In the wake of the of the Seventeen Southern State Governors’ meeting held in Asaba, the Delta State capital, to ostensibly proffer solutions and suggestions to the plethora of problems bedeviling this great nation, a lot of hullabaloo has been spilled, and very passionate opinions have been aired from several well-meaning public commentators especially as it relates to the ‘Ban of Open Grazing in the Southern States of this Nation’. The simple question that has been raised is whether the Governors indeed have the rights to so act? Painfully, it appears that this matter seems to be viewed from a regional or ethnic perspective. Having carefully considered this matter; I have formed a long and short answer to this question; my Short answer is that the federal government has no business in agricultural business under the 1999 Constitution (as Amended).
For my long answer however, you will have to spend the next few minutes understanding why only the state governments have the right to control agriculture in Nigeria. For clarity’s sake, let me state that this is by no means a political writeup, neither is it one that is borne out of any inherent ethnic or regional affiliations. A few years ago, I wrote a piece on ‘The Unconstitutionality of Ruga’; in the wake of this discrepancy, I find my earlier piece apt and on all fours with a very salient point that seems to be ignored in this extremely delicate national discourse. It is to this end that I have decided to lend my voice to this topical issue, mostly drawing from my earlier writeup.
I will commence with reproducing Section 5 of our sacred Constitution, and flow as slowly and smoothly as possible so that save for bile or bias, one would most likely come to this irrefutable conclusion. However, it shall be my pleasure to welcome counter opinions since I am by no means infallible;
Section 5 1999 Const (as amended) expressly states that, ‘Subject to the provisions of this constitution, the executive powers of the federation;
(a) Shall be vested in the president… …
(b) Shall extend to the execution and maintenance of this constitution, all laws made by the National Assembly, and to all matters with respect to which the National Assembly has for the time being powers to make law.
From the foregoing, one can easily pick that the President’s powers are not limitless, and cannot exceed the parameters set by the constitution. Simply put, ‘the president can only act on matters that the National Assembly can legislate over’.
In that case, to fully appreciate the extent of the presidential powers or the federal government’s might, we must take another excursion to the constitution, and unearth the power of the National Assembly. A Good government student knows that as far as legislative powers are concerned, they are entirely demarcated into Exclusive, Concurrent and Residual List. And this list involves the tiers of government. The Exclusive List is limited to the federal government, the Concurrent List is open to the Federal and State Governments, and the Residual List is left entirely to the dtate(s) government.
Now, SECTION 4 of the 1999 Constitution (as amended) vests the legislative powers on the Federation on the National Assembly which shall consist of a Senate and House of Representatives. SECTION 4 (2), further gives the Nation Assembly exclusive power to make laws in respect to matters listed in Part 1 of the Second Schedule to the Constitution, i.e., ‘The Exclusive Legislative List’. A thorough and rigorous search on Part 1 of the Second Schedule will reveal that every matter relating to Agriculture is copiously missing from this list.
Furthermore SECTION 4 (4) (a) of the 1999 Const (as amended), gives the National Assembly powers to make laws in any matter in the Concurrent Legislative List set out on the FIRST COLUMN of PART II of The Second Schedule to this constitution ‘to the extent prescribed in the second column opposite thereto’.
From the foregoing, we can make some valid assertions;
Livestock farming/grazing is a wholly agricultural matter.
The President’s powers flow from the constitution.
The constitution limits the President’s powers to only matters that the National Assembly can make laws over.
Only the National Assembly can make laws in the Exclusive Legislative List, however in the Concurrent Legislative List, the National Assembly can only make laws, albeit to the extent prescribed thereto.
Our next academic voyage would be to dispassionately dissect and examine the Concurrent Legislative List. It is pertinent to state that by virtue of section 4 of the constitution, the State House(s) of Assembly can also make laws on matters listed in the Concurrent Legislative List.
Since our focus is Livestock Farming/Grazing, and for the purpose of emphasis, Livestock Farming/Grazing or rearing of farm animals of whatever kind is an entirely agricultural matter; we have to take a clever look at the Concurrent List, since as mentioned earlier, agriculture is conspicuously missing from the Exclusive Legislative List.
PART II, Item 17 (c) & (d) of the Second Schedule, states lucidly that the National Assembly may make laws for the federation or any part thereof with respect to;
(c) The establishment of research centers for agricultural studies; and
(d) The establishment of institution and bodies for the promotion or financing of industrial, commercial, or agricultural.
As far as the 1999 Const (as amended) is concerned, the Federal Government cannot do anything or make any law, rule or policy on agriculture save for the matters expressly stated in the preceding paragraph.
Perhaps any doubt or haziness as regards the Federal Government’s involvement in agriculture was further curtailed by Item 18 Part II of The Second Schedule which states that; “a State House of Assembly may make laws for that state in respect to industrial, commercial or agricultural development”. I.e., anything, or any policy to develop or advance agriculture is the duty of the State Government and not the Federal Government. The Federal Government has been expressly limited by this constitution to only establishing academic facilities, or research centers, or promoting Agric-banking /financing, and certainly not regulating or controlling i.e., the nitty gritty of the agriculture per se. Grazing or non-grazing is glaringly under agriculture development and control. This matter is outrightly and emphatically exempted from the legislative purview of the National Assembly, and by extension the Federal Government.
In AG FEDERATION V AG ABIA &35 ORS (2002)4 SCNJ 1, Kalgo JSC held that; subsections (1) (4) of Section 4 above set out all the powers of the National Assembly to legislate for the peace, order and good government of the federation of Nigeria. The Legislative powers set therein do not cover everything or every topic under the sun which affects the whole Nigerian nation.
For the purpose of emphasis, permit me to further reproduce parts of Section 4 of our sacred constitution without sounding like a cracked record. SECTION 4 (4) (a), gives the National Assembly powers to make laws in any matter in the Concurrent Legislative List set out on the First Column of PART II of The Second Schedule to this constitution ‘TO THE EXTENT PRESCRIBED IN THE SECOND COLUMN OPPOSITE THERETO’ (emphasis mine).
Please notice that as it relates to the Exclusive Legislative List, there are no ‘limits and extents’ constitutionally imposed on the powers of the National Assembly to make laws. But as it relates to the Concurrent List, there are lucid limits and extents; meaning that it is by no means blanket powers and the National Assembly cannot exceed the limits, imposed thereto.
So, are there any limits to the National Assembly as regarding her concurrent legislative powers on agriculture? The schedule listed research facilities e.g., National Institute for Oil Palm Research (NIFOR), or Academic Institutions e.g., University of Agriculture, Makurdi, or financial institutions like the Agric Development Bank, or an ‘agric promotional agency and NOTHING ELSE! In clear terms, The National Assembly is limited to the expressly listed functions in respect of Agriculture in the Concurrent Legislative List.
Since Livestock grazing/farming does not fall under Items 17 (c) &(d) Part II of The Second Schedule to the 1999 Constitution (as amended), it is only the states Government that has the constitutional powers to make laws and policy in this regard. Therefore, any law or policy, directly emanating from this Federal Government in this wise is glaringly, unconstitutional, ultra vires, null and void and of no legal effect whatsoever save for a constitutional amendment.
You will notice that I have limited myself to the express provisions of the constitution in making the gamut of my point; the reason is because the constitution can rescue itself, and it mostly speaks for itself, all powers flow directly from the constitution in Nigeria any other law or policy that is either competing or conflicting with the constitution is void.
No matter how deeply entrenched a practice or law is or has been, the moment it can be deciphered that that law runs fouls to the Constitution, that day the law or policy dies naturally. I firmly believe that in light of this expose’, one can conclusively agree that the Ban of Open Grazing by the Southern Governors is valid and that any attempt of the Federal Government to interfere, would be an exercise in futility and one borne out of misguidance or mischief as it is runs fowl to our sacred Constitution and therefore, dead-on arrival!
– Momoh is a legal practitioner with BBH Legal Practitioners, No 10 Kolda Street Wuse II Abuja.