Legal Opinion

Abubakar Sani, Esq. Shares View on the Legality of the Suspended RUGA Policy

As a lawyer, I believe it [RUGA] has been blown out of proportion. This is because, if the objective of the programme is to establish a secure settlement for the nomadic herdsmen, the majority of whom are Fulani people, then it seems to be harmless, at least on the face of it. But of course, like almost everything in Nigeria these days, it has rather been politicized and has become very controversial. To my mind, the real question is whether the Federal Government possesses the requisite statutory or constitutional authority to implement such a programme.

To the extent that Ruga envisages the establishment of permanent land-based settlements for nomadic livestock owners across the country, I believe that the extant law, i.e., both the 1999 Constitution and the Land Use Act contain copious provisions which are relevant to a credible and sustainable resolution of the controversy. 

On Ownership of lands in every state in the governors
The land use Act empowers governors to manage lands for the use and benefit of all Nigerians. This well-known provision is contained in Section 6(1) of the Act. However, governors do not enjoy a monopoly in this regard, as Section 6(2) of the Act also empowers local governments to grant rights of occupancy in rural areas for grazing purposes, up to a limit of 5,000 hectares. No such limit is placed on the governor under the act.

Beyond these two provisions, what is not widely known, is the fact that other provisions exist in the Constitution which, in my view, are relevant and can be beneficially leveraged to resolve the controversy. Those provisions include paragraphs 17(d) and 18 of the Concurrent Legislative, contained in the 2nd Schedule to the Constitution. The former empowers the National Assembly to establish institutions for the promotion or financing of agricultural projects, amongst others, for the federation or any part thereof.

This includes the establishment of animal husbandry or livestock. The latter empowers State Houses of Assembly to make laws for the agricultural development of the State; this clearly includes animal husbandry or livestock development.

In my view, the National Assembly can act under this provision to enact a law for the establishment of a Nomadic Livestock Development Commission, much in the same way as it established the various River Basin Development Projects spread across the country. Another precedent is the National Commission for Nomadic Education. Such a Commission will have the core mandate of managing nomadic herdsmen across the country for the purposes of livestock development or animal husbandry.

As for as land is concerned, the Assembly can act under Section 10(2) of the Interpretation Act, to empower such a Commission to own and manage land for the purposes of the Act (that clause provides that an enactment which confers power to do an act shall also be construed as conferring all such other powers as are necessary to enable that act to be done or are incidental to the doing of it). If these provisions are read together with those of Paragraphs 17b and 18 of the Concurrent Legislative List of the Constitution, I believe that the Federal Government, acting through the National Assembly, can act independently of State and Local Governments in dealing with land for the purposes of resolving the RUGA controversy, irrespective of the seemingly exclusive powers of the latter overland by virtue of the Land Use Act. Unfortunately, it seems that many commentators and analysts have not adverted their minds to these provisions.

Different legal provisions, which to adopt?
It is elementary that the Constitution is supreme. This remains so, notwithstanding incorporation of the Land Use Act in Section 315(5) thereof (along with the NYSC Act and National Security Agency Act). This was decided by the apex court in the case of NKWOCHA VS. THE GOVERNOR OF IMO STATE (1984).

In other words, the fact that the Land Use Act has been conferred with a special status in the Constitution does not make it an integral part of the Constitution. Accordingly, in my opinion, acquiring land for the purposes of RUGA – pursuant to Paragraphs 17(d) and 18 of the Concurrent Legislative List of the Constitution would not be inconsistent with the powers of State Governors and Local Governments under the Land Use Act. In my view, the two sets of provisions (the Land Use Act and Paragraphs 17d and 18 of the 2nd Schedule to the Constitution) are complementary and not contradictory.

Actualising the Authority

To make it work, the Federal Government needs to work harmoniously with the National Assembly because the herders’ issue has assumed the status of the national emergency with far-reaching implications for national security. The tension it generated was only curtailed – not resolved – by its suspension. The government has merely kicked the bus down the road or postponed the evil day. The government needs to find creative solutions – urgently – within the ambit of the law, to the problem, working with the National Assembly. Personally, I believe that those solutions lie within the Constitution if only the Constitution is interpreted liberally, as it should.

The National Assembly cannot just take over a person’s land or without the person’s consent or paying adequate compensation. Section 44 of the Constitution is very explicit about this.

This provision empowers the government to compulsorily acquire land provided adequate compensation is paid. Indeed, Section 47 of the Land Use Act which ousts the jurisdiction of the court over claims of the adequacy of compensation paid by the government for compulsorily acquired land was struck down by the Court of Appeal in LEMBOYE vs. OGUNSIJI (1987).

Sani is a Kano based legal practitioner.

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