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Key Concepts of Petty Offences

Bail: The temporary release of an accused person from prison pending trial, sometimes on condition that a sum of money be paid to the Court to guarantee the accused persons appearance in court.

Bond: A written and signed promise to pay a certain sum of money on a certain date, or on fulfilment of a specified condition. For the purpose of this paper, a bond can secure the accused person’s temporary release from prison pending trial.

By-laws: By-laws, for the purposes of this report refer to laws made by a local government, such as a municipality, metropolitan authority or county.

Declassification: This can happen in a number of ways. Even if an offence is not decriminalised, enforcement is curtailed through a number of mechanisms, such as prohibiting arrest for the offence (i.e. the person is warned) or requiring a certain number of warnings (over a specified period of time) before a person can be arrested. Declassification may also mean that an arrested person may not be detained awaiting trial for the offence and that transgressions must be summarily dealt with. Declassification may also mean prohibiting a sentence of imprisonment for the offence.

Decriminalise: This refers to the process of removing an act that was criminal and its associated penalties from the statutes.

Fair trial rights: The right to a fair trial is a peremptory norm of international customary law[1] and enshrined in article 14 of the International Covenant on Civil and Political Rights (ICCPR). Articles 9, 10 and 15 of the ICCPR inform the content of fair trial rights and establish that:

  • Arrested or detained persons must be brought promptly before a judicial officer and be entitled to trial within a reasonable time or to release;
  • It must not be the general rule that persons awaiting trial are detained in custody, but release may be subject to guarantees to appear for trial;
  • There must be a fair and public hearing by an independent and impartial tribunal;
  • There must be equality before the courts and tribunals;
  • There must not be arbitrary detention;
  • There must be restriction of the use of incommunicado detention;
  • There is access to lawyers, doctors and family; and
  • There is independent internal and external oversight.[2]

Violations of the right to a fair trial are likely to exacerbate the socio-economic impact on detainees and their associated households. On the other hand, while strict adherence to fair trial rights may work to limit the negative socio-economic impact of pre-trial detention, some impact is likely to occur even when fair trial rights have been observed. There is thus an argument that there is a duty to take into account socio-economic rights beyond adherence to fair trial rights.

Petty offence: There is no generally accepted definition for what a petty offence is, but it is perhaps best measured as relative to the sanction that may be imposed and the response from the state. Such offences are usually also heard by the lowest order of courts or a specialised court, such a municipal court (for by-law offences) or traffic courts (for traffic offences). Under English common law and American Federal Law, petty offences are usually punishable by a relatively small fine and/or a short term of imprisonment. It is also a summary trial and the accused is not entitled to a trial by jury.A petty offence, in principle, does not pose a serious threat to societal safety, any individuals or property.

Poverty: The term “absolute poverty” generally refers to a specific income threshold or a fixed amount, below which individuals are unable to meet basic needs. By international standards, it is a “state in which a family earns less than a minimum amount of income – typically US$ 1.25 per day per person in low-income countries”. In relative terms, individuals are considered poor when their financial position compares unfavourably with an average living standard in society – what the United Nations describes as the “inability of individuals, households, families, or entire communities to attain a minimum and socially accepted standard of living”. Relative poverty may also refer to the lowest income level of a society – i.e. the portion of a population that earns the least. This creates a completely different characterisation of poverty: though absolute poverty may be eliminated as incomes grow, there will always be a lowest-earning group in any population and always a degree of relative poverty.[4]

Socio-economic impact: This paper uses the International Covenant on Economic, Social and Cultural Rights (ICESCR) as basic framework for understanding the socio-economic status of individuals and their households and it therefore incorporates at least the following rights:

  • The right to equality between men and women to pursue economic, social and cultural rights (art 3)
  • The right to work and the duty of the state to take measures (e.g. training programmes) to enable people to access gainful employment (art 6)
  • The right to just conditions of employment (art 7)
  • The right to social security (art 9)
  • The duty of the state to provide the widest possible protection to the family (art 10)
  • The right to an adequate standard of living and to be free from hunger (art 11)
  • The right to the enjoyment of the highest attainable standard of physical and mental health (art 12)
  • The right to education (art 13)

The nature of the obligations on states set out by the ICESCR is not that states must ensure that every person has employment, social security, and the like, but rather that states should ‘respect’, ‘protect’ and ‘promote’ these socio-economic rights. The duty to ‘respect’ entails an obligation not to interfere with the resources of individuals, their freedom to find a job, nor their freedom to take necessary action and to use their resources to satisfy needs.

Surety: is a promise by a surety (guarantor) to pay one party (the obligee) a certain amount if a second party (the principal) fails to meet his/her obligation to pay in terms of a contract.

[1] A peremptory norm is a fundamental principle from which no derogation is permitted. UN Human Rights Committee, General Comment 29, States of Emergency (article 4), CCPR/C/21/Rev.1/Add.11 (2001), and UN Human Rights Committee, General Comment 32: Right to Equality before Courts and Tribunals and to a Fair Trial, CCPR/C/GC/32 (23 August 2007), [54].

[2] UN General Assembly, Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, A/56/156, 3 July 2001, [34]. Articles 6 and 7 of the AChHPR reflect ICCPR safeguards, and the ACHPR has provided further guidance on the content of the right to fair treatment in the Resolution on the Right to Recourse and Fair Trial (Res.4 (XI) 92) and the Principles and Guidelines on Rights to a Fair Trial and Legal Assistance in Africa (see also, Rights International v Nigeria, African Commission on Human and Peoples Rights, Communication no. 215/98, [29]). See also, Rights International v Nigeria, African Commission on Human and Peoples Rights, Communication no. 215/98, [29].

[3] Duhaime’s Law Dictionary http://www.duhaime.org/LegalDictionary/P/PettyOffense.aspx

[4] Africa Check https://africacheck.org/factsheets/factsheet-what-is-poverty/

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