By Onozure Dania
Mr Olu Daramola, SAN, is a Partner at Afe Babalola & Co. In this interview, he spoke on security challenges in the country and other sundry issues.
What do you make of the recent Attorney-General of the Federation’s remarks on the decision by the Southern governors to ban open grazing?
Whilst it is true that the Nigerian Constitution guarantees freedom of movement to all citizens of the country, it is wrong to say that the constitutional provision covers the right of cattle to move freely on the property of other persons. Contrary to the position of the AGF and Garba Shehu, there is no provision in the constitution or any law in the country that gives a herder the right to walk his cattle on private property without the approval of the owner. The same also applies to all citizens of the country.
The freedom of movement granted in Section 41 of the 1999 Constitution is not absolute as it does not give anyone the right to invade the land of another person without his permission or choose to conduct his legitimate business in a manner that is injurious to other persons and public safety.
Unwarranted intrusion into another person’s property is trespass which is an actionable wrong.
Apart from the fact that under the Land Use Act 1978, the governor is the custodian of any land in his state which he holds in trust for the people of the state, each state also has the power to regulate physical planning or use of land in the state. Cattle rearing is a form of farming just like crop farming, poultry farming, piggery, etc.
It is a private business. Therefore, it is wrong for any government, be it the federal, state, or local government, to prioritise it over other forms of farming. As the law stands in the country today, no government has the power to create grazing routes, ruga, or even ranches on other people’s land without their approval. There are a plethora of judicial authorities to the effect that government can only acquire land for public purposes and that public purpose does not include taking land from one person and giving it to another person for his private business.
It is quite unfortunate that the Federal Government that controls all the security agencies in the country has not done anything to stem the tide of wanton killings perpetrated by the marauding herdsmen in Benue State and other parts of the country. People have been chased away from their homes and their farmlands. Many are languishing in IDP camps.
Is the AGF and the Presidency asking the Southern governors to fold their arms and allow the killer herdsmen who in addition to the barbaric killings and wanton destruction of farmlands, have added the lucrative business of kidnapping people for ransom, to roam their forests without taking any step to protect their people?
Happily, the AGF and the presidency are in the minority on the issue as the decision of the governors to ban open grazing has been applauded all over the country.
It is quite barbaric for anyone at this age to defend open grazing.
The Southern governors should give teeth to the decision by enacting laws banning open grazing in their respective states and create effective machinery for the enforcement. History will be kind to the governors for taking legal steps to protect their people.
The security situation in the country appears to be at a tipping point. What would you say is responsible for worsening insecurity in the country?
The country is at a tipping point. The main reason for the looming anarchy in the country is the failure of the government to address the challenge of insecurity headlong. The country is confronted with security challenges on all fronts. We have the lingering Boko Haram insurgency, banditry, and the marauding herdsmen.
They have turned the country into a huge killing field. The government has done very little to address the challenges.
The failure of the government to address the security challenges has fuelled separatist agitations in many regions of the country. It is on record that when some states took proactive steps to protect their people by creating security outfits to complement the federal security agencies, the Federal Government was not well disposed to their actions.
The AGF is on record to have openly declared their actions to be illegal. It took the strong determination of the governors of the Western region to create Amotekun, which has worked with other security agencies to reduce drastically the spate of kidnappings and killings in the region. Today, other regions have followed the laudable decision by creating their security outfits.
About five years ago, this government gave itself a pass mark by declaring what it called technical victory over Boko Haram. Happenings since then have shown that the Federal Government celebrated too early.
It is clear now that what the country needs is total victory over the terrorist crusaders and not mere technical victory. To avoid the ship of state from capsizing as a result of the mounting security challenges, we need to revisit the issue of policing by allowing each state or region to have a police force to maintain law and order in their domains. This will ease the burden on the military which is routinely deployed to maintain internal security and allow them to focus on defending the country against external threats and attacks by ISWAP, Boko Haram, bandits, and foreign killer herdsmen who have infiltrated the country.
Do you think the current Nigerian government has the capacity to tackle the current state of insecurity in the country?
With the right frame of mind, there is no reason why the government cannot prevent the looming anarchy. Unfortunately, the government appears to be confused about what to do and how to do it. When the killer herdsmen started the orgy of killings, the initial reaction of the presidency was that the victims should learn to accommodate their countrymen. Later, the government blamed foreign mercenaries trained by the late Libya strongman, Mu’ammar Gaddafi for the unprovoked violence.
They also blamed foreign herders from Chad, Mali, and the Niger Republic. When some states such as Benue enacted laws banning open grazing, the Federal Government kicked and accused them of engaging in illegality. This shows that the government is not in the right frame of mind to confront the terrorists and killers but it is not too late to confront them.
President Buhari should do the needful by unleashing the security forces against the angels of death and destruction, and if need be, he should seek assistance from foreign governments that are willing to help the country.
Some have called for a thorough investigation of COAS Attahiru’s death. Do you suspect any foul play?
I do not suspect any foul play. There are many conspiracy theories circulating on social media but none is credible. Someone sent to me a purported video of how two passengers in the ill-fated plane ejected from it before the fatal crash. I did not believe it. I have since confirmed that the video was in respect of another accident. As to whether a thorough investigation should be conducted to unravel the cause of the accident, my answer is a resounding yes. The purpose of an investigation is not only to discover the cause of an event or accident but to also see what lessons can be learned to prevent future occurrences of such accidents or events.
A thorough investigation will answer several questions, including whether the plane was air-worthy at the time it embarked on the journey, whether the accident was caused by manufacturing defects or sabotage and whether the equipment had adequate safety measures. It is in the interest of the military and the country that the cause of the fatal crash be thoroughly investigated to prevent future occurrence.
Do you see restructuring and constitutional amendment as the solution to Nigeria’s numerous problems as is being advocated by many?
Restructuring will not solve all our problems but I believe it will address many of the ills currently plaguing the country. A proper restructuring cannot be achieved through a constitutional amendment. What we need is a new constitution that addresses the many problems and contradictions in the 1999 Constitution which was imposed on the country by the military.
Restructuring will not lead to the disintegration of the country as it is not a call for secession. It is about establishing a proper federation, where there is no master or servant among the several levels of government.
What we run presently, which is dubiously called federalism is a unitary system, where the Federal Government is a behemoth operating like a big brother who determines all issues and controls everything in the house. In a true federation, there is resource control.
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Every state controls all the resources in the state and only pays part of the revenue accruing from the resources to the Federal Government. This was the kind of federation that was established in 1960 and the Republican Constitution of 1963 before the military seized power in 1966. In the American Federal System from which we copied the 1979 and 1999 constitutions, the states do not depend on the Federal Government for revenue allocation.
Each state controls its resources and even courts. Only constitutional cases go to the National Supreme Court as each state has its legal system and most appeals that have nothing to do with constitutional interpretation and infractions end at the state Supreme Court.
Many constitutional conferences have been held in the country to fashion a new constitution to address the legitimate concerns of all segments of the society but none has seen the light of the day because those who are benefiting from the current unjust arrangement see no need for change.
Well-meaning Nigerians and eminent jurists, including Aare Afe Babalola, Prof. Ben Nwabueze, Chief Wole Olanipekun, and Chief Robert Clarke have provided a framework on how to make a people-oriented constitution that meets the yearnings and aspirations of all Nigerians at different fora.
Aare Babalola has even offered to host and finance a conference on the issue. The present government will do well to listen to them.
What area of the Nigerian Constitution would you particularly recommend for amendment?
What we need is a total overhaul of the constitution but if you ask me for the specifics, I will say the constitution should address resource control. Each state should own the resources in it and only pay royalty to the FG Gov. The exclusive legislative list should be downsized as more powers should devolve on the states.
The Federal Government has no business creating local governments.
Each state should create local governments and fund them. I will also suggest that we revert to the cabinet system which was operated under the 1960 and 1963 Constitutions as this will reduce the cost of governance. Each state should make its policing arrangements.
This is the only way we can give teeth to the Constitutional provision that the governor is the chief security officer of his state. The powers of the NJC should be restricted to the appointment and discipline of federal judges.
Financial autonomy should be granted to the federal and state judiciary.