People living in poverty and on the margins of society have been, and continue to be, disproportionately affected by laws that criminalise petty offences punishable by a small fine or a short term of imprisonment.
In Africa, petty offences are criminalised by vagrancy laws entrenched in penal codes inherited during the colonial era.1 These laws are normally used to arrest street vendors, beggars, street kids, homeless people, and sex workers.
In South Africa, petty offences are prohibited by by-laws that are used to deal with issues such as nuisance, noise, street trading and littering in a city. Examples of petty offences prohibited in South Africa include:
- bathing or washing in public;
- urinating or defecating in public;
- using abusive or threatening language in public;
- drunken behaviour;
- fighting or acting in a riotous manner in public; and
- drying or spreading laundry in a public place or on a fence on the boundary of a public road.
Criminalising poverty? The rationale behind petty offence by-laws
The rationale for enacting laws that criminalise petty offences is to maintain public order; public safety; and crime prevention.2
During the 2nd Annual Policing and Social Justice Dialogue in September 2016 held by the Social Justice Coalition, community members from Khayelitsha highlighted that there is no equal enforcement of the by-laws in South Africa. The by-laws are mostly enforced in affluent suburbs and rarely in the informal settlements.
A thorough analysis of these laws shows how they target a particular class of people due to their status. Homeless people, street children, and beggars are those who are most likely to engage in prohibited conduct given their circumstances.
The enforcement of the laws punishes, segregates, controls and undermines the dignity of persons on the basis of their status. These laws allow the arrest of the poor without a warrant, without an investigation, and without evidence of an intent to commit, or actual commission of an offence. They are inconsistent with the right to equality, non-discrimination and equal protection of the law.
These laws are also vague and allow for arbitrary arrests as they give law enforcement officials wide discretion for enforcement. Unnecessary arrests contribute to overcrowding of places of detention in violation of the right to liberty and security of the person and freedom from arbitrary arrest and detention.3
This raises the question of whether criminalising such conduct is effective, or, if in fact, these by-laws overburden an already strained criminal justice system.
"Poverty is not a crime!" - Campaign to decriminalise petty offences
Mindful of these issues, the African Policing Civilian Oversight Forum together with a coalition4 of Civil Society Organisations (CSO’s) embarked on a campaign to decriminalise petty offences in Africa.
The campaign seeks to highlight the incompatibility of colonial era vagrancy laws with contemporary legal requirements. The laws are not clear and precise and fail to establish the elements of the crime. Further, the laws do not always specify the conduct being criminalised or requisite intent, and are not legitimate, necessary and proportionate.
The campaign’s aim is to encourage all African countries to review laws criminalising petty offences and to decriminalise offences that are not criminal, and to reclassify offences that are minor to ensure alternative forms of corrective measures are used.
The campaign also motivates for efficient use of Government resources by ensuring the criminal justice system is not used to address socio-economic problems. The coalition has also provided technical assistance to the Special Rapporteur on Prisons, Conditions of Detention and Policing at the African Commission on Human and Peoples’ Rights (ACHPR) to draft principles on the declassification and decriminalisation of petty offences.
Lessons from Zimbabwe and Malawi
In a recent move, the Zimbabwean government banned the sale of vegetables and fruits in the Central Business District due to the spread of typhoid. This ban will result in unnecessary loss of income to street vendors. One has to wonder whether efforts to curb thypoid should have instead been directed towards the shortage of water, sanitation and hygiene.
The decision of the Malawi Constitutional Court in Gwanda v the State on petty offences is a much needed victory and will go a long way to ensure the violation of human rights of the marginalised will come to an end. The applicant in the case was a street vendor by trade who was arrested on his way to sell plastic bags and was charged with the offence of being rogue and vagabond provided for in Section 184 (1) (c) of the Malawi Penal Code. The court found that this section is unconstitutional and invalid. It ordered the legislature to formulate new laws which conform to the constitution of Malawi.
In many circumstances, the criminalisation of petty offences effectively amounts to the criminalisation of poverty. This poses a human rights problem which certainly needs to be addressed.
For more information on the Campaign to Declassify and Decriminalise Petty Offences in Africa, please check out the campaign's website at: www.pettyoffences.org
1 The main offences criminalised by these penal codes are being idle and disorderly or being a rogue and vagabond. The Vagrancy Laws emanated from England’s Vagrancy Act of 1824 and exist in similar wording in the Penal Codes of many former British colonies, including Malawi, Mauritius, Namibia, Nigeria, Gambia, Zambia, Uganda, Botswana, Seychelles and Tanzania.
2 Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC), No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance Related Offences in Blantyre Malawi 2013 pgs 64-67.
3 See L. Mutingh and K. Petersen ‘Punished for being poor: Evidence and Arguments for the Decriminalisation and Declassification for Petty Offences’ 2015 and Human Rights Awareness Forum (HRAF), Memorandum On The Human Rights Implications Of Selected Offences Under Chapter Xiv Of The Penal Code Act Cap 120, 2013
4 Partners are the Pan African Lawyers Union, Southern Africa Litigation Centre, Centre for Human Rights Education, Advice and Assistance (Malawi) and the International Commission of Jurists (Kenya Chapter), and the Civil Society Prison Reform Initiative, at the Dullah Omar Institute, University of the Western Cape (South Africa), with funding support from the Open Society Foundations.