Vagrancy laws of state parties to the African Charter on Human and Peoples’ Rights

Close to two-thirds of State Parties to the African Charter have domestic laws that make “vagrancy” illegal. In many countries that criminalize the status of vagrancy, a vagrant is defined as any person who does not have a fixed abode nor means of subsistence, and who does not practice a trade or profession. Activities that can fall under the array of vagrancy-related offences include loitering, public indecency, solicitation, and begging.

In practice, these laws are used to police urban spaces, targeting and criminalizing some of the poorest and most marginalized individuals in society. Those targeted by vagrancy laws often cannot afford legal services and representation, which results in their over-incarceration. Vagrancy laws are colonial era criminal laws that reinforce structural racism and exacerbate poverty and social exclusion, often in violation of constitutional rights.

Facts

In 2018, the Pan-African Lawyers Union (PALU) requested that the African Court on Human and Peoples’ Rights (AfCHPR) 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.

Open Society Justice Initiative Involvement

With the onset of COVID-19 and increased likelihood that the virus will spread in congested places such as prisons, the Justice Initiative submitted an amicus brief in August 2020 highlighting the renewed and urgent need for all states parties to decriminalize vagrancy.

Arguments

The Justice Initiative argues that:

1. The right to health for prisoners is well-founded in Article 16 of the African Charter on Human and Peoples’ Rights. Article 16 recognizes the right of every individual to “enjoy the best attainable state of physical and mental health.” It also enjoins States Parties to the African Charter to take steps to “protect the health of their people” and to “ensure they receive medical attention when they are sick.” Notably, this right applies to all individuals, irrespective of whether they are arrested or otherwise detained.
2. Vagrancy laws disproportionately affect poor people, in violation of the prohibition against discrimination in Article 2 and the guarantee of equality in Article 3 of the African Charter. The laws, which primarily target individuals who are homeless and without income, result in individuals being arrested and detained in pre-trial detention and in prisons simply because of their economic status.
3. There exists a rational and disproportionate connection between vagrancy laws and congestion in prisons. Eighteen of the 30 African states in the top 100 countries with prison occupancy rates of 110.8% or more have vagrancy-related provisions in their laws.
4. Prison congestion is a vector for infectious diseases in prisons, and even more so in the context of the COVID-19 pandemic. The World Health Organization has stated that prisons are particularly susceptible to the spread of the disease because they are often crowded, making it difficult to follow social distancing and other hygiene measures to prevent the spread of the virus.
5. Vagrancy laws are foundational to structural racism and are incompatible with the prohibition against discrimination in Article 2 and the guarantee of equality in Article 3 of the African Charter. Vagrancy laws clearly distinguish between individuals on the basis of economic status, thereby fostering structural and historical discrimination.