Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Should Lagos State reintroduce monthly environmental sanitation exercise? 11 Jul 2019

Lagos State Governor Babajide Sanwo-Olu

The Lagos State Government (LSG) asked in a Twitter poll it conducted on 1st of June, 2019: “Should the Lagos State Government return Saturday sanitation exercise?” This led to rumours that the new Governor of Lagos State, Babajide Sanwo-Olu, had signed an executive order reintroducing the erstwhile regulation, which restricted movement on the streets every last Saturday of the month between 7:00am and 10:00am for the purpose of environmental sanitation.
The rumours were later denied by Gboyega Akosile, the Deputy Chief Press Secretary to the governor. Akosile stated that though the governor signed an executive order on indiscriminate dumping of waste in the state, the conversation on the return of the monthly environmental sanitation exercise was still a proposal. As at the time of writing this article, it remains a proposal and, hopefully, one that would be disapproved.

It is commendable that the governor hit the ground running by putting in place regulations to tackle two major challenges in Lagos, namely environmental pollution and road traffic violations. Hopefully, there are deeper reforms in the works.

Meanwhile, it would appear most voters who participated in the poll on the twitter account of the LSG favoured the return of the sanitation exercise. The final results show 6,467 people voted, out of which 68 per cent voted Yes, and 32 per cent said No. There are, however, very good reasons the governor should resist the temptation of reintroducing the defunct regulation.

Returning the environmental sanitation exercise, which would involve restricting the movement of Lagosians on the last Saturday of every month, would amount to an illegal and unconstitutional act as already declared by the courts. It would also negatively impact the economy of Lagos. As already been noted by other commentators, the reinstatement of the regulation would unlikely be effective in achieving the aim of a cleaner Lagos.

Before the suspension of the exercise in Lagos, particularly on the 25th of May, 2013, Faith Okafor was arrested by officers of the Kick Against Indiscipline (KAI) brigade for violating the restriction of movement directive. She was arraigned before the Special Offences Court on a charge of wandering, loitering and walking about in defiance of the compulsory monthly environmental sanitation exercise. She pleaded guilty and was fined the sum of N2,000.00. She, thereafter, filed a court action against the Lagos State Government and the Attorney General of Lagos State alleging that the actions of the officers of KAI amounted to an infringement on her rights to personal liberty and freedom of movement, and a violation of her dignity as a person.

Whilst her action failed at the High Court of Lagos State, the Court of Appeal, in a judgment delivered on the 4th of November, 2016, found the directive on restriction of movement unconstitutional and illegal. The reason for the court’s decision is very key, namely the non-existence of a law codifying the offence for which Okafor was charged and convicted. The court was emphatic that the directive of the governor did not equate to law.

Hon. Justice U. A. Ogakwu, in reading the lead judgment, said: “I find worrisome the contention of the Respondents that the directive of the Governor can be equated to a Law for which criminal sanctions will lie, and a person tried and convicted for the offence of violating the directives of the Governor.… I shudder at this submission which in its elastic ramification takes us back to the dark ages of the Hobbesian state of nature. Section 36 (12) of the 1999 Constitution provides that a person shall not be convicted for a criminal offence unless that offence is defined and the penalty therefore prescribed in a written law. The Respondents while conceding that there is no written law restricting movement of persons on environmental sanitation days and making it an offence argue that the restriction still remains valid having been directed by the Governor. I find it shocking that the disobedience of the directive of the Governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the Appellant and the fine imposed on her.”

The court, therefore, held that the infringement on Okafor’s right to freedom of movement could not be justified under the provisions of Section 41 (2) (a) of the 1999 Constitution. The court concluded the judgment in the case by making a declaration that in the absence of a written law prescribing the same, the LSG’s directive for people in Lagos to stay at home and not move about, thereby, restricting movement of persons within the stated hours on the last Saturday of every month is unlawful, illegal and unconstitutional.

Any executive order issued by Governor Sanwo-Olu to restrict movement for the purpose of environmental sanitation would be deemed unconstitutional in light of this judgment. And any attempt to enforce the said order would leave the state exposed to litigations on fundamental rights applications relying on the judgement in Okafor’s case. It is uncertain whether or not the LSG appealed the judgment to the Supreme Court. Even if it did, this judgment is still valid and capable of enforcement against the government until it has been set aside by the Apex Court.

Even more importantly, an executive order reinstating the compulsory monthly environmental sanitation exercise would amount to disobedience of the subsisting orders of the court. The Court of Appeal expressly restrained the LSG from further restricting Okafor’s or anyone’s movement on the basis of environmental sanitation without a written law prescribing the same.

Governor Sanwo-Olu, therefore, has two options: He should either await the decision of the Supreme Court on the matter (if Lagos State appealed the judgment) or forward a bill to the House of Assembly to enact the restriction into law.

But to what extent would such a law actually achieve a cleaner Lagos? Lagos’ environmental challenges are Nigeria’s problems writ large. It isn’t so much about the non-existence of laws as it is the lack of enforcement of existing laws. Lagos State already has the Environmental Sanitation Law.

Under this law, owners, tenants and occupiers of buildings are to ensure the cleanliness of their premises, particularly the backyards and the courtyards. They are to clean and maintain their drains, provide suitable holding tanks for liquid waste and sewage, which must be regularly evacuated and disposed. They are also required to provide and use suitable dustbins, which must not leak and must be tightly covered at all times and kept within the premises.

Commercial drivers are mandated to provide litter bins for their passengers. The passengers as well as pedestrians are mandated to use these bins to dispose scrap paper, newspapers, candy wrappers, fruit skins and any other litter they generate in transit. Operators of restaurants, hotels, nightclubs or schools are to ensure the cleanliness of all toilets and bathrooms within the premises. Remarkably, the law does not provide only a certain time of the month when these duties are to be performed.

The Environmental Sanitation Law of Lagos State forbids the use of roads, streets or building setbacks as mechanic workshops. Displaying, selling or buying of goods on roads, rail tracks, bridges and setbacks are also prohibited by the law. Other prohibitions in the law include defecating or urinating in the drainage or any open space; organizing or holding social parties or religious activities on major roads; and allowing cattle, goats, sheep or outer animals to roam on the roads or any open spaces. Nevertheless, these occurrences are regular sights in Lagos as the law is violated continuously with impunity.

Of crucial importance is the provision where the enforcement of the law is to be done by officials of the local government councils (LGCs) and the Ministry of Environment and Physical Planning (MEPP) . Private refuse collection operators are to register with the local governments and obtain a licence from MEPP. Such operators are regarded by the law as contractors of the LGCs.

The voluntary Environmental Sanitation Corps (ESC) created under the law, is mandated to educate and mobilize people for environmental sanitation exercises. ESC personnel are expected to render assistance and give useful information in respect of waste collection and disposal; and they are to assist with clearing refuse from public buildings, motor parks and gutters.

The governor must, thus, hold the chairmen of LGCs responsible for the cleanliness of the environments in their jurisdictions. He must not singlehandedly attempt to tackle the issue with executive orders, mostly for sound bites. The LGCs should be empowered with the necessary technical and financial capacities to enforce the existing law in a civil manner. As the law clearly states, enforcing the law should not be about weaponizing it to penalize offenders. It is also to foster the education of the people and provide the necessary amenities to help people live in a cleaner and habitable Lagos.