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Louise Edwards is the Director of Research and Programmes at the African Policing Civilian Oversight Forum, based in Cape Town, South Africa. APCOF is a founding member of the Regional Campaign to Decriminalise Petty Offences, and Louise led the provision of technical support to the African Commission on Human and Peoples’ Rights for the development of the Principles on the Decriminalisation of Petty Offences, and their Simplified Versions. Her work now focuses on promoting the visibility and implementation of the Principles, particularly by regional and national police organisations and their oversight stakeholders. Here, Louise reflects on the Campaign’s work and its challenges.
In March 2015, a street vendor named Mayeso Gwanda was arrested on his way to work in Malawi for being a ‘rogue and vagabond’. He was one of thousands of people a day across Africa to be affected by the enforcement of petty offences – archaic, colonial-era laws that are deliberately broad in scope and which criminalise the performance of life sustaining activities in public spaces. With support from the Centre for Human Rights Education, Advice and Assistance (CHREAA), and the Southern Africa Litigation Centre (SALC), Mr. Gwanda successfully challenged the constitutionality of the rogue and vagabond law – a decision that not only changed the law in Malawi, but had a ripple effect across the rest of Africa.
The organisations are founding members of the Regional Campaign to Decriminalise Petty Offences in Africa, which started with support from the Open Society Foundations in 2014 and currently comprises 36 members working to end the criminalisation of poverty through the decriminalisation of petty offences.
Challenging petty offences: the low priority ‘crimes’ with a high human cost
Regional-level research by Africa Criminal Justice Reform, and by partners at national levels, demonstrates how petty offences disproportionately impact the poor and others who experience discrimination and social exclusion because of their status, including informal traders, sex workers and LGBTI persons. Criminalisation has the effect of entrenching discrimination and social exclusion, and is a significant contributor to detention overcrowding, which impacts on myriad human rights, including to health, fair trials, freedom from arbitrary arrest, and ill-treatment. Sentences, often for failure to pay fines, are usually short, but with long term impacts on the person and their family. It is also common for people with multiple convictions for such offences to be treated as ‘habitual offenders’, and sentenced to longer terms of imprisonment.
Examples from Campaign partners in Nigeria, Sierra Leone and Uganda are illustrative. Lawyers Alert, report that in Nigeria, 68% of awaiting trial prisoners are being held in significantly overcrowded facilities for petty or minor offences, many of whom have been subject to arbitrary arrest. AdvocAid has observed that the enforcement of petty offences increases the burden to an already overwhelmed justice sector in Sierra Leone, causing overcrowding in detention facilities, and disproportionately impacting women and girls who are arrested for loitering or, in a misuse of arrest for a civil matter, non-payment of debts. In Uganda, Human Rights Awareness and Promotion Forum (HRAPF) has reported that more than 40% of persons arrested on petty offences often plead guilty just to avoid pre-trial detention periods that stretch up to three months or more, with those arrested being majority poor people working in the informal sector.
Shaping a normative framework
The Campaign to Decriminalise Petty Offences in Africa seeks to right these wrongs, and to end practices that make the poor and marginalised criminally responsible for their situations. At the regional level, the Campaign has worked to establish a normative framework to promote the decriminalisation of petty offences through direct advocacy and engagement with mechanisms of the African Union, with two key achievements.
First, the African Policing Civilian Oversight Forum led the Campaign’s work for the advocacy, and eventual adoption in 2017 by the African Commission on Human and Peoples’ Rights of the Principles on the Decriminalisation of Petty Offences in Africa. The Principles recognise that the existence and enforcement of petty offences are inconsistent with the protections offered by articles 2 (equality and non-discrimination), article 5 (freedom from ill-treatment), and article 6 (freedom from arbitrary arrest and detention) of the African Charter on Human and Peoples’ Rights. The Principles call on African States to decriminalise and declassify these offences, and to address rather than punish the underlying causes of poverty and marginalisation.
Second, Campaign partners from the Pan African Lawyers Union, with support from SALC, brought a request for an advisory opinion to the African Court on Human and Peoples’ Rights which was handed down in December 2020. The Court found that vagrancy-related offences violate of the rights to equality, dignity and freedom from ill-treatment. States now have a positive obligation to reform outdated criminal laws, and to end the practice of arbitrary and unlawful arrests for these offences.
Change on the ground: advocacy, law reform and litigation
For Regional Campaign members working at the national level, the Principles and Advisory Opinion are important legal and political tools to promote domestic reform. Significant strides have already been made by Campaign partners to challenge practices that criminalise poverty, including successful litigation, research and advocacy, and law reform.
Reflecting back Uganda, Sierra Leone and Nigeria, advocacy by HRAPF in Uganda contributed to a Presidential directive to stop arrests on the basis of being idle and disorderly, and to release all persons held on this charge. In Sierra Leone, the work of AdvocAid has found champions within the justice system to drive reform, including the Correctional Services Manager of the Male Correctional Centre, Pademba Road stating that ‘there is a need to fast track legal reforms to decriminalise petty offences so as to reduce overcrowding in detention and to avoid custodial measures that burden the justice system’. Advocacy led by Lawyers Alert in Nigeria resulted in reform of sentencing laws, with the introduction of non-custodial options in the new Correctional Services Act.
Sustaining wins while facing new challenges
A question now facing the Regional Campaign is how to identify and promote effective and context-appropriate alternatives to the criminalisation of poverty and marginalisation within a development, public health and rights-based framework. As observed by HRAPF, and indicative of the experience of many Campaign partners working at both the regional and national levels, ‘the campaign to decriminalise petty offences…remains a slow, circuitous road, with fluctuating political will’. Nonetheless, the Regional Campaign will continue its work to popularise both the Principles and the Advisory Opinion, and to promote implementation of these important instruments at the national level.