Vagrancy Laws are Reflection Of An Outdated And Largely Colonial Perception: African Rights Court

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: 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?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?Whether these laws allowing arrest of such persons without warrant violate principles enshrined under these Charters? 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 ...

Vagrancy Laws are Reflection Of An Outdated And Largely Colonial Perception: African Rights Court

Nupur Thapliyal

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