THE BRIDGE BETWEEN LAW ENFORCEMENT AND THE RIGHTS OF PEDESTRIANS, THE CYCLISTS AND MOTORISTS

AUTOMOBILES AND ROAD SAFETY INITIATIVE

REPOSITIONING FOR URBAN TRAFFIC MANAGEMENT

“THE BRIDGE BETWEEN LAW ENFORCEMENT AND THE RIGHTS OF PEDESTRIANS, THE CYCLISTS AND MOTORISTS”

SPEECH DELIVERED BY:

MOFESOMO TAYO-OYETIBO

ON 28TH MAY, 2014 INTRODUCTION 1.1.

Geographically, Lagos State is one of the smallest states in Nigeria, with an area of about 356,861 (“Three Hundred and Fifty Six Thousand Eight Hundred and Sixty One”) hectares, of which about 75,755 (Seventy Five Thousand Seven Hundred and Fifty Five) hectares are wetlands, yet the state has the highest population, which is over 5% of the national estimate1. As at 2006, based on the parallel count conducted by Lagos State during the National Census, the human population of Lagos State was 17.5 million and with an estimated growth rate of 3.2%, as at today, the human population of the state is over 21 million.

1.2.

Each of these 21 million people in Lagos State fall into one category of pedestrians, cyclists or motorists but all of them constitute road users and are in one way or another subject to traffic laws. The amount of human and vehicular traffic within Lagos means that the place and work of traffic law enforcement agents is more crucial now than has ever been. Traffic law enforcement agents have become an important part of the engine of the state, as a result of the immeasurable role they have to play in the maintenance of road traffic law and order within Lagos State and the management of the booming population of road users.

1.3.

Under the Lagos State Road Traffic Law and the Lagos State Traffic Management Authority Law, the Lagos State Traffic Management Authority (“LASTMA”), as the traffic law enforcement arm of the State Government, is burdened with the responsibility of managing and

1 Lagos State Government Statistics

1 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

controlling traffic within the state. In carrying out this responsibility of ensuring that the traffic situation in the state remains under control, LASTMA will invariably have to control and/or restrict the movement of pedestrians, cyclists or motorists.

The same applies to other agencies like the Nigeria Police and the Federal Road Safety Commission, which are Federal government Agencies, who, as part of their responsibilities, are also burdened with ensuring that road users observe law and order while on the roads.

1.4.

Naturally, in maintaining law and order on the roads, road users will be restrained in their movements on the road and the use of certain routes by the traffic law enforcement agents. From a human rights perspective, this restraint or control of the movement of road users by the traffic law enforcement agents can be viewed as significant, considering the nature of the rights involved. The reason is because in Nigeria, every citizen is guaranteed the right to freedom of movement. This right to freedom of movement is guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) under section 41(1) which provides that: “Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.�

The right to freedom of movement as guaranteed by section 41(1) of the Constitution is one which every citizen of the country, including traffic law enforcement agencies are enjoined to uphold. There is however a proviso to the provisions of section 41(1) and this proviso is contained in section 45(1) of the Constitution which provides that:

“(1)

Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

(a)

In the interest of defence, public safety, public order, public morality or public health; or

(b)

For the purpose of protecting the rights and freedom or other persons�

1.5.

It is this proviso as contained in Section 45(1) that makes any law which contains

provisions

the curtailment of the right of

2 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

permitting any

citizen to move freely constitutional, once the law is not offensive to the section and is reasonably justifiable in a democratic society.

1.6.

As already mentioned, the LASTMA, as a traffic law enforcement agency, derives its powers from the Lagos State Road Traffic Law and also the Lagos State Traffic Management Authority Law. It is these laws that give the LASTMA its powers to manage traffic in the State by controlling and restricting the movement of road users on certain routes.

By the doctrine of the rule of law, the provisions of the Lagos State Road Traffic Law and also the Lagos State Traffic Management Authority Law must be consistent with the provision of the Constitution, particularly Section 41(1) as quoted above, as any provisions which are inconsistent with the constitutional provisions will be void to the extent of such inconsistency. Consequently, as traffic law enforcement agents derive all their powers from the Lagos State traffic laws, the acts of the traffic law enforcement agents pursuant to those laws must not offend the provisions of the constitution which guarantee the right of every citizen to move freely.

MOTORISTS

1.7.

It is safe to say that the category of motorists is the most regulated of all road users. The laws which are applicable to motorists usually affect the motorists in several ways which include but are not limited to one way regulations, restriction of u-turns, vehicle weight restrictions, BRT Lane restrictions, tolling, parking restrictions etc. There is absolutely no doubt that these traffic control measures contained in the traffic laws are necessary and crucial to the maintenance of law and order on the roads.

A

situation

in

3 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

which motorists are

free to make u-turns at will or drive towards oncoming traffic is one which could lead to road traffic anarchy. Therefore in some instances, the justification for enforcing the regulations which control where, when and how motorists may use the roads cannot be faulted and must invariably be seen as necessary to the preservation of public safety and order.

1.8.

In some other instances however, this is not the case. For instance, an issue which has been recently prominent in Lagos State is that of tolling on certain routes. Several major and minor routes within Lagos have been renovated and reconstructed by the Government, for which the Government must no doubt, be commended. However, the construction or reconstruction of some of those roads has come at a price for motorists who ply the routes that have been subjected to toll fees. The issue here is not validity of tolling per se, but the tolling of select routes in the state and the enforcement of the tolling regime by the relevant traffic law enforcement agents on those selected routes.

1.9.

With regard to tolling, the big question is: what is the reasonable justification for a situation where the government has constructed several roads in the state with public funds but chose to subject only a few of the routes to a tolling regime whilst other routes that have also been constructed with public funds are toll free. What is the effect of such discriminatory regime of tolling on the "fundamental right to freedom from discrimination" of the motorists who of necessity, must ply those tolled routes? Will that right as well as their right to freedom of movement not have been violated?

Thus section 42(1) of the

Constitution provides as follows:

"42.

(1)

A

Nigeria

citizen of 4 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

of

a

particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:(a)

be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

(b)

be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions."

1.10.

There is no doubt that residents of the neighbourhood in which the toll regime is being enforced on the roads leading to their residences are not enjoying equal right with those who reside in neighbourhoods in which public funds have equally been used to construct the roads leading to their residences but without the imposition of a toll regime.

Whilst the former drive to and from their residences with trepidation of the tolls to be paid everyday, the latter cruise home on a smooth and well asphalted roads without bothering their heads about payment of any toll! There is no doubt that the first mentioned category of motorists have been placed in a worse off position than their counterparts in communities without tolled roads. I have refrained from giving any conclusive opinion on the posers I have raised above as I am aware of several litigations in respect of the tolling regimes in some parts of the state.

5 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

PEDESTRIANS 1.11.

AND

CYCLISTS

Pedestrians and Cyclists, like motorists, are, by law, subjected to certain restrictions on their use of the roads in the state. Pedestrians are precluded from walking across some highways but must use footbridges where provided. Cyclists are also not allowed to ply certain major routes at all, with their movement restricted to travels within specified areas of the state.

1.12.

The question again is whether these restrictions are in accordance with the constitutionally guaranteed right of pedestrians and cyclists to move

freely. General security concerns have led to the restriction of cyclists from plying certain routes. Several robbery incidents have occurred on the roads through men on cyclists who then very easily meander through traffic jams and escape. Similarly, pedestrians are restricted from walking or crossing major routes without using footbridges or other alternatives and the reason for this is not far-fetched as the safety concerns are apparent.

1.13.

The overwhelming security and safety concerns which are applicable to pedestrians and cyclists make the restriction of their movements within the states prima facie justifiable based on the principle that the state has responsibility for providing for the security and safety of lives as well as the well-being of its citizens. It is very much conceivable that the number of incidents of collision between vehicles and pedestrians or cyclists crossing the highway would have been higher if there were no restrictions on the right of pedestrians and cyclists to cross the highways.

6 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

THE BRIDGE 1.14.

As the traffic law enforcement agents in Lagos State are in addition to the extant traffic laws of the state, guided by the constitution, there must not be at any point, a disconnect between the protection of the rights of every citizen to move freely and the performance of statutory obligations by the traffic law enforcement agents. In carrying out their statutory duties, where traffic law enforcement agents deem it necessary to restrain the free movement of road users, it must be borne in mind by those agents that

such restraint is only legal where it is reasonably justifiable in a democratic society and in the interest of, public safety or public order.

1.15.

It is easy to say that cyclists, pedestrians and motorists have constitutionally guaranteed fundamental rights to move freely and those rights must be preserved by the traffic law enforcement agents where the discharge of their statutory duties will touch upon those rights. However, this will never be the case if these traffic law enforcement agents are not fully aware of what these fundamental rights of every citizen are, their specific powers under the relevant traffic laws and the balance that must be struck between carrying out their statutory duties and preserving the fundamental rights of road users.

1.16.

Determining what is reasonably justifiable in a democratic society and in the interest of public safety and order requires an exercise of discretion by the traffic law enforcement agents in ensuring that their actions on the field in relation to road users are not inconsistent with the objectives of the traffic laws. Consequently, to have a situation in which the actions of the traffic law enforcement agents in carrying out their duties can be well guided, the agents must be well educated on the limitations on their powers, with respect to maintaining law and order on the roads.

1.17.

Also, it is easy to assume that cyclists, pedestrians and motorists do not have equal rights to which

is

a

7 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

road

usage,

misconception

that invariably slants to favour motorists above the other category of road users. On the contrary, as can be gleaned from the constitutional provision in Section 41(1), it is every citizen who is entitled to move freely within

Nigeria. Therefore, the purport of Section 41(1) must reflect in operations of the traffic law enforcement agents as they carry out their duties. In fact, one can dare to say that cyclists and pedestrians, being those who may be more vulnerable on the roads, deserve a greater level of protection on the roads.

WHAT HAPPENS WHERE RIGHTS ARE BREACHED? 1.18.

It is imperative for traffic law enforcement agents to ensure that in the discharge of their statutory duties, the right of road users to move freely is preserved at all times and where it is necessary for the right to be restricted, such restriction is in accordance with the law. Traffic law enforcement agents whose primary responsibility is to ensure that the traffic laws and regulations are obeyed and that law and order is maintained on the roads, must not be seen to violate the fundamental rights of road users, under the guise of carrying out their duties.

1.19.

Where it does happen that the fundamental right of a road user to move freely is breached, such a citizen will have a cause of action against the traffic law enforcement agency that has breached his right and can proceed against the agency in a court of law to enforce his fundamental right under the Constitution. Conceivably, a situation in which a law enforcement agency is burdened with having to defend claims alleging breach of fundamental rights is not an ideal one, in addition to the fact that resources which may be better employed elsewhere will have to be expended on defending such claims.

8 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

1.20.

An ideal situation

will be one in which

traffic law enforcement agents are in a position to carry out their statutory obligations in full confidence that they are operating within the tenets of the

law. Needless to say, it is the responsibility of the traffic law enforcement agencies to properly educate their agents on the extent and limits of their powers of enforcement of road traffic laws. The agents must be adequately equipped to carry out their duties without the fear of being in violation of the rights of road users.

1.21.

At present, we are not yet where we need to be in terms of achieving an ideal situation in which traffic law enforcement is at its most effective and efficient, while at the same time the fundamental rights of road users are preserved. I have said “we� because the road to achieving the ideal situation I have described is not to be journeyed by the traffic law enforcement agents alone.

Every citizen has a role to play in ensuring that traffic laws are observed, so that firstly, there is civility in road use and secondly, there is no friction between the need for traffic law enforcement agents to maintain law and order and the preservation of the fundamental rights of every road user.

CONCLUSION 1.22.

In Conclusion, the role of traffic law enforcement agents in a city like Lagos cannot be overstated. The increasing population of the state means that maintaining road traffic law and order are crucial to the smooth running of the state administratively and commercially. At the same time, traffic law enforcement agents must realise that carrying out their statutory duties of maintaining road traffic law and order must be without prejudice to the constitutionally guaranteed rights of every citizen in Nigeria to move freely within the country and indeed Lagos State.

Thank you for listening.

THE END 9 of 9 Tayo Oyetibo & Co; Solicitors & Barristers

MOFESOMO TAYO-OYETIBO