Poverty: African vagrancy laws continue to discriminate, despite court victories
Samuel Okiror Wednesday 31 May 2023
At least 22 African countries – former colonies of the Belgians, British, Dutch, French and Portuguese – retain domestic laws that make ‘vagrancy’ illegal and equip the police with excessive detention powers in respect of vagrants.
Activists say that these laws criminalise poor, homeless or unemployed individuals. Hawkers, street vendors, petty traders, street children, beggars, sex workers, members of the LGBTQI+ community and drug users are among those who are routinely picked up and detained under such legislation. ‘Currently, vagrancy laws […] largely criminalise the state of homelessness and poverty and are discriminatory to persons with mental health challenges [as well as] sexual minorities’, says Beth Michoma, an advocate of the High Court of Kenya. She adds that in some states, such laws ‘have been used to criminalise political dissidence under the guise of public order’.
‘Vagrancy laws are antiquated laws which punish people for their status as indigent people rather than purport to regulate conduct which is contrary to the legitimate regulatory laws of government,’ says Bruce Ian Macallum, Vice-Chair of the IBA Poverty and Social Development Committee. ‘These laws can be used for purposes which are not legitimate for the government to regulate.’
European colonists used vagrancy laws to control the streets in their occupied territories. The legislation is intentionally broad and vaguely defined, giving law enforcement wide discretion to arrest and detain just about anyone. The same language introduced to British colonies through the UK’s Vagrancy Act 1824, for example, is still used today in some African countries. In Botswana, Gambia, Nigeria, the Seychelles, Tanzania, Uganda and Zambia, a person can still be arrested for being a ‘rogue and a vagabond’, for instance. Michoma explains that ‘post-colonialism, most African states adopted the legal system and laws of their colonisers and further perfected them by integrating the laws into their penal systems. A cursory glance of vagrancy laws throughout Africa shows that [colonial laws] are embedded in the respective penal codes and criminal procedure acts.’
‘Vagrancy laws are a relic of Africa’s colonial past that, unfortunately, have been maintained and applied by post-colonial African governments’, says Nicholas Opiyo, a Ugandan human rights lawyer and Executive Director of the organisation Chapter Four Uganda. ‘The sum effect of the laws targets the poor and vulnerable. They are predominantly used against poor people by a system that has made them poor in the first place.’
These vagrancy laws […] have no place in the modern world and are an affront to human rights
Beth Michoma
Advocate of the High Court of Kenya
At present, the penal codes of 18 African countries, including Algeria, Madagascar, Morocco and Senegal, still contain an offence of ‘vagabondage’. Many of these countries define a ‘vagrant’ as any person who doesn’t have a fixed abode or a means of subsistence, and who doesn’t practise a trade or profession. Activities that can fall under the array of vagrancy-related offences include loitering, public indecency, solicitation and begging. ‘Given the prevalence of poverty and unemployment, many youths engage in petty trade, such as hawking, to survive. Calling them vagrants is patronising and demeaning’, says Livingstone Sewanyana, Founder of the Foundation for Human Rights Initiative in Kampala. Such laws are therefore outdated, he says, and designed to undermine the dignity of the poor.
‘These laws advocate for the punishment of vulnerable persons such as poor hawkers […] for not being able to afford an abode’, as well as punishing those who are unemployed, who are victims, who are mentally and physically unwell or who are simply different, says Michoma. Those arrested will be charged in court and probably fined. As many will be in poverty, they may not be able to pay the fine and an alternative sentence of imprisonment, ranging from one month to a year depending upon the jurisdiction, will then be handed down. ‘Thus in the process, their right to liberty and freedom from discrimination would have been abused’, says Michoma. ‘These vagrancy laws […] have no place in the modern world and are an affront to human rights.’ What we need, Sewanyana adds, ‘are employment schemes to provide jobs to the youth. Criminalising them as vagrants is archaic and an abuse of their freedom to survive.’
‘We must remember that the UN Sustainable Development Goals 2030 that most African countries have signed up to have pledged to leave no one behind’, says Michoma. ‘By the very existence of vagrancy laws, states criminalise poverty and entrench discrimination, thus leaving some behind. When some of the citizens are left behind we are all left behind.’
In December 2022, in a unanimous decision made by five judges, Uganda’s Constitutional Court found two sections of the country’s Penal Code Act – specifically those that created the offences of ‘rogue and vagabond’ and ‘idle and disorderly’ and had been established in Ugandan law under British colonial rule – to be unconstitutional and repealed them. The Court held the sections to contain provisions that were excessively vague, declaring them void.
At the end of 2020, meanwhile, the African Court on Human and Peoples’ Rights delivered a historic and landmark advisory opinion in a petition filed by the Pan African Lawyers Union, which sought to declare that vagrancy laws criminalise the status of an individual rather than a specific criminal act, while giving police agencies sweeping powers of detention.
That Court’s judges held that vagrancy laws are incompatible with the enforcement of various human rights instruments, as entrenched in the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women. The Court recommended that countries repeal their vagrancy laws and thus decriminalise these offences. ‘The ruling of the Constitutional Court of Uganda [and the African Court on Human and Peoples’ Rights’ advisory opinion] will mean little unless the laws, operating procedures, and deeply entrenched practices by law enforcement officers are changed’, says Opiyo. ‘We should not criminalise poverty, sex work, different sexual orientation, and gender identity.’
‘The ruling by the African Court has the potential to profoundly reshape criminal justice outcomes for poor and marginalised people both in Africa and in other jurisdictions contending with a colonial legacy of archaic, discriminatory criminal law,’ says Louise Ehlers, Senior Program Manager, Global Programs at Justice, at Open Society Foundations, an organisation that filed an amicus brief in the African Court case. ‘We know that the Advisory Opinion is not binding. However, as an official pronouncement of the principal judicial organ of the African Union, it still carries significant legal weight and moral authority,’ she adds.
The African Commission on Human and Peoples’ Rights had already declared the ‘offences’ of being rogue and vagabond, idle, disorderly and/or a common nuisance as being ‘petty’, having ‘the effect of punishing, segregating, controlling and undermining the dignity of persons on the basis of their socio-economic status’.
‘The African Court on Human and Peoples’ Rights has persuasively pronounced itself on vagrancy laws’ while ‘domestic courts are increasingly declaring vagrancy laws unconstitutional’, explains Michoma. ‘My recommendation would be [that we] lobby for repeal and at the same time approach the courts to make [a] determination of the unconstitutionality of these laws.’ She adds that repealing the vagrancy laws across Africa will require a collaborative effort between civil society organisations, bar associations – as custodians of the law – and the respective parliaments.
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