The African Court on Human and Peoples’ Rights, in its 59th Ordinary Session, has today declared that vagrancy laws as contained in national laws are in breach of the African Charter on Human and Peoples Rights (African Charter), Children’s Rights Charter, and Women’s Rights Protocol (Maputo Protocol). The Court further directed states to review their laws and to repeal and amend them where applicable.
The advisory opinion, a first for the Court since 2017, came as a result of a sustained African continental advocacy campaign aimed at decriminalising and reclassifying petty offenses in Africa. This ruling is a significant win for human rights on the continent. If applied, it can significantly reduce exposure to police violence and incarceration for marginalised communities in Africa and other places grappling with a colonial legacy of vague and discriminatory criminal laws.
In 2018, the Pan-African Lawyers Union (PALU) requested the African Court to provide an advisory opinion on the question of whether state parties to the African Charter on Human and Peoples’ Rights have a positive obligation to amend or repeal vagrancy laws and bylaws to conform to rights protected under the African Charter, the African Children’s Charter, and the Protocol to the African Charter on the Rights of women.
In its request for an advisory opinion, PALU, together with other key regional partners of the campaign, submitted that many Member States of the African Union (AU) retain laws which criminalise the status of individuals as being poor, homeless as opposed to specific reprehensible acts – PALU referred to these laws, generally, as “vagrancy laws.” Many African countries abuse vagrancy laws to arrest and detain people, even when there is no proof of criminal conduct. It was submitted that vagrancy laws are overly broad, and they confer too wide a discretion on law enforcement officers as to how to enforce the law, thereby opening up the possibility of abuse.
This opinion marks the second crucial instrument for the decriminalisation and reclassification of petty offences campaign, the first being the Principles on the Decriminalisation of Petty Offenses launched by the African Commission on Human and People’s Rights on October 25, 2018.
SUMMARY OF ADVISORY OPINION
001/2018 – Advisory opinion https://en.african-court.org/images/Cases/Advisory%20Opinion/Advisory%20Opinions/001-2018_-_Advisory_Opinion_-_Summary_of_Decision.pdf
Download the summary of the advisory HERE
Download the advisory opinion by PALU HERE