SPECIAL REPORT: Criminalisation of petty offences in Nigeria violates the poor

SPECIAL REPORT: Criminalisation of petty offences in Nigeria violates the poor

Like many other Lagos residents, Sikiru Ibrahim goes out daily to earn a living. However, unlike millions of other residents, he is a beggar.

The vocation Mr Ibrahim survives on, in the Lagos Island area, is an irritant to many Lagos residents. One day in 2013, the state government’s special task force team swooped on beggars in the area.

Recalling the experience, Mr Ibrahim said he was taken as far as Ikorodu where he was detained for hours.

“When we got there, we were plenty and we were asked to pay N50,000. I was able to pay mine with the help of people I called for assistance. After I paid the money, I was allowed to go,” he said.

He said others who could not pay the fine were detained.

Mr Ibrahim’s case is not an isolated one, as many like him still face such troubles of imprisonment, exorbitant fines, arrest and detention in different parts of Nigeria.

The means of survival and way of life of many poor persons are criminalised or classified as arrestable conduct.

Over the years, the African Commission on Human and Peoples’ Rights (ACHPR) has raised concerns about the existence of “vague”, “overly broad”, “colonial-era national laws” and “petty offences” in many African countries. These countries “impede the enjoyment of human rights by all persons,” ACHPR says.

According to the body, people targeted with these laws are deprived of their rights, “particularly on the basis of social origin, social status or fortune; the negative socio-economic impact of the enforcement of these offences.”

The body also notes that many vulnerable people suffer from a “lack of access to legal assistance services for persons who are unable to afford a private lawyer.” On many occasions, the victims end up in jail.

Nafisat Lukman, a 31-year-old nursing mother who trades in stick meats and herbal drinks in Nigeria’s federal capital city, is an example. In August, she was arrested along with dozens of hawkers, mostly women, by the Abuja Environmental Protection Board (AEPB). They allegedly violated section 35(1)(d) of the AEPB Act of 1997, which criminalises hawking at a road junction or any unauthorised area within the FCT, and imposes “not less than N5,000″ as a fine on anyone found guilty of the offence.

Taskforce teams routinely hunt down petty traders and hawkers displaying their wares for sale along the road in different parts of Abuja. Many are detained until they are able to pay the imposed fine.

A task force arrested Mrs Lukman and seized her wares at Garki, Area 3.

“I was arrested last month (August). At least, I was arrested twice in two weeks of the same August and I slept in their custody in Area 3. I was not able to see my three-month-old baby,” she said.

She said she and others were taken to a mobile court before a magistrate and “we were asked to bail ourselves.”

“I paid N3,000 but my goods were never returned to me.

”It was really painful and it has put me in debt, because what are we selling and gaining? I can say I lost over N60,000 as a result of my arrest and recouping back my items I used in selling my goods,” she narrated.

Mrs Lukman appealed for the government’s pity. “At least for me I cannot go into prostitution to feed.”

Petty offences wear face of poverty
In 2017, the ACHPR, the African Union’s body coordinating human and people’s rights policies on the continent, adopted a strategy to firm up its campaigns for decriminalisation and declassification of “minor offences, such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents.”

Nigeria’s National Human Rights Commission (NHRC) has keyed into the ACHPR’s agenda of decriminalisation of petty offences.

“Laws that create petty offences are inconsistent with the principles of equality before the law and non-discrimination on the basis that they either target or have a disproportionate impact on the poor and other vulnerable persons,” the declaration by the ACHPR states.

Human rights campaigners say petty offences “wear the face of poverty.” Such offences, according to experts, are mostly non-violent crimes.

Speaking at an event for drawing an action plan for the decriminalisation of petty offences in Lagos State in July 2021, a committee chair of the state’s House of Assembly, Victor Akande, said petty offences do not constitute a threat to the safety of the public, law and order in the state.

The ACHPR says such offences “are inconsistent with Articles 2, 3 and 18 of the African Charter on the right to equality and non-discrimination.”

These offences are still in Nigerian laws despite the ACHPR’s recommendations and the campaigns by Nigeria’s NHRC.

They fall within the broad category of minor offences, misdemeanours, simple offences and summary or regulatory offences in different national and subnational laws.

Oluyemi Orija, the executive director of Headfort Foundation, noted that the enforcement of the laws targets the poor who on many occasions “have no resources to hire lawyers or to bribe the police.”

Yemi Orija executive director Heardfort Foundation said the gravity of the punishments meted at the offenders is often exaggerated, exploited, and abuses.
These are apart from incessant cases of arbitrary arrests and detentions for conduct either not or vaguely codified.

Figures speak
Data compiled by various non-governmental organisations with a focus on the decriminalisation of petty offences reveal that a sizeable number of citizens targeted by minor offences laws suffer violations through arrests or detention for wandering and loitering.

For instance, Lawyer Alert says its data show that between April 2021 and September 2021, 700 wandering and loitering cases representing 16 per cent of petty offences cases tracked nationwide were recorded.

The group says young males are more regularly held for “the offences” and in the process “forced to unlock their phones for proof that they are not rogues or vagabonds.”

Notably, another 10 per cent of the recorded cases involved hawking and seven per cent of the cases involved commercial sex workers, during the period.

A similar study by Rehabilitation and Welfare and Action (PRAWA), through its Petty Offence Project, stated that 2,431 people charged with petty offences got pro bono services across five states from February 2020 to April 2021.

According to the report, Abuja had the highest of 1,897 persons or 77.13 per cent, while Lagos State followed with 147 persons or 6.05 per cent.

Abia State in south-east Nigeria came third with 136 cases, Enugu State also in the South-east had 137 cases and Kano State in the North-west had 114 cases.

Ogechi Ogu, deputy director PRAWA.
The deputy director of PRAWA, Ogechi Ogu, told PREMIUM TIMES that some of the offences classified as petty/minor are usually connected to the poor, vulnerable and marginalised persons in society such as women and children.

“Unfortunately, often these poor offenders are arrested and put in detention because even in cases they are given options of fine, they are not able to pay,’’ Ms Ogu said. ‘’Some of the offenders are children who regrettably are taken into custody to be contaminated by adult offenders.”

A lawyer, Festus Ogun, expressed the same view. ‘’Our criminal justice system itself is criminal and punishes the poor. If not, those who instituted the charge should be made to answer serious questions.”

Enforcement births arbitrary arrests, illegal detention
There are documented cases of how enforcement of petty offences laws has resulted in arbitrary arrests, illegal detention, torture and violations of various rights. The ACPHR has linked it to overcrowding at prison facilities.

In February 2017, the police raided a suspected sex workers’ hub in Mabushi in Abuja.

Monica Manasseh, a 42-year-old sex worker, was one of those arrested that evening.

The task force that led the operation comprised officials of the AEPB, the Nigeria Police Force and the Nigerian Army.

Legal experts say there is no Nigerian law that specifically or expressly criminalises prostitution. But like in many petty offences cases, enforcement actions against prostitution come with rights violations.

Ms Manasseh recalled that the task force searched her indecently and took away her money.

“The police came at night and were raiding the whole area. I was assaulted by the officials before they arrested me and some others,” the mother of three narrated.

Godswill Udo narrated how he spent 11 years and seven months in prison after run-ins with policemen that arrested him while going about his business in Lagos state.
She said she was taken to Area 8 police parade ground where she was detained for three days before she was bailed.

“Getting home, I discovered that my whole properties were either destroyed or carted away during the operation. The N280, 000 I kept at home was nowhere to be found and my plasma television was destroyed among other valuables,” she narrated.

In May 2019, Lawyers Alert filed a suit at the Federal High Court in Abuja on behalf of Ms Manasseh and 15 other women for redress.

On 19 December 2019, the judge, Binta Nyako, gave judgement in their favour confirming that officers of the security taskforce had illegally broken into Ms Manasseh’s and other women’s apartments in Abuja in violation of their rights.

The court awarded N100,000 in compensation from the Nigerian government.

Like Ms Manasseh, Rasaq Ibrahim, 30, a driver and soap marketer from Warri, Delta State, had travelled to Ekiti State for a family event when he was arrested at a hotel in Ado-Ekiti, the state capital. The police raided the hotel where he had gone to see a friend for what they called a disturbance of the peace by some suspects.

From the day of his arrest on 25 February, he was detained until March 14 when the police arraigned him and two others – Ganiyu Saheed, 25, and Yusuf Oke, 21, before the Magistrate Court of Ado Ekiti.

They were charged with one count under section 249 of the Ekiti State Criminal Code for “conducting themselves in a manner likely to create a breach of peace by causing disturbance in a public place.”

His lawyer, Ezealaji Endurance, told PREMIUM TIMES that the case suffered a series of adjournments because the officers who had arrested him failed to appear in court.

Mr Ibrahim eventually spent six months in jail, awaiting trial, before he was released on 31 August. The offence itself was only punishable by one month of imprisonment.

Arbitrary, unfair trials
Some Nigerian Airforce officers arrested Ganiyu Rafiu, 32, for wearing a T-shirt with a camouflage design around Oniwire Junction in Lagos sometime in early October 2020.

His explanation that he donned the T-Shirt to appear “gallant” for his role at a private security firm based in Lagos did not salvage the situation.

Ganiyu Rafiu.
His case is another example of how vague criminal laws can be exploited by security agents to violate citizens and cloak the violations in legitimacy through the judicial process.

Mr Rafiu recalled being beaten “mercilessly” by the military personnel before he was thrown into their van and driven away. He spent two weeks in detention at the Military Police base where he was accused of impersonation; assault and denied contact with his family.

He was transferred to the now-defunct Special Anti-Robbery Squad (SARS) office at Lagos State Police Command where he spent another two weeks before he was charged in court.

Mr Rafiu’s appearance in court on that fateful Monday lasted barely 10 minutes when he was arraigned and granted bail. The widower was remanded at the Kirikiri Medium Prison in Apapa Lagos for nearly one year due to his inability to meet his bail conditions. The conditions included the provision of two public servants as sureties and N50,000.

It took the intervention of Eniola Omosehin, a lawyer provided through a civil society organisation, Headfort Foundation’s ‘Lawyers Without Border’ Project, to secure Mr Rafiu’s release.

The lawyer did not achieve this without meeting some of the road bumps of the judicial system.

The police had filed the case without pursuing it. So, on 26 August 2021, the defence applied that the case should be struck out since neither the prosecution nor the witness was presented in court.

Osinachi Ndukwe being consoled after his minibus was auctioned by the Lagos state government for traffic offense.
The court rejected the application on the grounds that the case was coming up in court for the first time. The magistrate, however, had no choice other than to strike it out when the prosecution still refused to show up at the second hearing on 30 September 2021.

Sections 109 and 110 of the Nigerian Criminal Code Act under which he was charged stipulate a punishment of one year on conviction. But without being convicted, Mr Rafiu spent nearly the same amount of time in jail.

“No one should, in my opinion, be punished because of the colour or style of clothing they are wearing,’’ says Mr Ogun.

He said the legitimate approach to handling such situations is to lodge a formal complaint with the police, and once it is established that the outfit is not used to commit a crime there is no basis for all these.

Lawyers also point out the issue of lack of fair trial and needless criminalisation of traffic breaches in the enforcement of Lagos State traffic laws.

According to the Lagos State Transport Sector Reform Law 2018, anyone who disregards traffic signals or drives in a way that is against the law would have to pay a fine, forfeit their car, and serve one year of jail time for a first offence and three years for a second.

But Inibehe Effiong, a rights activist and lawyer, said any law that gives the government power to seize and/or auction off a citizen’s car or other property without a fair trial and due process is illegal, null and void.

Another human rights lawyer, Monday Ubani, says any law that punishes a traffic offender to a point that he loses his car is a clear violation of citizens’ rights to own property.

‘’The traffic offence law that makes driving one way such that you can lose your car? It is a law that I am not comfortable with. And I am ready to challenge that law. It is a clear violation of the citizens,” Mr Ubani said.

Calls for a review
The ACHPR said the enforcement of petty offences has “the effect of punishing, segregating, controlling and undermining the dignity of persons on the basis of their status.”

So, in the recommendations adopted in 2017, the body calls on African countries to ensure that “laws which criminalise the status of a person or their appearance are decriminalised, in particular, laws that criminalise life-sustaining activities in public places”.

It notes with horror the overcrowding in prison populations across Africa.

This speaks to one of the issues with Nigeria’s criminal justice system. According to the Minister of Interior, Rauf Aregbesola, about 70 per cent of inmates in Nigerian prisons are awaiting trial, many of them for petty offences. Many of them are abandoned cases, like those of Messrs Rafiu and Ibrahim that were abandoned by the prosecution because of the unavailability of evidence. Mr Aregbesola wants at least 30 per cent of prison inmates freed.

The presidential committee on prison reform and decongestion headed by Ishaq Bello, a former chief judge of the Federal Capital Territory, started a campaign in 2016 to free awaiting trial prisoners whose remand period had exceeded the maximum sentence possible for their alleged crimes.

The Attorney-General of the Federation and Minister of Justice, Abubakar Malami, says the committee freed 10,000 inmates in four years.

For Ms Ogu, Nigeria should leverage the availability of laws such as the Administration of Criminal Justice Act 2015, the Administration of Criminal Justice Laws of different states of the federation, and the Nigerian Correctional Service Act 2019 to avail offenders opportunities of non-custodial alternatives pending when these laws are abolished by the different states.

People charged with “cases with a very little misdemeanour should just be left to commit themselves to penalties that are communal related and not necessarily in incarceration,” Lanre Suraju, a social justice activist said.

Although Nigeria has abolished some minor offences of wandering, activists and policy experts agree the national and subnational laws have not taken requisite action in terms of amendments to the Criminal and Penal Code Acts and expunging such provisions. As a result, law enforcement officials continue to exploit it to arrest people.

The overuse of pretrial detention in situations of petty offenders was noted as a further issue by Ms Ogu of PRAWA.

“It (pretrial detention) shouldn’t be used for low-risk offenders, and Nigeria can benefit from using other approaches to dealing with offenders, such as non-custodial alternatives like probation, community service, restorative justice, and other variations of non-custodial measures,” she said.

While calling for strategies for preventing sending people to the prison system, the ACPHR advocates “the use of alternatives to criminal prosecution and the declassification and decriminalisation of some offences.”

Tackle root cause – poverty
Jiti Ogunye, a public interest lawyer, recommended that the government should provide social welfare and programmes to deter individuals who commit petty crimes out of necessity.

These processes, he explained, would encourage “our people to live with dignity as human beings and prevent individuals who are weak from committing those acts.”

Mr Ogunye’s suggestion tallies with a recommendation by the ACPHR which urged African countries to adopt “legislative, administrative, policy and other measures that aim to address the conditions that cause, exacerbate or perpetuate poverty, rather than criminalise poverty”.

Jiti Ogunye
It also called for “the provision of services to all persons to regulate and constructively support people to perform life-sustaining activities in public places.”

In more specific terms, Mohammed Zanna, National Coordinator of Physically Challenged Empowerment Initiatives Nigeria, called on the government to provide “massive skills and vocational training programmes and empowerment” for the physically challenged to keep them away from street begging.

He said most of the members of his group cannot afford the cost of rent in most Nigerian cities, adding that their arrest could only be justified if “they’ve been helped with skills and empowerment, so they don’t beg.”

Decriminalisation efforts
Only a few states of the federation are taking steps to decriminalise petty offences.

Lagos is among the few. Mr Akande, chair of the Lagos State House of Assembly’s committee on judiciary, human rights and public petition, said, “The need for the decriminalisation of petty offences in Lagos State is prerequisite for the further strengthening of the judicial system.”

The Chief Press Secretary to the Lagos State governor, Gboyega Akoshile, confirmed that some bills aimed at decriminalising petty offences were before the House of Assembly but could not immediately provide a copy of any of them to our reporter.

Also, Rommy Mom, Director of Lawyers Alert Nigeria, said his organisation is currently working with Bauchi and Benue states’ lawmakers on the passage of bills to decriminalise some petty offences.

“We have introduced bills that prohibit criminalizing petty offences. And we hope the law gives something of dignity to the poor amongst us,” he said.

Rommy Mom director Lawyers Alert Nigeria said his organisation is currently working with state law makers in Bauchi and Benue states to ensure a bill is introduced and passed that prohibits criminalizing petty offences.
Eluma Asogwa, a Lagos-based lawyer, said, “You have not provided jobs. These guys take up money to make a living for themselves and you (the government) go ahead to block it.

On the call for the making or review of the relevant laws, Mr Ubani, a former vice president of the Nigerian Bar Association (NBA), drew a link between the quality of the laws and the sense of justice of elected legislators making them.

He said making laws “with human face” has to do with “the people being elected into the legislative chambers”.

Yet a lot depends on the lawmakers. The ACHPR urges state parties to develop laws, policies and regulations that provide alternatives to arrest and detention that also recognise “the need for reasonable accommodation for persons with disabilities.”

This investigation was sponsored by The Institute for War and Peace Reporting (IWPR) in collaboration with the Centre for Journalism Innovation and Development (CJID) through its Voice For Change Reporting Project.

Source: Premium Times