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Kenya Law / Blog / Case Summary: Need for State parties to the Banjul Charter to amend or repeal their vagrancy laws which were extensive and conferred a wide discretion on law enforcement agencies to arrest and detain persons where there was no proof of a criminal act thereby violating the rights of vulnerable individuals in society

Need for State parties to the Banjul Charter to amend or repeal their vagrancy laws which were extensive and conferred a wide discretion on law enforcement agencies to arrest and detain persons where there was no proof of a criminal act thereby violating the rights of vulnerable individuals in society

Pan African Lawyers Union

Advisory Opinion No. 001/2018

African Court on Human and Peoples’ Rights

S Ore, P; B Kioko, VP; RB Achour, AV Matusse, S Mengue, M Makamulisa, TR Chizumila, C Bensaoula, B Tchikaya, SI Anukam and lD Aboud, JJ

4-Dec-20

Reported by Faith Wanjiku

Download the Decision

International law- treaties – African Charter on Human and Peoples’ Rights – rights to non-discrimination, equality before the law, dignity, liberty, fair trial, freedom of movement and family – violation of the rights of an individual by-laws that were too vague – vagrancy laws – whether vagrancy laws and by-laws, including but not limited to those that contained offences which criminalised the status of a person as being without a fixed home, employment or means of subsistence,a suspected person or reputed thief, idle and who had no visible means of subsistence and could not give good account of themselves, violated the Banjul Charter for being too overly broad and conferring too wide a discretion on law enforcement agencies – African Charter on Human and Peoples’ Rights, 1981, articles 2, 3, 5, 6 ,7, 12 and 18.

International law- treaties – African Charter on Human and Peoples’ Rights-African Charter on the Rights and Welfare of the Child – rights to dignity, freedom of movement and family- best interests of a child -right to special treatment of a child guilty of infringement of penal law – violation of the rights of a child by-laws that were vague – vagrancy laws – whether vagrancy laws and by-laws, including but not limited to, those containing offences which, once a person had been declared a vagrant or rogue and vagabond, summarily ordered such person’s deportation to another area, violated provisions of the Banjul Charter and of the Children’s Rights Charter as they undermined the presumption of innocence and threatened the rule of law- African Charter on Human and Peoples’ Rights, 1981, articles 5, 12, 18; African Charter on the Rights and Welfare of the Child,1989, articles 2, 4(1) and 17.

International law- treaties – African Charter on Human and Peoples’ Rights; African Charter on the Rights and Welfare of the Child- Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa  – violation of the rights of an individual by laws that were too vague – vagrancy laws – whether vagrancy laws and by-laws, including but not limited to, those that allowed for the arrest of someone without warrant simply because the person had no means of subsistence and could not have given a satisfactory account of him or herself, violated provisions of the Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol as they undermined the presumption of innocence and threatened the rule of law – African Charter on Human and Peoples’ Rights,1981, articles 2, 3, 5, 6, 7; African Charter on the Rights and Welfare of the Child, 1989, articles3, 4(1)and 17 of the Children’s Rights Charter and Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003, article 24.

International law- treaties – African Charter on Human and Peoples’ Rights – state parties – obligations of state parties – obligations to the Banjul Charter to take all necessary measures including the adoption of legislative or other measures in order to give full effect to international instruments – whether state parties to the Banjul Charter had positive obligations to repeal or amend their vagrancy laws and/or by-laws to conform with the rights protected by the Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol and in the affirmative, determine what those obligations were – African Charter on Human and Peoples’ Rights, 1981, article 1.

Words and phrases – vagrant –definition – a vagrant was anyone belonging to the several classes of idle or disorderly persons, rogues and vagabonds including anyone who, not having a settled habitation, strolled from place to place- a homeless, idle wanderer – vagrancy, generally, was the state or condition of wandering from place to place without a home, job or means of support thus considered a course of conduct or a manner of living, rather than a single act - Black’s law dictionary, 2009.

Brief facts:

Pan African Lawyers Union (PALU), (applicant) submitted to the African Court on Human and Peoples’ Rights (the court) that a number of AU member states retained laws which criminalised the status of individuals as being poor, homeless or unemployed as opposed to specific reprehensible acts. The applicant had generically termed those laws as vagrancy laws and submitted that they violated various provisions of the African Charter on Human and Peoples’ Rights (the Banjul Charter), the African Charter on the Rights and Welfare of the Child (Children’s Rights Charter) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Rights Protocol).

According to the applicant, many countries abused vagrancy laws to arrest and detain persons where there had been no proof of a criminal act. The applicant submitted, therefore, that those laws were overly broad and conferred too wide a discretion on law enforcement agencies to decide who to arrest which impacted disproportionately on vulnerable individuals in society. The applicant also submitted that arrests for violation of vagrancy laws contributed to congestion in police cells and prison overcrowding. It was the applicant’s further submission that the manner in which vagrancy offences were enforced was contrary to the basic principles of criminal law i.e. it undermined the presumption of innocence and thereby threatened the rule of law.

Issues:

i. Whether vagrancy laws and by-laws, including but not limited to: those that contained offences which criminalised the status of a person as being without a fixed home, employment or means of subsistence; as being a suspected person or reputed thief, as being idle and who had no visible means of subsistence and could not give good account of themselves, violated articles 2, 3, 5, 6 ,7, 12 and 18 of the Banjul Charter for being too overly broad and conferring too wide a discretion on law enforcement agencies.

ii. Whether vagrancy laws and by-laws, including but not limited to, those containing offences which, once a person had been declared a vagrant or rogue and vagabond, summarily ordered such person’s deportation to another area, violated articles 5, 12, 18 of the Banjul Charter and articles 2, 4(1) and 17 of the Children’s Rights Charter as they undermined the presumption of innocence and threatened the rule of law.

iii. Whether vagrancy laws and by-laws, including but not limited to, those that allowed for the arrest of someone without warrant simply because the person had no means of subsistence and could not give a satisfactory account of him or herself, violated articles 2, 3, 5, 6, 7 of the Banjul Charter, articles 3, 4(1), 17 of the Children’s Rights Charter and article 24 of the Women’s Rights Protocol as they undermined the presumption of innocence and threatened the rule of law.

iv. Whether state parties to the Banjul Charter had positive obligations to repeal or amend their vagrancy laws and/or by-laws to conform to the rights protected by the Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol and in the affirmative, determine what those obligations were.

Held:

1. The term vagrancy was generic. It referred to misconduct brought about by a perceived socially harmful condition or mode of life. The misconduct itself took many forms. Although many countries had had vagrancy laws on their statute books, there had always been nuances across legal systems in terms of the formulation of the offences and the manner of enforcement. In the advisory opinion, therefore, the court remained alive to the fact that the term vagrancy was often used in a generic sense to allude to various offences commonly grouped under the umbrella including but not limited to being idle and disorderly, begging, being without a fixed abode, being a rogue and vagabond, being a reputed thief and being homeless or a wanderer.

2. From a sociological perspective, it had been suggested that there were three main reasons that motivated the adoption of vagrancy laws:

a)   to curtail the mobility of persons and criminalise begging, thereby ensuring the availability of cheap labour to land owners and industrialists whilst limiting the presence of undesirable persons in the cities;

b)   to reduce the costs incurred by local municipalities and parishes to look after the poor; and

c)    to prevent property crimes by creating broad crimes providing wide discretion to law enforcement officials.

Those justifications had not remained stagnant in time or place. At different points in time, various countries had emphasised different justifications for maintaining vagrancy offences. Definitions of conduct caught by vagrancy laws, therefore, had also varied from one country to the other.

3. With regard to the prevailing situation in Africa, several countries had laws containing vagrancy offences. For example, in the Penal Codes of at least eighteen African countries, a vagrant was defined as any person who did not have a fixed abode nor means of subsistence, and who did not practice a trade or profession. In at least eight African countries, a suspected person or reputed thief who had no visible means of subsistence and could not give a good account of him or herself committed an offence of being a rogue or a vagabond. In South Africa, for instance, by-laws prohibited a person without a fixed abode from loitering or sleeping in a public amenity, public space or in the beach. Further in at least three African countries, the offence of being an idle and disorderly person was defined to include someone who loitered or was idle and who did not have a visible means of subsistence and could not give a good account of him or herself.

4. African countries, for example, Angola, Cape Verde, Kenya, Lesotho, Mozambique, Rwanda and Zimbabwe had repealed some of their vagrancy laws. Courts, in some African countries, had also nullified some vagrancy laws for being unconstitutional. For example, in Mayeso Gwanda v The State, the High Court of Malawi ruled that the offence of being a rogue and vagabond was a violation of human rights and was unconstitutional.

5. Vagrancy laws, effectively, punished the poor and underprivileged, including but not limited to the homeless, the disabled, the gender-nonconforming, sex workers, hawkers, street vendors, and individuals who otherwise used public spaces to earn a living. However, individuals under such difficult circumstances were challenged in enjoying their other rights including more specifically their socio-economic rights. Vagrancy laws, therefore, served to exacerbate their situation by further depriving them of their right to be treated equally before the law.

6. The status of an individual was one of the prohibited grounds for discrimination under article 2 of the Banjul Charter. In relation to the application of vagrancy laws, no reasonable justification existed for the distinction that the law imposed between those classified as vagrants and the rest of the population except their economic status. The individual classified as a vagrant would, often times, have no connection to the commission of any criminal offence hence making any consequential arrest and detention unnecessary. The arrest of persons classified as vagrants was largely unnecessary in achieving the purpose of preventing crimes or keeping people off the streets.

7. Equal protection of the law presupposed that the law protected everyone, without discrimination. Where different treatment was meted to individuals based on their status, as was the case with the application of vagrancy laws, individuals were denied the equal protection of the law. Laws with discriminatory effects towards the marginalized sections of society were not compatible with both articles 2 and 3 of the Banjul Charter.

8. Any arrest without a warrant required reasonable suspicion or grounds that an offence had been committed or was about to be committed. Where vagrancy-related offences were concerned, most arrests were made on the basis of an individual’s underprivileged status and the inability to give a self-account. Arrests were substantially connected to the status of the individual who was being arrested and would not be undertaken but for the status of the individual. Arrests without a warrant for vagrancy offences, therefore, were also incompatible with articles 2 and 3 of the Banjul Charter.

9. The court had recognised three main principles for determining violations of the right to dignity as guaranteed under article 5 of the Banjul Charter.

a)   Article 5 had no limitation provisions and thus the prohibition of indignity manifested in cruel, inhuman and degrading treatment was absolute.

b)   The prohibition in article 5 provided the widest possible protection against both physical and mental abuse.

c)    Personal suffering and indignity could take various forms and the assessment of whether a specific provision of a law or policy violated article 5 had to be made on a case-by-case basis.

10. The use of the words lunatics and idiots to refer to persons with mental disabilities dehumanized and denied them their dignity. Vagrancy laws commonly used the terms rogue, vagabond, idle and disorderly to label persons deemed to be vagrants. Those terms were a reflection of an outdated and largely colonial perception of individuals without any rights and their use dehumanized and degraded individuals with a perceived lower status. 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 they pursued and was therefore incompatible with the notion of human dignity as protected under article 5 of the Banjul Charter.

11. Labelling an individual as a vagrant, vagabond, rogue or in any other derogatory manner and summarily ordering them to be forcefully relocated to another area denigrated the dignity of a human being. If the implementation of such order was accompanied by the use of force, it could also amount to physical abuse. Forcible removal of persons deemed to be vagrants was not compatible with article 5 of the Banjul Charter.

12. Any arrest and detention was arbitrary if it had no legal basis and had not been carried out in accordance with the law. Deprivation of liberty in line with an existing law did not of itself make the process legal. Any restriction of an individual’s liberty, therefore, had to have a legitimate aim and had to also serve a public or general interest. Arrests and detentions under vagrancy laws were incompatible with the arrestees’ right to liberty and the security of their person as guaranteed under article 6 of the Banjul Charter. That was invariably the case where the arrest was without a warrant.

13. The right to fair trial was a fundamental human right which was enshrined in all universal and regional human rights instruments. In article 7(1)(b), the Banjul Charter reiterated the fundamental principle of the presumption of innocence. The essence of the right to presumption of innocence lay in its prescription that any suspect in a criminal trial was considered innocent throughout all the phases of the proceedings, from preliminary investigation to the delivery of judgment, and until his guilt was legally established.

14. Vagrancy laws often punished an individual’s perceived status, such as being idle, disorderly or a reputed thief, which status did not have an objective definition and law enforcement officers could arbitrarily arrest individuals without the sufficient level of prima facie proof that they committed a crime. Once they were taken into custody, such arrested persons would have to explain themselves to the law enforcement officer(s) to demonstrate that, for example, they were not idle or disorderly, were not a reputed thief or that they practiced a trade or profession. A failure to provide an explanation acceptable in the eyes of law enforcement officers could result in them being deemed unable to give an account of themselves and thereby, supposedly, providing justification for their further detention. Arresting individuals under vagrancy laws and soliciting statements from them about their possible criminal culpability, was at variance with the presumption of innocence and was not compatible with article 7 of the Banjul Charter.

15. The Banjul Charter did not have a provision comparable to article 12(3) of the ICCPR setting out when limitations on the freedom of movement were permissible. In article 12(1), the Banjul Charter merely provided that the enjoyment of the freedom of movement was subject to the condition that the individual abode by the law. In appropriate circumstances, the law could limit the freedom of movement under the Banjul Charter. Any limitation of the freedom of movement had to:

a)   Be provided by law. A contrary interpretation of article 12 of the Banjul Charter would open the door to arbitrary and unpredictable interference with the right.

b)   Be necessary to protect national security, public order, public health or morals or the rights and freedom of others. That ensured that the restrictions were only issued for those limited reasons and not for others.

c)    Be consistent with the other rights recognized in the Banjul Charter. That meant that a restriction on the freedom of movement had to not infringe the other rights of an individual unless the restriction of those other rights was permissible under the Banjul Charter.

16. In many instances, the enforcement of vagrancy laws led to infringement limitation of the right of freedom of movement. Such limitations were prescribed by vagrancy laws, since many African countries had laws outlawing vagrancy, thereby satisfying the first conditions earlier enumerated. Such conduct, however, failed to satisfy the second and third conditions. That was because vagrancy laws were not necessary for any of the purposes for which they were often cited. Vagrancy laws were often employed for crime-prevention purposes, but there was no correlation between vagrancy and the criminal propensity of an individual.

17. The enforcement of vagrancy laws, generally, was incompatible with the right to freedom of movement as guaranteed under article 12 of the Banjul Charter. Forced relocation, which was permitted by vagrancy laws in some African countries, was also incompatible with article 12 of the Banjul Charter.

18. Underlying article 18 of the Banjul Charter was the responsibility of member states to take care of the physical and moral health of the family. International human rights law consistently recognised the family as the fundamental group unit of society requiring protection. The protection of the family included the right to family unity which entailed that members of the same family were entitled to protection against forcible separation.

19. Arrests and detentions under vagrancy laws could result in the forcible removal of the suspected vagrants from their families. Due to that, other family members that relied on those arrested under vagrancy laws, most notably children, the elderly and the disabled could suffer from the deprivation of financial and emotional support. Every arrest and detention led to the detriment of the physical and moral health of a suspect’s family, irrespective of the crime at issue. For that reason, not all arrests and detentions were incompatible with article 18 of the Banjul Charter. However, an arrest or detention carried out pursuant to the enforcement of vagrancy laws, as had been demonstrated in the advisory opinion, was incompatible with several rights protected under the Banjul Charter and such arrests accentuated the vulnerability of families. 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 the Banjul Charter.

20. The treatment that children in conflict with vagrancy laws were subjected to was, therefore, less favourable than that which other children in the society experienced. The primary reason for the differentiated treatment was the position of marginalisation and vulnerability occupied by those children. Children in conflict with vagrancy laws, therefore, were discriminated against because of their status.

21. Aside from the discrimination directly suffered by children who found themselves in conflict with vagrancy related laws such children’s other rights were also compromised when one or more of their parents or primary caregivers were removed from the area in which they resided or worked. Parental incarceration or forced relocation led to children living separately from their parents thereby resulting to instability in family relationships and financial problems. The enforcement of vagrancy-related laws, which resulted 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.

22. The best interests of the child was a cross-cutting principle which applied to children, irrespective of status, in diverse circumstances. The arrest, detention and forcible relocation of children on account of vagrancy offences also infringed their best interests. Such conduct not only compromised children’s fundamental rights but also exposed them to multiple other potential violations of their rights. The application of vagrancy laws was incompatible with article 4(1) of the Children’s Rights Charter on the best interests of the child.

23. Article 17 of the Children’s Rights Charter extended fair trial guarantees to all children. The provision specifically emphasised the need to accord children special treatment in a manner consistent with the child’s sense of dignity and worth. States had a duty to ensure that all necessary measures were implemented to ensure that all children in conflict with the law were treated equally. In all decisions taken within the context of the administration of juvenile justice, the best interests of the child should be a primary consideration. Numerous fair trial rights were violated during the enforcement of vagrancy laws. Although those violations affected both adults and children, 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.

24. Article 24 of the Women’s Rights Protocol created a composite obligation for states in respect of poor women, women heads of families and other women from marginalised populations. That obligation required states to create an environment where poor and marginalised women could fully enjoy all their human rights. Many poor and marginalised women across Africa earned a living by engaging in activities that put them at constant risk of arrest under vagrancy laws. By sanctioning the arrest of poor and marginalised women on the ground that they had no means of subsistence and could not give a satisfactory account of themselves, vagrancy laws undermined article 24 of the Women’s Rights Protocol.

25. Article 1 of the Banjul Charter, article 1 of the Children’s Rights Charter and article 1 of the Women’s Rights Protocol obligated all state parties to, inter alia, either amend or repeal their vagrancy-laws and by-laws to bring them in conformity with those instruments. That 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 Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol. As to the nature of the obligation, that obligation required 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 Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol.

Application allowed.

Orders

i. Vagrancy laws, including but not limited to those that contained offences which criminalised 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 who had no visible means of subsistence and could not give a good account of him or herself; and as being idle and who did not have visible means of subsistence and could not give good account of him or herself violated; and also those laws that ordered the forcible removal of any person declared to be a vagrant and laws that permitted the arrest without a warrant of a person suspected of being a vagrant were incompatible with articles 2, 3, 5, 6, 7, 12 and 18 of the Banjul Charter;

ii. Vagrancy laws and by-laws, including but not limited to, those containing offences which, once a child had been declared a vagrant or rogue and vagabond, summarily ordered such child’s forcible relocation to another area, were incompatible with articles 3, 4(1) and 17 of the Children’s Rights Charter;

iii. Vagrancy laws, including but not limited to, those that allowed for the arrest of any woman without a warrant simply because the woman had no means of subsistence and could not give a satisfactory account of herself were incompatible with article 24 of the Women’s Rights Protocol; and

iv. State parties to the Banjul Charter had a positive obligation to, inter alia, repeal or amend their vagrancy laws and related laws to comply with the Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol within reasonable time and that that obligation required them to take all necessary measures, in the shortest possible time, to review all their laws and by-laws especially those providing for vagrancy-related offences, to amend and/or repeal any such laws and bring them in conformity with the provisions of the Banjul Charter, the Children’s Rights Charter and the Women’s Rights Protocol.

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