LEGAL MATTERS: Vendors: The new colonialists

It is very clear that the Harare Central Business District has been colonised by certain persons calling themselves “vendors”.

In that respect, I wish to discuss the legal issues at play in as far as vendors and vending are concerned.

In my view, it is essential that I begin by defining the purpose of law and what it is.

The purpose of law in any society is to regulate the conduct of the people that make up that society as well as to guarantee social order. Otherwise without law, chaos and confusion will reign. But then, what is law and who makes it?

Professor Lovemore Madhuku in his book “An Introduction to Zimbabwean Law”, has said with admirable clarity that, “Law refers to rules and regulations that govern human conduct or other societal relations and are enforceable by the State. It is the quality of enforceability by the State that distinguishes law from other rules.

There are, of course, other rules that govern human conduct such as moral rules, religious directives and organisational rules. These other rules may even be more effective in ensuring compliance with a particular type of conduct. They may even be more acceptable.

However, it is not the effectiveness of rules or their goodness/badness that determines the legal quality. It is, in fact, the sole factor of enforceability by the State that determines whether a rule is law or not.”

In Zimbabwe, as is the case in the vast majority of states throughout the world, law is made by Parliament. Because the procedure involved from the conception of a law to when it eventually sees the light of day is long and cumbersome, Parliament saw it fit and convenient to delegate some of its law-making powers to certain other public bodies such as the President, Ministers, Municipalities and the like.

Further and in any event, the sheer numbers of laws that have to be made from time to time make it impossible for Parliament to be the sole maker of law.

So, this is how you get to hear that such and such a Minister or local authority has made a Statutory Instrument to deal with a particular situation.

Hence it was with the law-making power given to it by Parliament that the City of Harare in 2014, enacted Harare (Vendors) By-laws 2014, better known as Statutory Instrument 159 of 2014. Though legislated by a local authority, its effect is just as good as any other law made directly by Parliament itself.

The said Statutory Instrument 159 of 2014 is the tool with which the City of Harare is supposed to deal with or manage the vendors operating within its jurisdiction.

In its definition section, the Instrument describes a “vendor” as “any person who is a holder of a permit or lease agreement issued in terms of Section 5 and carries on the business of selling goods or foodstuffs within a vending site.”

A “vending site” is defined as “any land or premises set aside by the Council for the purpose of providing a place for the sale of any goods or foodstuffs and shall be classified into various categories as specified in the First Schedule.”

That is the law as it is laid down.

Now the questions that arise are whether the persons calling themselves “vendors” in the Harare CBD fit into the definitions above and if not, what then does it mean from a legal perspective?

To answer the first part, I think there is no doubt that the persons operating as vendors within the CBD do not fit into the above definition. I do not believe that the City has issued permits to all those hundreds if not thousands of “vendors” who have occupied and made the CBD their territory.

With regards to the second part, it is obvious that the spaces occupied were not set aside by council as places for the sale of the vendors’ wares. These people are just operating from every available space which they have appropriated to themselves. These are pavements, street corners, traffic intersections and right along the roads themselves and parking lots, and so on.

If a motor vehicle was to knock down or run over an airtime vendor or beggar operating at a road intersection, the driver is bound to be prosecuted notwithstanding that the victim would have placed himself in harm’s way by pursuing an illegal enterprise at an illegal and dangerous site. This is most untenable because even if that driver is eventually acquitted, the inconvenience, costs and stress of the trial are really undeserved.

We all know that the “vendors” are selling virtually anything ranging from contraband such as dangerous poisons and drugs, blankets, fruits, vegetables, shoes, clothes, text books to cellular phones, computers, music CDs and the like.

In as far as textbook and music CD vendors are concerned, I think there is double jeopardy there.

First, the books and CDs are pirated and, therefore, infringe on the copyrights of the creators of those works.

Second, the items are being sold illegally and from illegal sites. The same can also be said of the clothes vendors as stories of “mabhero” being smuggled into the country are abound. This is unacceptable.

Everyone in Harare knows that you can no longer freely walk along Robert Mugabe Way, Chinhoyi Street, Jason Moyo Avenue, “Ximex Mall”, Fourth Street and almost all the roads at the heart of the city because all the pavements have been taken over by the so-called vendors.

In fact, there is no longer any space to walk in most of the pavements in the CBD as the “vendors’ are now in total control.

Pedestrians now have to battle it out with traffic in the main roads, thereby risking being run over as the roads are now also clogged with the heavy traffic, particularly during rush hours. Chaos is definitely reigning.

I have not mentioned the new type of vendor that emerged in recent years in the form of small cars, popularly known as “mushika-shika” plying the Fourth Street to Copacabana, City to Avondale routes, etcetera. What of the game of snooker being played right in the middle of pavements? God help us!

What all this means is that the thousands of people masquerading as vendors in Harare are just but a group of persons pursuing unlawful enterprises in the full glare of the city council. I would bet my last bond coin that the real vendors are only a tiny minority. And by minority I mean those who have paid the requisite fees for the permits and have been allocated operating space by the city authorities in terms of the Instrument.

So, if the proper position is that the “vendors” are operating illegally, it follows by logical reasoning that the “association” that they formed to represent their interests is consequently also unlawful.

It is surprising that there have been Press reports that the said vendors’ association meets with the city fathers from time to time to discuss vending sites and other issues.

In fact, it was at one time reported that meetings have been held between the “vendors” themselves and council officials to try and find solutions to “their problems”.

In my view, this is akin to drug peddlers forming an association then seeking to engage the Minister of Justice to try and legalise their nefarious enterprises. This shows that someone somewhere is not being serious with this issue.

One of the reasons put forward by the “vendors” for refusing to relocate to the designated sites is that the council has not supplied certain essential infrastructure such as toilets but then is that infrastructure available at their present operating spaces? What are these people saying?

Instead of engaging the “vendors” in meetings, council ought to proceed in terms of the power given to it by the law and that is to cause the prosecution of the “vendors”.

In terms of the Instrument, a person found guilty of contravening certain sections of it may be imprisoned for up to a maximum of one year.

While council has been busy negotiating with the vendors, two groups of stakeholders have endured the adverse effects of the presence of the illegal vendors on the streets.

The first group is that of pedestrians as already said.

The second group is those entrepreneurs that have shops within the CBD. It is well known that these businesses have to pay certain fees to council for them to obtain operating licences.

So, council derives revenue from them yet it does not get any income from the illegal vendors.

Having paid council, the fees for operating licences, the same council allows the so-called vendors to operate right at the door steps of the legitimate shops that pay council.

This is most unfortunate and council is accordingly implored to take the bull by the horns and enforce the law as it is laid down so that sanity returns to the city.

Did I mention that besides council licence fees, the affected businesses also have other running costs such as wages, taxes, electricity, cost of stock and money? And what costs are incurred by the “vendors” except stock and transport? I see an injustice there.

I stress though that I have great sympathy and empathy for the plight of the people selling their wares unlawfully in the CBD, particularly in these harsh economic times. However, can we, as a nation, look the other way when the law we have set for ourselves is not being followed? It is vitally important that we draw a line between emotions and the law.

All I am saying is that when we have made a law, we must follow and live by that law. If we wish not to do so, then the only option is to change that law or remove it from our statute books altogether. To do otherwise conflicts with the very purpose of law as set out at the beginning of this article. If we feel that the law is bad or is not serving any useful purpose, then it is entirely in our hands to delete it from our books as said above.

Otherwise, so long as the law is still in our books, we have absolutely no choice but to abide thereby. After all, it has been said throughout history that when you have made your bed, you must lie on it. Whether the law is good or not is not the issue, it must nevertheless be enforced.

Perhaps igniting an all-out “war” by the use of force and confrontation against the vendors may not be the best approach because innocent parties may be caught in the cross fire unnecessarily. I suggest an amendment to the law.

I propose making it an offence to buy anything from an illegal vendor. If the illegal vendors know that both themselves and their customers will be fined or prosecuted, they will stay away from the CBD for there will be no point in proceeding to town where there will no longer be any business.

They are coming to the CBD now because they know their wares will be bought. As for the mushika-shikas, arrest and fine the passengers as well. But is this possible, can this be done? I say, definitely yes as this is not new.

In matters to do with corruption, the position is that the one who offers a bribe is as guilty as the one who receives the bribe. Why not do the same with illegal vending?

 

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