The Impropriety of Lagos Ban on Okada and Tricycle: An Analysis of Law

Since the official announcement of the Lagos State Government’s policy to ban okada and tricycles, which took effect on the first day of February, 2020, several posers have been agitating my legal mind and for the sake of public interest, I have deemed it fit to attempt a simple explanation on what the law truly says about the ban and discuss other ancillary issues arising therefrom.

By virtue of Section 41(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, “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 simple interpretation of the section quoted above is that Nigerians have the legal right to move freely throughout Nigeria without hindrance. This constitutional position was upheld in the resent case of Chief Otu Gregory Apph & Ors V. Mr. Mathias Oturie (2019) LPELR-46301(CA).

Could it then be that the law which empowered the Lagos State Government to place an outright ban on the movement of Nigerians by motorcycle and tricycle is illegal and a contravention of Section 41(1) of the 1999 Constitution? I do not think so. One major reason for this is that the Lagos State Government, through its House of Assembly, is empowered under Section 4(7) of the Constitution to “make laws for the peace, order and good government of the State”. Whereas, as provided under Sections 4(5) and 1(3) of the Constitution, this power does not extend to enacting laws that contravene the Constitutional provisions or Acts of the National Assembly.

In fact, the extant law never placed an outright ban on Okada like the way the government portrayed it. What then does the law truly says?

Simply put, by the combined effect of Section 46 and 15 of the Lagos State Transport Sector Reform Law 2018, the operations of tricycles are outrightly prohibited and the usage and operations of motorcycle are merely restricted and regulated.

On the operations of tricycles, Section 46 of the Law prohibits its operation only on major highways in the State. And for Okada, Section 15(1) clearly and unambiguously provides, inter alia, that “motorcycles above 200cc are exempted from the restriction on the use of motorcycles on the State highways.” The implication is that an Okada whose engine capacity is above 200cc (Cubic Capacity) are permitted under the law to ply the major highways in the state, without any form of restriction or indiscriminate arrest. So, anyone whose motorcycle engine capacity is less than 200cc would obviously be committing an offence operating on the “major highways”.

Additionally, by virtue of Section 15(2) and (3) of the Law, a motorcycle used for mail distribution is equally permissible to operate on the major highways provided that the motorcycle is registered with the Ministry, has an engine capacity above 200cc, complies with the regular usage of crash helmet, properly fitted cabin and must not carry any passenger.

The point must be made abundantly clear that the law, Lagos State Transport Sector Reform Law 2018, never empowered the government to outrightly ban Okada on Lagos roads and highways. No, that would amount to abuse of power and a fabrication of strange laws. The Transport Sector Reform Law only empowers the government to restrict or regulate the movement of any motorcycle who engine capacity is less than 200cc on major highways. That is not the same as outlawing the movement of all kinds of motorcycles on our highways.

The government only have the power to regulate and not outrightly ban.

As it stands, the Lagos State Government pronouncement that no motorcycles should be seen plying the major highways in the state is illegal and arbitrary. It is a perilous generalization as against what the law truly provides. In fact, the regulation provided for under the law would only be effective on major highways and not necessarily all the nooks and crannies of the “affected areas”. Here is a case of gross abuse of power and disrespect to the rule of law as officers of law ensuring the enforcement of the policy are making indiscriminate arrests even at areas that are not designated as “major highways” and on motorcycle whose engine capacity is above 200cc, like Max.ng bikes. The law enforcement agents have turned the rather misguided and illegal policy to another juicy opportunity to extort innocent, ignorant and unsuspecting citizens. Although, this may not be really intended by the government of Lagos State, it is expected.

In fairness to the Lagos State Government, it is important to state that the purpose of the ban can neither be overemphasised nor underestimated. As argued, the operation of Okada on highways poses a serious security risk and exposes the people to imminent danger. So, in a way, the argument and position of the government is valid. However, beheading has never in history been a cure for headache. Maybe that is the more reason why the law only regulated, or put differently, restricted the movement of Okada to a level of engine capacity.

Look, the law is not an end by itself; it is a means to an end. The promulgation and enforcement of laws must be carried out bearing in mind its effect on the welfare and happiness of the people. Yes, I agree with Roscoe Pound that law must be a veritable tool for social engineering. However, one must not be too quick to forget that any law that fails to address the genuine yearning of the people cannot be a good law. As argued by Bentham, laws must be made to cause the greatest happiness of the greatness majority of the people.

The truth is: the new policy has not necessarily addressed the issue of insecurity and danger to our collective health. It has also not helped to reduce traffic congestion; it has in fact worsened it. To be blunt, the policy has foisted more hardship on not just the operators of Okada and tricycle, but also the entire people of Lagos State, particularly those who cannot afford to own a car.

The argument that the government has provided a few additional buses few days after the implementation of the policy presents a case of placing the cart before the horse and therefore, lame. If the government had meant well for the people, it should have created a working and clear-cut alternative, before the implementation, so that the absence or restriction of the subject matter would not really tell on the masses. Lamentably, Lagosians whose only transportation reliance are bikes and tricycles are made to undergo serious pain and hardship as there are no realistic alternative in place provided by the government.

Worrisomely, if the government is to ban or ensure strict regulation of anything in Lagos, it should be the reckless trailers and trucks that kill the people on a daily basis without consequences. Section 45 of the State Transport Sector Reform Law prohibits any trailer other than petrol tankers and long vehicles used in conveying passengers from entering into or travelling within the metropolis of Lagos between 6.00am and 9.00pm. One can only imagine the huge benefits, if this particular provision of the law is implemented to ensure the safety of our people. It is however sad the government is not in any way looking at this direction.

The right to means of livelihood of many is already displaced and endangered by this policy. Without providing a workable alternative for the operators, the ban is another way of institutionalizing poverty and skyrocketing crime rate. An idle hand is the devil’s workshop, so they say. The government cannot just urge them to get a more “decent job” without providing alternatives. It wouldn’t work.

Or was it not the people in government who gave out most of the motorcycles and tricycles during election seasons as “empowerment programmes”?

In the final analysis, it must be said that a Mega City is not achieved by unrealistically foisting policies on the people. Becoming a Mega City is a process and thereby systematic. The necessary clogs must be appropriately resolved before a policy like this can be fully implemented and sustained. The clear cut means of getting people to their destinations, in the absence of Okada and Keke, must be one the government should first address before getting to place the illegal ban. If care is not taken, the policy would invariably hinder the fundamental right to freedom of movement guaranteed to all Lagosians by the Constitution.

As argued in the beginning of this piece, the Lagos State Government lacks the power in law to place an outright ban on the operation of Okada in the major highways. The government is thereby urged to unconditionally lift the ban and put in place a workable and pro-people strategy in order to generally regulate transportation in Lagos. If this is not done as a matter of expediency, disaster looms.

Eko oni baje o!                                                                  

Festus Ogun is a Lagos Lawyer-in-equity, Human Rights Activist and Constitutional Law Enthusiast. [email protected] 09066324982