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Petty Offences

The Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa of 2003[1] endorsed recommendations calling for reducing the size of prison populations in Africa. The Plan of Action recommended the “Decriminalisation of some offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents” as a strategy to reduce the prison population. More than a decade has passed and few countries have made any progress in implementing this strategy endorsed by the African Commission. Many of the offences identified by the African Commission as ripe for repeal amount to nothing more than the criminalisation of poverty, homelessness, and unemployment. Certain offences, such as loitering and rogue and vagabond, date back to colonial times and have no place here anymore. They must be repealed.

It is indeed ironic that many of the offences that have remained on the statutes post-independence had as their express purpose the subjugation and humiliation of Africans by colonial authorities. Their continued enforcement is disproportionately experienced by the poor. The existence of these laws, and their enforcement, are justified by proponents with unsubstantiated arguments based more on anecdote and bias, than fact. Such proponents argue, for example, that arresting people for loitering prevents crime and has a deterrent effect on would-be criminals. It is similarly argued that arresting street children in so-called sweeping operations encourages them to return to their homes and families.

This paper sets out the arguments and evidence for the decriminalisation and declassification of petty offences. In brief these are:

  • These laws are not enforced fairly and frequently result in arbitrary and unlawful arrests targeting the poor and other marginalised groups.
  • These laws and their enforcement do not promote public safety and may even be counter-productive.
  • The enforcement of such laws contributes to the number of people in pre-trial detention and thus adds to already overcrowded prisons, which of itself has negative consequences for detainees and an adverse socio-economic impact on their families.
  • The enforcement of such laws is highly discretionary thus facilitating the extortion of bribes, and excessive violence is often associated with arrests.
  • High volumes of arrests for such offences have adverse consequences for police-community relations.

Fundamentally we must ask: what is the purpose of these laws and their enforcement? How does it contribute to making society safer and what is the evidence for this? These laws and their enforcement must also be assessed against key human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (AChHPR). More than ten years ago the Ouagadougou Declaration already confirmed that these laws and their enforcement is an affront to the AChHPR and they should be repealed.

The Charter clearly requires equal treatment before the law and in practice; this means that people should not be targeted by the police because they are poor and powerless.

 The AChHPR states that every individual shall have the right to the respect of the dignity inherent in a human being and prohibits all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.[2] Dignity is an inherent basic right to which all human beings are entitled without discrimination.[3] The African Commission stressed that inhuman and degrading treatment includes not only actions that cause serious physical or psychological suffering, but those which humiliate or force the individual against his will or conscience.[4] Arbitrary confrontation by the police and the unlawful arrest of an individual is a demeaning and humiliating experience. This is even more so if it is for a minor offence, which is not a threat to public safety and targeting vulnerable and poor people. The arbitrary arrest and detention of children in appalling conditions are tantamount to exploitation and amounts to cruel inhuman and degrading treatment, which is in violation of Article 5 of the AChHPR.

The AChHPR furthermore guarantees everyone the rights to freedom of movement,[5] liberty and to the security of his/her person. In particular, no one may be arbitrarily arrested or detained.[6] The mere fact that it is an offence to loiter or be rogue and vagabond restricts a person’s freedom of movement and the arbitrary and violent arrests of persons and the extortion of bribes by law enforcement officials deny persons all the aforementioned rights and freedoms.

The United Nations Sustainable Development Goals (SDG) provide targets for Governments to address extreme poverty.[7] Governments have a responsibility to end poverty in all its forms everywhere by 2030, particularly by ensuring that all men and women, in particular the poor and the vulnerable, have equal rights to economic resources.[8] Governments have a responsibility to build the resilience of the poor and those in vulnerable situations and reduce their exposure and vulnerability to economic, social and environmental shocks and disasters.[9] . In line with the Sustainable Development Goals, governments must implement programmes and policies to end poverty in all its dimensions and create sound policy frameworks based on pro-poor and gender-sensitive development strategies, to support accelerated investment in poverty eradication actions.[10] Instead of criminalizing street vendors or other so-called nuisance behaviours, governments need to seek ways to address poverty.

The Protocol to the AChHPR on Human and Peoples’ Rights on the Rights of Women in Africa  (Maputo Protocol) emphasis the rights of women to dignity,[11] equal protection before the law,[12] security of the person,[13] non-discrimination[14] and all other fundamental freedoms and calls on State Parties to: enact and effectively implement appropriate legislative or regulatory measures,[15] take corrective and positive action in those areas where discrimination against women in law and in fact continues to exist;[16] and support the local, national, regional and continental initiatives directed at eradicating all forms of discrimination against women.[17] Arbitrary arrests of women without reasonable suspicion of committing an offence, for being at a specific location at a specific time of the day, violates their rights to dignity, equality, non-discrimination and fundamental freedoms. There exists a duty on State Parties to ensure that such discriminative practices cease to exist.

The erratic and arbitrary arrests of street vendors for trying to earn a living wage, based on policies to clean up cities, do not support the goals to reduce inequality within the country,[18] nor does it promote sustained, inclusive and sustainable economic growth, full and productive employment, and decent work for all.[19] Such policies do not support the goals to end hunger and promote wellbeing for all.[20] Governments have a responsibility to make cities and human settlements inclusive and safe[21] and to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.[22] Legal and policy reforms are needed aimed at ending arrest and imprisonment for minor offenses that do not have any effect on public safety.

[1] ACHPR /Res.64 (XXXIV) 03: Resolution on the adoption of the “Ouagadougou Declaration and plan of action on accelerating prison and penal reform in Africa” (2003).

[2] Article 5, AChHPR

[3] Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR), para 57.

[4] Doebbler v Sudan (2003) AHRLR 153 (ACHPR), para 36.

[5] Article 12 (1), AChHPR

[6] Article 7 of the AChHPR also gives persons the rights: (1) every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.   (2) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

[7] Sustainable Development Goals.  https://sustainabledevelopment.un.org/post2015/transformingourworld

[8] Goal 1, Sustainable Development Goals

[9] Goal 1, Sustainable Development Goals

[10] Goal 1, Sustainable Development Goals

[11] Article 3(1), Maputo Protocol

[12] Article 8, Maputo Protocol

[13] Article 4, Maputo Protocol

[14] Article 2, Maputo Protocol

[15] Article 2 (1) (b), Maputo Protocol

[16] Article 2 (1) (d), Maputo Protocol

[17] Article 2 (1) (e), Maputo Protocol

[18] Goal 10, Sustainable Development Goals

[19] Goal 8, Sustainable Development Goals

[20] Goal 2, Sustainable Development Goals

[21] Goal 11, Sustainable Development Goals

[22] Goal 16, Sustainable Development Goals

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