African Court Challenges States To Rethink The Basis Of Their Criminal Laws

By Anneke Meerkotter, Litigation Director, Southern Africa Litigation Centre

On 4 December 2020, the African Court on Human and Peoples’ Rights issued an Advisory Opinion which challenges the very notions which underpin our class-based societies. The African Court stated that there is no reasonable basis for a law that distinguishes between so-called ‘vagrants’ and the rest of the population based on their economic status. In theory, this is obvious. We are all human beings who ought to be treated equally. Yet, there are a significant number of countries in Africa that make it a crime to be unemployed and without a home or means of income. These laws further allow the arrest and detention of persons who did not engage in any criminal activity, in short, flagrant and long-standing abuse of the criminal ‘justice’ system. Not only do these vagrancy offenses criminalise the status of being unemployed and homeless, but the crimes enable discriminatory treatment of marginalised persons who access public spaces and persons who seek to enforce their socio-economic rights. The African Court noted that “vagrancy laws, effectively, punish the poor and underprivileged” including persons who experience homelessness, persons with disabilities, gender-nonconforming persons, sex workers, hawkers, street vendors, and individuals who otherwise use public spaces to earn a living. 

The request for an Advisory Opinion on whether vagrancy offences violate the rights in the African Charter on Human and Peoples’ Rights, was brought precisely because these offences are seldom the basis of law reform efforts in any country. The reason? These offences only affect those who are most marginalised and vulnerable in our societies. Yet, they are least able to access political representation in parliaments and assert their rights in the courts. The Advisory Opinion issued by the Court is accordingly of critical importance as it affects the lives of millions of people across the length and breadth of the continent.

Vagrancy laws underpinned the successful establishment of colonies

Under Napoleon, France responded to urbanisation in its Penal Code of 1810 by introducing vagrancy laws. These vagrancy offences were transferred into the penal codes of its colonies, shaping labour discipline, ensuring the production of labour at low wages, and supporting racial and class-based segregation. The same can be said the way vagrancy laws were introduced in Britain, Belgium and Portugal, and transferred to their colonies.

Colonialists did not hesitate to use slavery, and after its abolishment, forced labour, to provide for the labour needs of settler communities. After World War II, the Houphouët-Boigny Law of 1946 prohibited forced and compulsory labour in all French overseas territories. Colonial officials however actively planned for the reorganisation of mandatory labour through vagrancy laws. 

For example, in Madagascar, after slavery was abolished in 1896, the Governor introduced new orders which required men to carry out 50 days of compulsory service a year and to declare their lawful methods of earning a living. To prove they earned a living, they had to produce a workbook signed by the European settlers. Where they could not produce such a workbook, they were found guilty of vagrancy and imprisoned. 

During colonialism, the policing policy was one of control and containment – people were coerced to provide cheap labour through measures such as hut taxes or forced labour and were prevented from accessing certain areas through pass laws, vagrancy offences and forced removals. 

Communities which resisted taxes, land alienation, and forced labour were violently repressed, and their leaders were incarcerated or executed. For example, Funmilayo Ransome-Kuti, a leading Nigerian activist developed successful campaigns against a range of laws and practices which discriminated against poor women, including the indiscriminate seizure of goods from market women, unfair price controls and taxes imposed on market women. She died after security forces threw her from a second-floor window. Attempts to have vagrancy laws declared unlawful was successful in the Kenya and Tanganyika courts in the 1940s. Still, new laws replaced the old laws with similar effect, and the enforcement of vagrancy offences continue to this day. The African Court’s Advisory Opinion challenges the long-standing laws and policing practices which treat the most marginalised in our society with contempt. 

Vagrancy laws exacerbate socio-economic vulnerabilities

People move to cities for a myriad of reasons, including displacement from famine, disease and conflict; and to access the urban labour market. In the absence of communal and State support and employment opportunities, many persons are often left destitute and at the mercy of vagrancy laws and regressive policing practices. Insurgency, locusts, drought, and the COVID-19 pandemic has drastically affected food insecurity across Africa and continues to displace persons from their homes. The Democratic Republic of Congo, for example, shelters over 5.5 million internally displaces persons. Mali, Burkina Faso, Chad, Niger, Cameroun, Central African Republic, Congo, Senegal and Côte d’Ivoire combined, host approximately 3.2 million internally displaced persons. 

Despite the socio-economic conditions prevailing on our continent, there is remarkably little public discourse on the continued use of colonial-era criminal laws. The policing practices which have developed around these laws further show scant regard for constitutional rights. The driving force behind the enforcement of vagrancy offenses is no longer labour needs. Instead, they are used to address the challenges cities face in managing the consequences of urbanisation. Societal norms, influenced by the existence of these criminal laws, continue to tolerate and even encourage the use of criminal laws to ostracize specific individuals and groups in society. 

What does the African Court require States to do?

The African Court held that labelling an individual as a ‘vagrant’ is derogatory and summarily ordering them to be forcefully relocated to another area violates their dignity. Thus, the Court ordered all countries to “take all necessary measures, in the shortest possible time” to review and reform their laws and by-laws to bring them in line with the provisions of the African Charter. So, what does this mean in practice?

The Penal Codes of many countries explicitly state, usually in the same wording, that vagrancy is an offense. These include Algeria, Burkina Faso, Cameroun, Chad, Côte d’Ivoire, Gabon, Guinea, Madagascar, Mali, Mauritania, Morocco, Niger, Senegal and Sahrawi Arab Democratic Republic (where its people are subjected to Moroccan law). All these countries define a vagrant as someone found in a public place with no fixed home, no means of subsistence and who exercises no trade or profession. Thus, in all these countries, these offenses ought to now be repealed.

In most countries, conditions in detention are sub-standard. The UN and AU human rights bodies have consistently raised concerns relating to severe overcrowding, dilapidated facilities, poor hygiene, inadequate diets, and poor health care, including in detention facilities in Mauritania, Burkina Faso, Cameroun, Congo and Côte d’Ivoire. In many countries, the penalty for vagrancy can be up to 6 months’ imprisonment, and in Cameroun a vagrancy charge can result in up to 2 years’ imprisonment. The immediate repeal of the vagrancy offence will accordingly support efforts to reduce the prison populations in these countries and to improve prison conditions. Such steps are critical at a time when new diseases threaten the lives of inmates.

In addition to serving a sentence of imprisonment, persons who are not initially from the area in which they were charged, can be sent back to the municipality or area where they were born (e.g., Mauritania, Senegal, Madagascar, Guinea, and Chad). The courts are also empowered to issue orders prohibiting persons from returning to the area, including for a period of 2 to 5 years (e.g., Cote d’Ivoire, Mali, and Mauritania). The African Court has held that such provisions violate freedom of movement. The African Court’s decision accordingly requires a re-conceptualisation of urban spaces. When people migrate to urban areas for survival reasons, the solution cannot be to send them back to places where they will starve or face violence. 

The African Court observed that arbitrary arrests, generally, have a disproportionate effect on impoverished and marginalised children, including those who are arrested themselves, and those whose caregivers are arrested. Throughout Africa, there are frequent reports of mass arrests of children who live and work on the streets under vagrancy laws. In many such instances, children’s rights are completely ignored, and they are often subjected to abuse and cruelty. For example, the Democratic Republic of Congo retained the Belgium King’s Decree of 1896, which dealt with the suppression of vagrancy, and which was supplemented by the Decree of 1950, which relates to the vagrancy of children, continue to be used to harass and abuse children. There are only three countries that explicitly state that vagrancy laws should not lead to the imprisonment of children.

Having found that vagrancy laws violated the rights in the African Charter, including the rights to equality, dignity and freedom from cruel and inhuman treatment, the Court went further to question the way petty offences are enforced. The Court held that some crimes are so vague that it was hard to know what is prohibited, resulting in frequent arrests without warrants and illegal pre-trial detention. This finding places an obligation on all countries to review their policing practices to ensure that they meet the standards set out for arrests in national laws and regional human rights treaties. Whilst the review of laws and policing practices are in process; the Court emphasised that arrests for vagrancy-related offences would be unlawful.

Societal norms contain inherent biases that influence policing and the reporting of ‘offensive’ behaviour to the police. For example, unemployed youth, street vendors, sex workers, children who live and work on the streets, and persons with psycho-social disabilities are often targeted by police in the absence of any criminal activity, because their mere existence somehow challenges the normative sensibilities of some residents and the police. Xenophobia and gender norms also permeate policing practices in the same way that they permeate society.

In the context of the COVID-19 pandemic, we have seen how laws are again used with little understanding of the needs of those persons who are most vulnerable in our society. Similarly, the cruelty exhibited by police in enforcing COVID-19 restrictions has illustrated the absence of human rights policing practices. As we look towards 2021, now is the time to rethink the world we live in, to ensure that it is a safe and humane space for all its people. This includes the radical reform of policing institutions, policing practices, and criminal laws.


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