Abayomi Williams undertakes a constructive critique of Lagos Traffic Law, outlining positive and contentious issues contained therein
For the purpose of clear understanding of the content of this piece, it has been broken into the following segments:
Philosophy/Sociology of the Traffic Law
Lagos State has a population put conservatively at 15,000,000 persons. About 12,000,000 of this population live in the city of Lagos making Lagos the fourth or fifth largest metropolis in the world. The city of Lagos has 224 vehicles per kilometer compared to a world average of 24 vehicles. The Nigerian Federal Road Safety Corps (FRSC) indicated a 20 per cent increase in the rate of road accidents all across the country with Lagos accounting for the largest proportion.
The Lagos State Traffic Management Agency (LASTMA) recently released alarming statistics indicating that over a period of two years, 619 persons were either killed or seriously injured in road accidents. Of this total of 619, 107 were killed whilst 512 were seriously injured. And of the total of 107 persons killed, 71 were males and 36 were females.
Specific reference was made to motorcycle riders as among those involved in various accidents. In 2011, the number of accidents was 271 (with 47 killed and 98 injured). In 2012, the number of accidents was 171 (with 63 killed and 59 injured. It is tempting to assume that these figures were possibly contrived by LASTMA to justify the new traffic law.
However, the figure corresponds with independently assembled statistics by the Nigerian Police. Police figures show that over the same two year period, 513 fatal motorcycle accidents were recorded- 305 between January and December 2011, and 208 between January and June 2012.
Now turning to the vital issue of security of lives and property relative to this class of road-users, the motorcyclists popularly called Okada- Police records reveal that 30 armed robbery cases were recorded between July and September of 2012. Of the armed robbery cases, 22 involved motorcycle riders. A further breakdown of the armed robbery figures is instructive. In July, there were eight robbery cases, seven involved Okada riders; in August, eight robberies and five involved Okada riders. In September, were 14 robbery cases recorded and 10 involved the Okada riders.
Incidentally, a preponderant number of these criminal elements were not Nigerian citizens but nationals of neighbouring countries- Niger Republic, Chad etcetera.
Recently, about 100 motorcycle riders from the Niger Republic were deported for breaking new traffic law. Surely, no serious government would not draw a connection between the unchecked influx of foreigners and the possibility of a breakdown of law and order.
The beginning of the implementation of the new traffic law in November 2012, expectedly, triggered such a breakdown of law and order. The motorcycle riders, operating under the aegis of an organisation called the Nigerians Auto bike Commercial Owners and Workers’ Association, went on a rampage, attacking law enforcement personnel attempting to enforce the law. The motorcycle riders wanted their ban from about 495 routes in Lagos reversed. Yet, Enugu and several other states had totally banned the use of Okada without such terror being unleashed on the populace.
A Newspaper in its November 4, 2012 editorial noted the generally unruly behavior of the average Okada rider; they do not obey traffic signs and signals; they drive against the flow of traffic; they overload their often rickety motorcycles by carrying three passengers or unwieldy baggage; they refuse to wear crash helmets and if there should be any accident caused by their reckless maneuvering with a motor vehicle, hordes of other motorcyclists will descend on the unfortunate driver and assault him sometimes to the point of causing death. It is not uncommon to see motorcyclists taking alcohol, various types of drugs and narcotics.
However, we should not fall into the common error of assuming that the new traffic law is all about Okada riders. This is far from the truth. Indeed, of the 40 odd sections of the traffic law, only Section three which has eight subsections deals specifically with motorcycle riders. Anybody who has spent some time in Lagos will quickly realise that Lagos motorcyclists are clearly amongst the worst in the world in terms of their road culture, respect for traffic laws and respect for other road users.
Overview of the Law
A pertinent question arising from our observations in the concluding part of the last segment is: who can commit offences under the new traffic law? Or put in another way, what classes of persons are affected by the traffic law? In our view, the traffic law is addressed generally to all motor vehicle drivers who ply our roads. A “motor vehicle” is defined in Section 41 of the law as “a mechanically propelled vehicle intended or adapted for use on the road.”
A further breakdown of motor vehicle drivers reveals that they include commercial vehicle drivers. Trailer drivers are also governed by the law. A “trailer” is “a vehicle drawn by any motor vehicle but does not include a side-car attached to a motorcycle.”
Clearly, many motorists will welcome the attention given by the law to trailer drivers, given the often severe accidents they cause on the roads when they spill their heavyweight loads, thereby crushing unfortunate vehicles around them.
Section 24 of the Criminal Code and a fortiori; the common law doctrine of Mens Rea is replicated under the new Criminal Law of Lagos State 2011 in Section 24 thereof. The Road Traffic Law of Lagos State largely conforms with the theory of “fault” as the basis of criminal liability as many of the offences created under the Law (as we have seen in Segment II (B) above) creates direct liability for the offender.
Vicarious Liability Offences
“Vicarious Liability” means holding a person liable for an offence actually committed (in the main) by another person. For example, Section 8 (1) of the Road Traffic Law provides that: “Where a motor vehicle is stationary or abandoned on a highway or street or near private premises…
Section 8 (2) “The owner or occupier of the premises adjoining the highway or private premises where the vehicle is stationary or abandoned shall lodge a report of such vehicle to the nearest office of the Authority…
Section 8 (3) “Where the owner or occupier of premises adjoining the highway or private premises fails to make a report of the stationary or abandoned vehicle to the Authority or to a Police Station within 48hours, he shall be guilty of an offence and on conviction liable to a fine of N25,000.”
Now this is a unique situation in which a duty usually regarded as a civil responsibility is now made a crime. Is it not an onerous responsibility to expect a man who has returned from work after hectic day to be peeping out of his window every now and then onto the highway or adjoining road to check if an errant motorist has abandoned his vehicle near his premises? One would have preferred that an enlightenment programme be mounted to encourage occupiers of premises to report abandoned vehicle instead of the substantial fine imposed upon conviction.
Another form of vicarious liability is imposed on a passenger of a commercial motorcycle where, under Section 3 (6), “a rider is convicted of an offence under subsections (1) (3) (4) of this section
(1)He rides on unauthorised routes (3)He fails to wear “standard protective crash helmet” (4)He carries more than one passenger or a pregnant woman or an under-aged person, or the passenger shall also be liable to the same penalty, provided the passenger is not a child.
In our view, unless all passengers are instructed to buy their own helmets for use when they hire a commercial motorcycle, it may be impossible that the helmet handed to him/her as he climbs on the bike is “standard protective crash helmet.”
A third instance of unjustifiable vicarious liability is that of Owners provided for in section 30: “Where a person (presumably a driver) is convicted of an offence in respect of overloading of a commercial vehicle or trailer or of driving a commercial vehicle at a speed exceeding that provided by law, then in addition to the person driving the vehicle at the time of the commission of the offence, if such person not being the owner of the vehicle, the owner of such vehicle shall also be liable and may be charged accordingly.”
Now, where then lies the logic of punishing the owner of a vehicle because the driver was caught over-speeding or overloading the vehicle? The man is an investor in transport business and is most likely not traveling with the vehicle at the material time; why must he be punished for the sin of his driver?
It is no consolation that there is a proviso to section 30, which states that: “provided that such an owner shall not be convicted of the offence if he can prove to the satisfaction of the court that no act or omission on his part was contributory to the commission of the offence.”
The proviso is not helpful because it places an unnecessary burden on him to prove his innocence contrary to the general rule of evidence that it is for the prosecution to prove all the elements of a charge against an alleged offender as stipulated in Section 137 of the Evidence Act. It is an unfair burden on an owner of a vehicle to be charged to court and bear the burden of proving that he had no hand in the driver of his commercial vehicle over-speeding or overloading.
Non-criminal Areas of Coverage
Despite the seeming extensive criminal liability created under the traffic law, quite a substantial part of the legislation does not create offences but merely provide instructions or guidance to road users, or in some other cases actually establish institutions and/or facilities for more conducive road use.
For example, Section five empowers the Ministry of Transport to close some highways in times of emergency. A situation where there is a dangerous situation on a particular highway in terms of damage to the road or where free passage is intended for an important government functionary could be a justifiable emergency.
There is a tendency for people to resist change however positive when considered holistically and isolatedly as many have tried to do. By and large, it is a modern law that attempts to capture within its provisions, the best international practices. Parts of the law are rather draconian in their stipulation. Traffic offences should not generally attract terms of imprisonment except where life and limb are endangered.
*Williams, a legal practitioner and Fellow, Chartered Institute of Arbitrators, lives in Lagos