Making the Case for Reforms of Forestry Policy and Law: Lessons and Experiences from Nigeria

3.1 Codifying the National Forestry Policy

Nigeria’s forest estate is characterized by public ownership of protected areas known as forest reserves. 11 Historically and up till the present, such forest reserves have been established and delineated by legislation enacted by sub-national governments. 12 The enactments have typically conferred management rights and responsibilities on state forestry departments (SFDs). 13 Although, there is a federal department of forestry (FDF) within the Federal Ministry of Environment, this agency does not hold or manage any forest reserves. 14 However, under Nigeria’s 1999 Constitution, 15 the federal government is vested with exclusive powers to establish protected areas to be designated National Parks. This has resulted in the federal government, through the National Park Service, having management and control of forest ecosystems lying within the National Parks. 16 In the case of forests lying outside protected areas, these so-called free areas are usually managed by private interests, for example, local communities or corporate bodies. The upshot is that the ownership, governance and management of Nigeria’s forests reflects a patchwork of roles with the responsibilities for forests apportioned between the federal and sub-national governments and private rights being decided by prevailing land tenure practices. 17 This singular factor has led to a contest of rights and responsibilities in Nigeria’s forestry sector between the federal and sub-national governments on the one hand and government authorities and private interests on the other. This paper will argue that this struggle has important ramifications on the extent to which Nigeria can implement forest commitments under SDG 15, the UN Strategic Plan for Forests, and other regional and global agreements.

The first national forestry policy dates back to 1988 (28 years after gaining independence) when it was incorporated into the Agricultural Policy for Nigeria. 18 This initiatory intervention had emerged from a top-down process at a time when Nigeria was being ruled by a military dictatorship that coalesced executive and legislative powers in the Armed Forces Ruling Council. The 1988 policy had obvious limitations as it lacked quantitative targets or detailed strategies on how its objectives would be operationalized. Essentially, the 1988 policy articulated a productionist goal of achieving national self-sufficiency in fuel wood and pulp wood products through the expansion of private forestry and plantation development. The sea change followed Nigeria’s return to participatory democracy in 1999 and the subsequent revisions of the National Policy on the Environment (NPE). Originally introduced in 1991, the NPE has been revised twice. First, in 1999 as a direct response to the national commitments voluntarily accepted by Nigeria under the Rio Declaration on Environment and Development 19 and more recently in 2016. 20 The NPE’s significance for the forestry sector derives from its 1999 iteration enshrining for the first time sustainable development as an environmental objective and mainstreaming guiding principles such as the participation principle, which requires that decisions should as much as possible be made by the communities that they will affect or on their behalf by the authorities closest to them. This new policy paradigm led to the FDF constituting in 1999 a forestry policy review committee (FPRC) to draft a replacement for the 1988 antecedent. 21 The FPRC had a broad-based representation drawn from beyond the executive branches of government. This meant that for the first time, non-state actors including representatives of forest communities from across the six geo-political zones of Nigeria, participated in the forestry policy review. The stand-alone national forestry policy that resulted from these nationwide consultations entered into force in 2006. 22

3.2 Implementing the National Forestry Policy

A national forestry policy should be founded on a good understanding of the local context and keep pace with new demands including those resulting from regional and global agreements. 23 But the absence of mandatory periodic reviews meant that the 2006 forestry policy proved incapable of responding to changing circumstances. Regardless, policies such as the NPE, which includes policy statements for all forest ecosystems, continued to support the full implementation of what had effectively become an outdated national forestry policy. As the first-ever expression of the national commitment to sustainable forest management, the 2006 forestry policy crystallized objectives and implementation strategies for 31 priority areas but presented forest area change as the only measurable indicator. 24 It also set the target, which was not time-bound, of increasing the area under sustainable forest management to 25% of Nigeria’s total land area. It was left to the FDF to subsequently project a forest area increase of 25% by 2020 and 30% by 2030. 25 The 2006 forestry policy also notably omitted a definition of sustainable forest management thereby effectively leaving the interpretation and implementation of this key term to the SFDs and other forest actors/users. By way of example, section 105 of the Cross River State Forestry Commission Law 26 opted to define sustainable management of forest resources by providing that ‘sustainable management of forest resources means the management of the forest resources in such a way that the forest cover is not degraded and reduced by human use and that it is increased where ecological reason so require.’ For some commentators, definitional omissions of this nature are an opportunity to select indicators or values for measurement that are based on a firm understanding of local circumstances. 27 In a constitutional democracy comprised of 36 sub-national governments, this omission has translated into a miscellany of implementation models on sustainable forest management. Moreover, the expectation that the 2006 forestry policy would engender legal reforms by the 36 states to implement its objectives was not realized since only a handful of states such as Cross River, Ekiti and Kaduna introduced new forestry legislation after 2006. The reality is that at the inception of the 2006 forestry policy, the share of forests out of the nation’s total land area had been 11.7% but by 2016 it had fallen to 7.2%. 28 This scale of forest loss amplified the policy’s ineffectiveness and led to calls for its revision. 29

The fact that a national forestry policy exists in Nigeria and its post-1988 iteration has resulted from representative and collaborative processes is laudable. What is open to debate is forestry policy adequacy given the guidance available from FAO best practices on forestry policy design. 30 It is submitted that a coherent national forestry policy on implementing sustainable forest management requires criteria and indicators (C & I) on thematic elements that are intrinsic to preserving the environmental, economic, and social values of forests. According to the UN, such thematic elements are (i) extent of forest resources; (ii) forest biological diversity; (iii) forest health and vitality; (iv) productive functions of forest resources; (v) protective functions of forest resources; (vi) socio-economic functions of forests; and (vii) legal, policy and institutional framework. 31 In this light, the continued reliance in the national forestry policy of a single measurable indicator, namely, forest area change, is unhelpful and it surely hints at the much wider problem of forest data availability and accuracy in Nigeria. This paper argues that the selection of new forestry policy goals and strategies is not enough and that a results-based approach is required to ensure that the measurement and reporting of progress achieved is consistent across the elements of sustainable forest management. 32 This means that C & I that are appropriate must be integrated into the national forestry policy. The 2006 national forestry policy was clearly deficient in this regard.

3.3 Justifying a National Forestry Act

The 2006 forestry policy recognized that forestry matters cannot be compartmentalized within sub-national political boundaries because the causes of forest loss and degradation are national in character and impact. Nevertheless, under the constitutional model operating in Nigeria, the national forestry policy has the status of a non-binding instrument because it does not distribute and enforce rights and responsibilities within the forestry sector. That remains the function of forestry law, which at present falls under the mandate of the parliamentary branches of sub-national governments. Each state forestry law has primacy and applies within the territory of the enacting state. Given that there are 36 states in the Nigerian federation, the multiplicity of state forestry laws, which in their earliest forms traced their genesis to the Forestry Ordinance of 1937 33 is another feature of the forestry sector in Nigeria. These enactments serve as the foundation laws for the SFDs. Apart from establishing and delineating forest reserves, they also restrict access and use rights, prescribe fees and charges for forest products, and codify forestry crimes. The powers of the SFDs vary from state to state with monitoring and enforcement capacity being extremely limited or not effective at all and with low criminal penalties for forestry crimes, de facto de-reservation through widespread encroachments and harvesting of forest products is rampant. 34

The irony is that the federal government, having taken responsibility for the introduction of a national forestry policy through the agency of the FDF has lacked the normative or rule-making authority to implement its provisions. This situation has created a disconnect between national forestry policy objectives on the one hand and ground-level actions taking place within the states on the other. The FPRC that helped to draft the 2006 forestry policy had recommended that a National Forestry Act should be enacted with a two-fold intent of providing legal backing to the national forestry policy so that its provisions are enforceable and strengthening the FDF by vesting it with regulatory and enforcement powers. These are powers, which the FDF has lacked since its establishment in 1970. 35 As a result, the FDF only performs research, advisory and coordination functions. The FPRC’s recommendation for a National Forestry Act was accepted by the FDF and subsequently incorporated into the 2006 forestry policy as well as the proposal for the establishment of new protected areas to be known as the national forest estates (NFEs). These would cover fragile lands, watersheds, catchments, and other lands that need to be kept under permanent forest cover.

3.4 Allocating Legislative Powers for Forestry

The question is whether the federal government can enact a forestry law that will have national application in the light of judicial decisions that have interpreted the extent of the respective legislative powers of the federal and state governments? Under the 1999 Constitution, the legislative powers of the federal and state governments are defined by the exclusive legislative List (ELL) and the concurrent legislative list (CLL). Only the federal government, through its legislative arm, the National Assembly, can legislate in respect of matters enumerated in the ELL. However, with the CLL, both the federal and state governments through their legislative arms, the Houses of Assembly, can legislate to the extent prescribed by the Constitution. Matters which are neither listed in the ELL or CLL are described as residual subjects. These fall within the exclusive legislative competence of the states. Forestry is not listed in the ELL or CLL and would therefore appear to be a residual subject in respect of which only the states can exclusively legislate for their territories. Under such a strict constructionist approach, the enactment of a National Forestry Act by the federal government will be unconstitutional as far as the states are concerned. In other words, such an Act, if passed by the National Assembly, would have no automatic application in the states.

The decision in Attorney-General of Lagos State v. Attorney-General of the Federation and 35 Ors, 36 can shed more light on this conundrum although it deals with what appears at first to be an entirely unrelated subject. In that case, the Supreme Court, by a split decision held that urban and regional planning is a residual subject within the exclusive legislative competence of the states. Thus, the apex court decided that the legislative power of the federal government in respect of urban and regional planning is confined to the Federal Capital Territory, Abuja. This majority position was predicated on the interpretation of section 20 of the 1999 Constitution, which provides as follows: ‘The State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria’ (emphasis supplied). It was held that urban and regional planning cannot be accommodated within any definition of the environment in section 20. What is relevant for the purposes of forestry is that the majority decided that the federal government has exclusive legislative competence on matters falling within the ambit of section 20. This was based on the fact that section 20 is included in Chapter II of the 1999 Constitution, which lists the fundamental objectives and directive principles of state policy and the ELL vests in the federal government legislative power regarding the ‘establishment and regulation of authorities for the federation or any part thereof to promote and enforce the observance of the fundamental objectives and directive principles.’ To the extent that forestry is expressly listed in section 20 (unlike urban and regional planning), the majority decision evidently lends support to the enactment of a National Forestry Act by the federal government. Indeed, it was the basis for validating extant federal environmental legislation at that time. In contrast, the minority decision in the Attorney-General of Lagos State case was that by virtue of the definition of state in the 1999 Constitution, all tiers of government, that is, federal, state, and local, have legislative competence for matters listed in section 20. Ayoola, JSC held as follows:

The minority decision bifurcates the legislative powers on forestry and will empower the federal government to enact a National Forestry Act and equally uphold the rights of states to enact forestry laws. However, in House of Representatives & 5 Ors v Shell Petroleum Development Company of Nigeria & Attorney-General of the Federation, 38 the Supreme Court unanimously affirmed its majority decision in the Attorney-General of Lagos State case. It further held that except as provided under the 1999 Constitution, the federal government cannot legally by legislation impose any responsibility on a state with respect to land within its territory. In summary, the weight of judicial opinion appears to support the federal government exercising exclusive legislative powers with respect to forestry, a subject, which would have ordinarily presented as a matter for the residual list because it is not included in either the ELL or CLL. In such a scenario, existing state forestry enactments would be deemed federal enactments, which ought to be repealed by the federal government upon or before the passing into law of a National Forestry Act. In any event, under section 4(5) of the 1999 Constitution, it is provided that if any state enactment is inconsistent with any federal law validly made by the National Assembly, the federal law will prevail and the state enactment to the extent of the inconsistency will be void (emphasis supplied). But it can be argued that the Attorney-General of Lagos State and House of Representatives cases do not establish any automatically binding precedent but should only be regarded as having persuasive force since the specific issue before the apex court in both cases had nothing to do with the exercise of legislative powers on forestry. This line of argument will allow the federal government to enact a National Forestry Act and leave it to the states to domesticate its provisions within their territories through the enactment of new state forestry laws. 39 Ideally, a decision by the Supreme Court through a suitable test case is required to definitively resolve the issue of legislative competence for forestry. But until such time, it is contended that the federal government is not at present precluded from enacting a National Forestry Act for the purposes of implementing new national policy goals and conferring new regulatory and enforcement powers on the FDF.

Regarding the establishment of new protected areas to be known as the NFEs, this policy objective was first articulated in the 2006 forestry policy. It is problematic in view of the land tenure system currently in force in Nigeria under the Land Use Act (LUA). 40 The reason being that the realization of the NFEs requires land grants from the state governments to the federal government because under the LUA, it is the former that have ownership of land within their territories. 41 Crucially, the House of Representatives case amplifies that unless prescribed by the Constitution, the federal government cannot by legislation impose any responsibility on a state regarding land within its territory. It is therefore doubtful that the creation of the NFEs will receive the necessary political support from the state governments. Rather it is likely to be contentious and divisive based on the firestorm that has followed the federal government’s recent proposals for the establishment of rural grazing areas nationwide. 42

3.5 Nigeria’s Status on Forest Targets of the SDGs

The SDGs are a highly complex policy framework with competing as well as inter-linked objectives and for this reason its implementation can be demanding for signatories. 43 Nigeria’s approach has been to mainstream the SDGs into development policies, sectoral plans and budgets at the national and sub-national levels and have multi-layered institutional frameworks coordinate and ensure coherent implementation. 44 An obvious risk is that mainstreaming is selective or is incomplete. The forestry sector is a case in point. Although, the short-medium term national development agenda, the Nigeria Economic Recovery and Growth Plan, proposes the establishment of one forest plantation in each state and the rehabilitation of all forest reserves, 45 the choice of such actions seems arbitrary and lacking in context as they are not specifically linked to achieving sustainable forest management or the targets in SDG 15. That the official assessment of Nigeria’s progress and status on the SDGs does not reveal data or results for SDG 15 is also telling. 46 This data deficit is a barrier to the valuation of the forestry sector’s contributions. 47 Post-adoption of the SDGs, forestry law and governance reforms introduced to combat illegalities in the tropical timber trades have helped to advance sustainable forest management in several Sub-Saharan African countries. 48 Unfortunately, Nigeria’s experience so far is suggestive of an SDG 15 trade-off in return for opportunities or progress with, for example, human-centred SDGs dealing with the eradication of poverty and hunger and the provision of social services such as education, health, and sanitation. 49

If it is accepted that the SDG 15 targets are global aspirations for forests under the Agenda 2030 and that they do not explain how respective countries should attain them, 50 implementation ultimately becomes in the final analysis a political matter and in Nigeria it is wholly determined by the constitutional allocation of powers in a federal system and the primacy of the states on land ownership and the regulation of physical developments within their territories. The gaps in technical capacities, resources, incentives, and accountability that have bedevilled forest governance and management in Nigeria have already been well documented. 51 Against this background, the absence of any reported progress towards achieving SDG 15 targets is perhaps not surprising.