«Contesting the streets Volume 18, number 1 • 2016 U.S. Department of Housing and Urban Development | Office of Policy Development and Research ...»
Lima’s policy orientation toward street vendors has likewise shifted over the years, but it has also been uneven over the city’s 43 local municipal districts. The trend broadly was toward supportive policy in the 1980s, when municipal elections opened a door for politicians to recruit votes from vendors; moved toward more antagonistic policy in the 1990s under urban neoliberalism that prized successful evictions and relocations, starting with the city’s Historic Center; and became ambivalent in the early 2000s (Aliaga Linares, 2012; Roever, 2005). Some municipalities have licensing systems, but others do not.
Exhibit 2 Problems Street Vendors Encountered, by Place of Work, in Five Cities Source: Informal Economy Monitoring Study survey data (2012) The Lima respondents, also a mix of street vendors and market traders, reflect the variety of circumstances in this large city. Instability of workplace is very common (60 percent). Some vendors in the sample hold licenses, but those are temporary and can be revoked by the authorities at any time. Others sell from the same spot every day but have to dodge the authorities because they lack licenses. Still other vendors in the sample are itinerant and have no fixed workplace at all. Harassment on the part of local authorities is fairly common across the board and is especially common among women and fresh produce vendors (Castellanos, 2014; Roever, 2014). Confiscations as a practice are less prevalent among the Lima sample than among the samples in Ahmedabad and Durban, however, and evictions are more episodic.
Nakuru represents an interesting contrast as a smaller city. Like Lima, Nakuru has a licensing system, and those in the sample who hold licenses reported the substantial benefit that it brings in terms of security of workplace. Those who try to sell in the busiest part of the city, known as “the stage,” however, are more likely to be itinerant vendors and more likely to report increasing harassment (Lubaale and Nyang’oro, 2013), including assault, abuse, arrest, and solicitation of bribes in exchange for licenses, and those who sell farther away from the heart of the city reported fewer problems. For example, one respondent said, “They trump up charges and then you get locked up.… If you are fortunate, they will ask you to pay a bribe” (Roever, 2014: 28). Therefore, although the formal legal-regulatory system in Nakuru does not vary across space, as it does in Lima, the informal practices applied by local authorities do.
These issues around informal governance mechanisms have shaped legal challenges and campaigns undertaken by street vendors in Ahmedabad, Durban, and Lima. The following sections explore these legal developments, emphasizing three countermechanisms that aim to transform the relationship between city authorities and street vendors. The next section, Establishing Limits on Municipal Power, examines instances in which legal challenges have established limitations on the power of municipal authorities, with specific reference to confiscations and evictions. The following section, Linking Street Vending to Poverty Alleviation, traces the pro-poor components of current legal norms that open a space for the legitimation of street vending as an appropriate use of public space. The next section, Providing Channels for Street Vendors’ Representation in Decisionmaking, outlines cases in which structures of representation have been created to bring the collective voice of street vendors into local decisionmaking. The shift in these cases toward some form of legal recognition of street vending is significant historically, given the global restructuring of employment that has been under way for several decades now (ILO, 2015).
Establishing Limits on Municipal Power Ahmedabad Efforts to establish limitations on the power of local authorities began in Ahmedabad with the SelfEmployed Women’s Association (SEWA) of India, which has been organizing women street vendors since the 1970s and which was instrumental in the founding of the National Association of Street Vendors of India (NASVI). Both organizations—SEWA beginning in the 1970s and NASVI in the 2000s—have pursued legal reform through various strategies, including public interest litigation, protest, negotiation, and national-level advocacy.
Street vending in India has long been framed by colonial-era legislation. During the first half of the 20th century, municipal authorities drew on the substantial powers granted to them in laws defining public nuisance,7 assigning duty to the police and to municipal authorities to remove obstructions in the public way,8 and establishing sanctions for committing offenses in public space9 to restrict or prevent street vending. Of those laws, only the Bombay Municipal Corporation Act of 1888 identified a circumstance in which selling goods on the street would be permissible: under and in conformity with the terms and provisions of a license granted by the commissioner.
In the latter half of the 20th century, street vendors began pushing back against the considerable arbitrariness with which nuisance regulations were being applied. One early success took place in the 1970s, when SEWA filed a case petitioning the High Court of Gujarat state for trading spaces and licenses for vendors at Manek Chowk, the historic trading area in central Ahmedabad (Bhatt, 2006). In this instance, the petitioners argued the case on the basis of article 19(1)(g) of the Constitution of India, guaranteeing the protection of rights to carry on any occupation, trade, India Penal Code of 1860, Section 268 (public nuisance) and Section 283 (obstruction in public way).
India Police Act of 1861, Section 31 (establishes police as duty bearer for keeping order in streets and preventing obstructions); Bombay Municipal Corporation Act of 1888, Section 314 (establishes Municipal Corporation as duty bearer for the removal of obstructions [Section 61]).
India Penal Code of 1860, Section 283; India Police Act of 1861, Section 34.
or business. The argument was that the Ahmedabad Municipal Corporation and its police force were using the power granted to them under state legislation10 to collect fines from street vendors without complying with provisions from the same legislation mandating the municipal corporation to issue licenses for street vending (Mahadevia et al., 2012). In this case, the court granted the request to issue licenses and vending space to the vendors at Manek Chowk.
Additional cases filed in the 1980s led the Supreme Court of India to progressively clarify the rights of street vendors. In one case, the Bombay Hawkers’ Union challenged the constitutional validity of the Bombay Municipal Corporation Act of 1888 on the grounds that it confers unguided power on the authorities to refuse vendors licenses and, therefore, denies them the right to livelihood as established in article 19(1)(g) of the Constitution. In its ruling, the court evaluated the Bombay Municipal Commissioner’s (BMC’s) scheme for issuing licenses and creating hawking zones and, in doing so, introduced some restrictions on the BMC’s power by applying a standard of reasonableness.
This ruling marked a significant shift in the way the Supreme Court of India evaluated claims around the right to livelihood. The court defined several practices that were unreasonable: (1) to deny street vendors the ability to protect their wares at all from sun, rain, wind, and so on; (2) to prohibit the sale of food, as “there are several working families in Bombay, belonging to different strata of society, which depend on the food supplied by hawkers”; (3) to require vending to stop at 9:00 p.m., because “in cities like Bombay nights are quite young” at that hour; and (4) to not issue licenses for hawkers in areas other than nonhawking zones; indeed, it argued that licenses “should not be refused in the hawking zones except for good reasons.” The court also established a spatial norm for the first time, that “as far as possible there should be one hawking zone for every two contiguous municipal wards in Greater Bombay.”11 The limitations the court placed on local government power were subsequently reflected in the National Policy on Urban Street Vendors, first issued in 2004 and later revised in 2009 (Sinha and Roever, 2011), and in the Street Vendors Act of 2014,12 which protects the rights of urban street vendors and regulates street vending activities at the national level. The 2014 act places explicit restrictions on merchandise seizures, evictions, and relocations. Although it has yet to be implemented fully, these provisions give vendors leverage in reigning in arbitrary treatment on the part of the authorities.
Durban The organizing context in Durban has followed a different path than in Ahmedabad and, consequently, the trajectory of legal challenges there began much more recently. The first successful effort on the part of street vendors and their allies to limit the power of the local state came in 2009 with a case filed to block the city’s plans to demolish part of the historic Warwick Junction markets The Bombay Provincial Municipal Corporation Act of 1949 (Section 384); the Bombay Police Act of 1951 (Section 102 and Section 117). These two pieces of legislation were rooted in, and borrow language from, the Bombay Municipal Corporation Act of 1888 and the India Police Act of 1861, respectively.
Bombay Hawkers’ Union v. Bombay Municipal Corporation, July 3, 1985.
Accessible at http://wiego.org/resources/street-vendors-protection-livelihood-and-regulation-street-vending-act-2014.
to make way for a shopping mall (Chetty and Skinner, 2013). The city eventually rescinded its decision to build a mall, but, throughout that period and in subsequent years, street and market traders faced frequent harassment from local authorities.
The city’s 1995 street vending bylaws, along with the 1991 Businesses Act, framed local government practice in a way that has encouraged the impoundment of goods, even when a street vendor holds a permit. Such was the case of John Makwickana, a 65-year-old trader supporting a family of eight by selling plastic and rubber sandals in downtown Durban. In 1996, he secured a permit in exchange for a fee and, in subsequent years, hired an assistant, who also paid for a license. On August 6, 2013, a police officer arrived at his stall when he was away and his assistant had gone to a nearby market to purchase food; the officer impounded 25 pairs of new sandals on the grounds of illegal trading, given that both the applicant and his assistant were away from the table at the time she arrived.13 The receipt she issued for the impounded goods did not itemize what she took, nor did it specify where the goods would be kept or how he could get them back. The notice set the fine at 300 rand.
The South African Legal Resources Centre supported Makwickana in challenging the component of the relevant norm14 that imposed no limit on fines applicable to street traders, thus providing police officers with “unfettered discretion to determine the amount of the fine regardless of whether it is proportional to the infringement.” The case also challenged the norm in its failure to offer guidelines about how confiscated goods should be dealt with, again allowing for unlimited discretion on the part of police officers. Without clear guidelines, they argued, the act conflicted with section 1(c) of the Constitution of South Africa establishing the supremacy of the rule of law.
The judge who heard the case ruled that the municipality was going beyond the scope of its powers by impounding the applicant’s goods15—a highly significant development in a context in which abuses of authority were routine and pervasive. According to the ruling, the municipality was not authorized by the empowering provision to impound the goods and, thus, violated the principle of legality embedded in section 1(c) of the constitution.
Further, the court ruled that the impoundment provisions of a revised bylaw issued in 2014 (section 35(1) to (8)) were problematic. This section of the ruling is significant, because it recognizes the type of everyday harassment that vendors face and it articulates the blatant disregard for due process on the part of the authorities.
Section 35(1) permits an official to remove and impound goods upon the mere suspicion, reasonably held, that the informal trader has contravened a provision in the By-law.
Effectively, the street trader suffers punishment and deprivation of her property before a court of law has determined her guilt.… Section 35(1) is over-broad in that it permits impoundment for all contraventions without differentiating between serious absolute contraventions and less serious, formal non-compliances such as trading without producing proof of a permit that do not pose a threat to the public.16 The local bylaws have been interpreted over the years to say that the permit holder must be physically present at his or her stall at all times.
Subsection 6(A)(1)(d)(i) of the 1991 Businesses Act.
Makwickana v. eThekwini Municipality & Others, Paragraph 74.
Makwickana v. eThekwini Municipality & Others, Paragraph 80.
These deficits were held to be all the more significant, given that the bylaw also empowers the municipality to sell, destroy, or otherwise dispose of impounded goods. In Makwickana’s case, the municipality failed to give notice of the sale of his goods or the refund to which he was entitled, less the impoundment fee—making it effectively a confiscation rather than an impoundment. Allies of Makwickana viewed the court’s move to limit the authorities’ ability to engage in this practice as highly significant, given its pervasiveness.
Lima By contrast with events in the other two cities, the street vendor movement in Lima has focused recently on legislation, rather than litigation. The city’s approach to street vending evolved from populist support in the 1980s to a strong neoliberal stance in the 1990s that continues to dominate into present day (Aliaga Linares, 2015). Street vendor organizations most recently lobbied for an updated metropolitanwide ordinance to replace one that had been in existence since 1985 but that was rarely enforced. The metropolitan administration under Mayor Susana Villarán undertook the effort to pass a new ordinance; Ordinance 1787 came into effect in May 2014.