Sometime last year (2015), the Kaduna State Government, vide an Executive Declaration, banned street begging and hawking in the State. This generated a lot of discourse. In response to a question posed by the Garba Shehu, Esq., my very good learned friend and the immediate past Commissioner of Justice and Attorney-General of Kaduna State as to the justiciability of the right and freedom to beg, I wrote a legal treatise on the 13th of July, 2015 contending that the right and freedom to beg could be justiciable depending on the interpretational approach adopted. At that time, there was no legislation prohibiting begging in the State.
On Tuesday, the 12th of April, 2016, the Kaduna State House of Assembly passed into Law a Bill entitled: “Street Begging and Hawking (Prohibition) Law, 2016. I have no qualms with the constitutionality of the Law. It is indeed constitutional. However, the Law has some contending issues which we shall x-ray here.
The Law has eleven (11) sections. Section 1 contains the short title, while section 2 states the commencement date. Section 3 is the definition section where the following words have been defined: ‘Court’, ‘Governor’, ‘Goods’, ‘Hawking’, ‘State’, ‘Street begging’, and ‘Public places’.
Sections 4 and 5 provide that:
“4. Street begging is hereby prohibited in the State”.
“5. Sixty days from the commencement of this Law, any person found to be engaged in street begging in contravention of this Law commits an offence and shall be liable on conviction to a term not exceeding three months imprisonment or a fine not exceeding N10,000.00 (Ten Thousand Naira) or to both such fine and imprisonment.”
The contending issues with these provisions lie in the definitions of the terms ‘street begging’ and ‘public places’ in section 3 of the Law. ‘Street begging’ is defined to mean “the act of soliciting for any financial assistance, gifts, alms or favour from members of the public along public highways, streets, or public places within the State”; and ‘public places’ is defined to include “Markets, Parks, Roads, Resort, Stadia, Schools and other public institutions”
A marriage of the provisions of section 4 and 5 and the interpretation of ‘street begging’ and ‘public places’ will indicate that the philosophical underpinning of the Law is to prohibit street begging along the public highways and in public places only. This is evident in two ways: first, from the qualification couched in the part of the title of the Law which is “Street Begging”; and, second, the general and correct perception that all public places are owned, managed, and/or controlled by government. This is in tandem with the ejusdem generis rule or canon of interpretation.
The shortcoming of this Law is that it does not prohibit street begging in private places. Therefore, the implication is that begging in private markets, private parks, private resorts, private stadia (if any), private schools, and other private institutions, churches and mosques (not owned by the government), private homes of individuals, private hotels owned by persons, etc does not fall within the contemplated realm of prohibition. This is more so, a fortiori, that begging in these places is not in the street, public highways and public places, but in private places.
This brings to the fore a marked difference between a public beggar and a private beggar. While a public beggar can be tried under the Law for street begging in public highways, streets, or public places, a private beggar cannot because the Law does not prohibit him from begging in private places.
Sections 6 and 7 of the Law provide thus:
“6. Hawking in public places is hereby prohibited”
“7. Any person who engages in the act of hawking in contravention of this Law commits an offence and is liable on conviction to a term not exceeding six months imprisonment or to a fine not exceeding N20,000.00 (Twenty Thousand Naira) or to both such fine and imprisonment.
“(1) Any Law Enforcement Agent may arrest without warrant any person found to be contravening any of the provisions of the Law.
“(2) Upon arrest of any person engaged in hawking, the arresting officer shall have powers to seize any goods or items constituting the subject matter of the offence.
“(3) The Police shall, within a period of 24 hours or such period as may be practicable, considering the circumstances of the case, arraign the offender before the appropriate Court for trial.”
The same contending issues with street begging apply here. Thus, like the prohibition on street begging, only hawking in public places is prohibited. Hawking in private places is not covered by the Law.
Sub-section (1) of section 7 empowers any law enforcement agent to arrest an offender without warrant; and sub-section (2) thereof goes further to empower him to seize from the offender any goods or items constituting the offence.
The problem here is that the Law has failed to define who a law enforcement agent is. This definition is important because under sections 26 to 46 of Chapter IV of Part III of the Criminal Procedure Code Law, Cap 43, Laws of Kaduna State, 1991, the power to arrest and search is vested in the Police, Justice of the Peace, and private persons; and clearly spelt out the procedure for arrest. Specifically, section 39 of the Criminal Procedure Code Law provides thus:
“39 (1) Any person, except a police officer or a justice of the peace, making an arrest without a warrant or an order of the justice of the peace shall without unnecessary delay take the person arrested to the nearest police station or hand him over to a police officer.
“(2) If the arrested person appears to be one whom a police officer is authorised to arrest, the police officer shall re-arrest him; otherwise the arrested person shall be at once released.
The Criminal Procedure Code Law, being the principal law regulating arrest and searches in Kaduna State, has primacy over the Kaduna State Street Begging and Hawking (Prohibition) Law in respect thereof. This is trite law. Therefore, sub-sections (1) and (2) of section 7 should have been made subject to the provisions of the Criminal Procedure Code Law, especially its section 39; and couched in such manner as to make it mandatory for any law enforcement agent who arrests an offender to immediately hand him over to the nearest police station or officer.
Sub-section 3 of section 7 of the Law makes it mandatory for a police to arraign an offender before the appropriate court within 24 hours or such period as may be practicable, considering the circumstances of the case. This provision is superfluous, overreaching and amounts to an unnecessary fifth wheel to a coach. Section 35 of the Constitution of the Federal of Nigeria, 1999 has adequately covered this field. Thus, there is nothing again to legislate upon. To us, the sub-section will serve no legal and practical purpose.
Section 8 of the Law provides:
“8. Whoever procures, aids or abets the commission of any of the offences under this Law commits an offence and shall be liable on conviction to a term of one year imprisonment or a fine of fifth thousand (N50,000.00) or both.”
This section is aimed at making it an offence against those who engage their children or wards in the acts of street begging and hawking instead of sending them to school or engaging them in other productive ways. Making procuring, aiding and abetting street begging and hawking an offence under this Law is laudable. This is because children, who by their nature are vulnerable, have been turned by some parents and guardians into street beggars and hawkers instead of going to schools, thereby killing their future and turning them into human waste, constituting nuisance to their immediate community and the State.
Sections 9 and 10 of the Law provide:
“9. Any court in the State shall try summarily all offenders arraigned before it, and imposed such punishment, sanctions and make order(s) including the confiscation of any goods or items and such further order(s) as to their disposal or otherwise for the use and benefit of rehabilitation centres, homes or other institutions established under the Rehabilitation Board Law, 2005.”
“10 The Chief Judge of the State may however constitute such Mobile Courts as may be necessary or expedient for the speedy trial of offenders found to be in contravention of this Law.”
The word ‘court’ has been loosely employed in this Law. Section 3 defines the word to mean “Magistrate Court and includes such Mobile Courts as may be constituted by the Chief Judge of the State pursuant to this Law.” If this definition is the intention of draftsman, then we find it inconsistent, conflicting and confusing for the same Law to use the words ‘any court’ in section 9. If the court in contemplation and vested with jurisdiction is the Magistrate’s Court or any Mobile Court established by the Chief Judge, then it is preposterous to also vest jurisdiction in “any court”.
Aside from the Kaduna State High Court which has criminal jurisdiction under section 272 (1) of the Constitution to “hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any other person”, other courts in the State have limited jurisdiction, especially in respect of the subject-matter involved. Which courts have jurisdiction in respect of offences under the Law? The ones specifically mentioned by name under section 3, or the ones mentioned by generalization under section 9? These provisions are contradictory. Untill this issue is resolved, the definition of ‘court’ under section 3 will be otiose.
Section 11 repealed the Kaduna State (Anti-Hawking Edict of 1985. Since this Law has now harmonized, codified and prohibited street begging and hawking in the State, the repeal of the 1985 Edict is necessary to avoid duplication of legislation.
Another contending issue is the area of coverage of the Law. Section 3 defines ‘State’ to mean “Kaduna State of Nigeria”. This presupposes that the Law is applicable in the entire State. How practicable is this enforceable? Does the Government have the personnel to enforce this Law throughout the State? The Government knows the flash points in the Local Government Areas of the State used for begging and hawking. These areas should have been the target of the Law.
By and large, the Kaduna State Street Begging and Hawking (Prohibition) Law, 2016 is enacted by the State Government with good intentions meant to sanitize the State. The issue of street begging and hawking is not only a State but also a national embarrassment. Much as we agree with the Sociologists that one of the major reasons why people beg or have taken to begging is because of the failure of the government to provide jobs and basic human amenities like food, shelter, health facilities, education, etc, this act should not be encouraged because of its social and societal ills.
When I wrote my treatise on the 13th of July, 2015 entitled: “Is Begging a Justiciable Right Capable of Being Enforced by a Court of Law?: The Expansive View”, two of my learned friends took a serious swipe at begging. M. T. Mohammed, my class mate in the University and Law School with whom we share robust academic and practical legal discourse threw the first salvo thus:
“…Begging, though a sign of failure of good governance, has assumed a social menace that must be curbed. I do not want to comment on its justiciability because it is. Certain laws may be promulgated to outlaw begging on the street and nothing can be done except if someone wants to challenge the legality of an aspect of the law. What is not clear is whether Mr Governor can outlaw begging by executive pronouncement in the absence of a law…Begging to my mind should not define who we are.”
Yusuf Dankofa, Ph.D, my lecturer in the University back in the days and an astute academic and legal scholar, had this to say:
“…For any group to constitute itself into a coterie of beggars whereof they move along major highways seeking to trigger or provoke unnecessary sympathy does not find any support from any known convention or laws. The sociology of begging in itself is partly rooted in the mercantilist instincts of majority of the beggars who have turned the entire venture into a full blown profession. Some of these beggars from empirical data have acquired properties and investments for above some members of the society who are formally and informally employed. Yes, it might be argued that the Nigerian state have failed a lot of its citizens having excluded them from benefiting from the resources of the state both materially and in human capacity development, however, the question that should come to mind is, is it only the northern part of the country that has continued to suffer the fate of excruciating poverty? If the answer is no, then why is it that other tribes in Nigeria hardly beg and why is it that even in the north, the majority of beggars are from the Muslim population, when Islam clearly forbids begging and if one must beg, then you can only beg for the meal or the need of the day only. Clearly something is wrong with the nature of the social organization of the Hausa society which continues to promote this kind of attitude. And the solution must be education. Without education minds cannot be liberated. Even the nature of Islamic education being promoted by our local clerics largely is built on this kind of feudalistic tendencies which does not promote independent thinking. This approach is even unislamic, because Islam as a religion is so progressive that its first casualty was ignorance. How then can a religion that came to fight oppression, prompted learning and argue for the emancipation of the oppressed be reduced into a comical enterprise. No, that cannot be Islam. I think the argument should promote a vigorous campaign for education, both Islamic and conventional to pull the wool out of the eyes of the beggars so that they may come to terms with the benefit that comes with education – enlightenment and empowerment. It will, therefore, be a great disservice to humanity to legalize an action that debases human minds and intellect…”
They have said it all. Need I add anything? No, I do not think so.
The Kaduna State Street Begging and Hawking (Prohibition) Law, 2016 does not adequately cover the field both in form and substance. With the way begging and hawking have been institutionalized in our system and seen as a profession to some, enforcement of the Law may be a big problem. Fuller, L. (1997) an American legal scholar gives eight (8) attributes and qualities of a good law. I find three (3) of such attributes persuasive to this write-up. They are: first, law should be written with reasonable clarity to avoid unfair enforcement; second, law must avoid contradictions; and, third, law must not command the impossible.
Untill the Kaduna State Government eschews political whims and imbibe political will, this Law may only exist in principles but not in practice.
James KANYIP, 2016.