Declassifying petty offences and engendering justice for all

Nigeria’s criminal justice system is beset by a plethora of challenges. Aside from the perennial delays in adjudication of cases due to sundry reasons, dearth of infrastructure and attitudinal dispositions of both the Bar and the Bench are viewed as key culprits foisting a dysfunctional criminal justice system on Africa’s largest judicial system. Add to this list a gamut of petty offences which essentially criminalize poverty and informal commercial activities such as hawking and vending and the unnerving picture is complete.

Many have argued that a successful reform of Nigeria’s criminal justice administration will have a ripple effect on the entire region. Instructively, there are ongoing efforts at the regional level to drive law reform and promote justice for all classes of people.

In particular, the African Commission on Human and Peoples Rights is waging a campaign alongside its partners to decriminalise and declassify petty offences within the region.

This ambitious campaign is viewed by some jurists as capable of engineering a major turn-around in access to justice issues as well as in stemming the abuse of the petty offences regime by law enforcement agencies.

“This campaign is long overdue. Petty offences are not only inconsistent with sections 34, 35, 41 and 42 of the Nigerian Constitution, which provide for right to dignity of human person, right to personal liberty, right to freedom of movement and right to freedom from discrimination respectively, but are equally inconsistent with Articles 2, 3, 5, 6 and 18 of the African Charter on Human and Peoples Rights duly ratified by Nigeria,” says civil rights advocate, Mr. Emeka Nwadioke.

Urging the Federal Government to lead the charge against petty offences, Nwadioke who is also a member of the Nigerian Bar Association  (NBA) Criminal Justice Reform Committee, said: “The forthcoming ECOWAS Summit being hosted by Nigeria presents President Muhammadu Buhari with an uncommon opportunity to lead the campaign to decriminalise and declassify petty offences especially in the ECOWAS sub-region.

“This opportunity must not be missed to deal a fatal blow to a regime of anachronistic laws dating back to England’s Vagrancy Act of 1824 that essentially criminalizes poverty and life-sustaining activities. We must resolve to expunge these archaic laws from our statute books long before their 200th anniversary!

“Petty offences target our most vulnerable groups – the poor, uneducated and underprivileged. Poverty is not a crime. It is both a human rights issue and a moral burden on all stakeholders. I urge the President to add his strong moral voice to the campaign to decriminalise and declassify petty offences in Africa. These offences enable law enforcement agencies to target people based solely on their social or economic status.”

Tracking the petty offences trajectory, Ms. Louise Ehlers, a Programme Manager at Open Society Foundations, said: “Imposed decades ago by British, French, and Portuguese colonists, and retained by current African governments long after being repealed in their countries of origin, they continue to make the lives of Africa’s most marginalized more hazardous.

“Vague, disproportionate, and arbitrary in nature, these offenses are used to target street children, the poor, the homeless, sex workers, hawkers, people with substance use problems, and people with disabilities. They enable law enforcement to target people purely based on their social or economic status.”

Speaking at a recent regional conference on decriminalisation of petty offences in Africa held in Freetown, Sierra Leone and hosted by Advocaid, former Amnesty International advocate and Advocaid’s Executive Director, Mr. Daniel Eyre argues that there is empirical data to support the view that petty offences adversely affect vulnerable groups, especially the poor.

Petty offences are offences other than felonies and misdemeanours, otherwise called simple or minor offences, for which the punishment is a warning, community service, a low-value fine or term of imprisonment not exceeding six months.

The African Commission on Human and Peoples’ Rights at its ordinary session on November 11 adopted the “Draft Principles on the Declassification and Decriminalisation of Petty Offences in Africa.”

The principles mandate State Parties to the African Charter to “declassify and decriminalise petty offences in accordance with these Principles and other regional and international human rights.” Article 11 of the Principles also mandates State Parties “to take legislative, administrative and policy measures to ensure that laws and their enforcement comply with these Principles and other regional and international human rights standards.”

Meanwhile, the “Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa” equally directs State Parties to declassify and decriminalise petty offences, even as Goal 16 of the Sustainable Development Goals encourages States to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective and inclusive institutions at all levels.” Target 16.3 specifically seeks to ensure “equal access to justice for all.”

Many jurists believe that the regime of petty offences are discriminatory and therefore expose the poor to exploitation in the hands of law enforcement for no reason other than the fact that they are poor, raising issues of human rights abuse based on one’s circumstances or status in life. Following their arrest, detention in often over-crowded prisons and trial for petty offences, other rights guaranteed by international, regional and national instruments are violated.

Instructively, Nigeria’s statutes still harbour provisions on petty offences, notwithstanding the adverse effects on citizens and the distortions the offences wrought on the criminal justice system.

For example, Chapter 24 of the Criminal Code Act Cap C38 Laws of the Federation of Nigeria 2004 contains provisions against “idle and disorderly persons” as well as “rogues and vagabonds.”

Specifically, Section 249 makes copious provisions on these offences, effectively criminalizing “wandering” and acts capable of causing “breach of the peace.” Offenders are liable to imprisonment for one month without an option of fine. Section 250 of the Act criminalizes begging. It also provides that a person may be deemed as a “rogue and vagabond,” and is “liable on summary conviction for the first offence to imprisonment for three months, and for every subsequent offence to imprisonment for one year.” Such offender may be arrested without warrant.

Aside from the foregoing, there is a gamut of laws enacted by State legislatures criminalising petty offences and informal commercial activities. These range from laws on environmental sanitation to traffic and road safety as well as street trading and public nuisance. For example, Section 1 of the “Street trading and illegal market (Prohibition) Law” Cap S12 Laws of Lagos State of Nigeria 2015 criminalizes street hawking.

The law goes further to proscribe use of pedestrian bridge as market (Section 4) as well as “indiscriminate pasting of banners” (Section 5). What is more, Section 10 of the law provides that offenders shall pay a fine ranging from N90, 000 to N180,000 or be liable to imprisonment for a term ranging from 6 months to one year.

Section 3 (1) of the Road Traffic Law Cap R5 Laws of Lagos State of Nigeria 2015 provides that “No person shall ride, drive or propel a cart, wheelbarrow, motorcycle or tricycle on any of the routes specified in Schedule II to this Law.”

Section 3 (5)(i) of the law criminalizes this conduct and imposes imprisonment for a term of three years, though it also provides that the offender may render community service. In fact, Section 7 of the law criminalizes “neglect of traffic directions” while Section 7(b)(i) imposes a mandatory one year imprisonment and forfeiture of the vehicle to the State.

Aside from these laws targeted at specific activities, the omnibus Section 168 of the Criminal Law Cap C17 Laws of Lagos State of Nigeria 2015 deals also with “disorderly persons.”

Some States are alleged to be exploiting the regime of petty offences as a vehicle for boosting their internally generated revenues through huge fines, with the “task forces” and enforcement agencies being given monthly targets. This is notwithstanding the deleterious effects on criminal justice administration. The Abuja Environmental Sanitation Board is also quite notorious for arresting persons deemed as prostitutes or vagrants.

Regrettably, though the Minor Offences (Miscellaneous Provisions) Act of 1989 selectively abolished “wandering” as an offence, law enforcement agencies often resort to State laws to charge offenders under this head. Nwadioke argues that the “piecemeal reform of the petty offences regime” is to be blamed for this malaise, urging the Federal Government to “immediately embark on a holistic review of all petty offences in Nigeria’s statute books with a view to ensure that they are promptly decriminalised or declassified. State legislatures must also toe this line, as many state laws contribute disproportionately to Nigeria’s body of petty offences.”

The courts have shown willingness to strike down vagrancy and similar laws. In a recent judgment, the ECOWAS Community Court of Justice awarded heavy damages against the Nigerian Government for the unlawful arrest of three women who were deemed as prostitutes. One of them turned out to be a Nollywood actress.

Malawi High Court also recently struck down the “rogue and vagabond” law in the Mayeso Gwanda Case. Hopefully, this emerging jurisprudence will catch on with Nigerian courts in the near future.

Meanwhile, aside from the Draft Principles, civil society groups and the Special Rapporteur for Policing and Prisons at the African Commission on Human and Peoples Rights, with support from Open Society Foundations/OSIWA, are preparing to approach the African Court to challenge the consonance of petty-offence laws with the African Charter.

Currently, legal challenges against petty offences are also underway at the national level in Kenya, Ghana, and Sierra Leone, among others.

According to Ehlers, the aim is to ensure that they are gone for good well before their 200th birthday.