in the governor of the state. Thus, the law gives the governor authority over the forest reserves in Ondo state. “The primary responsibility of any government is the security and welfare of the people.
In carrying out his constitutional obligation of providing for security of his people, the governor by means of intelligence available to him has come to know that criminals are using forest reserves to carry out their nefarious activities.
“In taking steps to curtail the criminal activities being carried out by criminals, he acted within the ambit of the law in directing herders to get out of the forest reserves and that whoever wants to continue to stay in the reserves must register with the government.
The governor’s directive was properly made.” To Mr. Destiny Takon, the governor had acted within his constitutional and executive competence. “This is a matter of competence and in determining the question raised, we have to first determine what the powers of a governor are at law and in practice.
The governor of every state of the Federation holds all lands in the State and administers same in the interest of the public (‘the public’ in his State), under the Land Use Act.
“A governor is also the Chief Security Officer of his state. He wields and micromanages the executive powers of the state in the best interest of his state, under the constitution.
“Having stated in my view the powers of a governor in any state of the federation, I will want to ask the question, what is a forest reserves? A reserved forest is simply a forest delineated and gazetted as a part of the forest where pristine animal or plant species should be preserved from hunting and exploitation to avoid their decimation.
“The natural question to ask again, is who is being evicted and how did he or she get into the reserved forest? Is the reserved forest a place anyone can walk in and occupy or take possession of?
Anyone who finds himself or herself inside a reserved forest without the prior knowledge or approval of the state government is a trespasser and I am sure that there are also penal provisions against such entry.
“One may also want to ask what such a trespasser was doing in the reserved forest. Normal and peaceful human beings, live in communities or towns with fellow humans and also subject themselves to existing laws, bye-laws and the customs and traditions of the host community, which are meant to ensure peaceful coexistence.
“Flowing from the premises stated herein, a governor can evict and even ensure the prosecution of anyone found in the reserved forest without approval. “The need for such eviction and prosecution become more dire when the presence of such persons is inimical to the security of lives, property and the agricultural development of the state.
“The governor of Ondo State is acting within his constitutional and executive competence and is even being tenderly by not apprehending and prosecuting these now known occupants, who have been reported to be confronting, killing and prevented farmers and Indigenes of Ondo State from going about their routine life. They are a serious security threat to Ondo state and should rightly and speedily be evicted from the reserved forest.”
Takon said. Mr. Ige Asemudara also believe the ultimatum given by Governor Akeredolu to herders is justifiable and lawful.
He said: “Firstly, the first essence of government is the safety and security of lives and property and the Constitution guarantees this.
Secondly, as the Governor of the state, Akeredolu has a duty and the power to evict people from or restrain anyone from entering the forest reserves of the state especially when their activities therein are illicit or criminal.
“It is sheer hypocrisy for Garba Shehu, Buhari or whoever he is speaking for to ask Boko Haram insurgents to leave Sambisa in one breath and criticise Akeredolu for asking bandits, kidnappers and murderous herdsmen to live Ondo forest in another breath.”