Tints in Vehicle Glasses, You, Police and the Law (II)

Misbau ‘Mislaw’ Lateef

In this concluding part of our discussion on the above subject, it is worth refreshing our memories, first and foremost, that we did note in our Part I of the discussion that the National Road Traffic Regulations of 1997 (“N.R.T.R 1997”) being gleefully cited and relied upon by the police authorities to crack down on owners or users of vehicles with tints in their glasses had actually been repealed since 2004 and replaced with the National Road Traffic Regulations, SI 20, 2004 (“N.R.T.R 2004”) which came into force on 12th January, 2004.

The 1997 Regulations were repealed by the then Corps Marshal and Chief Executive Officer of the Federal Road Safety Commission, Major General H.A Hannaniya (Rtd). This clarification is necessary even as the present N.R.T.R 2004 is not substantially different from the repealed N.R.T.R 1997. In other words, the N.R.T.R 2004 is largely a mere nomenclatural change of name as it did not effect any fundamental change in the provisions of the previous N.R.T.R 1997 it repealed and replaced.

It must also be pointed out that whereas The Federal Road Safety Commission Act, CAP FI9, Laws of the Federation of Nigeria 2004 (“F.R.S.C.A 2004”) under which the N.R.T.R 2004 derived its legitimacy as a subsidiary legislation had been repealed and replaced with the present Federal Road Safety Commission (Establishment) Act No 22 of 2007 (“F.R.S.C.E.A 2007”). Notwithstanding the repeal, however, the N.R.T.R 2004 is still very much in force but now deriving its subsidiary authority under Section 5 of the F.R.S.C.E.A 2007 which empowers the Commission to make regulations on certain issues.

Meanwhile, the most comprehensive primary legislations in Nigeria today specifically on the issue of tints in vehicles glasses and/or generally on vehicles regulations are respectively the Motor Vehicles (Prohibition of Tinted Glass) Act, CAP M21 Laws of the Federation of Nigeria 2004 (Formerly Decree No. 6 of 1991) – (“M.V.P.T.G.A 2004”) and the aforementioned F.R.S.C.E.A 2007. It is from these two primary legislations (i.e. M.V.P.T.G.A 2004 & F.R.S.C.E.A 2007) therefore that the N.R.T.R 2004, a subsidiary legislation, derives its legitimacy.

A subsidiary legislation in law means and includes any proclamation, rule, regulation, notice or other instruments made by any constituted authority other than the parliament under or by virtue of a substantive Act of the parliament vesting, delegating or enabling such authority to so act. A subsidiary legislation in law derives its strength and authority therefore from the primary legislation. The primary legislation on the other hand refers to an Act of the parliament duly enacted, or in the case of Military Decrees, deemed to have been so duly enacted, through the proper legislative processes of law making.

It is however an elementary law that every act of a delegated authority, contrary to the tenor of primary legislation under which it is exercised, is void. In other words, no subsidiary legislation or act contrary to the tenor of the primary legislation under which it is made can be valid. Bearing in mind these expositions on law let us now examine the contents of the relevant primary legislations (i.e. M.V.P.T.G.A 2004 & F.R.S.C.E.A 2007) and the regulation (N.R.T.R 2004) prohibiting tints in vehicle glasses as stated above.

Section 1(1) of M.V.P.T.G.A 2004, a primary legislation as we have noted, prohibits tints in vehicle glasses except with the permission of the ‘appropriate authority’ and for ‘good cause’, by enacting to the following effects: “no person shall cause any glass fitted to a vehicle to be tinted, shaded, coloured lightly or thickly, darkened or treated in any way so as to render obscure or invisible persons or objects inside the car”. The ‘appropriate authority’ here according to the Act refers to the Inspector-General of Police (IGP) or any other person duly delegated by him, while ‘good cause’ means health or security reasons.

Two things are very clear from a literal reading of this law. One, it is prohibited for a vehicle owner or user to wilfully cause the fitting of tints of whatever degree in his vehicle (i.e. manual fittings). Two, if perchance, any such tints are caused to be fitted on a vehicle – manually or otherwise, they should not be so tinted, shaded, coloured or darkened “as to render obscure or invisible persons or objects inside the car”. It would clearly appear from the foregoing therefore that the object of the law is really not to prohibit, at least, factory fitted tints in vehicles but to ensure that whatever tints there may be will not render obscure or invisible persons or objects inside the vehicle. Thus, light tints or non opaque tints, as most factory fitted tints actually are, will not be violating the law.

And contrary to the proposition and ‘self serving’ interpretation of the above law by the police authorities, a dispassionate reading of the law will show that a very clear distinction is made, or better still envisaged, between manually fitted tints and factory fitted tints. In other words, the law simply provides that “no person shall cause…” such tints to be fitted – perhaps manually. The question then is: can it really be said in good conscience that a user or owner of a factory fitted tints had caused such tints to be fitted in his vehicle glasses when most vehicles, if not all, now invariably come from their manufacturers across Europe, America and elsewhere with partial tints of varying degrees on their glasses? I think not.

Furthermore, Regulation 62 (2) of the N.R.T.R 2004, a subsidiary legislation made not by the parliament but by the Federal Road Safety Commission pursuant to its delegated authority under Section 5 of the repealed F.R.S.C.A 2004, provides that ‘all glasses fitted to a vehicle shall be clear and transparent to enable persons outside the vehicle see whoever is inside the vehicle and the glasses shall in no way be tinted except as may be approved by the Inspector-General of Police for security reasons.’ This provision is no doubt on all four with the above cited provision of the M.V.P.T.G.A 2004. But how reasonably possible is it for the Inspector-General of the Nigerian police to “approve” tints particularly in factory fitted vehicles when such vehicles were not even manufactured here?

The F.R.S.C.E.A 2007, a primary legislation, on the other hand, has no provision whatsoever prohibiting tints on vehicle glasses. It follows therefore that the N.R.T.R 2004, a subsidiary legislation, which purports to now derive its strength and authority from the F.R.S.C.E.A 2007 (its earlier primary source, F.R.S.C.A 2004, having been repealed) is baseless and cannot stand the scrutiny of a judicial examination without falling like a pack of cards. In other words, the N.R.T.R 2004 as a subsidiary legislation cannot prohibit what the successor to its primary source, the F.R.S.E.A 2007, has not expressly prohibited. But the police authorities will still have the M.V.P.T.G.A 2004 to rely on for its conservative and retrogressive crack down on motorists with tinted glasses, even unfortunately those with none opaque factory fitted tints.

Given its background as a military Decree (originally promulgated as Decree No. 6 of 1991), the M.V.P.T.G.A 2004 in its entire 6 Sections has all the invidious trappings of a military decree. It’s Section (2)1, for example, brazenly enacts that not even the 1999 Constitution of the Federal Republic of Nigeria shall have the effect of undoing invidious enactment of the law. Yes, this obnoxious relic of the military era actually purports to exclude the authority of the supreme law of the land – the 1999 Constitution! This reason, even if there are no others, is enough justification that the M.V.P.T.G.A 2004, now being gleefully relied upon by the police authorities, is not only retrogressive but also a desecration of our constitutional democracy with all it stands for in terms of rights and priviledges of free citizen of the modern world.

And as if the above constitutional aberration is not enough, the apparently obnoxious Decree went ahead in Section 3 to enact as follows: “It shall be the duty of the buyer, donee or importer of a motor vehicle with tinted, shaded, coloured, darkened or treated glass to change all the glass within a period of 14 days from the date of arrival in Nigeria or date of purchase (which ever is applicable in each circumstance)”. What a retrogressive law in the 21st Century of technological revolutions! Just why the Nigerian police chose to unearth this obnoxious Decree and even elected to perfidiously seek to enforce it strikes a big question mark on the quality of our governance and appreciation of the modern reality.

All is not however gloomy as the National Assembly is now reported to have initiated a legislative process to repeal the bad law that the M.V.P.T.G.A 2004 is. But before the completion of the legislative exercise, citizens too must get proactive by testing the obnoxious law in our law courts. It is certain that just like the now rested sections 50 and 51 of the Criminal Code on seditions which fell under the weight of judicial scrutiny in the case of Nwankwo v. The State, the M.V.P.T.G.A 2004 too will not take time to return to the garbage bin of history.

For as long as the tints in vehicle glasses are not nowadays unilaterally ‘caused’ by the vehicle owner or user, and do not also render the occupant of the vehicle opaquely obscure, it is yet to be seen how the police authorities can sustain, let alone prove, criminal charges against anyone in the court of law.

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Next week we shall discuss the constitutional justifications of President Goodluck Jonathan’s current variant of emergency proclamation.