The Southern Goverors’Asaba Accord Meant To Rescue Nigeria’s Sinking Ship

The Southern Goverors’Asaba Accord Meant To Rescue Nigeria’s Sinking Ship

By Chief Mike Ozekhome, SAN, OFR, Ph.D

(Part 2)

INTRODUCTION

Last week, we started our discourse on this vexed issue. We saw how the
Governors had met to rescue the sinking ship of state from hitting the very
bottom of disintegration. They desired that it is better to stay together as
one big country than to split into smithereens. But, under one condition:
social justice and equity. Will Buhari break this Accord Concordial? Will he
save the country? Today, we shall further x-ray what the law says about
individual rights as against majority rights; and what the state Governors
must do. These and many more will be discussed today.

THE LAW

INDIVIDUAL RIGHTS VS. MAJORITY RIGHTS (continues)
Section 41(1) of the 1999 Constitution (Article 12(1) of the African Charter
on Human and People’s Rights; Article 13 of the Universal Declaration of
Human Rights; Article 45 of the European Charter of Fundamental Rights)
provides for freedom of movement of all persons within such geographical
zones.
However, notwithstanding the beauty of the above dicta, section 41 and the
rights guaranteed thereunder are not absolute at all. Section 45 is pretty
straightforward as regards derogation from section 41. It provides:
“(1) Nothing in sections 37, 38, 39, 40 and 41 of this
Constitution shall invaluidate any law that is reasonably
justifiable in a democratic society:

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(a) in the interest of defence, public safety, public order,
public morality or public health; or

(b) for the purpose of protecting the rights and freedom of
other persons.”

Thus, although the right to movement in section 42 of the Constitution of
the Federal Republic of Nigeria, 1999 (as altered), appears on the surface
to have been violated by the anti-grazing laws and the Southern Governors’
stance, section 45 of the Constitution allows any law to override it if such a
law is reasonably justifiable in a democratic society in the interest of
defence, public safety, public order, public morality or public health.
Considering the incessant cases of Boko Haram killings, maiming, stealing,
kidnappings, rape, armed banditry and robbery foisted on the Southern part
of the country, Southern leaders have rightly taken it upon themselves to
put into place laws and measures that will protect their citizens. To this end,
it is safe to assert that individual rights to movement have not in any way
been violated by the anti-grazing laws because the laws were enacted in
the interest of public safety, public order, public defence and public
morality. The laws and declaration are also to protect the peace, privacy
and homes of Southerners as highlighted in section 37 of the 1999
Constitution. They are also for the “purpose of protecting the rights and
freedom of other persons”.
Indeed, the same intermediate court in the case of KALU v. FRN & ORS
(2012) LPELR-9287(CA), made it clear that the rights to personal liberty
and freedom of movement are not absolute and can be derogated from:
“The rights to personal liberty and freedom of movement,
guaranteed respectively by Sections 35 and 41 of 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

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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.” Per EJEMBI EKO, JCA
(as he then was) (Pp 44 – 45, Paras G – E).
The above position of the law is further strengthened by the combined
effect of the provisions of sections 4(7), 5(2), 11(2), 14(2) and 176(2) of the
1999 Constitution. Section 4(7) states that the House of Assembly of a
State shall have powers to make laws for the peace, order and good
government of the State. Section 5(2) provides that the executive powers of
a State shall be vested in the Governor of that State. Section 11(2) gives
the Governor of a State powers over the maintenance of supplies and
services. Section 14(2)(b) enjoins the Governor to ensure that “the security
and welfare of the people shall be the primary purpose of government”. So,
where have the Governors of Southern States gone wrong? I cannot see it.
Or, can you?
In ASARI DOKUBO V. FRN (2007) NGSC 106 (decided June 8, 2007), the
apex court of Nigeria held that national security overrides personal
individual rights, where it is discovered that the individual’s right poses
threats to national security. Substitute for this, States’ and groups’ rights
supersede the individual rights of few rampaging, fully armed, AK-47-
clutching and wandering Fulani herdsmen who are not merely grazing their
cattle but actually on a predetermined mission of conquest, expansionism
and neo-colonialism of other ethnic nationalities. Such must be fully
resisted within all legal boundaries as the Southern Governors are now
doing.

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WHAT THE STATE GOVERNORS MUST DO

The 17 Southern Governors can sue the Federal Government, invoking the
original jurisdiction of the Supreme Court under section 232 of the 1999
Constitution. They should ask for a determination of their right to preserve
their States from insecurity. However, as held by the Supreme Court in AG
OGUN STATE V. AG FEDERATION (1982) LPELR-11(SC), the making of
law for the maintenance of law and order and securing of public safety and
public order is the responsibility of both the National Assembly and the
State Houses of Assembly. Consequently, for the ban by the Governors to
have legal effect and be clothed with legality and constitutionality, the bill
must first pass through the House of Assembly of each of the Southern
States to become a law. The Governors should therefore not be burdened
by the opinions of other Northern States Governors, as to do so will be
limiting the Executive powers of the Governors as regards the states which
they govern.
By banning open grazing, the governors are merely putting a stop to one of
the greatest known sources of wars and terrorist convergence in their
respective states. In my humble opinion, the Governors’ call is part of their
responsibilities to the people of their states as the main mandate of each
and every Governor is to protect the lives and property of the people of the
states they govern. The openness of the Governors to the idea of yet
another National dialogue to curb the insecurity (which I however consider
unnecessary in view of the unused recommendations of the 2014 National
Conference) can be seen as a honest bi-partisan call to see to the end of
insecurity menace in Nigeria.
SHOULD SOUTHERN GOVERNORS HAVE FIRST CONSULTED THE

NOTHERN ESTABLISHMENT?

It must be emphasized that the decision of the Southern Governors does
not in actuality impede the rights of cow rearers to own cattle. It merely
limits their ability to openly graze on lands that are not theirs in the first

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place and inflict misery on the indigenous owners. The ban will also ignite
more anti-grazing laws in other states in Nigeria.
Those Northern elites arguing that consultation ought to have been first
made by Southern Governors before making such resolutions have not
advanced any plausible argument anchored on the Constitution. In fact,
they ought to applaud the Southern Nigerian Governors for willfully
choosing to dialogue with their Northern counterparts and avoiding an
impending doom.
The few Northern elites have not explained to Nigerians why they never
consulted their Southern counterparts before passing and enforcing Sharia
Law in their States; or passing the various Hisbah laws. Did some of these
Governors not cut off citizens’ hands for various offences, to the angst and
condemnation of international communities? Did they not order for some
others to be stoned? Recall the unfortunate cases of Buba Jangebe (2000),
Auwalu Abubakar (23), Lawalli Musa (22), Abubakar Aliyu (15), Attahiru
Umaru, Sani Rodi, Sarimu Baranda, Safiya Hussein, Amina Lawal and
many others for merely either stealing a cow, bull, N32,000 or committing
adultery. Did the Northern Governors consult their Southern counterparts?
They did not explain why Southern Governors who are the Chief Security
Officers of their States should first obtain their permission (like a pupil from
a Headmaster) before dealing with security matters in their various States.
It only shows their mindset of a relationship of masters and servants;
conquerors and vassals; slave owners and slaves. They failed to tell
Nigerians that all the Northern Governors had actually pro-actively taken a
unanimous position to ban open grazing, at its virtual meeting held on
February 9, 2021, presided over by their Chairman, Simon Lalong
Governor of Plateau State. They had unanimously agreed that the “current
system of herding conducted mainly through open grazing is no longer
sustainable in view of growing urbanization and population of the country”.
While urging all the Governors to meet over this matter, they agreed on
other methods such as ranching. These critics of the Southern Governors
hid the fact that in response to the Northern Governors’ call, the entire
Nigerian Governors’ Forum of the 36 State Governors held a virtual

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meeting on February 11 (two days later) and unanimously agreed to end
nomadic and pastoral cattle wandering, “to address the rising insecurity in
the country and the activities of herdsmen…and the need for the country to
transition into modern systems of animal husbandry that will replace open,
night and underage grazing in the country”. They also encouraged ranching
as alternative. The Northern elites carefully screened away the fact that
Governor Abdullahi Ganduje, Kano State Governor’s had openly supported
adopting anti-grazing measures.
Ganduje had argued in February, 2021, during his meeting with President
Buhari and other APC Governors that such a ban would not only solve
incessant clashes between farmers and herders, but also prevent cattle
rustling. Inspite of attempts by some Northern groups to cow in, Ganduje
stuck to his guns. (To be continued).

THOUGHT FOR THE WEEK

“Good governance, safety, a chance to grow economically and
professionally – those are important things.” (Dana Perino).

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