Tobi Soniyi
The African Court on Human and Peoples’ Rights has held that countries in the continent are under obligation to repeal or amend their vagrancy laws to conform with the rights protected by the Charter, the Children’ Rights Charter and Women’s Rights Protocol.
The court, while rendering an advisory opinion following a request by the Pan African Lawyers Union (PALU) held that vagrancy laws violated the rights of the African people and should therefore be abrogated or amended to conform with human rights.
In its request for advisory opinion PALU submitted that many Member States of the African Union (AU) retained laws which criminalised the status of individuals as being poor, homeless as opposed to specific reprehensible acts otherwise as ‘vagrancy laws.’
According to PALU, many African countries abuse vagrancy laws to arrest and detain people even when there is no proof of criminal conduct. The Open Society Justice Initiative among other organizations submitted amici curiae briefs.
In its opinion, the court first considered the compatibility of vagrancy laws with the African Charter, specifically with Articles 2, 3, 5, 6, 7 12, and 18 of the Charter and held that these laws derogated from the articles.
According to the court, vagrancy laws, both in their formulation as well as in their application, by, among other things, criminalising the status of an individual, enabling the discriminatory treatment of the underprivileged and marginalized, and also by depriving individuals of their equality before the law were not compatible with Articles 2 and 3 of the Charter.
The court also found that arrests for vagrancy-related offences, “where they occur without a warrant, are not only a disproportionate response to socio-economic challenges but also discriminatory since they target individuals because of their economic status.”
It also found that the application of vagrancy laws often deprived the underprivileged and marginalized of their dignity by unlawfully interfering with their efforts to maintain or build a decent life or to enjoy a lifestyle of choice.
Consequently, the court found that vagrancy laws were incompatible with the notion of human dignity as protected under Article 5 of the Charter.
It also found that “arrests and detentions under vagrancy laws are incompatible with the arrestees’ right to liberty and the security of their person as guaranteed under Article 6 of the Charter and this is invariably the case where the arrest is without a warrant.“
The court further found that arresting individuals under vagrancy laws and soliciting statements from them about their possible criminal culpability was at variance with the presumption of innocence and not compatible with Article 7 of the Charter.
It concluded that the enforcement of vagrancy laws, generally, was incompatible with the right to freedom of movement as guaranteed under Article 12 of the Charter. The court also found that forced relocation, permitted by vagrancy laws in some African countries, was also incompatible with Article 12 of the Charter.
The court held that arrests and detentions based on vagrancy laws were incompatible with Article 18 of the Charter.
It held that the forcible relocation of “vagrants” was incompatible with the preservation of the sanctity of the family as a basic unit of society as guaranteed in Article 18 of the Charter.
The court also considered the compatibility of vagrancy laws with the Children’s Rights Charter and held that the enforcement of vagrancy-related laws, which results in the arrests, detention and sometimes forcible relocation of children from the areas of residence, was incompatible with children’s right to non-discrimination as protected under Article 3 of the Children’s Rights Charter.
It held that the arrest, detention and forcible relocation of children on account of vagrancy offences infringed the best interests of children.
Such conduct, according to the court, not only compromises children’s fundamental rights but also exposes them to multiple other potential violations of their rights which is incompatible with Article 4(1) of the Children’s Rights Charter.
It found that the arrest, detention and forcible relocation of children due to vagrancy laws was incompatible with their fair trial rights as protected under Article 17 of the Children’s Rights Charter.
It also considered the compatibility of vagrancy laws with Article 24 of the Women’s Rights Protocol and came to a conclusion that vagrancy laws were incompatible with Article 24 of the Women’s Rights Protocol for 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.
The court held that State Parties to the Charter have positive obligations to repeal or amend their vagrancy laws and/or by laws to conform with the rights protected by the Charter, the Children’ Rights Charter and Women’s Rights Protocol, and in the affirmative, determine these obligations.
The Court held that Article 1 of the 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.
The court said 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.
