On December 4, the African Court on Human and Peoples Rights delivered a landmark opinion on colonial era vagrancy laws, which criminalize activities such as loitering, public indecency, and begging. The judgment has the potential to help reshape criminal justice policy and practice in dozens of African countries and reduce prison overcrowding.
The Court issued an Advisory Opinion in response to a case brought by the Pan African Lawyers Union and found that vagrancy laws or bylaws in nearly every country in Africa discriminate against marginalized populations including women, children, people with disabilities, and others.
“These vague and arbitrary laws, rooted in the era of empire law making, are used to arrest and imprison thousands of poor and marginalized people every day including the poor and the homeless, street children, migrants, people with disabilities, sex workers, LGBTI people, and drug users,” said Louise Ehlers, of the Open Society Foundations.
The Open Society Justice Initiative filed an amicus brief in the case, citing the urgent need to decriminalize vagrancy laws in light of COVID-19 because the laws over-incarcerate poor and marginalized people, putting them at greater risk of contracting the virus.
“It is in the interest of African states to implement this advisory opinion by repealing all vagrancy laws, which reinforce structural discrimination and penalize poverty,” said Stanley Ibe, associate legal officer for Africa at the OpenSociety Justice Initiative. “Since vagrancy laws contribute to dangerously overcrowded prisons, a hotbed of COVID-19, failing to do so could have disastrous consequences.”
British, French, Portuguese, Dutch, and Belgian colonists used vagrancy laws to control the streets. They were intentionally broad and vaguely defined, giving law enforcement wide discretion to arrest and detain just about anyone.
These laws are still in place in many former colonies. For example, the very same language introduced to British colonies through the English Vagrancy Act of 1824 is still in use today in some places. In Botswana, the Gambia, Nigeria, Seychelles, Tanzania, Uganda, and Zambia, you can still be cited for being a “rogue and a vagabond.”
The penal codes of at least 18 former French colonies, including Algeria, Burundi, Burkina Faso, Cameroon, Chad, Comoros, Congo, Cote d’Ivoire and Gabon, among others contain a similarly worded offense of “vagabondage.”
This African Court opinion provides clarity on the discriminatory nature of these laws. This will bolster efforts to strike them down in domestic and regional courts across Africa and provide a foundation to limit their enforcement by the police in the short term. (