68th Ordinary Session of the African Commission on Human and Peoples’ Rights
14 April – 4 May 2021
Dear Hon. Chairperson, Hon. Commissioners, all protocols observed.
The Centre for Human Rights Education, Advice and Assistance (CHREAA), welcomes the opportunity to respond to the activity report of the Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa on behalf of the Campaign to Decriminalise Petty Offences in Africa. The Campaign is a coalition of 36 non-governmental organisations (NGOs) and national human rights institutions (NHRIs) advocating for the decriminalisation and declassification of laws that criminalise and penalise life sustaining activities in public spaces, or which disproportionately impact key populations and other marginalised or vulnerable persons.
As the Hon. Commissioner is aware, the African Court on Human and Peoples’ Rights (African Court) delivered Advisory Opinion No. 001/2018 on 4 December 2020 in response to a petition by members of the Campaign on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights (African Charter), the African Charter on the Rights and Welfare of the Child and the Maputo Protocol on the Rights of Women. The Court recommended that States ‘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 African Charter, the Children’s Rights Charter and the Maputo Protocol on the Rights of Women’. The Court also found that the continued detention of persons for vagrancy related offences is unlawful.
To continue the work of promoting the decriminalisation of petty offences in Africa in light of the developments at both Commission and Court levels, the Campaign calls on the Special Rapporteur:
To review all laws and by-laws relating to petty offences and to amend or repeal them to ensure that criminal law is consistent with the African Charter, in accordance with Section 14.1 of the Principles on the Decriminalisation of Petty Offences in Africa, and the Advisory Opinion of the African Court. Such a review should pay particular attention to providing alternatives to arrest and detention for minor offences not decriminalised under the provisions of the Principles and Advisory Opinion. The review of legislation and policy should be supported by the training to law enforcement officials, the popularisation of the Principles and improving access to information and the collection of data in the criminal justice sector.
We further call on the Commission to give the Special Rapporteur a mandate to conduct a study into alternatives to arrest and detention for minor or petty offences. This study will provide States with clarity on the measures that can be taken within a human rights and development framework to implement the Principles and the Advisory Opinion.
Submitted by Centre for Human Rights Education, Advice and Assistance (CHREAA)