Ozekhome berates Buhari over resenting southern governors resolutions

A renowned legal practitioner in Nigeria, Mike Ozekhome, SAN, has berated President Muhammadu Buhari and the principal officers in the presidency over the resentment against the southern governors for their 12-point resolution, which include ban on open grazing, in Asaba, Delta State.

Ozekhome argued that freedom of movement is for human beings, not for cattle and sheep.
the erudite lawyer stated that Northern elites, including the Hon Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, miss the point sorely when they compared peaceful Igbo spare-parts dealers who go about their normal spare parts business legitimately, (building or renting their shops), with savage, maniacal AK-47-wielding herdsmen.

“Igbo traders do not kill or attack Northerners with their stock of motor-tyres, rims, spanners or chasis. “They do not pour petrol from fuel tanks that they sell on Fulani herdsmen. “They do not use car bumpers or wind shields to smash the heads of herdsmen.

“How does open and street grazing of cows by fully armed foot-patrolling youth which is now clearly anachronistic, diluvian, primitive and antiquated, be likened to legitimate spare parts business being carried out in shops or designated areas, with the Igbo traders paying tenement rate, taxes, water electricity and light bills?

“Have you ever heard of any herder paying tax? How do you equate spare parts dealers with mindless violence unleashed on poor helpless and hapless farmers in their own farms, and destruction of their crops with reckless abandon by these rampaging nomadic pastoralists who are on a mission of conquest and expansionism,” Ozekhome declared.

He argued that Igbo spare parts dealers who maintain log books, cash books, and accounting systems in their secluded and approved environments of peace and tranquility, cannot be compared with rampaging fully armed murderous bandits – passing for herders – who unleash terror and mayhem on innocent citizens. Ozekhome protested that the open grazers kidnap travelers on the way, invade homes, rape mothers and their daughters, and slash people’s throats, unprovoked, unmolested and undisturbed. He noted Igbo traders do not overrun Northerners or Fulanis in their homes. “Is it not the space legally allotted to them by the Federal Government, Local Governments, cities or MDAs, that they legitimately and quietly operate from,” he protested further.

He added that armed herders freely trespass people lands, destroy their crops and other means of livelihood, and slaughter them, saying they cannot be compared with peaceful traders plying their legitimate business. Ozekhome asserted that spare parts dealers do not pose security threat to their host, or anyone else. “The Igbos do not foist any pre-determined supremacist hegemony and irredentism agenda or other races as the herders (many of them from neighbouring countries) are currently doing,” he said.

The renowned legal practitioner declared: “freedom of movement is only for human beings. It is not for cattle, sheep, and goats.

“Will the Northerners tolerate the open sale of alcoholic beverages in their States, even though it is the constitutional right of other ethnic groups to move about and sell beverages of their choice.

“Are these Northern elites seriously arguing that Southern State Governors cannot ban open grazing in their states, to protect their innocent citizens from deadly killer herdsmen?

“The freedom of movement guaranteed in section 41 of the Constitution (though for human beings, not animals), is not even 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:

(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.”
Ozekhome maintained that thus, the right to movement in section 42 of the Constitution can be overridden by section 45 of the Constitution which allows any law that 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 in 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 various states’ anti-grazing laws because the laws were enacted in the interest of public safety, public order, public defence and public morality.

“The laws of and declaration by the Southern Governors 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,” the renowned legal practitioner declared.

he cited that in the case of KALU v. FRN & ORS (2012) LPELR-9287(CA), the Court of Appeal 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 the 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 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,” he argued. He maintained that 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.

Ozekhome observed that such 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, he said,  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), which 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. He added that 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”. Section 176(2) makes the Governor of a State its Chief Executive.

“So, where have the Governors of Southern States gone wrong? I cannot see it. Or, can you,” Ozekhome declared.

He further cited that 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, he noted, States’ and groups’ rights and security 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,” Ozekhome advocated.

The legal practitioner, therefore, advocated that the 17 Southern Governors should immediately sue the Federal Government, invoking the original jurisdiction of the Supreme Court under section 232 of the 1999 Constitution.

He added that they should ask for a determination of their right to preserve their States from insecurity. “Indeed, 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, the Southern Governors are clothed with legality and constitutionality to ban open grazing. “The Governors should, therefore, not be burdened by the opinions of other Northern States Governors, and elites, 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 over 600 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,” Ozekhome further declared.

He volunteered to provide free legal services for any governor that sues the federal government on the open grazing resolution, and other matters of national interest.