Response to the new Lagos traffic law

Road Traffic: This Law is an Ass

by Chinua Asuzu, Assizes Law Firm

The attention of our law firm has been drawn to the Law and Order Public Notice issued by the Lagos State Government and advertised on page 8 of The Guardian of June 9, 2008.

Our first reaction is to commend the Lagos State Government for its new policy and practice of bringing certain of its key laws, policies and programs to the attention of the general public. The Federal Government and all state and local governments should emulate this practice. In the context of our democratic transition, it is a very wholesome and most welcome development. True democracy includes access to and freedom of information. The public's right to know, coupled with the state's duty to disseminate information, are vital components of a democracy. Of course the mere publication of the key features of some pieces of legislation does not by itself mean that democracy has arrived, but it is a significant and progressive step in the march to democracy. For this step in our long journey towards democracy and good governance, we salute the leadership of Lagos State. In particular, we commend the Governor and the Attorney General.

Lagos State is on a path to reform. The anxiety and rush of the Fashola Administration to pursue and prosecute its admirable reform agenda can cause difficulties and create complications. Some of these difficulties and complications we should bear, others we should resist. The passage, implementation, and potential repercussions of the Road Traffic Law are among those deserving of citizen resistance. In law and order reform, more haste, less speed. This is because a rushed reform programme cannot be sustainable, thus creating the need for a later Administration to retrace the steps already taken. In the fields of law and justice sector reform, especially and order law-making and implementation, major mistakes can easily be made.

The Road Traffic Law of Lagos State whose key features were advertised in the press is one such mistake. We have not read the law, but we feel we can submit these preliminary objections at this stage because of the source of the publication- the Ministry of Justice and the Ministry of Information and Strategy. These are authoritative and reliable sources, and in view of the involvement of the Ministry of Justice, we can regard the publication as a fairly accurate summary of the contents of the statute.

Vicarious Liability in Criminal Law

The law stipulates vicarious liability for owners of vehicles with which road traffic offences have been committed. This is unsound in criminal law. Every adult offender should be personally liable for his crime. Not only is each adult personally liable for his crime, he is also solely liable for it, except in cases of aiding or abetting, conspiracy and the like, in which case the aiders, abettors and conspiracies have each committed crimes anyway- so that the principle of personal liability remains inviolate. Such "exceptions" are not relevant in the Road Traffic Law under review. It purports to impose criminal responsibility on innocent parties. Our legal system does not, as a general rule, countenance vicarious liability in criminal law (it does in tort). Whatever exceptions there may be to this rule are not relevant in the context of the Road Traffic Law. Upright judges would be constrained to find the offending driver not guilty in order to avoid punishing the innocent owner.

The Punishment must Fit the Crime

Various theories of punishment have been propounded by criminologists and penologists. These theories are not mutually exclusive; several of them could operate together in a given sentencing context. No matter which of the theories operate(s) in the mind of a criminal law draftsman or a judge in prescribing or imposing sentences, the one principle upon which virtually all criminologists, penologists, criminal lawyers and sociologists are agreed upon is that the punishment must fit the crime. In other words, the punishment must be proportionate to the kind and degree of crime committed by the offender. Here the kind of crime is traffic offence, a regulatory misdemeanour; the degree may range in severity from reckless driving causing no damage or injury to manslaughter by dangerous driving.

In criminal law, traffic offences are classed as regulatory offences, the least serious of criminal conduct. They are mala prohibita (they are wrong because they are prohibited; they are acts which are made offences by positive laws, and prohibited accordingly). This species of criminality is usually less serious than mala in se (crimes which are wrong in themselves, or evil, like rape). Mala in se crimes are wrong irrespective of legislative prohibition, although of course they are forbidden by positive law.

The fines imposed by the Road Traffic Law of Lagos State are excessive. They are too severe and are not at all commensurate with the regulatory offences in question. It is like using a hammer to kill a fly, not even a fly on a solid wall, but one perched on your TV screen.

All over the world, traffic offences are deemed to be among the most minor of crimes and are, and should be penalized accordingly. Terms of imprisonment are completely inappropriate for most traffic offences, except in aggravated circumstances. The fines themselves should thus be minimal and realistic having regard to the average income of the community for whom the law is made.

The Option of Fine must be Real

Regulatory offences such as traffic violations are usually punished by minimal fines. The amounts of such fines must take into account the average income of the working class in the jurisdiction. The fines should not be so high as to make any options of imprisonment inevitable in most cases. The fine option must be a real option, in fact the preferred option for the legal system. It must be capable of being exercised, or chosen, or elected, or opted for, by the average offender. The fines should be such that the average Lagosian or Nigerian can afford to pay. The criminal law cannot be deployed merely or mostly for increasing the Internally Generated Revenue of Lagos State. Any terms of imprisonment imposed must also be comparable in severity to the amounts of the fines. Finally, the punishment must fit the crime. In the few instances where imprisonment should be stipulated at all, the terms of imprisonment must be very short (a matter of a few days), again always with options of small fines.

Equality before the Law

The heavy fines stipulated in the law would foster too much inequality in its implementation. Poor offenders would go to jail, while rich ones walk. Further on equality, we hope the law will be enforced against police and senior government or public officers, who are the worst offenders of traffic laws and rules.

Passenger Liability?

The Road Traffic Law prescribes punishment for innocent passengers in vehicles driven by offending drivers. This clause is completely indefensible, unsupportable and unsustainable and should be urgently repealed. Upright judges would be constrained to find the offending driver not guilty in order to avoid punishing the innocent passenger. Our criminal law does not punish a person who has done no wrong. A passenger cannot be expected to wrestle with a reckless driver and thereby worsen the already dangerous situation.

Impounding Vehicles

The penalty of impounding or seizing vehicles is totally unnecessary and unduly militaristic, and might be found to violate section 44 of the Nigerian Constitution. The logistics of warehousing or parking seized vehicles would be nightmarish. Who would be responsible for damage to or loss of the vehicle, its parts or accessories? Would the Lagos State government employ special watchmen to look after seized vehicles? How would such seizure fit into the overall legal system? What happens if an appeal against the decision succeeds?

For Whom is this Law Made?

The Road Traffic Law appears to have been enacted exclusively for the state, rather than for the society or for both. Its emphasis and focus betray a shocking emotional distance between the Lagos State and its citizens for whose benefit and in whose interest the law ought to have been made. It reads like a Papal Bull of Excommunication or a pronunziamento imposed by a foreign despot on a conquered race. It is draconian beyond belief and does not reveal social welfare as its intendment. For instance, it does not include or emphasize safety concerns. The law does not stress the use of helmets by okada riders, nor does it place appropriate emphasis on the use of seat-belts by drivers.

Actual versus Potential Mischief in (Criminal) Legislation

The Road Traffic Law has failed to draw necessary distinctions between potential and actual mischief in penal legislation. It punishes the potentiality of mischief as severely as its actuality. It does not establish a varying schedule of punishments for the same conduct when it has varying degrees of consequences. For example, if I drive on the wrong side of the road but cause no harm for anybody, that is admittedly a traffic violation and an offence against the Law, but the punishment should be lighter than when I cause injury or damage to persons or property by my illicit driving.

Lagos State Should Deploy Tough Love

Lagos State should be interested in commanding willing respect of its laws rather than frightening people into obedience. Lagos State should also spend many months and many millions of naira educating its citizenry on road traffic rules and ethics. For the past several decades in Nigeria, drivers' licenses have been issued without driving tests, eye tests, or health tests. The result is that we have many drivers in Nigeria, mostly in Lagos State, who do not even know simple rules of the road, like giving way to traffic on the left, or the difference between speed and slow lanes, or speed limits. Reform should start with setting and monitoring criteria for driving schools, taking care in the issuance and renewal of driving licences, and in educating both old and new drivers on the rules of the road.

Offenders are members of the community and remain so even after they have offended. Their loyal, participatory, and trusting membership of the community is of tremendous social value. Where one man returns from jail for a traffic offence, or empties his bank account or borrows from his extended family to pay a traffic fine, only to observe another who has robed the state treasury go virtually unpunished, Wole Soyinka's rhetorical question becomes poignant: what sort of society is one a part of?

Road Traffic Education: Ignorance of the Law

Although ignorance of the daw affords no defence in criminal law, four points must be noted in the context of this oft-misquoted maxim.

First, ignorance of the law may operate to negate intention or other requisite mental element of an offence, and all offences including even strict liability and regulatory offences contain a mental element. Such a mental component may not attain the full definition of mens rea, but a naked actus reus discloses no crime.

Secondly, ignorance of the law should at least ameliorate criminal responsibility.

Moreover, we often forget that ignorance of fact is an excuse in criminal law (the maxim is: ignorantia facti excusat). A person who drives in the wrong direction on a one-way street without knowing it is a one-way street has committed no crime. His ignorance is of fact, not of law. But if he drove that way without knowing it is against the law to drive like that, he has offended, his ignorance being of law.

Finally, we must remember the rationale behind this doctrine ignorantia legis neminem excusat (ignorance of the law excuses no one). It is not an arbitrary rule. The reasoning is that if ignorance of the law were to be tenable in defence, that would raise major difficulties for a jurisdiction. In the first place, it could afford an escape for numerous defendants by their merely claiming ignorance of the law they have violated, especially if the burden were on the state to establish that the defendant knew the law. Secondly, it would impose an unrealistically heavy encumbrance on the state to bring the law to the actual (not merely constructive) notice of all citizens. In light of these bases for the tenet, where a judge is convinced that a particular defendant in a given case did not know the law he had violated, or that what he had done was contrary to law, and that it was reasonable in the circumstances for him not to have known, then that would surely influence the judge's decision, if not on guilt, then certainly on punishment.

Deterrence

No doubt the Lagos State Government had the noblest of motivations in proposing and passing the Road Traffic Law, but this is one of those instances where the road to hell is paved with the cobblestones of good intentions. Deterrence and the desire to sanitise road transport and traffic in Lagos must have actuated the legislation. The idea might have been to make the fines so heavy that nobody would offend. Such an idea would disclose an unfortunate illiteracy on sociology, social psychology, social engineering, and public policy. Saying that people who find the sanctions too severe should avoid breaking the law misses the point of penal legislation and public policy.

Realism in penal legislation includes a recognition that crimes will be committed, that prohibited conduct will nevertheless be perpetrated, and that no matter how badly we desire a crime-free society, we will never attain it this side of heaven.

A long line of criminological and psychological research has consistently shown that excessively severe penalties are of little deterrent value in criminal law. Subconsciously such penalties are not really believed, at least not in reference to the individual offender. Psychology teaches us that human beings tend to "disown" (in other words say to themselves that this could never happen to them) extreme repercussions, like death, death penalty, HIV/AIDS. This explains why, with all the campaigns about HIV/AIDS, billions of people still have unprotected sex. It accounts for the average human's greedy and selfish pursuit of career advancement, power, sex and wealth, even into old age and even in ill health. Although we know we will die, we do not really believe it. It is too extreme an event to be contemplated, so we discount or discountenance it.

Armed robbery rates will go down if the penalty were life instead of death- I mean life imprisonment of course. It would then be believable- the would-be able armed robber would dread the prospect of life behind bars. Human beings do not dread death; they dread life.

A Daniel Come to Judgment

The Nigerian legal system is based on common law jurisprudence. Our judges and lawyers are trained and learned in this school of law. Their training and orientation inhibit the imposition of excessive penalties or penalties incongruent with the legal system as a whole. Imagine a judge imposing a N2,000 for a certain offence at 10 a.m., only to be expected to impose a N250,000 for what he knows to be a much milder infraction at midday. To avoid imposing that penalty, about which he has no choice, he simply finds a loophole to find the defendant not guilty, so that he can sleep at night or be able to say "Amen" at the end of the family prayer. This judicial dodge is as old as Methuselah. Long time ago in the history of the English law, an overzealous government wanted to "stamp out" crime, and to do so passed a law prescribing heavy penalties for all classes of offences, including the most minor. The English judges, unable in good conscience to impose such punishments, kept finding defendants not guilty, to the chagrin of the Crown. There is such a thing as a common law conscience.

Legislative Criteria

Legislation should never be passed merely to express moral censure or the sensibilities of a few members of the government of the day. Factors that should be considered before legislation is proposed would include:

· the experience of the society and other societies with similar legislations,
· the compatibility and logical coherence of the bill with extant statutes in the polity, in other words, its congruence with the legal system, and
· the availability of resources for implementing the statute vis-à-vis the competing demands for those resources.

None of these factors favours the passage or sustenance of the provisions of the Road Traffic Law.

In other societies including other Nigerian states, traffic offences are among the most minor of crimes, punishable with relatively low fines.

Secondly, the Road Traffic Law is at variance with the general law of the land, as is submitted below.

On priority of demands on law enforcement resources and corrections facilities, Lagos and Nigeria cannot afford the prison space for incarcerating road traffic offenders while armed robbers roam the nights. Lagos and Nigeria cannot afford the parking and warehousing space for impounded vehicles, or the loss in revenue to the society by the suspension or cessation of offenders' businesses conducted with vehicles. Lagos and Nigeria cannot afford the law enforcement and judicial time to prosecute and enforce the Road Traffic Law as presently constituted, while major crime cases are being adjourned for lack of judicial time.

Synchrony with Extant Regime

The Criminal Code Law of Lagos State and other statutes with sanctions clauses prescribe milder sentences for offences more serious than the traffic violations dealt with by the Road Traffic Law. A perusal of the Criminal Code will reveal more serious crimes punishable with much lesser fines than are stipulated for traffic peccadilloes.

Tough Times Never Last

Harsh legal regimes never last. They are intrinsically unsustainable. There is no buy-in. A future governor, or a future attorney general, or a future legislative session, will swing the law to the other extreme, making road traffic offences virtually guiltless. This is inexorable law of history which has been observed in human society throughout the millennia. Whenever a tough, revolutionary change is introduced in the law in a sudden or revolutionary rather than a gradual or evolutionary manner, an opposite force is waiting in the wings to undo the "damage".

Murtala Muahmmad came to power to "eliminate" corruption overnight. Some bad guys were waiting in a dark alley to wipe him out. The Buhari/Idiagbon War Against Indiscipline petered away after a few months, and Babangida knocked them into oblivion to institute a farcical human rights era, releasing all those locked up by Buhari for corruption. This law of history brought an abrupt end to the reign of bullish Bamaiyi at the NDLEA. It has now eclipsed the frenetic career of Ribadu at the EFCC.

If the Fashola Administration pursued a ruthless regime of law and order, no matter how well meant, Lagosians would chafe under his government and yearn for change. He would lose the 2011 elections just because some moron comes promising to soften the law. From the trends so far, I would prefer to see Fashola re-elected in 2011. I therefore counsel gradual, evolutionary changes (which attract acceptance) rather than sudden, revolutionary ones (which invite resistance).

When young King Rehoboam, rejecting wise elderly counsel in preference to foolhardy younger counsel, threatened a harsh regime of law and order in Israel, the Israelites resisted him, saying, "What portion have we in David? We have no inheritance in the son of Jesse: to your tents, O Israel: look now to thine own house, David." So Israel departed unto their tents. (1 Kings 12:1-16)

Conclusion

The Lagos House of Assembly should urgently repeal the law. Among many other changes, terms of imprisonment should be removed entirely, and fines reduced to an average of N5,000, with higher fines being imposed depending on the severity, aggravation or consequences of each traffic offence. Liability of owners and passengers should be deleted, except where culpability is proved. Requisite mental elements should be incorporated, with such adverbs as "carelessly", "knowingly", "maliciously", "negligently" "recklessly", "without lawful justification" etc. Otherwise, a traffic violation committed in order to avoid a greater evil, like waiting armed robbers, would be punishable as crime. To make the prosecution's work easier in deserving cases, the burden of disproving the guilty mind may be placed on the defendant, rather than requiring the state to prove the presence of that element. Finally, in reviewing the Road Traffic Law, the draftsman should study earlier legislations with clauses governing or relating to conduct of road traffic.



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Chinua Asuzu
Office: +234 (0)1 791 1575, 804 2343
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