Energy and Sustainable Development: Balancing Stabilization Clauses and International Investment Protection Mechanisms with Human Rights and CSR

“The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.” - Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, John Ruggie. March 21, 2011.

Background

In March 2011, I participated in a semester-long seminar on the Emerging International Framework for the Sustainable Development of Human and Natural Resources in Mineral Resources Rich Countries of the World. Towards the end of the seminar, one of the guest lecturers told us a harrowing story of an agrarian community in Sub-Sahara Africa (name of the country withheld by this writer) that was involuntarily relocated to a newly built settlement in order to provide land for a foreign mining company.

According to the speaker, the mining company compensated the dislocated villagers handsomely with a reasonable bank account and brand new homes – homes not roomier than what they had before. Sadly, within a few years, most of the villagers depleted their savings and were left with nothing.

Only a few of the male adults trained by the mining company were offered jobs at the mine. It was a hopeless sight to behold; a once agrarian community, transformed into a mini town in the middle of nowhere, now in total wants of basic means of livelihood.

Joblessness and social vices reign supreme and poverty enveloped the land. The sight of goats and cows rummaging the community shore and beyond - scavenging unhinged for nourishment - now flourishes only in the imagination of the settlers. And a much cherished communal lifestyle turned folklore told in tears and grief.

As the lecture continues and the video beams pictures of helplessness and deprivations, it came to a point I could no longer subdue the revulsion ravaging my inner soul. I raised my hand and interrupted the lecture. I politely asked the gentleman, if, in addition to the bank account and brand new homes, they set aside brand new land at the newly built settlement for a continuation of their agrarian lifestyle given the fact that they were primarily into farming and husbandry at their ancestral homes before the forced relocation. He stared at me and didn’t vouchsafe a response instantly. It was a long pulse, to say the least.

The gentleman walked toward me with a steady focus, and said: 'if I have to do it again, that would be my first priority.' ‘But to answer your question, we did not do that.’ And he went further to add: “The point you just raised is the situation all over the world, where, in pursuit of the development of natural resources, communities have been evacuated and involuntarily resettled at a new location.”

In the instant case, what we saw was that a substantial part of the settlers’ heritage and identity was permanently erased following relocation. In addition, they were forced into a world of endless new beginnings, of hopelessness, where things may never be the same again or change for the better. An agrarian community that used to be self-sufficient in food production is now a beggar community in a new world that they never bargain to be at. It was a hopeless situation through and through.

When I walked out of that lecture room, I said to myself: that can never happen in my country of birth. I was wrong.

As you read, a worse environmental calamity is brewing somewhere in our own Kogi State. Watching African Independent Television (AIT) morning news program on March 07, 2016, there was an on-the-scene news clip by a correspondence, detailing how a community in Kogi State was evacuated from their ancestral homes, similar to the story told above, in order to provide land for a mining operation. Today, things are no longer at ease medically and financially for the poor Nigerians forced out of their land to make way for investors who promised to make life better for the original settlers. It is a bigger Niger Deltas’ environmental catastrophe, waiting in the offing. If you think oil and gas companies are the major culprits in environmental-related atrocities and convoluted stabilization clauses; think again. Mining companies are.

So, as the demand for more investments in the extractive sector outside of crude oil is gaining momentum, specifically, in the northern region of Nigeria, we should expect more of the preventable environmental degradation and social decay that ravaged the Niger Delta over the years to replicate in disturbing proportion in the near future all over the northern region.  So, this essay is written to place Nigeria and the host communities on the alert on what is at stake in terms of expectations, regulatory regime, and emerging trends in the global mining industry.

In this essay, we will, first, give historical highlights of some of the decided cases that overwhelmingly benefited multinational oil companies, to be followed by the intervention of the United Nations (UN), imposing new responsibilities on foreign investors and asserting sovereign rights on behalf of host nations, and finally, we will touch on emerging trends that lay emphasis on integrative contract and “social license.”

Stabilization Clause: Cases and Places

The stabilization clause refers to the clauses in a private contract between investors and the host nation that prohibits the host nation from changing the terms of the agreements,  for a specific period of time,  or for the duration of the project. The fundamental goal of the stabilization clause is to mitigate risks associated with sudden changes in the regulatory regime and to forestall outright regulatory appropriation (nationalization) by the host nation.

There are three basic types of stabilization clauses.

1. Freezing Clauses – As the name implies, aimed at freezing the laws that govern the contract from the day it was formed and throughout the duration of the project.
2. Economic Equilibrium Clauses – Cover payment of compensation in the event of changes in the existing contract, or applicable laws.
3. Hybrid Clauses – Safeguard against all changes in legislation, by requiring compensation or adjustments to the deal, including exemption from new laws.

Regulatory changes that most often catalyze protest on the part of foreign investors are the Introduction of a new tax regime and an increase in tax and royalty rates. A good example was the protracted dispute between Anadarko Petroleum and Sonatrach (Algeria State Oil Company) over the application of the 2005 Algeria Hydrocarbon Law, modified in 2006, which empowers the government to tax oil windfall profits. In 2007, the Algerian government introduced a new tax on exceptional profits made under existing contracts while Brent Crude prices exceed $30 /bb/.  In 2011, Anadarko went to arbitration, arguing that the application was a violation of the PSA structured between it and the host nation.

Historically, some regulatory expropriations may be due to political changes or ideological shifts in the economic system. In the case of Libya American Oil Company (ARAMCO) v. Government of the Libyan Arab Republic, the stabilization clause was upheld pursuant to the terms of the concession right granted under the Libya Petroleum Law No 251955. In the words of Arbitrator Mahmassani: “It is widely accepted in international law and practice that an arbitration clause survives the unilateral termination by the State of the contract in which it is inserted and continues in force even after that termination. This is a logical consequence of the interpretation of the intention of the contracting parties, and appears to be one of the basic conditions for creating a favorable climate for foreign investment.”

In Lena Goldfields, Ltd v. U.S.S.R 1930, the concession Agreement entered into in 1925, granted the company exclusive rights to exploration and mining for a period of 50 years. Adding to that, the Soviet government agreed not to make any alteration to the agreement by order or decree without Lena’s consent. However, in 1929 the Soviet government changed the entire economy and embraced the communist system under the Five-Year-Plan. The government became the only customer and supplier. Lena took the government to arbitration, arguing that the Government had made it impossible for the Company to perform its obligations and enjoy its rights under the concession agreement. Tribunal held for Lena on breach of contract charges and on restitution for the full present value of its properties – unjust enrichment and for the confiscation of Lena’s properties.

However, there are some regulatory changes that are non-related to an aversion to the western political system or motivated by the need to benefit from profits windfall as we saw in Algerian (Sonatrach) v. Anadarko Petroleum. In Saudi Arabia v. Arabian American Oil Co, the issue here was simply not ideologically driven. Rather, it was a development influenced principally by an investment diversification drive - the creation of new markets and new trading partners.

The Saudi authority simply reneged on the existing agreement it had with Arabian American Oil Co that prohibits Saudi Arabia from dealing with other investors. In the ensuing suit, the tribunal held inter alia, that the “stabilization” clause in the 1935 concession, by which Saudi Arabia had undertaken not to modify or restrict ARAMCO’s right, was binding on the host state. In other words, the Saudi authority is prohibited from dealing with other partners, except Arabian American Oil Co.

In sum, what is at stake as revealed in all the cases decided above is the interest of foreign investors in having a favorable investment climate in the host nation throughout the duration of the investment. Disappointingly, these protective mechanisms in the agreement are unconscionable, and lopsidedly structured to circumscribe the inalienable rights of sovereign nations to make new laws regulating the use of their natural resources.

In addition, it is patently anachronistic for parties to contractually mandate private firms, with the power and privilege to usurp and override the inherent rights of a sovereign host nation to legislate for, and on behalf of its people. The concessionaire agreement between the National Transition Government of Liberia and Mattel Steel Holdings AG calls into question the sincerity of some western multinationals in their dealings with developing countries.

Part of the original agreement reads, courtesy of Global Witness: “any modifications that could be made in the future to the law in effect on the effective date shall not apply to the concessionaire and its associates without their prior written consent, but the concessionaire and its associated may at any time elect to be governed by the legal and regulatory provisions resulting from changes made at any time in the law as in effect on the effective date. In the event of any conflict between this Agreement and the rights, obligations, and duties of a Party under this agreement, and any other law, including administrative rules and procedures and matters relating to procedures, and applicable international law, then this agreement shall govern the rights, obligations, and duties of the parties”.

Here, the stabilization clause stated in an unequivocal term that without first securing the written approval of Mattel Steel, the Government of Liberia is forbidden from making any law that would impact the agreement. In addition, in the event of any conflict between the terms of the agreement and subsequent rules, the agreement will govern the rights and obligations of Mattel Steel and the National Transition of the Government of Liberia. I do not consider the first part that troubling, but to unilaterally override all the attributes associated with a sovereign status of the National Transitional Government of Liberia as we saw in the second part, is, to say the least, provocative. 

The agreement was eventually modified following a concerted global protest and involvement, especially by Global Witness, some MBA students from Columbia University in New York City, and concerned Liberians abroad. And there are numerous instances like this where some countries resorted to legislative expropriation (nationalization) rather than litigating or negotiating violations.

Statehood, Human Rights Protection, and Integrative Contract

A sovereign nation is endowed with inalienable rights, coupled with the machinery of the state in order for it to function independently and maintain its statehood within its geographical and political boundaries.  A fundamental component of that statehood is the inherent rights over natural resources as well as the power to enact laws to regulate their use.

It encompasses the freedom to negotiate and enter into investment agreements with investors – domestic and foreign – and simultaneously provides a safe harbor for the expressions of fundamental rights and the pursuit of happiness by civil society. These goals are attainable anywhere in the world, especially in a natural resources-rich region of the Word like the Niger Delta and the Middle Belt regions of Nigeria.

Be that as it may, it is expected of every nation so blessed to explore, exploit, and utilize the natural riches for the use and benefit of present generations, while making reservations for the needs and use of the unborn generations who would have no other land, except the Niger Delta and the Middle Belt to call their own. It is called the sustainable development of natural resources.

Thus, it is required for Nigeria to develop a fundamental framework for natural resource conservation, with a view to ensuring sustainable use for and on behalf of the governed, and specifically, for and on behalf of the local or host communities and the unborn generations.

(By the way, the passage of the Nigeria Petroleum Industry Bill (PIB) is still hanging in the balance over the provision made therein for the host community fund is unfortunate. A modern PIB, without such Fund, is not sustainable. It is an incomplete body of work).

Most importantly, no nation should abdicate on its sovereign rights to enact new laws or have its rights to make new laws, or the power to modify the existing tax regime preempted by stabilization clauses in the investment agreement. Of significant relevance here is the United Nations General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources." Parts of that declaration read:

• The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.
• The exploration, development, and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions that the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.
• In cases where authorization is granted, the capital imported and the earnings on that capital shall be governed by the terms thereof, by the national legislation in force, and by international law. The profits derived must be shared in the proportions freely agreed upon, in each case, between the investors and the recipient State, due care being taken to ensure that there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources.

From the foregoing, it is quite obvious that sovereign rights and the protection of human rights in the host state are as important as the protection of foreign investments. In hindsight, where human rights and environmental protection are missing in modern contracts, or where compliance with a given contract imperils the host state’s ability to legislate on human rights protection and the environment, the contract, most often, becomes operationally problematic. Therefore, investors and the government of the host state must ensure that both competing interests are adequately protected.

That fundamental framework involves the integration of human rights and human resources development concerns within the body of the various international investment agreements negotiated between host Nations and local and international investors. It requires balancing the investment interests of the investors against those of the host nations, without undermining the environmental impacts associated with the activities of the investors, as well as the human rights and sustainable development of the host communities. That is the current trend in the development of mineral resources around the World - balancing the investment interests of foreign multinationals with the interests and expectations of the host communities within the body of the original contract or agreement. Not being treated as an ancillary or a collateral issue.

It requires the establishment of Land Reclamation Funds or Water Restoration Funds, created at the inception of the exploration agreement to be funded by the Federal Government, IOCs, and LOCs with a certain percentage of estimated yearly earnings agreed upon by the parties. The contracting parties must deposit the funds in an escrow account during each calendar year, specifically to offset environmental cleanup (Gulf of New Mexico), oil spillage as was the case in Bonga Field, the Ogoni land, and most recently, the Kogi minefield. That is an emerging trend globally.

It also involves land reclamation and decommissioning costs whenever the need arises or whenever the investor ceases operations. (Shell departure, for example). The land reclamation funds, the escrow account, as well as water restoration obligations are essential and mandatory components of an integrated contract. It means transforming the water (river) or the land to its pristine natural state prior to the exploratory activities. 

It requires honest and transparent negotiations between the government, IOCs, and the local communities where natural resources are located. IOCs should endeavor to engage and interact socially and economically with the local people on regular basis by buying local produce, and attending community affairs, and cultural festivals. It is called a social license, which is more important than any PSA.

In addition, the divide and rule system - setting up one community against another or one interest group against another as was the case in the trial and execution of Ken Saro-wiwa, is counterproductive and should be avoided by the stakeholders, the central government, and IOCs by all means.

In Nigeria, environmental compliance is not given a commensurate premium and is hardly regulated; not necessarily for want of applicable laws or regulations, but due to logistics-related problems and the lackadaisical approach to regulatory mechanisms by those vested with the authority to regulate. As expected, oil companies often take advantage of the vacuum in the regulatory regime and laugh all the way to the bank with impunity, while leaving the peasants - the owners of the land - who depend solely on ecological resources as means of sustenance in a state of hopelessness.

It is the environmental abuse and the human rights violations that compelled the UN to initiate Ruggie’s Study and Report, which has come to define the new global approach to the exploitation of natural resources. It is anchored on Protect, Respect, and Remedy. These obligations – human rights protection, environmental and regulatory compliance, grievance mechanisms, and prompt resolution of disputes - are independent of and separated from the ability or willingness of the host nation to provide the same to its people, specifically, to the communities in and around the location of the investment. 

In hindsight, it is no longer fashionable for multinationals to take undue advantage of their financial strength and superior bargaining power to undermine human rights, environmental concerns of local communities as well as the sovereign status of a given nation-state. Therefore, we suggest that stakeholders dilute stabilization clauses with environmental and human rights exceptions while providing foreign investors and IOCs with adequate leeway to negotiate in the event that the promulgation of new laws or new tax regimes adversely impacts the existing order.

Below, are two stabilization clauses of the nation-state of Angola and the People's Republic of China that are seemingly in sync with the position of this paper with respect to balancing the interests of IOCs against those of the host nation and communities. Also, they are in accord with the 1962 UN declaration as well as modern trends in natural resources agreements, reproduced here courtesy of International Petroleum Transactions – Ernest E. Smith.

1. “In the event that any change in the provisions of any law, decree, or regulation in force in the Republic of Angola occurs subsequent to the signing of this Agreement which adversely affects the obligations, rights, and benefits hereunder, then the Parties shall agree on amendments to the Agreement to be submitted to the competent authorities for approval, so as to restore such rights, obligations, and forecasted benefits”.
2. “If a material change occurs to the Contractor’s economic benefits after this contract becomes effective [the 1990s] due to the promulgation of new laws, decrees, rules and regulations, made by the Government of the People’s Republic of China, the Parties shall consult promptly and make necessary revisions and adjustments to the relevant provisions of the Contract in order to maintain the Contractor’s normal economic benefits hereunder”.

Social License and Dispute Resolution

Stakeholders should take cognizance of the fact that investment treaties and stabilization clauses do not provide the kind of stability that developing some forms of relationship (social license) with the community provides. Susan Joyce put it better, "the governments define the scope of legal compliance, but the broader scope of the responsibility to respect is defined by social expectations – as part of the company’s social license to operate.”

Based on empirical evidence surrounding the exploitation and exploration of natural or mineral resources in Nigeria and in most developing countries of the world, a stabilization clause, no matter how well written or structured, does not - standing alone - guarantee an uninterrupted revenue stream for IOCs or domestic oil companies.  

Presently, it cost Shell and the Nigerian Federal Government much more to provide security for expatriate workers and facilities in the Niger Delta in comparison to what other oil companies, similarly situated, pay to maintain production at the same capacity elsewhere.  The facts are whenever Shell declares force majeure; both Shell and the federal government suffer enormous financial setbacks, running into millions of dollars in revenue, royalties, and taxes. When those are a factor in the huge security budget and the replacement cost resulting from recurring expenses associated with burning and looting, you would have had much more than enough to finance the demands of the local communities before grievances escalate out of control into kidnapping and vandalism.

According to International Finance Corporation (IFC), “before disputes escalate to settlement at the international level, companies must ensure that they have in place adequate mechanisms for dispute resolution between its stakeholders and the communities. A grievance mechanism should provide a way for the communities to hold the company accountable, to be sure it takes community inputs seriously, deal with them through a clear and transparent process, follow through with actions, and communicate with the community.”

Given the restive situation in the Niger Delta, it is reasonable to conclude that stabilization clauses standing alone, cannot guarantee the stability that investors desire in an economy. Presently, Anglo-Dutch Shell BP and AGIP have been downsizing operations in Nigeria, because of the upsurge in vandalism, kidnapping, and the indiscriminate destruction of pipelines and construction facilities by the militants in some parts of the Niger Delta.

In fact, the Nigerian government did not introduce a new tax regime or change the dynamics of the regulatory framework governing any PSA. The civil society creates an unpleasant investment climate that made the performance at the projected level commercially impracticable; thus, making it difficult comparatively for Shell to remain in operation as it was about 15 years ago. So, the stabilization clause or investment protection mechanism as a safety net is not foolproof. Therefore, there must be in place, mechanisms for resolving and promptly so, disputes and disagreements between IOCs and local communities before they escalate to mass protests. 

Moving Forward!

The demand for the integration of human rights, human resources development, and sustainable development within the framework of every investment agreement in the extractive sector, is not just in an intellectual exercise. It is real and achievable if diligently pursued. Investment Treaties and Stabilization Clauses do not provide the kind of stability that developing some forms of relationship (social license) with the community provides.

Based on indisputable facts, social license trumps stabilization clauses as far as investment stability goes on foreign soil. More emphasis should be on the office of the Director of Public Affairs – an office with a positive and social mandate, with the ability to project the positive social image of IOCs before the local communities.

Therefore, all the super Lawyers, Accountants, and Geologists holding briefs for some of these multinationals having investments or contemplating investments in the Middle Belt and North East or in developing countries should be cognizant of these developing trends, when structuring natural resources agreements. In other words, they should be mindful of the fact that the stabilization clause has its limitations.

The earlier nation-states and foreign investors embrace and acknowledge the interests and concerns of indigenous people and inculcate those concerns into their final investment agreements, the closer we are to peace and sustainable human development in the mineral-producing areas anywhere in the World. Nothing enriches shareholders' values more than sustainable income. But first, there must be peace and tranquility at the job site.

It is our firm belief that any IOC that values life, liberty, freedom, and fundamental human rights of others, especially of people living in and around mines and rigs should not prevaricate on these measures.

The United Nations has over the years developed numerous papers and articles on this very issue of integration of human rights and investors’ interests in natural resources agreements with host nations for the purpose of ensuring sustainable peace and development. The one that I find most revealing is the Rio Declaration of 1992. Four of the articles are reproduced below.

• “Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”
• “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”
• “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”
• “Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture, and interests and enable their effective participation in the achievement of sustainable development.” UN RIO DECLARATION: Principles 1, 3, 4, & 24

Therefore, we strongly hold that the number one problem facing multinationals in the extractive sector, especially in developing countries, Niger Delta, in particular, is a failure of corporate social responsibility and the greed and betrayal of the representatives of the central government. In addition, the host nation should hold IOCs liable for any financial loss resulting from the declaration of force majeure unconnected with natural disasters, or unforeseeable catastrophic occurrences. In other words, you cannot declare force majeure over foreseeable and preventable grievances. It is that simple. Also, we firmly believe that the health and environmental hazards prevalent in the oil-producing areas and Niger Delta, in particular, are preventable, and the economic deprivations and financial losses inherent in oil spillage and pollution are refundable. Host nations, as well as host communities, working through the legal channel, should demand punitive damages where catastrophic occurrences are foreseeable, egregious, and preventable. I beg to move.

NB:

As an addendum, the Host Community Funds or the Host Funds in the dormant PIB are to be funded by investors (10% of their annual net profit) engaged in oil and gas prospecting activities in the Niger Delta - only the investors (companies) doing business in the region, not the Federal government. It is Niger Delta today and yesterday. It may likely be Kogi State today and tomorrow. Who knows, it may be Bauchi and Niger States in the not-too-distant future. Therefore, the resentment of the PIB over the Host Funds, and the recalcitrance on the part of certain members of the National Assembly must be reconsidered to ensure the passage of the Bill.

Alex Aidaghese 
+234 909 247 5320
alexaidaghese@gmail.com

The Agatu Siege and the Sins of Illiteracy: Balancing Cattle Rustling with Malicious Destruction of Commercial Farmlands by Cattle Herders.

The Background of the Essay

The lackadaisical instinct of the overwhelming majority of the Cattle Merchants in Nigeria over the indiscriminate destruction of lives, cash crops, and farmlands in the Middle-Belt, South-West and South-South and South-Eastern regions of Nigeria by Cattle herders assumed a dismal absurdity of late. And the stakeholders and those with vested interests in the industry are not complaining. They have every reason not to. It is about strength. They have it. They love it. And they cherish it. And that explains the nature of the unbridled carnage and invasion with the intent to conquer and annihilate that some mercenaries masquerading as herdsmen visited on the people and indigenes of Agatu village about a week ago. This headline put it succinctly: Bloody Farmer/Fulani herdsmen clashes in Benue: 40 killed, scores injured, 2000 displaced. Vanguard, February 28, 2016.

The first rule of thumb in combat is to situate yourself at a competitive edge and operate from a position of strength. And that's what Fulani Herdsmen and their principal owners (the very powerful, the very influential, and the very connected behind the scene Cattle Merchants) enjoy the most. Strength. Going by their modus operandi, the law of Trespass or Trespass to land is alien to them - cultivated or not, the land belongs to no one, but the fittest.

Speaking on behalf of the Agatu indigenes, at a meeting held at the instance of the Police Inspector General of Police, Solomon Arase, between Agatu community and Fulani community, Mr. Akpa Iduh lamented that the crisis started over five decades ago, and stated that it had recently turned into a war because of the types of weapons the herdsmen were using against them. In his words, “Fulani mercenaries were killing both children and pregnant women on sight.” Adding, “The herdsmen are bent on turning our land into their grazing area, thereby rendering us homeless and without food.”

It is the same story all over Nigeria, and it is, indeed, the survival of the fittest. This morning, March 14, 2016, the Vanguard is reporting the story of a traumatized Rector of the Federal Polytechnic, Ado Ekiti, Dr. Taiwo Akande, following the invasion of the Polytechnic’s farms by Fulani herdsmen. According to the Rector,  “It is most painful to also disclose that some of the pilot farm projects, academic, research demonstration farms and recently established plantations on which we pinned our hope of future revenue enhancement have been destroyed one after the other by the Fulani cattle rearers. They will bring their animals to the campus environment and eat up every green thing in sight.”

From all indications, the herders firmly believe that they have unqualified right to graze where and how they please. And the stakeholders are happy - yes, happy at the peril of defenseless peasants and commercial landowners and farmers who have no Police Task Force or a Joint Task Force of the Nigerian Armed Forces to run to for rescue.

On the other hand, it is a different standard of care and protection applicable to the victims of cattle rustlers. Rustlers deserve the ultimate punishment - death.

Cattle rustling is not new. It is as old as the profession of Agriculture and animal husbandry. Historically, it was a disturbing trend in North America and Australia in the olden days. Lately, it has become a scourge in some parts of the northern region of Nigeria. Surprisingly, and contrary to known antecedents, the stakeholders and the behind the scene kingmakers were on the alert, worried.

Not surprising, the Governors were on the alert, worried. Everybody was worried. And the Task Force on Cattle Rustling and Kidnapping at the Police Force Headquarters, Abuja, was on the alert, worried. The pressmen were not left out; they also came to town, worried - covering the story with unparalleled vigor. So, it was not unexpected, when on the last week of October 2015, some of the Governors in the affected States held a meeting in Kaduna with a view to finding lasting solutions to the reign of terror in the Kamuku forest.

According to the Vanguard of October 26, 2015, Alhaji Aminu Masari, the Governor of Katsina State, who chaired the meeting, said: “As you know, we have a joint agreement to fight cattle rustling and some acts of criminality in our states. So far, the result has been very encouraging and we want to renew the cooperation because this phase will end on October 26, 2015." On January 30, 2016, there was a follow-up meeting attended by Governors and representatives from Zamfara, Sokoto, Kano, Kebbi, Katsina, and the Niger States. At the end, they gladly enthused: “we have tamed cattle rustling.” “We will tackle kidnapping.”

They met, they deliberated, they strategized, they executed their campaign and attack, and they won decisively.

Just a few days ago, March 12, 2016, the Nigerian Army joined the fray in a celebratory mood. The Today Online news platform and Sahara Reporters published a brief story credited to the Acting Director, Army Public Relations, Col. San Usman, via an electronic mail to the effect that the troops recovered 1,031 cattle, 331 sheep, arms and ammunition from the criminals. In his words: “Troops of Operation Sharan Daji engaged in anti-cattle rustling, armed banditry, kidnapping and other criminal activities in various states of the North-western part of the country, have recorded yet major successes against rustlers, killing several of them, destroying their camps and recovered many livestock, arms, and ammunitions,” African Independent Television (AIT) covered the same story on Sunday, March 13, 2016.

Today, we can confidently declare that thanks to the concerted efforts of the Governors from the affected states, Troops of Operation Sharan Daji of the Nigerian Armed Forces and the Task Force on Cattle Rustling and kidnapping at the Police Force Headquarters, Abuja, there is peace in Kamuku forest and beyond for the Herders. Talk about a holistic approach to a daunting regional economic problem! A sweet ending to a protracted siege. Unfortunately, we cannot say the same of the victims of Fulani Herders on the lower Niger, the Agatu village and the surrounding communities where the original landowners are now refugees in some faraway land.

Contrived Ignorance

This essay is not about Agatu or about a particular region or about a particular occurrence in the never-ending bloody battle between Fulani herdsmen and native landowners in Nigeria. Adding to that, I bear no grudge against the Governors involved in the Cattle Rustling talk and the rescue mission spearheaded by the Nigerian Army and the Nigerian Police Force. And I have no reason to.

Nevertheless, I find the contrived ignorance on the part of the stakeholders that encapsulates the highly documented atrocities of Fulani Herdsmen in the rural communities outside of Kamuku forest over the years provocative and insulting to common sense. This is a big business. Lives are at stake. And when lives are at stake, you leave nothing to chance.  

More disturbing is the fact that none of these Governors who, without any doubt, have a good understanding of the principal employers of the errant herders, thought it worthwhile to organize and develop sustainable mechanisms aimed at diluting, and possibly, permanently eliminating the known hazards posed by Fulani Herdsmen outside of their immediate enclaves.

What is good for the goose is good for the gander. It is about investment interest and how to protect it. Much as the affected Governors and the stakeholders in the cattle business depend on the proceeds of their cattle for income and sustainability, so do owners of farmlands in Nigeria who have been contending helplessly with the atrocities of Cattle Herders.

So, telling the Yoruba elders to shut up for grieving out loud as Mr. Kwankwaso was reported saying at Ibadan last year is not just crude, but patently asinine. Excusing the well-documented mayhem of the herders and blaming them on illiteracy as Mr. Kwankwaso also argued is, to say the least, ludicrous, and too rickety a defense.

If cattle rustling is a crime that must be eliminated by whatever means necessary; invariably, the culture of forceful entry into the farmland of another and turning the cash crops therein into pasture by cattle herders must also be labeled a crime against humanity that must come to an end.

Exacerbating a sordid state of lawlessness by words or actions is not a show of strength. Mr. Kwankwaso is a wrong messenger for the Cattle merchants of Nigeria, even though he may have made a good representation on their behalf.

Far be it from me though to impugn his motives, but if his visit to the Great Oyo Empire was calculated to intimidate and instill fear in the people, he should think again. His sense of braggadocio is on a slippery slope. The logic that influenced that supreme poise or the premise on which it is built has not been tested.

No part of Nigeria is a conquered territory. We fought the civil war because we want to keep Nigeria one. It was a unification struggle, not one of conquest. After all, the Great Oba Ovonramwen of Benin gave the British invaders a bloody nose - a one of a kind resistance in the history of the slave trade. We are all warriors in our respective ways. That’s what makes Nigeria unique and that’s what I love the most about my country. We must learn to respect one another. Invaders are invaders, no matter how long they have been in forceful occupation, the land is not theirs.

I am not holding a brief for anyone, not for any tribe, and not for any region. I am a concerned Nigerian of an Esan heritage; ideologically progressive, but unrepentantly nonaligned. I do not need anyone to tell me how to be a Nigeria or a detribalized one. And I dare somebody to define the scale and scope of my ethnic neutrality. I have, unannounced, done more to salvage and restore the image and dignity of this country at home and abroad, and have done more to move it forward than all of you there in the closet blacklisting and dispensing false judgment on the bold, the refined, the Patriots, and at the same time sharing lucrative positions among yourselves, your friends and cronies.

Indeed, I have a stake in what becomes of my country. Thanks to the Internet and Social Media, what becomes of Nigeria of tomorrow and years ahead is no longer an exclusive decision of our political leaders at the Federal Capital Territory as it were of Lagos, Ibadan, Enugu, and Kaduna in the forties, fifties, and sixties. Today, if any decision of the occupant of Aso Villa and the National Assembly is not mutually beneficial to every Nigerian, trust that it will not fly. It is a different world. Therefore, Abuja must take note. And all the Cattle Merchants behind the scene must take note.

A Disturbing Void

Mandating the Inspector General of Police to find and rescue Chief Olu Falae from alleged Fulani kidnappers is not enough. Sending the Inspector General of Police to Benue on a “fact-finding mission” over the Agatu bloodshed is not enough. It is high time we take cattle off our streets and highways. This paper is on all four with the views of the Yoruba Elders, the Enugu State House of Assembly and the Minister of Agriculture who have in the recent past called for the designation of grazing lands or ranches for herders.

Cattle Herders, or precisely, Fulani Herdsmen, have been around us over the years, protected and undisturbed as they traverse far and beyond the Plateau and the far South for pasture. They were loved and respected. And they harm no one. But the wanton nature and the level of lawlessness that their grazing activities assumed in the past years and of late left no one in doubt as to the nature of the conquering spirit that inheres in them by the new dispensation.

False or true, it has to be corrected by the Presidency as soon as possible. And I am compelled to call into question the scope of the immunity that they so brazenly celebrate and abuse. It is imperative that the Presidency address the concerns of Nigerians that the herders are acting on the assumption that one of their own is now the President.

For the first time, I am feeling despondent about my country and the future ahead. I would like to give the President the benefit of the doubt that he is feeling the heat. But suffice it to say at this juncture that he is completely detached from some disturbing realities on the ground. Fulani Herdsmen are on the loose - killing, maiming, raping, kidnapping and ravaging farmlands and destroying cash crops down the Middle-Belt and the larger Southern region of Nigeria, with intent to kill and inflict serious bodily harms on anyone daring to stop them.

The nationalities or national label of the Herders involved in the indiscriminate killing of Nigerian native landowners is immaterial. They are predominantly Fulani and they are cattle herders who rear cattle on behalf of Nigerian Cattle Merchants. 

As a people, we love life and we live largely, in spite, the undeserved hardship continuously unleashed on us by shameless thieves masquerading as leaders. In other words, these new Fulani men ravaging our towns and villages with brutal take are not one of us Nigerians. We are not all that brutish and beastly. But that does not excuse the fact: 

Last year, some women from four local government councils in Enugu State, protested to their State Governor to protect them from Fulani Herdsmen. These women deserve praise for not resorting to self-help or self-defense. How long that show of restraint will last is guesswork. And that is the immunity that the herders presently enjoy - the restraint and tolerance on the part of their victims.

A few weeks earlier an elder statesman, the very personable Olu Falae, was abducted at his farm, only to be released about four days later after his family members parted with a huge sum of money. Releasing him, he was warned not to talk. He did talk. And, as promised, they came back a few days later, wreaking undaunted, more havoc on his farm and crops.

Let's get one fact straight; there is relative peace today between the herders and the local communities in the geographical south because the victims are not ready to take the law into their own hands, referred to as self-help. And a time will come, when self-help or retaliatory measures will become virtuous - acceptable and applauded. And that is not a development that President Buhari, Mr. Kwankwaso, and the invisible Cattle Merchants want to experiment with. This is the time for the government to intervene.

Indeed, the Communique was not stupid

Speaking at a news conference in Abuja on Tuesday, March 01, 2016, the Minister of Agriculture revealed that the “Federal Government would create grazing areas in the country where the herdsmen would take care of their cattle. We will grow special grasses in the South to feed the cattle in the North, just as it is being practiced successfully in some parts of the world.” And that has always been the position of this author. A position that is consistent with that of the Yoruba Elders and some State Governors in the affected regions.

At this juncture, I would like to reproduce some excerpts from the communique issued by the elders of the Yorubaland at a summit titled, "National Insecurity and the Menace of Fulani Herdsmen in Yorubaland", held at Ibadan on October 08, 2015.

• "They have violated and killed our women like Mrs. Ayesi Balogun, who was raped and killed by Fulani herdsmen on February 7, in Asa in Yewa North Local Government of Ogun State. A newly-wed lady was reported to have been raped by the same Fulani herdsmen in the same community.”
• “Regrettably, the Nigerian law enforcement system has woefully shown it cannot protect our people given the plethora of reports that different communities have made to them with little or no action at all.”
• “Therefore, given the gravity of the situation and the apparent unwillingness of the Nigerian state to put an end to this siege and also because we cannot afford to leave our people at the mercy of violent herdsmen who not only destroy their economic activities but also rape our women and kill innocent people…”
• "Summit demands an immediate end to the lawless nomadic cattle grazing in Yorubaland and ask all those who want to engage in the cattle business in any part of our land to do animal husbandry by establishing ranches.” - Some excerpts from the Communique at the auspices of Yoruba Elders on October 08, 2015.

The most disturbing outcome about the coverage of the Elders' meeting was that the most import clause in the communique - the call for the establishment of ranches by Herdsmen, was completely left out by the press and pundits.  And Kwankwaso did not see that, either.

In a similar vein, the Enugu State House of Assembly, according to the Saturday Vanguard of October 03, 2015, began a public hearing on a bill to make provisions for the control of nomadic cattle rearing in the state. Accordingly, "the bill provides for the establishment of grazing areas in each of the three Senatorial zones of Enugu State and the nomadic cattle herders shall ensure that the cattle are confined within the grazing areas as provided."

These are measures that, if adopted and complied with, will go a long way in checkmating the lawlessness of the Fulani Herdsmen. From what we have seen above, the Elders of the Yorubaland and the Enugu State House of Assembly did not demand the total cessation of grazing activities in their respective communities, but that those willing to remain should embrace the culture of ranches, which is the vogue in most developed countries of the world. Eventually, we will have to come to that realization in Nigeria to ensure sustainable peace.

Farming is no excuse for illiteracy, just as illiteracy is not a justification for lawlessness

According to the Today Newspaper (Online edition) of October 26, 2015, on the solution to the incessant crises between local farmers and Fulani herdsmen, Kwankwaso, called for their education. In his words:  “I am Fulani. My parents settled many years ago. My father went to school and I have been to school. My children have gone to school. Now, I don’t think I will get cattle and go into a forest; that is education for you.” Today October 26, 2015.

With all due respect, I think Governor Kwankwaso should go and reread the defense of madness or malice. You cannot excuse an act when the perpetrator knows or has every reason to know that what he is doing is wrong or contrary to law or common sense. Take the law out of it. The standard is doing to others as you would expect others to do unto to you. You cannot be so illiterate to the extent that you lack the mental state or faculty to distinguish farmlands from uncultivated grassland. Absolutely impossible. These herders know exactly what they are doing. They are acting out a script.

Farming is no excuse for illiteracy, just as illiteracy is not a justification for lawlessness. I do not know the world that Mr. Kwankwaso is coming from. As a kid and as a teenager, I went to a farm just like the other children in my community. It was a culture - a way of life. We were rich and we were comfortable. And I was brought up living an upper-middle-class lifestyle.

You cannot deny these kids basic education, confined them to rudimentary heritage and turn around to blame their intolerance and barbaric proclivities on lack of education. The intolerance of others and the barbaric exploits they displayed reflected the extreme indoctrination they acquired from their faceless employers.

So, what are we talking about? That you are illiterate because you are a cattle farmer, and therefore your sins are forgiven you? And because you cannot separate what is right from what is wrong; therefore, Chief Olu Falae and defenseless farmers in the Middle-Belt and South-East should willingly sacrifice their cash crops for you to be able to nourish your animals?

The Cattle Merchants are as guilty as the hoodlums who kidnapped Chief Olu Falae in his farm. They are as culpable as the herdsmen who raped and murdered defenseless women and girls toiling in their farms. And they are as guilty as the herdsmen who knowingly trespassed onto the farmlands of Federal Polytechnic, Ado Ekiti, and other peasant farmers, and violently appropriated cash crops they spent time and money to cultivate.

Today, Nigeria is at peace, because the brutalities and the indiscriminate destruction of farmlands are coming from the privileged, protected herdsmen. You, Mr. Kwankwaso, you, Mr. President, and you, Mr. Unknown Cattle Merchant, cannot tolerate such carnage and ceaseless attacks on your farmlands were the reverses to be the case. The land and air coordinated war, successfully waged against Cattle Rustlers in the past few months in and around the Kamuku Forest lend credence to this conclusion. 

Indeed, all of us have land, according to Mr. Kwankwaso. But you have never considered it worthwhile or financially reasonable remaining in your land and developing it for sustainable pasture. Do that and all will be well in the herding business. That is the trend in advanced countries.

Moving Forward:

I do not subscribe to the call for the disintegration of Nigeria – never in my imagination. Our socio-economic integration is too strong and too complex for experimentation. Decentralization? Yes. Because Abuja is yet to prove that it has the tenacity and capability to manage the bureaucratic monstrosity inherent in our complex federalism.

Nevertheless, as an individual or group, you have every right to defend yourself, your family, your cattle, your farm, and your property by appropriate measures consistent with applicable laws in the face of clear and present danger. Yes, you have an unqualified right to defend yourself and your property, when you feel violated by an intruder whose definition of preemptive rights is akin to a page taken from a mob scene. Yes, you must stand your ground and defend yourself where the enforcer of peace is overpowered by the ghost of the intruders. Yes, let there be peace, but there can never be peace where the aggressor, whether cattle rustler or cattle herder, misunderstood his victim's peaceful disposition for weakness.

It is no longer a secret - never was - that President Buhari once traveled to Ibadan, Oyo State, to intercede on behalf of Fulani Herdsmen in that part of the country who were facing some challenges. Then, he was only a respected retired Military Officer. Today, he is a different person. He is the President of the Federal Republic of Nigeria - our President. To him, no tribe or region is more important than the other, and every industry or trade deserves as much protection as the other. It is time we provide designated grazing land or ranches for cattle farmers as the culture is in advanced climes, similar to what the Elders of the Yorubaland outlined in their communique.

I want to point out that this paper purposely left out details of specific instances of gruesome attacks unleashed on defenseless farmers and traditional rulers, especially in the Niger Delta in the past year. In the end, I want this paper; provocative and annoying as it may appear in the opinion of interested stakeholders, to be remembered as the final thought, the deciding thought, on what has been a very polarizing issue in one of the most lucrative markets in our local economy - beef.

I am not the enemy. Those we should call to order are the stupendously rich, vindictive Cattle owners who send unlettered and barely literate herders with pricey herds on a voyage to the unknown - armed with dangerous weapons; traversing friendly territories with aggression; shooting at sight defenders of protected rights; ravaging private farmlands with careless abandon; and unleashing brutal sex and extorted kisses on unwilling defenseless participants. Yes, I said it. They are the enemies of the state to be resented. Not me.

We have to talk about this. Not because I hate the Fulani or the Cattle Merchants, but because their Cattle Herders are the invaders, the aggressors - pushing Nigeria to the brink of economic crisis and ethnic conflagration. A crisis that will surpass in scope and style the Boko Haram insurgency and the activities of the Niger-Delta militants combined. Time is of the essence. The President has the goodwill to negotiate a permanent peace. The best way to start is the establishment of grazing ranches.

Chief Olu Falae has a dam at his farm. And that is the attraction, according to the elder statesman. If we have two or three dams in each of the states in the federation, specifically set aside for ranches or grazing areas, it will go a long way to ensuring peaceful co-existence between the host communities and Cattle Herders.

As a final thought, the Middle-Belt cannot be vanquished of the aborigines - the land is their ancestral land. In addition, the now docile Igbo women will dance naked, if the need be, to protect their farmlands and ensure the virginity of the meek in their midst. AK47 is not the answer. The law of vicarious liability is real and well in Nigeria. You cannot separate the principal merchants from the acts, omissions and the atrocities of their agents, the herders.

In spite of everything, I will not be blinded by political correctness to deviate from the truth or close my eyes to disturbing realities. I believe in one great Nigeria of equal rights and justice where my Edo State has the right and power to define the use of her land and resources and a Nigeria where no Kwankwaso will invade my privacy or impugn the integrity of my elders. Yes, I believe in one true strong Nigeria where my right to serve my nation is not defined or circumscribed by my place of birth or the opinion I share on my blog or in social media.

Yes, talk, I will talk and write, I will write about what ails us a nation-state, proffering practical and common-sense solutions as appropriate. I don't want my son and his generation to start all over again, discussing 1914 and the ills of amalgamation, true federalism and the barbaric exploits of some Fulani Herdsmen occupying or trespassing on his Father's land. Let's change the narrative, starting from this very moment. And that depends largely on the nature of CHANGE that President Buhari is willing to pursue. Let's give grazing ranches a chance and I hope the Presidency will provide the Minister of Agriculture with all the human and material resources reasonably necessary to ensure that between now and mid-2019, each state in the federation has at least three ranches or grazing zones for cattle.

The first step is to set up a Federal Task Force for Land/Sight Acquisition. Next, the Task Force, will among other things, collaborate with State Governors, Stakeholders in the industry, Financial Institutions, and Community Leaders with a view to securing suitable land and funding.

We should be bold, Nigeria; we should be creative and daring in confronting daunting challenges appearing insurmountable. Just pause for a moment and take your mind off ranches or grazing zones, but think and reflect on the huge beef industry and factor in the massive employment opportunities.

We spend so much time discussing Paris Club, Debt obligations, IMF Loan, and all the financial re-engineering hocus pocus that we do not have any control over and will never add values to our economy. There is nothing wrong with paying a debt, but there is everything right in a sustainable development initiative that is enduring, home-grown and aggressively pursued. Let’s give cattle ranches a chance.

Once again, this is a big business. Stakeholders should endeavor to cultivate their own land and plant their grass or crops to feed their own herds, just as farmers and landowners clear and cultivate their own land before planting their own crops. Cattle herders have been reaping where they did not sow. That is an economic injustice. It is patently unreasonable and it has to stop.  I beg to move.

NB: 

Without mincing words, I want to add that I will not write a “Moving Forward”, without trading blames or pointing accusing fingers at those who create the problems that confront us individually, as a group, and as a nation-state. Because, we cannot define sustainable solutions, without first, defining where we got it all wrong. Otherwise, we will continue to repeat the same mistakes and waiting in vain for the proffered solutions to work. It won’t work until there is a radical reversal or alterations in the altitude that perpetuates the ills we are trying to eliminate. Thank you.

Mr. Alex Aidaghese is a Lawyer, and he contributed this piece from Abuja, Nigeria. He can be reached at alexaidaghese@gmail.com.

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