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.

Sunday, 5 October 2014

Review of the People's Parliament Held on October 1, 2014 In Lagos, Nigeria

Eyitayo Ogunyemi addressing participants at
 the event.
The People’s Parliament is a social forum instituted to impart Nigerians particularly core grassroots people with the knowledge of their constitutional duties and rights under the constitution of the Federal Republic of Nigeria.

The first of its kind was held at Onigbongbo Community Hall, Maryland, Lagos, and attracted over two hundred participants (notwithstanding the unfavourable weather). We had many community leaders in attendance including the community development association leaders, the head of all market women in that area (Iyaoloja of Onigbongbo), the Chief Imam of the Area, Pastors, a representative of the King of the area, security personnel, and a representative of the local government chairman among others. A large number of the participants were typical local people with little or no understanding of English language. This necessitated that we adopt a flexible approach in our medium of communication; the PowerPoint slides which had earlier been prepared was done away with, and we had to switch to Yoruba language instead of English language which we were ordinarily comfortable with. The lead presentation delivered by Eyitayo Ogunyemi titled “You, The Police, & Your Right to Liberty” lasted for about thirty three minutes, after which the floor was opened for participants to discuss their understanding of the law “in their own words”, and also share their ideas and sentiments about governmental institutions particularly the Nigeria Police. We were touched by a number of stories including that of the experience of the Iyaoloja in the hands of men of the Nigeria Police.
The Iyaoloja of Onigbongbo narrating her experience in
the hands of men of the Nigeria Police
According to her, she was arrested alongside other community leaders and held in police custody for four (4) days without any charge. Another participant mentioned that there was a time some men of the Police came looking for someone but ended up arresting another person in lieu of the person they came looking for. A participant also observed that there has been incessant killing of innocent people by men of the Nigeria police without the government calling them to order or anybody fighting the course of justice on behalf of such people’s families. The issue of incessant killing of Suspects by the Police has been of immense concern to us as an organisation because the law is still unsettled in the area of whether a deceased person who was unlawfully murdered can enforce his/her right to life. In the case of Nosiru Bello & Ors. Vs. Attorney-General of Oyo State (1986) 5 NWLR (PT 45) 828, it was stated that the only right exercisable by the deceased family is that of an action in Tort and not fundamental rights, but there are reasons to believe that this can no longer represent the position of the law in the light of Paragraph E of the preamble to the Fundamental Rights (Enforcement Procedures) Rules 2009 which enjoins courts to encourage and welcome public interest litigations in the human rights field. Another participant raised the issue of instability in Laws. He pointed out that “the Constitution” is usually altered by the government to suit its ambitions. In reacting to the foregoing issue, we pointed out that the constitution births the government and not otherwise, and that it is only the people acting through themselves or through their representatives that can make, or alter the constitution.

Other issues that cropped up during the discussion are: illicit/ mass arrest through police raid of local areas, monetary demands by police as a prerequisite for the grant of administrative bail, unfair collaboration of some lawyers with Police in order to rip off financial gains from victims of police arrest and detention etc.

At the end of the programme, participants agreed that it was necessary to have legal advisers for their communities, host more enlightenment programmes, and also enrol as a community volunteer in order to create awareness campaign for the rights of citizens and other persons in the society.

We also had our own resolution which howbeit was not said loud; looking at the passion with which the participants listened, their zeal for knowledge and their experiences in the hands of security agents, the only resolution on our mind is to embark on more awareness campaign at the grassroots level with a people that are apparently “unlearned” so that the rule of law, and accountability can be established through the knowledge of the Nigeria Constitution.  Questions may be directed to (+234-806-0623-454) or asked directly in the comment box below.