Wednesday, 29 October 2014

The Unconstitutionality of KAI Brigade's Mandate Over Market Vendors & Street Hawkers in Lagos State

Iya Sadiatu was a vegetable seller under the Oshodi Bridge until the Lagos State Government raided the environment arresting some market vendors and depriving them of their day’s sale. While the development was welcomed by most Lagosians; at least because it led to a free flow of traffic along that route, it made many like Iya Sadiatu who could not afford the ultra modern market built in place of their roadside sheds to become deserted and jobless thereby directly altering the source of their livelihood.
A market woman displaying tomatoes and onions for sale.
Market vendors constitute one of the most vulnerable sections of the Lagos populace, and a threat to their livelihood is a threat to their right to life. As a matter of fact, it will be sheer pedantry to exclude the right to livelihood from the context of right to life because income is the foundation to enjoy many fundamental rights and when work is the source of income, the right to a living will become as much a fundamental right. (See Delhi Dev. Horticulture Employees’ Union v Delhi Administration, Delhi AIR 1992 S.C. 789). The United Nations Universal Declaration of Human Rights 1948 asserts among other things that everyone has the right to work, to the free choice of employment, to just and favourable conditions of work, & to protection against unemployment. This is replicated in the International Covenant on Economic, Social, and Cultural Rights 1966 which refers to the right of everyone to have the opportunity to gain his living by work which he freely chooses or accepts (See Article 6 (1). Bearing in mind those provisions, the Lagos State Government must wear a human face by appreciating the intersection between poverty, the desperation of market vendors to trade their goods, and the dynamics of the interplay in the negation of the fundamental rights of the traders. This is more pertinent because a government that seeks to advance human rights must view things from the perspective of the most marginalised and disposed group for its policies to be meaningful.

Like Iya Sadiatu, many vendors have suffered the loss of livelihood as a result of their inability to meet up with Lagos State Government’s conditions and standards for trading in Lagos. Some have been brutalised by government officials particularly the KAI Brigade; they’ve had their goods seized and sometimes destroyed. A private findings from one of the Heads of the Market Vendors revealed that some senior staff in the KAI Brigade have a monthly take home “ex gratia” in the form of royalty for allowing them to display their goods to the public.
Men of KAI Brigade in operation.

While we may note some of the issues already raised as mere asides, we can also question the legality of thr exercise of authority by KAI Brigade over market vendors. Section 7 (5) of the 1999 Constitution of Nigeria provides that:

“The functions to be conferred by Law upon local government councils shall include those set out in the Fourth Schedule to this Constitution”

The Constitution then provides among other things in Paragraph 1 (e) and K (iii) of the 4th Schedule that the Local Government shall have the function of establishing, maintaining, and regulating markets… control and regulation of shops and kiosks.

The provisions of Section 7 (5) and that of Paragraph 1 (e) and K (iii) of the 4th Schedule are clear and unambiguous. If it were intended that the Lagos State Government should share concurrent powers over market vendors and the choice of where they display their goods, it would have been expressly stated because the rule is “Expressio Unius Est Exclusio Alterius Legal”, that means the clear expression of one thing is the exclusion of the other. By that rule, it is also meant that where certain terms have been expressly set forth in a statute, that statute may be interpreted not to apply to terms that have been excluded from the statute. By all known rules of interpretation, it is the duty of each Local Government in Lagos State to manage market structures and its subjects (i.e. market vendors, kiosk owners, road side vendors, and street hawkers). As the Lagos State Government does not have power to establish, maintain, or regulate markets, it has no power to delimit domestic trade zones, neither does it possess a concurrent power with the Local Government Councils in respect of the functions set out in the 4th Schedule and must therefore desist from acts tantamount to an incursion of Local Governments’ functions. To the extent already explained therefore, the KAI Brigade being an agent of the Lagos State Government does not have the necessary constitutional backing to regulate market vendors. KAI Brigade’s enabling statutes including some of the provisions in the Street Trading and Illegal Markets (Prohibition) Law, Environmental Sanitation Enforcement Agency Law, and the Special Offences Court Law of Lagos State must be declared void to the extent of their inconsistency with Section 7 (5) and Paragraph 1 (e) and K (iii) of the 4th Schedule to the 1999 Constitution which is the supreme law. 

It is quite interesting that the National Assembly has granted full financial and administrative autonomy to Local Government Councils in Nigeria by amending Section 124 of the 1999 Constitution of the Federal Republic of Nigeria, this will definitely go a long way to expose some of the State Governments’ incursion into the residual duties of Local Government Councils particularly the unconstitutionality of KAI Brigade’s mandate over market vendors and street hawkers in Lagos State.     

* EYITAYO OGUNYEMI is an Associate at Falana & Falana’s Chambers. He is the initiator of “The People’s Parliament”- a forum committed to imparting the society with the knowledge of their constitutional rights and duties. Eyitayo is passionate about instilling legal knowledge in the masses and is a core Advocate for a knowledge based society. Questions may be directed to (+234-806-0623-454) or asked directly in the comment box below.

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