A row is brewing between Acting Public Defender Matondo Mukulu and the Jamaica Constabulary Force (JCF) over the police seizing perishable goods from street vendors and donating them to government agencies.

“The State cannot make gifts of the property of its citizens,” Mukulu said in a report flowing from recent investigations carried out by his Office of the Public Defender into complaints by vendors that goods and carts seized by the police were not returned to them after going through the legal process.

“This practice is illegal, and is an unjustifiable infringement on the rights of the citizen to enjoy his/her property under section 13(3)(q) of the Charter of Fundamental Rights and Freedoms,” Mukulu said in the report.

He stated that the fact that vendors keep returning to sell at these venues is clear evidence to support the view that they are needed by the consumers.

“We should not destroy their efforts, but this commission is of the view that they need to be regularised, the law enforcers (JCF) must act within the law and the law needs to be codified in a single statute,” he suggested.

According to Mukulu, the police are required to return the goods to vendors after they have paid the prescribed court, under the provisions of the Kingston and St Andrew (Sale of Goods in Public Places) Regulations 1986.

The assertion by the vendors that this was not being done had alerted the public defender to the constitutional point of a “possible unlawful interference into the property rights of the vendors of the state”, the report said. This followed a complaint from a vendor in downtown Kingston in a statement to the public defender containing allegations of being unfairly targeted by “a particular inspector of police at the City Centre station” and his team.

The vendor alleged constant harassment by the police, being pepper sprayed by the inspector, and arrested and charged. In the end, neither the goods nor the cart used to sell them was returned after being confiscated.

The vendor produced evidence to show that the goods were donated to the Kingston and St Andrew Corporation (KSAC) Poor Relief Department.

The Office of the Public Defender said it examined the relevant legislations — the Hawkers and Peddlers (Amendment) Act 1995; the Constabulary Force (Amendment) Act, 2005; the KSAC (Sale of Goods in Public Places) Regulations 1986; and the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011.

The Office of the Public Defender collected a list specifying vending and no-vending zones in downtown Kingston; information from the commanding officer at the City Centre Police Station on the seizure of goods from vendors trading in areas such as West Street, West Queen Street, Beckford Street, Barry Street, Princess Street and Heywood Street; statements from vendors trading in those areas who have suffered seizure of their goods over the previous six months; and sought responses from Food For the Poor and the Child Development Agency (CDA).

However, according to the report, despite writing to the then acting commissioner of police about the conduct of the inspector in question, and the force’s policy on the seizure of goods for illegal vending, the Office of the Public Defender has received no response to these requests, although being warned of the risk of breaching the provisions of the Public Defender’s Act. However, the Office of the Public Defender received a response from the City Centre police, which it said “vaguely” explained that numerous illegal vendors were arrested and charged for selling in no-vending areas in downtown Kingston, and that some of the perishable items which were seized were donated to the KSAC’s Poor Relief Centre, Hanover Street, also in downtown Kingston. However, the police said that the goods were donated after being abandoned by vendors.

The CDA, after lengthy exchanges with the Office of the Public Defender, eventually admitted in September that two Government homes — Glenhope Nursery and Homestead Place of Safety — had received donations from the police, including yams, green bananas and items of clothing. However, the CDA said that the receipts signed for the goods were kept by the police.

A perishable order provided by the vendor who initially made the complaint to the Office of the Public Defender showed that an estimated 100 pounds of pineapple and 180 pounds of watermelon were delivered to the KSAC’s Poor Relief Department. These goods were alleged to have ended up at the Marie Atkins Night Shelter in downtown Kingston. However, the Office of the Public Defender said that it has been unable to obtain information about the frequency of such donations and what was done with them.

The acting public defender said that his office found that there was unlawful interference with the vendor’s property rights by the police, as the force is not sanctioned by law to donate goods confiscated for illegal vending to other institutions.

“There is no provision in any of the legislation that we have examined that authorises such action,” Mukulu said.

“In fact, it is clear that regulation 2(2) of the KSAC (Sale of Goods in Public Places) Regulations confers on the State the power to forfeit goods, but only if it is on the third occasion on which the person/trader has been found guilty of trading without the required licence,” Mukulu said.

“This must be read along with the provisions of section 10 of the Hawkers and Peddlers Act. Therefore, this commission, looking at the applicable law and the facts that it is presented with, was not satisfied that the JCF was dealing with persons who would have come within the ambit of either of the two provisions,” he added.

“This is a very important point that supports our finding of illegality, as to give effect to section 10 of the Hawkers and Peddlers Act, the JCF would need to show that it has stored the perishable goods,” he concluded.

He said that the problem highlighted in the Office of the Public Defender’s report should not be ignored, as “an unlawful act does not become lawful by virtue of the motive that the action is designed to serve”.

MUKULU… the State cannot make gifts of the property of its citizens

Vendors selling on the streets in downtown Kingston.