By Bulus Y. Atsen, Esq.

While Nigerians were looking forward to the Super Eagles winning the AFCON 2023 Tournament on Sunday, the Kano State Public Complaints and Anti-Corruption Commission (PCACC), last week, embarked on sealing of warehouses across the State where food items were stored by some business owners. The PCACC accused them of hoarding, thereby causing food inflation in Kano State by creating artificial scarcity. The Commission committed to prosecuting the warehouse owners. A part of the public was excited by this development, whereas, others are concerned by the legal, economic and social risks the claims of the Kano State PCACC poses. Some have asked, “is hoarding a crime?” If yes, how come the Kano State PCACC has never sealed Filling Stations in the State for creating artificial scarcity of PMS by hoarding same?

In the 1970s, scarcity of some basic items led to the uncontrolled rise in prices of those commodities. The economic realities and the mid-sophistication of the Nigerian economy at the time, under the military regimes, made the populist idea of price control desirable. That desire crystalised into the Price Control Decree of 1977, which metamorphosed to an Act of the National Assembly as Nigeria transfigured to a democratic state. The Act (Decree) revolves around 25 essential goods at the time, which it describes as “Controlled Commodities”. The goods are Textiles and clothing, Cement, Roofing Materials, Beer and Stout, Soft Drinks, Sugar, Tyres and Inner Tubes, Flour, Matches, Bicycle and Spare Parts, Salt, Tinned Meat, Tinned Fish, Kerosene, Petrol, Diesel Oil, Fuel Oil, Motor Vehicles and Spare Parts, Milk, Building Materials, Tobacco, Pharmaceuticals, Education Materials, Electronics and Motor Cycles and Spare Parts.

“Men have learnt to shoot without missing, she has learnt to fly without perching”
– Chinua Achebe’s proverbial Eneke the bird

The idea of price control would result in marketers hoarding their goods in order not to sell at prices which eroded their profit margins. And with shortages in supply, prices would automatically increase, thereby creating more problems. So, the government introduced in the Decree a Section which criminalises “Hoarding”. It provides that where an individual is convicted of hoarding, he shall be sentenced to imprisonment for not less than six (6) Months without option of fine, or where it is a body corporate, to the payment of a fine not less than N5,000. And in both cases, the commodities in question shall be disposed of and the proceeds paid into the Consolidated Revenue Fund of the Federal Government. The law goes ahead to state that, even when conviction is not secured, the commodities should be ordered to be sold at the controlled price and 10% of the proceeds be paid into the relevant Federal Government account while the owner of the goods gets 90%.

Constitutional Circumvention

It is an elementary principle of Constitutional Law, as I was taught by Prof. Nnamdi Aduba, that separation of state powers is both horizontal and vertical; horizontal among the Executive, Judiciary and Legislature, and vertically among the Federal, State and Local Governments. The 1999 Constitution (as amended), has clearly spelled out the powers exercisable by governments and their arms vertically and horizontally. While there are areas of intersections under the Concurrent List, States can only enforce laws legislated by the State Assemblies, except such laws that bother on items contained in the Exclusive Legislative List, where necessary. Incidentally, Commerce is in the Concurrent List, Second Schedule, Part 2, Item 18 of the 1999 Constitution, to be specific.

The Kano State PCACC has not briefed the press on the basis and extent of its investigation, according to law, before undertaking its actions against warehouses in the State. Even though it made public its decision to prosecute the warehouse owners, it has not stated which penal law of the Kano State House of Assembly the warehouse owners violated. To the best of my knowledge, there is none. While hoarding is a crime under the Price Control Act (Decree) of 1977, it is difficult, if not impossible, to see how it has become the duty of the PCACC to enforce the provisions of the Price Control Act, 1977 which is an Act of the National Assembly.

The economic downturn in Nigeria is, among other factors, a result of myriads of supply shortages occasioned by widespread insecurity, poor monetary policies, high cost of energy, misappropriation of public funds, poor infrastructures and a lack of proper accountability. None of these was occasioned by the traders in Kano, who themselves are victims of these economic vicissitudes. Yet, they are expected to dispose of their goods in a volatile market which cannot guarantee that they would get the same goods from the manufacturers at the prices they are selling. Blaming traders for food inflation in Kano State is suggestive of deliberate mischief with the intention to appeal to populist views or a shallow appreciation of economic principles.

“Forcenomics” Masquerading as the Rule of Law

In a democracy, the rule of law entails, among other things, that no action is an offence except that which is provided for by a validly enacted Law. As argued above, the Kano State PCACC has not been able to demonstrate in clear terms which Law of the Kano State House of Assembly the warehouse owners violated by storing their goods in their warehouses. The Thursday before the breakage and purported sealing of the warehouses, the Chairman of the PCACC, Muhyi Magaji Rimin Gado, was reported by Daily Trust Newspaper to have said that the PCACC was under intense pressure to act against traders hoarding essential commodities, with the view to addressing rising inflation in Kano State. This is a classic example of what an economist and a Chevening Scholar, Samuel Wakdok, describes as “Forcenomics”.

The Chairman of the Kano State PCACC was seen, on a number of videos on social media, moving in a gestapo manner with a retinue of police officers and media personnel wielding guns and cameras. The Chairman of the Commission is yet to inform the public the basis of the Commission’s investigation, if any was conducted, he has not informed the public who mounted intense pressure on the Commission to carry out such actions. The Commission simply moved from publicly declaring the pressure it was under on Thursday to breaking warehouses and sealing them on Friday.

The exercise of brute force by the PCACC against warehouse owners is an act of intimidation, if we do not want to call it economic sabotage, it is dangerous and must not be allowed to fester in Kano, let alone slip into other states. We all know how quick some governments are in copying illegality, especially the ones which enjoy populist support. The actions of the PCACC are anti-trade and have the capacity to cause economic injuries to local and foreign investors.

A Call to Anarchy if…

During the COVID-19 Lockdown, a number of government warehouses stocked with lots of food items across the country were broken into by the hungry public who carted away the products in them. The warehouses of some private business owners who could not sell their goods due to the Lockdown were also looted. Some of those business owners have not been able to recover from such monumental economic losses. The actions of the Kano State PCACC are capable of pitching destitute members of the public against hardworking and honest private business owners in Kano State and other states.

The acts of public vandalism and looting of shops and warehouses are not new to Kano State. As recently as June, 2023, the Police was reported to have arrested about 106 persons for opportunistic looting when some structures were demolished in Kano. This entrenched behaviour always rears its head whenever there are riots or mass protests in the State. The economic hardship being experienced may serve as gunpowder that will destroy the peace the good people of Kano are managing, despite our national economic woes. The PCACC has actually pulled the trigger for mass actions which are capable of becoming threats to our national security.

The Federal Government floated the Naira, thereby subjecting it to the laws of demand and supply. It is disheartening watching the PCACC sealing warehouses and threatening business owners with prosecution for simply storing their goods in their warehouses. The Kano State Government did not subsidise the purchase or transportation of these goods, not FX and not energy. With the declining purchasing powers of Nigerians caused by uncontrolled inflation, the Kano State Government would be within its remit to discuss with the traders and find ways to mitigate some of their challenges as a way of addressing inflation in Kano, instead of resorting to brigandage in depriving business owners of their hard-earned goods.

The Kano State Public Complaints and Anti-Corruption Commission acted outside its statutory powers, it acted based on sentiments, conjectures and appeal to populism. It must be stopped before it is too late. And yes, the Price Control Act, 1977 should be repealed. Such a law does not have a place in Nigeria’s open market economy.

Bulus Y. Atsen, Esq. is a private legal practitioner based in Abuja and the Secretary of the NBA Law Reform Committee. He can be reached via [email protected]