African Court on Human and People’s Rights: While deliberating upon a request for Advisory Opinion filed by the Pan African Lawyers Union (hereinafter PALU) regarding compatibility of ‘Vagrancy Laws’ with the African Charter of Human and People’s Rights and other Human Rights instruments applicable in Africa, the Court unanimously observed that Vagrancy Laws, which contain offences criminalising 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 etc; laws that order the forcible removal of any person declared to be a vagrant; and laws that permit the arrest without a warrant of a person suspected of being a vagrant, are incompatible with Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter. The Court declared that there is a “positive obligation” on the State Parties to review, repeal or amend their vagrancy laws and related laws to comply with the Charter, the Children’s Rights Charter and the Women’s Rights Protocol within reasonable time and that this obligation requires them to take all necessary measures, in the shortest possible time.
It was submitted by the PALU that a number of Member States of the African Union still have laws that criminalise the status of individuals as being poor, homeless or unemployed as opposed to specific culpable acts. PALU submitted before the Court that these laws are overly broad and confer too wide a discretion on law enforcement agencies to decide who to arrest which impacts disproportionately on vulnerable individuals in society.
The PALU put forth the following requests for an opinion from the Court-
- Whether vagrancy laws and by-laws, (including but not limited to) that contain offences which criminalise the status of a person as being without a fixed home, employment or means of subsistence etc., violate Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights and Articles 2, 4(1) and 17 of the African Charter on the Rights and Welfare of the Child.
- Whether vagrancy laws and by-laws that allow for the arrest of someone without warrant simply because the person has no ‘means of subsistence and cannot give a satisfactory account’ of him or herself, violate [Articles 2, 3, 5, 6, 7 of the African Charter on Human and Peoples’ Rights, Articles 3, 4(1), 17 of the African Charter on the Rights and Welfare of the Child and Article 24 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
- Whether State Parties to the African Charter on Human and Peoples’ Rights have positive obligations to repeal or amend their vagrancy laws and/or by-laws to conform with the rights protected by 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 in Africa and in the affirmative, determine what these obligations are.
The Court also took into account the observations made by the Member States of the African Union. The Member States informed the Court about several reforms that are in the queue to streamline the process of repealing or amending laws that are in non-conformity with the Charters, like- Ouagadougou Declaration and Plan of Action on Accelerating Prisons’ and Penal Reforms in Africa, which calls for the decriminalization of offences such as being a rogue and vagabond, loitering, prostitution and failure to pay debts and disobedience to parents.
Upon scrutinizing the issues and questions raised, the Court held that Article 1 of the African Charter, Article 1 of the Children’s Rights Charter and Article 1 of the Women’s Rights Protocol obligates all State Parties to, inter alia, either amend or repeal their vagrancy laws and by-laws to bring them in conformity with these instruments. This would be in line with the obligation to take all necessary measures including the adoption of legislative or other measures in order to give full effect to the Charter, the Children’s Rights Charter and the Women’s Rights Protocol. As to the nature of the obligation, the Court held that this obligation requires all State Parties to amend or repeal all their vagrancy laws, related by-laws and other laws and regulations so as to bring them in conformity with the provisions of the Charter, the Children’s Rights Charter and the Women’s Rights Protocol. Some of the important findings of the Court regarding the issue are as follows-
- Vagrancy laws and by-laws containing offences in which a child has been declared a vagrant or rogue and vagabond and summarily orders such child’s forcible relocation to another area, are incompatible with Articles 3, 4(1) and 17 of the Children’s Rights Charter.
- Vagrancy laws which allow for the arrest of any woman without a warrant simply because the woman has no “means of subsistence and cannot give a satisfactory account of herself” are incompatible with Article 24 of the Women’s Protocol.
[Request for Advisory Opinion on compatibility of ‘Vagrancy Laws’ with the African Charter of Human and People’s Rights and other Human Rights instruments applicable in Africa, No. 001/2018, decided on 04-12-2020]
Sucheta Sarkar, Editorial Assistant has put this story together