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Vagrancy Laws are Reflection Of An Outdated And Largely Colonial Perception: African Rights Court

Nupur Thapliyal
19 Dec 2020 11:41 AM GMT
Vagrancy Laws are Reflection Of An Outdated And Largely Colonial Perception: African Rights Court
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The African Court on Human and Peoples' Rights in an advisory opinion dated 4th December 2020 declared the national vagrancy laws criminalizing the homeless, poor, unemployed person having no means of subsistence to be incompatible with the provisions of African Children's Rights Charter and the Women's Rights Protocol. The Court comprising of 12 Members (9 judges, President, Vice...

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The African Court on Human and Peoples' Rights in an advisory opinion dated 4th December 2020 declared the national vagrancy laws criminalizing the homeless, poor, unemployed person having no means of subsistence to be incompatible with the provisions of African Children's Rights Charter and the Women's Rights Protocol. The Court comprising of 12 Members (9 judges, President, Vice President and Registrar) in a unanimous verdict deliberated on the compatibility of vagrancy laws with the right to equality, non discrimination, Right to Privacy, Right to dignity, liberty and free trial along with special focus on best interests of children and women.

The Advisory Opinion was requested by Pan African Lawyers Union (PALU) represented by Mr. Donald Deya invoking the special jurisdiction of the Court under Article 4(1) of Protocol to African Charter on Human and Peoples' Rights and Rule 82(1) of Rules of Court, 2010 which provides that the Court may provide an opinion on any legal matter related to the Charter which is not previously examined at the request of a member State of AU or any of its organs.

PALU's arguments in issue focused on three broad points: First, on amending or repealing vagrancy laws retained by African Union Member States; Second, criminalizing status of an individual for being poor, homeless or unemployed as being in violation of African Charter and other human rights instruments and Third, Arresting and detaining an individual without any proof of criminal act and permitting police authorities to arrest without warrant on mere suspicion.

Prayer by Pan African Lawyers Union (PALU):

PALU approached the Court seeking opinion on the following legal matters:

  1. Whether vagrancy laws which criminalize 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 and cannot give good account of him or herself violate Right to non discrimination, equality, liberty and dignity under the African Charter on Human and Peoples' Rights?
  2. Whether these laws which summarily orders the deportation of such people to another area violate Right to Freedom of Movement and Right to Protection of family under the African Charter on Human and Peoples' Rights and Right of Child to enjoy freedoms, Right to special treatment if found guilty under the African Charter on the Rights and Welfare of the Child?
  3. Whether these laws allowing arrest of such persons without warrant violate principles enshrined under these Charters?
  4. Whether State parties have a positive obligation to repeal or amend these laws by conforming to the rights and principles enshrined in these Charters?

Arguments of Pan African Lawyers Union (PALU):

PALU argued that the vagrancy laws provide an unjust justification to the polie authorities, which otherwise is not available to them, to arrest, search, question or detain somebody merely on a suspicion that they might have committed a crime. According to PALU "This is used by police to clear the streets of 'undesirables', to harass persons believed to be engaged in crime, and to investigate unclear offences."

It further argues that the vagrancy laws are retained by a majority of Member States of AU despite lack of evidence which ultimately defeats the legitimate purpose of crime prevention. PALU submitted that while people are harassed for no reason, these laws are also responsible for large number of detentions being done by the police. According to PALU, "The common practice by the police, across Africa, is to mount sweeping operations under vagrancy laws resulting in mass arrests and guilty pleas which exacerbates the living conditions of detainees by overcrowding detention facilities."

Another significant argument made by PALU rests on the issue of non clarity of implementation procedures under vagrancy laws and that such procedures must be clear and accessible for all, especially the poor victims having no source or means of accessibility. It further submitted that the ambiguity in which vagrancy laws give broad discretion to the law enforcement officers resulting in arbitrary and discriminatory enforcement by police only adds to the social stigma which disproportionately targets poor and marginalized populations.

Observations of the Court:

The Court in its advisory opinion provided a jurisprudential scope to the vagrancy laws by initially defining who is a vagrant. The court opined that a vagrant is "anyone who, not having a settled habitation, strolls from place to place; a homeless, idle wanderer. Vagrancy, generally, is the state or condition of wandering from place to place without a home, job or means of support. Vagrancy is thus considered a course of conduct or a manner of living, rather than a single act. The term "vagrancy" is generic. It refers to misconduct brought about by a perceived socially harmful condition or mode of life. The misconduct itself takes many forms."

The Court stressed on the fact that though many countries have previously had vagrancy laws in place but their application has been very generic as the countries generally put all kinds of poor, rogue and vagabond people grouped into the same umbrella without categorizing them on any basis. The Court observed that while 18 AU countries criminalize vagrancy, another 8 penalize a person for being a "rogue" or "vagabond," and it is a criminal offense in 3 States to be idle and disorderly. The Court observed that using such terms "is a reflection of an outdated and largely colonial perception of individuals without any rights and their use dehumanizes and degrades individuals with a perceived lower status."

The Court went ahead to discuss every possible aspect dealing with the theoretical, legal as well as sociological considerations involved in vagrancy laws.

  1. On Purpose of Enacting Vagrancy Laws: The Court observed that there are three broad reasons why vagrancy laws were enacted. First, to criminalize begins and curtail movements of such people thereby ensuring cheap labour; Second, to reduce costs incurred by local municipalities and Third, to prevent property crimes by creating broad crimes providing wide discretion to law enforcement officials.
  2. On The Right to Non Discrimination, Equality and Dignity: The Court observed that the criminalization of vagrancy laws punish the poor and underprivileged, including the homeless, disabled, gender-nonconforming, sex workers, hawkers, street vendors, and individuals who otherwise use public spaces to earn a living. It also noted that the arrest of persons classified as vagrants, clearly, is largely unnecessary in achieving the purpose of preventing crimes or keeping people off the streets. According to the Court, such laws enable discriminatory treatment of underprivileged and therefore, deprive an individual of the right to equality. "Laws with discriminatory effects towards the marginalized sections of society are not compatible with the African Charter." Court observed.
  3. On Right to Liberty and Fair Trial: The Court observed that the manner in which the vagrancy laws are implemented poses a great danger due to their ambiguous nature. One such challenge is the arbitrary arrest and detention mechanism which are incompatible with arrestee's rights. It was held that "Arresting individuals under vagrancy laws and soliciting statements from them about their possible criminal culpability, is at variance with the presumption of innocence and is not compatible with Article 7 of the Charter."
  4. On the Compatibility with Child Rights: The Court reaffirmed that children who are in conflict with vagrancy laws belong to vulnerable groups and their forcible removal from streets may result in loss of their means of livelihood. Therefore, arrest, detention and forced removal of children from their area of residence is incompatible with their right to non discrimination and Article 4(1) of Children's Rights Charter which restates the general principle of the best interests of the child. It was also observed that "Any judicial system, therefore, must accord children in conflict with the law a treatment that is consistent with their sense of dignity and worth. This includes, among other things, treating children in a manner that accords with their age and promotes their reintegration into society."
  5. On the Compatibility with Women Rights: The Court took special note of the fact that many poor and marginalized women across Africa rely on those activities as a means of living which are criminalized by vagrancy laws. Therefore, these laws undermine the provisions of Women's Protocol by permitting the arrest without a warrant of women where they are deemed to have no means of subsistence and cannot give a satisfactory account of themselves.

Turning on the issue of States' obligation in dealing with national vagrancy laws, the Court observed that States have the obligation to amend or repeal all vagrancy laws or any other bye laws or regulations which are not in conformity of the African Charters and other human rights instruments. Therefore, the Court placed a position obligation on the Member States in amending or repealing these laws within reasonable time by taking reasonable steps to bring them in conformity with the principles enshrined in the Charters.

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