From Rhetoric to Reality: Transforming Africa Court’s Decriminalization of Petty Offences Advisory Opinion into Tangible Benefits for Africa’s Poor.

Stanley Ibe

Abstract

Poverty is rife in Africa. By UN estimates, over one-thirds of Africans fall below the poverty line. For this population, life is ordinarily difficult.

Unfortunately, the continent’s criminal justice systems complicate issues. Without access to the three b’s of the system – bribes, bail and barristers, most poor people in conflict with the law are stuck. Even more devastating is the fact that several African states have maintained colonial era laws that penalize poverty. Laws creating offences such as loitering - offences originally designed to keep “subjects” away from areas occupied by the invading colonialists. Offences focusing on the socio-economic situation of the “offenders” rather than their acts and/omissions. Decades after most of Africa became independent, these laws remain in the books and continue to push many poor people into needless incarceration. Fortunately, a network of organizations, including the Pan African Lawyers Union (PALU) decided to challenge the compatibility of these laws with human rights obligations which States owe under the African Charter on Human and Peoples’ Rights (African Charter). In a landmark advisory opinion rendered in December 2020, the African Court on Human and Peoples’ Rights (African Court) agreed that these laws are incompatible with obligations States owe under the Africa Charter. The court also urged States to decriminalize those offences. In this article, we reflect on how to translate this decision into tangible benefits for Africa’s poor.

 1.  Introduction

This article reflects on African Court’s decision in the advisory opinion[1] on the decriminalization of petty offences[2] and its implications for the “fight against poverty and status”[3] on the continent. Following this introduction is section 2, which provides an indication of the level of poverty and its impact on access to (criminal) justice on the continent. Section 3 takes the reader on a voyage of discovery in respect of petty offences – what they are and why we should be concerned about them. Section 4 focuses some attention on what has been done to address some of the concerns about petty offences using the Campaign on the Decriminalization of Poverty and Status (the campaign) as the organizing framework. Section 5 offers some recommendations on what more can be done – leading up to the final section, which concludes the discussion.

2. Poverty & Access to Justice in Africa

According to a recent Hague Institute for Innovation of Law (HiiL) and the World Bank study,[4] the poor “receive significantly worse outcomes on their justice journeys.”[5] The reasons for this conclusion are not far-fetched. The poor often has less access to information about how to address their legal problems. They are also less likely to be able to afford the services of a lawyer or pay a bribe. Therefore, they are more likely to suffer violations of rights, including prolonged pretrial detention and limited opportunity to prepare for their cases. Why is this a concern for Africa?

Ordinarily, the interaction between the poor and the (criminal) justice system is concerning anywhere because the system is only as strong as its weakest link. This is even more so for Africa as a massive chunk of its people live in extreme poverty. In an Institute for Security Studies report, Enoch Aikins and Jacob Du Toit Mclachlan alluded to the fact that Africa had 445 million people surviving on less than $1.90 a day[6] before COVID 19. Regrettably, 30 million more joined by the time COVID entered its second full year.[7]

The situation is made more precarious by the limited priority African states accord official legal aid[8] programming.[9] As former United Nations Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Carmona highlighted in a joint publication,[10] “the exclusion of people living in poverty from the protection provided by the law denies them the opportunity to improve their enjoyment of rights.”[11] In a sense, the poor – as a result of their socioeconomic circumstances – often cannot access the protections afforded by the law when their rights are violated primarily because they do not have the financial and other resources to trigger the system to accord them appropriate remedies. Ideally, the State should take the burden off poor people in this circumstance by providing state-funded legal aid and support. The reality is that this is often either unavailable or inadequate. This is one reason petty offences deserve some attention.

3. Pretty offences & why should be concerned about them.

Before discussing why we should be concerned about petty offences, it makes sense to begin with a brief description of what petty offences are.

3.1 What are petty offences?

The Open Society Foundations (OSF)[12] describes a petty offence as a “minor infraction of the law” and provides some examples of these infractions – loitering ie the act of standing somewhere with no apparent purpose. In its Principles on the Decriminalization of Petty Offences in Africa,[13] the African Commission on Human and Peoples’ Rights (African Commission) toes a similar line.  It defines petty offences as “minor offences for which the punishment is prescribed by law to carry a warning, community service, low-value fine or short-term imprisonment, often for failure to pay the fine.”[14]

The definition is not such a problem until we consider who is impacted by these “minor offences.” Indeed, a cursory look at the Commission’s definition suggests that convicts who are unable to pay a “low-value” fine get a “short-term” imprisonment as an alternative. The question is: who is more likely to be unable to pay a “low value” fine and therefore end up in the imprisonment? The answer is fairly obvious – the poor.

3.2 Why are petty offences concerning?

Petty offences are concerning because they disproportionately affect the poor, marginalized and vulnerable.[15] They are often vague[16] and broad in terms of the discretion they offer law enforcement personnel. Take the “offence” of loitering, which the OSF defines as the act of “standing somewhere with no apparent purpose.” What are the possible indicators against which an arrest can be made here? The way the offence is described offers the widest possible latitude to arresting institutions.

It bears mentioning that petty offences have a colonial origin and were originally designed as an instrument of social control[17] – to keep the natives away from areas occupied by the invaders. With that in mind, it is fair to say that these offences were not intended to protect the general population from crime and criminality. They had the stamp of discrimination on the basis of race and socioeconomic status. Finally, petty offences violate the principles of presumption of innocence[18] and equality before the law.

4. Steps taken to address the concerns-campaign to Decriminalize Poverty & Status.

The Campaign to Decriminalize Poverty and Status (Campaign) currently has a membership of 48 organizations[19] with a mandate to “repeal laws that unfairly target poor and marginalized people based on their status…” In furtherance of this mandate, the campaign has conducted research, led advocacy and instituted cases before national, sub-regional and regional courts. In this section, we reflect on what the campaign has done to address the crisis of criminalization of poverty and status in Africa.

  • Advocacy

Perhaps the biggest win of the campaign’s advocacy effort[20] is the adoption of the Principles on the Decriminalization of Petty Offences (the principles) by the African Commission in November 2017. Campaign member, African Policing Civilian Oversight Forum (APCOF) led this effort with the support of another campaign member, Open Society Foundations (OSF). The six-part principles make the effort to define decriminalization as “changing the law so that an act is no longer illegal” in part I.

In part II, the principles define a purpose – to help African countries guarantee petty offence laws that do not unfairly target poor and socially excluded people. The next three parts describe how petty offences violate rights guaranteed under the charter, including non-discrimination, liberty and security of the person, and dignity. The final part urges states to decriminalize petty offences or provide alternatives to arrest for these offences. It also requests states to guarantee access to a lawyer; review existing petty offences to ensure consistency with the principles; make the principles widely available; provide training to police officers; collect data and information on the enforcement of petty offences; and report to the commission on steps taken to comply with the principles.

Five years after adoption, the principles are due for an implementation focused review. Although that review is beyond the scope of this article, it is worth mentioning.

  • Litigation

The campaign recognized quite early that litigation will play a crucial role in its effort to promote the decriminalization of petty offences in Africa. Consequently, it took the decision to approach the African Court through the advisory route.

In a request filed in the Court’s registry on 11 May 2018, campaign member, Pan African Lawyers Union (PALU) sought the Court’s opinion on the compatibility of vagrancy laws (laws creating petty offences) and by-laws across the continent with the obligations of state parties in respect of specific provisions of articles 2,[21]3,[22]5,[23]6,[24]7, [25]12[26] and 18[27] of the African Charter;[28] the African Charter on the Rights and Welfare of the Child (African Children’s Charter)[29] and the Protocol to the African Charter on the Rights of Women (African Women’s Protocol).[30] The request also sought the court’s opinion on the existence or otherwise of State Parties positive obligation to amend or repeal their vagrancy laws or bye-laws.[31]

In the framework of this request, the court invited the African Commission, States and NGOs to submit amicus briefs. The Commission, one State and a number of NGOs responded.[32] Following a review of the briefs and the request, the court reached a decision in December 2020.

In its opinion, the Court agreed with PALU that by their formulation and application, vagrancy laws criminalize the status of individuals; trigger discriminatory treatment of often marginalized and underprivileged individuals and thereby deny those individuals the guarantee of equal treatment before the law contrary to articles 2 & 3 of the African Charter. The court also agreed that the application of vagrancy laws violates article 5 with respect to dignity of the human person in that its application deprives underprivileged and marginalized people of their dignity by unlawfully interfering with their effort to build or sustain decent lives.

With respect to labelling people as “rogues,” “vagabonds,” or “vagrants” and ordering them to be relocated to another area against their wish, the Court ruled that this practice degrades the dignity of such people just as their arrest on account of these labels amounts to arbitrary arrests. Specifically, on violations of the African Charter, the Court held that arresting individuals under vagrancy laws violates their right to liberty (article 6); the guaranteed presumption of innocence (article 7); right to freedom of movement (article 12) and the duty to assist families and prevent discrimination against women and children (article 18).

In addition, the Court decided that the application of vagrancy laws involving the arrests, detention and sometimes forcible relocation of women and children was incompatible with article 3 of the African Children’s Charter which prohibits discrimination; article 17 on fair trial and article 24 of the African Women’s Protocol which prescribes the duty to provide special protection to women in distress.

In the final analysis, the court resolved that by the combined effect of article 1 of the African Charter; article 1 of the African Children’s Charter and Article 1 of the African Women’s Protocol, all states owe an obligation to either amend or repeal their vagrancy laws and by-laws so as to make them compatible with the referenced international instruments.

4.2.1 Advisory opinion as a transformative tool

Following this landmark decision, several campaign members have been keen to use it as a tool to transform the unfair treatment of poor and marginalized people across the continent.  For instance, Sierra Leone-based campaign member, AdvocAID with the support of the Institute for Human Rights & Development in Africa (IHRDA) in Banjul, The Gambia recently[33] filed a case at the Community Court of Justice of ECOWAS challenging the constitutionality of alleged discriminatory loitering laws, specifically the Public Order Act of 1964[34] and Summary Convictions Offences Ordinance of 1906. This case provides the first opportunity for West Africa’s regional court to make a pronouncement on criminalization of petty offences using the Court’s advisory opinion as a tool. The case has yet to be decided.

Beyond follow-up litigation, campaign members have been involved in awareness raising at national and regional levels. In Ghana, Commonwealth Human Rights Initiative organized a national conference on decriminalization of petty offences in March 2022. The conference, which had the support of OSF, drew attention to the provisions of sections 291, 292 and 298 of the Criminal Offences Act of 1960 criminalizing drunkenness, riotous living, nuisance and disturbance to the public. Although Ghanaian Attorney General, Godfred Yeboah Dame admitted that section 296 is similar to a petty offence, he argued that decriminalizing petty offences must be weighed against the State’s overriding obligation to guarantee public safety and public order. That is a fair point to make. However, decriminalizing petty offences is actually one way of guaranteeing public safety because the more people locked up on account of their socioeconomic status – without addressing the underlying reasons for that – the more bitter and criminally minded people are churned out by often congested prisons with limited rehabilitative capacities.

In September 2022, the campaign met in Cape Town, South Africa. One product of that meeting is a proposed Cape Town Declaration on Decriminalizing Poverty and Status, which was conceived as a consensus-based document for use in many advocacy contexts by members. The document should be ready by November 2022.  

5. Some recommendations on what more can be done.

From the brief reflections in section 4, it is clear that a lot of work has been done. However, there is still room for more work. In this section, we recommend a number of steps to be taken in the interest of the majority poor who need to see tangible benefits of the decision of the African Court.

  • Country baselines and success indicators

Baselines provide the basis to compare start with mid or end points. Where they do not already exist, campaign members and partners may want to conduct country baselines to ascertain how compatible domestic legislation, policies and practices are with the African Court decision and the principles. The process of developing these baselines offer an additional benefit namely, a chance to agree to a set of indicators by which to measure success as implementation proceeds.

  • State/continental reviews

The country baselines and subsequent implementation reports provide the basis for comparative review of states implementation efforts as well as data/information for a continental review report. This has the potential to trigger healthy competition as States make the effort to set standards one for another.

  • State reporting under the African Charter

The baselines and periodic reviews could form the basis of States report to the African Commission under its State reporting mandate. Article 62 of the African Charter requires States Parties to report to the Commission every two years on steps they have taken to ensure compliance with the provisions of the Charter. Since both the principles and the court’s decision focus on provisions of the Charter, states are required to report on them. Indeed, the principles made very clear provisions in part 6 for this purpose.

  • Advocacy for law/policy reform

This is possibly the biggest piece and the most consequential recommendation. To turn the tide on petty offences on the continent, laws and bylaws enabling penalization of poverty and status must be repealed or revised. Advocating for these reforms must be sustained across the continent by campaign members and other partners interested in fairer and more equitable criminal justice systems. Beyond changing laws and policies, there is a crucial need to change practices. That can be done by incentivizing good practices.

6. Conclusion

The African Court advisory opinion on the decriminalization of petty offences together with the Commission’s principles offer a huge opportunity to address the crisis of criminalization of poverty and status on the continent. In this article, we have called attention to the high poverty levels on the continent and what that portends for access to justice – particularly in contexts where official legal aid is largely either non-existent or inadequate. We also briefly highlighted what the campaign has done in terms of implementation and what more can be done to translate the Court’s laudable decision into tangible outcomes for the majority poor. What remains is for States, civil society and other interested stakeholders to get to work.

[1] Unlike the contentious jurisdiction which only concerns states before the Court, the advisory jurisdiction provides an opportunity for every state party to the Protocol establishing the Court to contribute to the decision-making process. Additionally, the focus of a court exercising contentious jurisdiction is the case before it. For a court exercising advisory jurisdiction, the focus is a cause.

[2] Request for an advisory opinion by the Pan African Lawyers Union (PALU) on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments applicable in Africa. No. 001/2018.

[3] The campaign to decriminalize poverty and status is a global coalition of organizations that advocate for the review and repeal of laws that target people based on poverty, status or activism. For more on the campaign and its activities, see www.pettyoffences.org

[4] M, Gramatikov., R. Kaur., I. Banks., & K. Heijstek-Ziemann, Poverty & Access to Justice (HiiL & The World Bank Group 2021) <https://www.hiil.org/wp-content/uploads/2021/10/HiiL-report-Poverty-and-Access-to-Justice-web.pdf> accessed 30 October 2022.

[5] Ibid, p. 8.

[6] This represented 34% of the continent’s population and 9 times the global average. See E.R. Aikins & J. Du Toit Mclachlan, “Africa is losing the battle against extreme poverty.” ISS Today, 13 July 2022 <https://issafrica.org/iss-today/africa-is-losing-the-battle-against-extreme-poverty> accessed 30 October 2022.

[7] The African Economic Outlook for 2022 points out that 30 million people on the continent fell below the poverty line by 2021. The continent also lost 22 million jobs. See Africa Development Bank, African Economic Outlook 2022 <https://www.afdb.org/en/knowledge/publications/african-economic-outlook> accessed 30 October 2022.

[8] Considering that it plays a significant role in “improving access to justice for impoverished, marginalized and excluded groups and in providing them with access to legal entitlement, resolution of disputes and justice processes.” See Magdy Martinez-Soliman’s foreword to United Nations Development Programme, Legal Aid Service Provision: A Guide on Programing in Africa (UNDP 2014), p. v. <https://www.undp.org/sites/g/files/zskgke326/files/publications/Legal%20Aid%20Service%20Provision%20-%20A%20Guide%20on%20Programming%20in%20Africa.pdf> accessed 30 October 2022.

[9] According to the Report of the UN Special Rapporteur on Extreme Poverty & Human Rights (A/66/265) on Penalization of Poverty, a significant obstacle in breaking the cycle is the “inability of persons living in poverty to access legal assistance as they are unable to afford private legal representative and legal aid is often unavailable or inadequate.” Report submitted to the 66th session of the UN General Assembly on 4 August 2011 <https://digitallibrary.un.org/record/709907> accessed 30 October 2022.

[10] M.S Carmona, & K. Donald, Access to Justice for Persons Living in Poverty: A Human Rights Approach. (Finland Ministry of Foreign Affairs 2014) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437808> accessed 30 October 2022.

[11] Ibid, p. 7.

[12] Why it’s time to repeal petty offence laws. 21 May 2021     <https://www.opensocietyfoundations.org/explainers/why-it-s-time-to-repeal-petty-offense-laws> accessed 30 October 2022.

[13] Adopted in Banjul, The Gambia during the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights. For a text of the document, see <https://www.opensocietyfoundations.org/explainers/why-it-s-time-to-repeal-petty-offense-laws> accessed 30 October 2022.

[14] Ibid.

[15] C. Ballard, P. Burton, L. Edwards, A.M Gossar, & C. Sali, Poverty is not a Crime: Decriminalizing Petty By-Laws in South Africa (African Policing Civilian Oversight Forum 2021), p. 16 <https://apcof.org/wp-content/uploads/030-study-on-decriminalising-poverty-in-south-africa-clare-ballard-patrick-burton-louise-edwards-abdirahman-maalim-gossar-and-chumile-sali.pdf> accessed 31 October 2022.

[16] Take the examples the African Court on Human and Peoples’ Rights provided in its decision on the Advisory Opinion on the Decriminalization of Poverty in Africa: “idle and disorderly, begging, rogue and vagabond, no fixed abode, homeless, wanderer and reputed thief.” It is unclear by what parameters law enforcement will determine any one of these “offences.”

[17] Anneke Meerkotter describes vagrancy laws as a “measure of social control over marginalized groups in society.” Vagrancy-related offences (similar to petty offences) generally criminalize “persons who do not have a means of subsistence and from a police perspective, cannot give a good account of themselves.” See A. Meerkotter, “Litigating to protect the rights of poor and marginalized groups in urban spaces.” 2019 University of Miami Law Review, Vol. 74, No. 1, pp. 1-36 <https://lawreview.law.miami.edu/wp-content/uploads/2020/01/Litigating-to-Protect_Anneke-Meerkotter.pdf> accessed 31 October 2022.

[18] Although the presumption is universal, a survey by the Open Society Justice Initiative found that no right is so broadly accepted in theory but so commonly violated in practice as the right to presumption of innocence. See Open Society Justice Initiative, Presumption of Guilt: The Global Overuse of Pretrial Detention (Open Society Foundations 2014) <https://www.justiceinitiative.org/uploads/de4c18f8-ccc1-4eba-9374-e5c850a07efd/presumption-guilt-09032014.pdf> accessed 31 October 2022.

[19] These organizations include ADVOCAID, Advocat Sans Frontieres (ASF-France), African Policing Civilian Oversight Forum (APCOF), Amnesty International, Commonwealth Human Rights Initiative (CHRI), Hope Behind Bars Africa, International Commission of Jurists (ICJ-Kenya), International Legal Foundation (ILF), Network of African National Human Rights Institutions (NANHRI), Open Society Foundations (OSF), Pan African Lawyers Union (PALU), Penal Reform International (PRI), Prisoners Rehabilitation & Welfare Action (PRAWA) and Southern Africa Litigation Centre (SALC). For a full list, see <https://pettyoffences.org

[20] It is worth noting that campaign partners have led and continue to lead advocacy initiatives at the national and sub-regional levels. For instance, Lawyers Alert, a campaign partner from Nigeria is leading legislative advocacy to review non-compliant laws on petty offences across four states – Bauchi (North East), Benue (North Central), Kano (North West) and Niger (North Central). See Campaign Digest, June 2022 <https://mailchi.mp/c5a143d3014d/campaign-digest-june2022> accessed 31 October 2022.

[21] Right to enjoy all the rights recognized under the charter without any form of discrimination.

[22] Right to equal protection of the law and equality before the law.

[23] Right to personal dignity.

[24] Right to liberty and security of human person.

[25] Right to be heard for any offence and right not to be punished for an offence which did not constitute one at the time it was committed.

[26] Right to freedom of movement and residence.

[27] The duty of states to assist families; ensure eliminating of discrimination against women and protection of the rights of women and children; duty to provide special measures of protection for persons living with disability.

[28] Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21. I.L.M 58 (1982) and entered into force 21 October 1986 <https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf>  accessed 31 October 2022.

[29] Adopted 1 July 1990, OAU Doc. CAB/LEG/24.9/49. Entered into force 29 November 1999 <https://au.int/sites/default/files/treaties/36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf> accessed 31 October 2022.

[30] Officially Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Adopted 1 July 2003. Entered into force 25 November 2005 <https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf> accessed 31 October 2022.

[31] The states in question cut across anglophone and francophone Africa. For example, the following francophone states have penal codes which define vagrants as persons with no fixed address or means of livelihood or trade or profession – Algeria, Burundi, Burkina Faso, Cameroon, Chad, Comoros, Republic of Congo, Cote d’ivoire, Gabon, Guinea, Madagascar, Mauritania, Mali, Morocco, Niger, Sahrawi Arab Republic, Senegal and Togo. Botswana, Gambia, Malawi, Nigeria, Seychelles, Tanzania, Uganda and Zambia are anglophone countries with laws punishing “rogues” and “vagabonds” described as “suspected persons and reputed thieves who have no visible means of livelihood.” For their part, Central Africa Republic, Ethiopia, Eritrea, Mauritius, Sierra Leone, Sudan and South Sudan have offences of “being idle and disorderly.” All of these offences aim to achieve the same purpose – punish people for their socioeconomic situation. They are overly broad and clearly discriminatory against these people. See “Submission on the Decriminalization of Homelessness and Extreme Poverty.” Report presented by the Campaign on the Decriminalization of Petty Offences to the Special Rapporteur on the Right to Adequate Housing & the Special Rapporteur on Extreme Poverty and Human Rights on 30 November 2021 <https://www.ohchr.org/sites/default/files/2022-03/CampaigntoDecriminalizePoverty.docx> accessed 31 October 2022.

[32] The African Commission; Network of National Human Rights Institutions in Africa (NANHRI); Burkina Faso; Centre for Human Rights, University of Pretoria; Human Rights Centre, University of Miami; Kenyan section of the International Commission of Jurists (ICJ – Kenya); Lawyers Alert; and Open Society Justice Initiative submitted amici briefs.

[33] The case was filed on 21 April 2022. See Joanna Howarth, “Court case filed against Sierra Leone to overturn discriminatory loitering laws.” Advocaid Press Release, 4 May 2022 <https://advocaidsl.org/press-release-court-case-filed-against-sierra-leone-to-overturn-discriminatory-loitering-laws/> accessed 31 October 2022.

[34] Section 7 of the Public Order Act provides that “Any person loitering in or about any stable house or building, or under any piazza, or in the open air, and not having any visible means of subsistence, and not giving a good account of himself, shall be deemed an idle and disorderly person, and shall, on conviction thereof, be liable to imprisonment for any period, not exceeding one month”.