NEWS RELEASE: AFRICAN COURT DECLARES VAGRANCY OFFENCES CONTRARY TO THE AFRICAN CHARTER

Salc : Staff Writer

4 December 2020 – Many African Union Member States have retained colonial-era criminal offences which criminalise the status of individuals as being poor, homeless and unemployed. These offences were the subject of an Advisory Opinion issued today by the African Court on Human and Peoples’ Rights. This follows a request submitted to the Court by the Pan-African Lawyers Union on behalf of the Regional Campaign to Decriminalise Petty Offences in Africa. The African Court on Human and Peoples’ Rights declared that these offences are contrary to the rights States have committed themselves to under the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child and the Maputo Protocol on the Rights of Women.

“For centuries criminal laws have been used to regulate urban spaces, with a cruel focus on removing poor and marginalised persons from such areas. Criminal laws, particularly vagrancy offences, have always been used to arrest, detain, evict, or put to work those persons who are viewed unsuitable to public spaces. Following the Principles on the Decriminalisation of Petty Offences issued by the African Commission on Human and Peoples’ Rights, this Advisory Opinion by the African Court goes a long way towards encouraging States to reconsider the utility of long-standing policing practices,” said Anneke Meerkotter, Acting Executive Director of the Southern Africa Litigation Centre. “The African Court’s Advisory Opinion is a fitting end to a year in which countries have used criminal laws with fervour in response to the COVID-19 pandemic; and a year in which citizens across the world have responded in unity against systemic police abuse of marginalised groups in society.”

For information on the Regional Campaign to Decriminalise Petty Offences, see here.

BACKGROUND

Why are vagrancy offences problematic?

When vagrancy offences were introduced in Africa during the colonial era, their purpose was coercion and incarceration to maintain unequal labour relations and social structures. (For more information on the origin of vagrancy offences in Africa, see here.) Vagrancy offences have since become a catch-all category favoured by States to address what it deems a range of undesirable behaviours whilst sidestepping the requirements of criminal law and procedure.

Vagrancy offences are used with frequency in many countries to arrest and detain persons in the absence of any proof of criminal activity. The manner of enforcement of these offences are contrary to the basic principles underlying criminal law and threatens the rule of law – these offences are based on a person’s condition, state of being, and social and economic status. These offences are overly broad and allow police a wide discretion to decide whom to arrest. Vagrancy offences also place the burden of proving one’s innocence on the accused. Such arrests, in turn, exacerbate prison overcrowding. Once arrested, police provide little or no food to persons in custody, and conditions are often unhygienic and hazardous. Arrests drain the resources of families who have to bring food and pay fine.

The Principles on the Decriminalisation of Petty Offences defines “vulnerable persons” as “persons who are marginalised in society and the criminal justice system because of their status, or an intersection of one or more statuses”. Vagrancy offences are used to arrest and harass persons living in poverty, persons who experience homelessness, children who live and work on the street, persons who beg, older persons, persons who are marginalised based on sexual orientation or gender identity, persons with disabilities, street traders and vendors, refugees and asylum seekers and sex workers. The African Court’s decision will have a significant impact on vulnerable persons, whose needs are seldom acknowledged in law reform processes.

What were the issues before the African Court?

The Court considered whether vagrancy laws and by-law violated the provisions of the African Charter. The Court considered those laws that contain offences which criminalise the status of a person –

  • as being without a fixed home, employment or means of subsistence;
  • as having no fixed abode nor means of subsistence, and trade or profession;
  • as being a suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of him or herself; and
  • as being idle and who does not have a visible means of subsistence and cannot give a good account of him or herself.

 

The Court concluded that vagrancy laws and by-laws violated:

  • the right to not be discriminated against,
  • the right of equal protection before the law;
  • the right to dignity and to be free from inhuman, cruel or degrading punishment and treatment;
  • the right to liberty and security;
  • the right to a fair trial;
  • the right of freedom of movement and residence; and
  • the protection of the rights of women, children and persons with disabilities.

 

The Court further considered whether vagrancy laws and by-laws, including but not limited to, those which allow for the arrest of someone without a warrant simply because the person has no means of subsistence and cannot give a satisfactory account of him or herself, violate the African Charter. The Court held that such laws violated:

  • the right to not be discriminated against;
  • the right of equal protection before the law;
  • the right to dignity and to be free from inhuman, cruel or degrading punishment and treatment;
  • the right to liberty and security;
  • the right to a fair trial;
  • the protection of the best interests of the child;
  • the special protection of the right to a fair trial of the child; and
  • the special protection of women in distress.

 

What did the Court order?
Apart from declaring vagrancy offences contrary to African Charter on Human and Peoples’ Rights, the Children’s Charter and Maputo Protocol, the Court affirmed that State Parties to the African Charter have a positive obligation to amend or repeal vagrancy offences within a reasonable time. The Court held that States must take all necessary measures in the shortest possible time to review all their laws and by-laws relating to vagrancy offences and to amend or repeal them to bring them in conformity with African Charter, the Children’s Charter and the Maputo Protocol.