ANALYSIS: Akeredolu’s vacation order to herdsmen legal and constitutional

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The seven-day ultimatum given to Fulani herdsmen to vacate forest reserves within Ondo State by Governor Rotimi Akeredolu, SAN, has since generated heated controversies.

While the Federal Government declared that the Governor lacks the constitutional power to issue quit notice to anyone in the state, the Governor and some other socio-cultural groups like Afenifere insisted that the vacation order remains valid. The purpose of this intervention, therefore, is to attempt a legal dissection of the constitutional validity of the vacation order vis-à-vis the public interest concerns arising from the policy.

First, the right to freedom of movement without hindrance anywhere within Nigeria is guaranteed under our constitutional jurisprudence. Thus, Section 41(1) of the 1999 Constitution of the Federal Republic of Nigeria (amended 2011) provides that “every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom”. Indeed, all citizens of Nigeria are constitutionally entitled to settle, live and move freely anywhere and everywhere in Nigeria without any fear of rejection, ostracisation or discrimination.

However, the rights to freedom of movement and personal liberty enshrined in the Constitution are not absolute. Section 45 of the Constitution provides that there could be a legal instrument providing for the derogation to these rights in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.

The Court of Appeal in KALU v. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287(CA) succinctly held that “the rights to personal liberty and freedom of movement, guaranteed respectively by Sections 35 and 41 of the 1999 Constitution, are not absolute”. The court further explained that 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 in a democratic society imposing restrictions.

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Therefore, no argument of constitutional or human rights breach can be maintained “when it is apparent that the right has been deprived of in accordance with the procedure permitted by law.”

So, does the Ondo State Government have any law reasonably justifiable in a democratic society that provides for the derogation of the right to freedom of movement? The answer is a “Yes”.

By virtue of Section 1 of the Land Use Act, 1978 all lands within the geographical territory of a state in Nigeria is vested in the Governor. The section provides thus: “all land comprising the territory of each state in the federation are hereby vested in the governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act”. On the usage of the land, Section 12(1) of the Act empowers the Governor to grant licence or permits to anyone entering or using a land. Interestingly, Section 12(5) the Act vests upon the Governor the power to cancel any such licence if it fails to comply with the conditions of the licence. Instructively, Section 28 of the Act provides that “it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest”.

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Second, by virtue of Section 2 of the Trade Cattle Tax Law of Ondo State, 1969 (amended 2006), the imposition of “movement permit” of cattle traders is established. In fact, Section 9 of the Law empowers the State Executive Council to make regulations for the purpose of enforcing the provisions of the law. It is also important to note that Section 9 of the Law criminalizes failure to pay the trade cattle tax or failure to take such trade cattle to the appropriate control post for inspection purposes.

Furthermore, under the Ondo State Forestry Law regime (Forestry Law of Western State and National Forestry Policy, 2006), it is a criminal trespass for an individual to occupy a forest reserve without obtaining permit from the state government through the state’ forestry department.

When an individual, whether an indigene or otherwise, enters into the forest reserve without permission consequent upon which such a person is capable of tampering with the forest produce and ecosystem, it is an act of trespass punishable under the law. In fact, in cases of forests and open lands that are not “reserved”, no individual can invade such a land without lawful permit from the private owner, communal authorities or the government as the case may be. Anything short of a lawful permit before occupying a land that does not belong to you is a criminal trespass.

From the foregoing, it can be safely deduced that the Governor of Ondo State was right in law to have issued a vacation order to illegal occupiers of the state’s forest reserve. Does this mean the right to freedom of movement is breached? Absolutely not: the derogation to the enjoyment of the right is backed up by law.

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It must be emphasised that the rights to freedom of movement and personal liberty of the herdsmen have not in any way been breached as those who wish to continue occupying the forest reserve are entitled to make an application to the Forestry Department under the Ministry of Agriculture in order to obtain the lawful permits. Disobedience to the lawful order by the Governor exposes one to arrest and prosecution.

Governor Akeredolu took an Oath of Office under the Seventh Schedule of the 1999 Constitution to protect, preserve and defend the people through unalloyed submission to the spirit of our laws. If indeed Section 14(2)(b) of the Constitution makes it a duty of the government to provide adequate security for the people, exploring the relevant provisions of the law to protect the people from the clutches of kidnappers, bandits, murderers and terrorists should not only be regarded as a courageous move but equally a rare display of patriotism.

It is a common knowledge that the forest of Ondo State is the hiding place of those terrorising the peace of our people. It is not expected that the Governor folds his hands and watches till his state gets completely destroyed by an inferno. Thus, the eviction policy is only a commendable move to beef up the security situation of the state. Anyone opposed to the vacation order is either in love with the terrorists or simply an enemy of the Nigerian people.

In the final analysis, the Governor must be told that the power to impose a vacation order in this regard does not extend to outrightly evicting anyone from the geographical territory of the state bearing in mind the fact that all Nigerians have the right to move freely everywhere and anywhere in Nigeria. As laid down by Supreme Court in the popular case of MINISTER OF INTERNAL AFFAIRS V. SHUGABA ABDURRAHAMAN DARMAN (1982) 3 N.C.L.R., 915 at 1009, Mr. Rotimi Akeredolu lacks the constitutional power to outright and totally evict anyone from the four walls of Ondo State as that would amount to an unpardonable infraction on the Constitution which shakes the peaceful coexistence of Nigeria.

But, his legal might to enforce obtaining of permits before occupying forest reserves is unimpeachable.

Festus Ogun is a lawyer-in-equity and human rights activist. festusogunlaw@gmail.com.

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