Introduction
On December 4, 2020, the African Court on Human and Peoples' Rights (the Court) issued an advisory opinion on the compatibility of vagrancy laws with the African Charter on Human and Peoples' Rights (African Charter), the African Charter on the Rights and Welfare of the Child (Children's Rights Charter), and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Protocol on Women's Rights).Footnote 1 In this landmark advisory opinion, the Court considered an important social issue on the African continent.
Background
The Pan African Lawyers Union (PALU) filed a request for an advisory opinion (Request) on May 11, 2018. In its Request, PALU submitted that several African Union (AU) member states had laws—vagrancy lawsFootnote 2—that criminalized the status of individuals as being poor, homeless, or unemployed. According to PALU, these countries abused the vagrancy laws to arrest and detain persons even where there was no proof of a criminal act. The laws were therefore overly broad and gave too wide a discretion to law enforcement agencies to decide who to arrest, which disproportionately impacted vulnerable individuals in society. Further, PALU submitted, arrests based on vagrancy laws contributed to congestion in police cells and prison overcrowding. Finally, the way in which vagrancy laws were enforced violated the basic principles of criminal law and threatened the rule of law.
PALU asked the Court to answer four questions. The first was whether vagrancy laws that contain offenses criminalizing the status of a person as being without fixed home, employment, or means of subsistence; as having no abode nor means of subsistence, and trade or profession; as being a suspected thief who has no visible means of subsistence and unable to give a good account of him or herself; and as being idle and not having a visible means of subsistence, and unable to give a good account of him or herself, violate Articles 2, 3, 5, 6, 7, 12, and 18 of the African Charter.
The second was whether vagrancy laws that, once a person has been declared a vagrant or rogue and vagabond, summarily order such a person's deportation to another area violate Articles 5, 12, and 18 of the African Charter and Articles 2, 4(1), and 17 of the Children's Rights Charter.
The third was whether vagrancy laws that allow for the arrest of someone without warrant simply because the person has no “means of subsistence and cannot give a satisfactory account” of him or herself violate Articles 2, 3, 5, 6, and 7 of the African Charter; Articles 3, 4(1), and 17 of the Children's Rights Charter; and Article 24 of the Protocol on Women's Rights.
Finally, PALU asked whether state parties to the African Charter had positive obligations to repeal or amend their vagrancy laws or by-laws to conform to the rights protected by African Charter, the Children's Rights Charter, and the Protocol on Women's Rights. If they did, then PALU requested that the Court determine what those obligations were.
Some of PALU's submissions were supported by Burkina Faso, a member of the African Union, and several non-governmental organisations, which intervened as amici curiae.
The Court's Analysis
The Court found that it had jurisdiction to give the opinion.Footnote 3 As this was an advisory opinion, the Court considered that it did not need to decide on territorial and temporal jurisdiction, only on personal and material jurisdiction. The Court found that it had personal jurisdiction because PALU qualified as one of the entities in Article 4(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and People's Rights (the Protocol). The Court concluded that it also had material jurisdiction because under Article 4(1) of the Protocol, which was reiterated in Rule 82(2) of the Rules, it could give advisory opinions on legal matters relating to the Charter or other relevant human rights instruments.
The Court found that the Request was admissibleFootnote 4 because in accordance with Article 4(1) the Protocol and Rule 82(3) of the Rules, the Court may give an advisory opinion if the subject matter of the opinion is not related to a matter being examined by the African Commission on Human and Peoples' Rights (the Commission). The Court wrote to the Commission to inquire whether the subject matter of the Request was a pending matter before it. The Commission responded by urging the Court to consider Principles on the Decriminalisation of Petty Offences in Africa 2017 (the Principles) in dealing with the Request.
The Court considered each of the human rights instruments in turn. Starting with the African Charter, the Court found that the vagrancy laws violated the right to non-discrimination and equality,Footnote 5 the right to dignity,Footnote 6 the right to liberty,Footnote 7 the right to a fair trial,Footnote 8 the right to freedom of movement,Footnote 9 and the right to protection of the family.Footnote 10 Turning to the Children's Rights Charter, the Court found that vagrancy laws violated children's right to non-discrimination,Footnote 11 were incompatible with the best interests of the child,Footnote 12 and violated children's right to a fair trial.Footnote 13 Finally, the Court found that vagrancy laws were incompatible with Article 24 of the Women's Rights Protocol.Footnote 14
In its analysis, the Court noted that the term “vagrancy” is often used in a generic sense to refer to various offenses, including being idle and disorderly, begging, being without a fixed abode, being a rogue and vagabond, being a reputed thief, and being homeless or a wanderer. The Court identified three sociological reasons why these laws existed: to curtail mobility of persons and criminalize begging, to reduce the costs incurred by municipalities and parishes in looking after the poor, and to prevent property crimes by creating broad crimes and providing wide discretion to law enforcement officials.
Throughout the advisory opinion, the Court referenced other documents and instruments in addition to the three relevant human rights instruments. It referred to the International Covenant on Civil and Political Rights in considering when states can restrict freedom of movement. It considered General Comment No. 5 by the African Committee of Experts on the Rights of the Child, which stated that the principle of best interests of the child has no conditions attached to it. Finally, the Court consulted the Principles, according to which laws that create petty offenses are inconsistent with the principles of equality before the law and non-discrimination because they target or have a disproportionate impact on the poor and vulnerable, and perpetuate gender-based discrimination. PALU drew the Court's attention to the Kampala Declaration on Prison Conditions in Africa 1996, but the Court did not explicitly mention whether it considered it in its analysis.
In determining whether member states had an obligation to amend or repeal vagrancy laws, the Court referred to Article 1 of the African Charter, Article 1 of the Children's Rights Charter, and Article 1 of the Women's Rights Protocol, which all require member states to bring their laws into conformity with the relevant instrument.Footnote 15 The Court therefore concluded that member states had an obligation to bring their laws into conformity with the three instruments,Footnote 16 and were obliged to amend or repeal their laws to be in conformity.
The Court's opinion was unanimous. However, Justice Blaise Tchikaya wrote a separate opinion, as permitted under Article 4(2) of the Protocol.Footnote 17 In his separate opinion, Justice Tchikaya noted that while he agreed with the Court's conclusions, he thought the Court could have expanded its reasoning. This is therefore the focus of his separate opinion.
Conclusion
The Court exercises its advisory jurisdiction sparingly, and this is only the ninth advisory opinion that it has granted. It is therefore fitting that this is a landmark advisory opinion that deals with important questions in African societies. It confirms that laws that punish individuals because of their status rather than their actions are incompatible with human rights obligations found in three key human rights instruments in Africa: the African Charter, the Children's Rights Charter, and the Protocol on Women's Rights.
Through this advisory opinion, the Court affirms the power of human rights instruments to protect the most vulnerable people in society—those who often remain at its margins. However, the power of these instruments can only be realized if the states that retain vagrancy laws (broadly defined) in their books amend or repeal them—an obligation confirmed by this advisory opinion. For the Court's opinion to have effect, it may require domestic litigation in each of the states that maintain vagrancy laws to compel the states to change these laws. This is a slow process, which could delay justice for those who continue to have their rights violated by the implementation of the vagrancy laws.
As noted by the Court and underlined by Justice Tchikaya in his separate opinion, the term “vagrancy” remains vague and broad. Therefore, laws that criminalize vagrancy are by definition imprecise. Their lack of precision is compounded by the fact that they criminalize a status rather than an act or omission. Their effect is that they are open to abuse. But, as also noted by Justice Tchikaya, states maintain sovereignty over their national criminal laws, which is supported by a national margin of appreciation in international human rights law.Footnote 18 So it could be that states bypass the amendment or repeal of vagrancy laws by claiming that these laws are beyond the reach of the advisory opinion.
REQUEST FOR 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
ADVISORY OPINION
4 DECEMBER 2020
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . [146]
I. THE AUTHOR . . . . . . . . . . . . . . . . . [147]
II. SUBJECT OF THE REQUEST . . . . . . . . . . . . . . . . . [147]
III. SUMMARY OF THE PROCEDURE BEFORE THE COURT . . . . . . . . . . . . . . . . . [148]
IV. JURISDICTION . . . . . . . . . . . . . . . . . [148]
A. Personal jurisdiction . . . . . . . . . . . . . . . . . [149]
B. Material jurisdiction . . . . . . . . . . . . . . . . . [149]
V. ADMISSIBILITY . . . . . . . . . . . . . . . . . [150]
VI. ON THE QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . [150]
A. COMPATIBILITY OF VAGRANCY LAWS AND THE CHARTER . . . . . . . . . . . . . . . . . [151]
i. PALU's position . . . . . . . . . . . . . . . . . [151]
ii. Observations by AU Member States and amici curiae . . . . . . . . . . . . . . . . . [152]
iii. The Court's position . . . . . . . . . . . . . . . . . [153]
a. Vagrancy laws and the right to non-discrimination and equality . . . . . . . . . . . . . . . . . [154]
b. Vagrancy laws and the right to dignity . . . . . . . . . . . . . . . . . [156]
c. Vagrancy laws and the right to liberty . . . . . . . . . . . . . . . . . [156]
d. Vagrancy laws and the right to fair trial . . . . . . . . . . . . . . . . . [157]
e. Vagrancy laws and the right to freedom of movement . . . . . . . . . . . . . . . . . [158]
f. Vagrancy laws and the right to the protection of the family . . . . . . . . . . . . . . . . . [159]
B. VAGRANCY LAWS AND THE CHILDREN'S RIGHTS CHARTER . . . . . . . . . . . . . . . . . [159]
i. Observations by amicus curiae . . . . . . . . . . . . . . . . . [160]
ii. The Court's position . . . . . . . . . . . . . . . . . [160]
a. Vagrancy laws and children's right to non-discrimination . . . . . . . . . . . . . . . . . [160]
b. Vagrancy laws and the best interests of the child . . . . . . . . . . . . . . . . . [161]
c. Vagrancy laws and children's right to fair trial . . . . . . . . . . . . . . . . . [161]
C. VAGRANCY LAWS AND THE WOMEN'S RIGHTS PROTOCOL . . . . . . . . . . . . . . . . . [162]
i. Observations by amici curiae . . . . . . . . . . . . . . . . . [162]
ii. The Court's position . . . . . . . . . . . . . . . . . [162]
a. Vagrancy laws and Article 24 of the Women's Rights Protocol . . . . . . . . . . . . . . . . . [163]
D. THE OBLIGATIONS OF STATE PARTIES TO THE CHARTER IN RESPECT OF VAGRANCY LAWS . . . . . . . . . . . . . . . . . [163]
i. Observations by AU Member States and amici curiae . . . . . . . . . . . . . . . . . [163]
ii. The Court's position . . . . . . . . . . . . . . . . . [164]
VII. OPERATIVE PART . . . . . . . . . . . . . . . . . [165]
The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Rafaậ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. ANUKAM, Imani D. ABOUD - Judges; and Robert ENO, Registrar.
In the Request for Advisory Opinion by:
PAN AFRICAN LAWYERS UNION
Represented by:
Mr. Donald DEYA, Pan African Lawyers Union.
After deliberation,
renders the following Advisory Opinion:
I. THE AUTHOR
1. This Request for Advisory Opinion (hereinafter referred to as “the Request”) was filed by the Pan African Lawyers Union (hereinafter referred to as “PALU”).
2. PALU states that it is an African organisation based in Arusha, United Republic of Tanzania and that it is recognised by the African Union (hereinafter referred to as “the AU”). In support of this assertion, PALU has provided the Court with a copy of the Memorandum of Understanding (hereinafter referred to as “MoU”) signed between itself and the AU dated 8 May 2006.
II. SUBJECT OF THE REQUEST
3. PALU submits that a number of AU Member States retain laws which criminalise the status of individuals as being poor, homeless or unemployed as opposed to specific reprehensible acts. PALU has generically termed these laws as “vagrancy laws”.
4. According to PALU “[m]any countries abuse [vagrancy laws] to arrest and detain persons where there has been no proof of a criminal act.” PALU submits, therefore, that these laws are overly broad and confer too wide a discretion on law enforcement agencies to decide who to arrest which impacts disproportionately on vulnerable individuals in society. PALU also submits that arrests for violation of vagrancy laws contribute to congestion in police cells and prison overcrowding. It is PALU's further submission that the manner in which vagrancy offences are enforced is contrary to the basic principles of criminal law i.e. it undermines the presumption of innocence and thereby threatens the rule of law.
5. PALU, therefore, requests for an opinion from the Court on the following questions:
a. Whether vagrancy laws and by-laws, including but not limited to: those that contain offences which criminalise the status of a person as being without a fixed home, employment or means of subsistence; as having no fixed abode nor means of subsistence, and trade or profession; as being a suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of him or herself; and as being idle and who does not have a visible means of subsistence and cannot give good account of him or herself, violate: [Articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples' Rights].
b. Whether vagrancy laws and by-laws, including but not limited to, those containing offences which, once a person has been declared a vagrant or rogue and vagabond, summarily orders such person's deportation to another area, violate: [Articles 5, 12, 18 of the African Charter on Human and Peoples' Rights and Articles 2, 4(1) and 17 of the African Charter on the Rights and Welfare of the Child].
c. Whether vagrancy laws and by-laws, including but not limited to, those that allow for the arrest of someone without warrant simply because the person has no ‘means of subsistence and cannot give a satisfactory account’ of him or herself, violate [Articles 2, 3, 5, 6, 7 of the African Charter on Human and Peoples' Rights, Articles 3, 4(1), 17 of the African Charter on the Rights and Welfare of the Child and Article 24 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa].
d. Whether State Parties to the African Charter on Human and Peoples' Rights have positive obligations to repeal or amend their vagrancy laws and/or by-laws to conform with the rights protected by the [African Charter on Human and Peoples' Rights, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa] and in the affirmative, determine what these obligations are.
III. SUMMARY OF THE PROCEDURE BEFORE THE COURT
6. The Request was filed at the Registry of the Court on 11 May 2018.
7. On 13 August 2018, the Registry requested the African Commission on Human and Peoples' Rights (hereinafter referred to as the “Commission.”) to confirm that the subject matter of the Request was not related to any matter pending before it. On the same day, the Registry wrote to the AU Commission's Legal Counsel to confirm PALU's claim that it has an MoU with the AU.
8. By a letter dated 26 October 2018, the AU Commission's Legal Counsel confirmed that the AU has a subsisting MoU with PALU.
9. On 8 November 2018, the Registry notified the following entities of the filing of the Request: AU Member States; the Commission; the AU Commission; the African Committee of Experts on the Rights and Welfare of the Child; the Pan African Parliament; the Economic, Social and Cultural Council of the AU; the AU Commission on International Law; the Directorate of Women, Gender and Development of the AU; the African Institute of International Law; and the Centre for Human Rights, University of Pretoria. The Court set a ninety (90) day limit for receiving observations on the Request.
10. On 18 December 2018 the Court received a letter from the Commission in which it advised the Court that it had, in 2017, adopted Principles on Decriminalisation of Petty Offences in Africa and that these Principles ably captured its position on the subject matter of the Request.
11. On 18 June 2019 the Court received a submission from Burkina Faso.
12. On divers dates, the following entities filed their amicus curiae briefs pursuant to the Court's grant of leave: the Network of African National Human Rights Institutions (hereinafter referred to as “the NANHRI”); the International Commission of Jurists, Kenyan Section (hereinafter referred to as “ the ICJ- Kenya”); the Centre for Human Rights, University of Pretoria and the Dullah Omar Institute for Constitutional Law Governance and Human Rights, University of Western Cape (hereinafter referred to as “the CHR and DOI”); the Human Rights Clinic, University of Miami and Lawyers Alert, Nigeria (hereinafter referred to as “the HRC-Miami and Lawyers Alert”) and the Open Society Justice Initiative (hereinafter referred to as “the OSJI”).
13. On 10 October 2020 PALU and all entities that had filed observations on the Request were notified of the close of pleadings.
IV. JURISDICTION
14. Article 4(1) of the Protocol to the African Charter on Human and People[s]' Rights on the Establishment of an African Court on Human and Peoples' Rights (hereinafter referred to as “the Protocol”), whose provisions are reiterated in Rule 82(1) of the Rules of Court (hereinafter referred to as “the Rules”),Footnote 1 provides as follows:
At the request of a Member State of the OAU, the OAU, any of its organs, or any African organisation recognised by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
15. The Court observes that Rule 87 of the Rules provides that “[t]he Court shall apply, mutatis mutandis, the provisions of Part V of [the Rules] to the extent that it deems appropriate, to advisory procedure/proceedings.”Footnote 2 In line with the edict in Rule 87 of the Rules, the Court further notes that Rule 49(1) of the Rules stipulates that “the Court shall ascertain its jurisdiction … in accordance with the Charter, the Protocol and these Rules.”Footnote 3
16. Following from the provisions of Rule 49(1) of the Rules, therefore, in all advisory proceedings, the Court must, ascertain its jurisdiction.
17. PALU submits that the Request is made under Article 4(1) of the Protocol and Rule 68 of the Rules.Footnote 4 It also avers that the Request is on a legal matter as to whether vagrancy laws, as applied by some Member States of the AU, violate the African Charter on Human and Peoples' Rights (hereinafter “the Charter”), the African Charter on the Rights and Welfare of the Child (hereinafter the Children's Rights Charter) and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (hereinafter “the Women's Rights Protocol”).
18. PALU further submits that its standing to make this Request, under Article 4(1) of the Protocol, is established by virtue of its MoU with the AU and also by its Observer Status with the Commission.
***
19. The Court recalls that in advisory opinions, given that such requests do not involve contestation of facts between opposing parties, it need not consider its, territorial and temporal jurisdiction.Footnote 5 For this reason, therefore, the Court will only interrogate whether the Request satisfies the requirements for personal and material jurisdiction.
A. Personal jurisdiction
20. To determine whether it has personal jurisdiction, the Court must satisfy itself that the Request has been filed by one of the entities contemplated under Article 4(1) of the Protocol, to request for an advisory opinion.Footnote 6
21. Focusing on the entities listed in Article 4(1) of the Protocol, the Court observes that PALU does not belong to the first three categories mentioned in Article 4(1) of the Protocol i.e. it is not a member state of the AU, it is not the AU and it is also not an organ of the AU. In the circumstances, therefore, the question that arises is whether PALU falls under the fourth category, that is, whether it is an “African organization” and also one that is recognised by the AU.
22. As the Court has held, “an organisation may be considered as ‘African’ if it is registered in an African country and has branches at the sub-regional, regional or continental levels, and if it carries out activities beyond the country where it is registered.”Footnote 7
23. In respect of the Request, the Court notes that PALU is registered in a Member State of the AU, to wit, the United Republic of Tanzania and that it has structures at the national and regional levels as an umbrella organization of national and regional lawyers' associations. The Court also notes that PALU undertakes its activities beyond the territory where it is registered.
24. The Court recalls that, and as confirmed by the AU Commission's Legal Counsel, on 8 May 2006 PALU and the AU signed an MoU to co-operate in undertaking activities concerning the rule of law, promoting peace and integration, and protecting human rights across the continent. The signing of an MoU is an accepted way by which the AU recognises non-governmental organisations.Footnote 8 The Court finds, therefore, that PALU is an organization recognised by the AU within the meaning of Article 4(1) of the Protocol.
25. Given the above, the Court concludes that it has personal jurisdiction to deal with the Request.
B. Material jurisdiction
26. In terms of its material jurisdiction, the Court recalls that under Article 4(1) of the Protocol, whose provisions are reiterated in Rule 82(2) of the Rules,Footnote 9 it may provide an advisory opinion on “any legal matter relating to the Charter or any other relevant human rights instrument ….”
27. The Court observes that PALU has requested it to interpret specific provisions of the Charter, the Children's Rights Charter and the Women's Rights Protocol. The Request, therefore, is on legal matters relating to the enjoyment of human rights guaranteed in the aforementioned instruments.
28. In the circumstances, the Court holds that it has material jurisdiction in respect of the Request.
V. ADMISSIBILITY
29. According to PALU, the Request is admissible since it does not relate to any application pending before the Commission.
***
30. The Court observes that Article 4(1) of the Protocol, the provisions of which are restated in Rule 82(3) of the Rules,Footnote 10 provides that it may provide an advisory opinion “provided that the subject matter of the opinion is not related to a matter being examined by the Commission.”
31. The Court recalls that by a letter dated 13 August 2018 it requested the Commission to advise on whether the Request, as filed by the PALU, was related to any matter pending before it. In its response, dated 18 December 2018, the Commission informed the Court that it had, in 2017, developed Principles on the Decriminalisation of Petty Offences in Africa. According to the Commission, the said principles well articulate its position on the subject matter of the Request. The Commission, however, did not expressly state whether the Request related to any matter pending before it but simply urged the Court to consider the Principles on the Decriminalisation of Petty Offences in Africa in dealing with the Request.
32. Given the Commission's response, the Court infers, therefore, that no matter related to this Request is pending before the Commission. The Court also confirms that PALU has provided the context within which the Request arises as well as the address of its representatives. The Court thus finds that the Request is admissible.
VI. ON THE QUESTIONS PRESENTED
33. In paragraph 5 above, the Court reproduced verbatim all the questions on which PALU seeks its opinion. In respect of these questions, the Court notes that PALU, essentially, questions the compatibility of vagrancy laws with the Charter, the Children's Rights Charter and the Women's Rights Protocol. Given the preceding, and without in any way undermining the four questions as framed by PALU, the Court will, sequentially, assess vagrancy laws as against the standards in the three aforementioned instruments. Thereafter it will separately address the fourth question posed by PALU which seeks the Court's opinion on the obligations of State's parties under the Charter, the Children's Rights Charter and the Women's Rights Protocol in respect of the vagrancy laws.
34. In relation to the instruments invoked by PALU, the Court notes as follows: the Charter has been ratified by fifty-four (54) of the fifty-five (55) Member States of the AU;Footnote 11 the Children's Rights Charter has been ratified by forty-nine (49) Member States;Footnote 12 and the Women's Rights Protocol by forty-two (42) Member States.Footnote 13 The Court observes that although none of the three instruments has universal Pan-African ratification, the rate of ratification remains high. More pointedly, the Court notes that all fifty-five (55) Member States of the AU have ratified the Constitutive Act of the AU.Footnote 14
35. The Court remains alive to the fact that some Member States of the AU have not ratified the instruments that PALU has invited it to employ in assessing the compatibility of vagrancy laws with human rights standards. Nevertheless, the Court understands that all Members States of the AU have undertaken to “promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments.”Footnote 15 By making this commitment, Member States have assumed the obligation to uphold human rights in respect of all persons within their jurisdiction.
36. In connection to its jurisdiction to render advisory opinions, the Court bears in mind the fact that it does not resolve factual disputes as between opposing parties during advisory proceedings. Its main duty is to provide “an opinion on any legal matter relating to the Charter or any other relevant human rights instruments.”Footnote 16 In doing this, the Court principally assesses the compatibility of the matters raised in a request for an opinion with the Charter and other applicable human rights standards. Any use of examples/illustrations, in the course of an advisory opinion, therefore, simply serves to highlight the practical dimensions of the opinion and does not amount to a decision on any factual situation.Footnote 17
37. The Court further recalls that its jurisdiction to render an advisory opinion can be invoked by any Member State of the AU and is not limited to those States that have ratified the Protocol or any other AU human rights instruments. Equally, therefore, the Court understands that its advisory opinions provide guidance to all Member States of the AU.
A. Compatibility of vagrancy laws and the Charter
38. Specifically in relation to vagrancy laws and Charter, PALU has requested the Court to provide an opinion on:
Whether vagrancy laws and by-laws, including but not limited to, those that contain offences which criminalise the status of a person as being without a fixed home, employment or means of subsistence; as having no fixed abode nor means of subsistence, and trade or profession; as being a suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of him or herself; and as being idle and who does not have visible means of subsistence and cannot give good account of him or herself violate [Articles 2, 3, 5, 6, 7, 12 and 18 of the Charter].
39. PALU has also requested the Court to advise on:
Whether vagrancy laws and by-laws, including but not limited to, those containing offences which, once a person has been declared a vagrant or rogue and vagabond, summarily orders such person's deportation to another area, violate Articles 5, 12, 18 of the Charter.
40. PALU has further requested the Court to provide an opinion on:
Whether vagrancy laws and by-laws, including but not limited to, those that allow for the arrest of someone without a warrant simply because the person has no “means of subsistence and cannot give a satisfactory account” of him or herself, violate Articles 2, 3, 5, 6 and 7 of the Charter.
i. PALU's position
41. PALU argues that vagrancy laws and by-laws criminalize poverty and are inconsistent with the right to dignity, equality before the law and non-discrimination. According to PALU, vagrancy laws do not punish specific acts of individuals but a status that individuals involuntarily entered into and cannot or easily be changed. PALU also argues that these laws either target or have a disproportionate impact on poor and vulnerable persons
42. According to the PALU:
[Vagrancy laws] afford police justification which otherwise would not be present under prevailing constitutional and statutory limitations; that is to arrest, search, question and detain persons solely based on suspicions that they have committed or may commit a crime. [Vagrancy laws] are also used by police to clear the streets of ‘undesirables’, to harass persons believed to be engaged in crime, and to investigate unclear offences.
43. PALU argues that such an application of vagrancy laws is prevalent across Africa despite the lack of evidence of correlation between vagrancy and criminality. Vagrancy laws, PALU points out, are unnecessary for the legitimate purpose of crime prevention since:
Most Penal Codes allow police to arrest a person without a warrant based on a suspicion on reasonable grounds that an offence has been committed. The requirement of reasonable cause is an important safeguard from improper police invasions of constitutionally protected rights. These criminal procedure provisions ought to be sufficient without the need for vagrancy laws to be used as catch-all provisions to prevent crime.
44. PALU also points out that “[v]agrancy laws are applied in a manner where a person is arrested without evidence and where the police seldom attempt to provide evidence.” PALU contends that vagrancy laws are used by the police to clear the streets of people who are deemed undesirable, to harass persons who the police suspect to have engaged in criminal activities and to investigate unclear offences.
45. PALU submits that prison conditions, across Africa, are often appalling and thus any detention results in serious violations of the detainee's human rights. Detention facilities are “often unhygienic and hazardous” and insufficient food is provided to detainees. According to PALU, the common practice by the police, across Africa, is to mount sweeping operations under vagrancy laws resulting in mass arrests and guilty pleas which exacerbates the living conditions of detainees by overcrowding detention facilities. PALU further submits that such arrests and detentions also burden a suspect's family members, who must bring food and pay for bail, among other things.
46. According to PALU vagrancy laws often do not have the clarity, accessibility and precision required under section 2(a) of the Commission's Guidelines on the Use and Conditions of Arrest, Police and Pre-trial Detention in Africa, which provide that:Footnote 18
Persons shall only be deprived of their liberty on grounds and procedures established by law. Such laws and their implementation must be clear, accessible and precise, consistent with international standards and respect the rights of the individual.
47. PALU argues that the phrases such as “known or reputed thief”, “having no visible means of support” and “give no good account of themselves” are imprecise and thus give neither fair nor adequate notice to those who might come within their scope nor sufficient guidelines to those empowered to enforce them. PALU thus submits that the ambiguity in vagrancy laws gives overly broad discretion to law enforcement officers, which results in arbitrary and discriminatory enforcement based on the police's prejudice and social stigma which disproportionately targets poor and marginalized populations.
48. PALU also argues that because the police's suspicion is the foundation in the enforcement of vagrancy laws, the principle that an individual is presumed innocent until proven guilty is negated when applying vagrancy laws.
49. PALU also points out that “[i]n many countries, once declared a vagrant, a person can also be banned from [an] area, sent back to his or her place of origin, or otherwise deported, if the person is not a citizen.” It thus submits that this is a violation of Articles 5, 12 and 18 of the Charter.
ii. Observations by AU Member States and amici curiae
50. Burkina Faso, in its submission, points out that many of the vagrancy offences require social rather than penal responses. It also submits that vagrancy offences tend to perpetrate discrimination and also effect violation of the freedom of movement and choice of residence which are guaranteed in Article 12 of the Charter. It further submits that vagrancy laws violate the right to liberty and impede the right to a fair trial especially by diluting the presumption of innocence
51. The NANHRI observes that enforcement of vagrancy laws often leads to the exacerbation of prison overcrowding and thus worsens the conditions of incarceration. It submits that vagrancy laws and by-laws that criminalise the status of a person as being without a fixed home, employment or means of subsistence are, therefore, contrary to the rights entrenched in the Charter. It further submits that arrests and detention for vagrancy-related offences are a disproportionate response to unemployment, poverty and homelessness that may result in significant harm to the individual and his or her family. The essence of the NAHRI submission is also reflected in the observations filed by the OSJI.
52. The ICJ-Kenya observes that vagrancy laws have a net effect of targeting the poor and the marginalized, especially women, victims of domestic violence and sex workers It submits that the continued enforcement of vagrancy laws has resulted in unparalleled human rights violations suffered by alleged petty offenders at the point of arrest, detention before trial, trial and post-trial periods and hence is incompatible with the principles of international human rights law, including the prohibition of arbitrary arrest and detention.
53. According to the Principles on the Decriminalisation of Petty Offences in Africa, which were submitted by the Commission, laws that create petty offences are inconsistent with the principles of equality before the law and non-discrimination in that they either target or have a disproportionate impact on the poor and vulnerable and perpetrate gender-based discrimination. The enforcement of petty offences, it is argued, has the effect of punishing, segregating, controlling and undermining the dignity of individuals on account of their socioeconomic status thereby perpetuating the stigmatisation of poverty
54. The CHR and DOI observe that arrests and detentions under vagrancy laws are often not for prosecuting the suspects but for intimidating and removing them from the streets. Such arrests are not supported by law enforcement officers' reasonable suspicion that an offence has been or is about to be committed. They further submit that vagrancy laws violate key human rights in the Charter which also results in an adverse socio-economic impact on those that are arrested or detained. According to CHR and DOI, such an infringement of the ability of individuals to be agents of their own development is only justified if it is within the ambit of democratic and rights-respecting laws.
55. The submission by HRC-Miami and Lawyers Alert reiterates the points made by the ICJ-Kenya, the NAHRI and also the CHR and DOI. Additionally, the HRC-Miami and Lawyers Alert point out that vagrancy is the principal crime in which the offence consists of being a certain kind of person rather than in having done or failed to do certain acts thereby violating Articles 2, 3, 5 and 6 of the Charter.
56. The OSJI submits that vagrancy laws are a colonial relic that work to reinforce patterns of discrimination instituted by colonial regimes contrary to Article 2 of the Charter.
iii. The Court's position
57. According to the Black's Law Dictionary, a vagrant is anyone belonging to the several classes of idle or disorderly persons, rogues and vagabonds.Footnote 19 This includes anyone who, not having a settled habitation, strolls from place to place; a homeless, idle wanderer. Vagrancy, generally, is the state or condition of wandering from place to place without a home, job or means of support. Vagrancy is thus considered a course of conduct or a manner of living, rather than a single act.Footnote 20 The term “vagrancy” is generic. It refers to misconduct brought about by a perceived socially harmful condition or mode of life. The misconduct itself takes many forms.
58. Although many countries have had vagrancy laws on their statute books, there have always been nuances across legal systems in terms of the formulation of the offences and the manner of enforcement.Footnote 21 In this Advisory Opinion, therefore, the Court remains alive to the fact that the term “vagrancy” is often used in a generic sense to allude to various offences commonly grouped under this umbrella including but not limited to: being idle and disorderly, begging, being without a fixed abode, being a rogue and vagabond, being a reputed thief and being homeless or a wanderer.
59. From a sociological perspective, it has been suggested that there were three main reasons that motivated the adoption of vagrancy laws.Footnote 22 First, to curtail the mobility of persons and criminalise begging, thereby ensuring the availability of cheap labour to land owners and industrialists whilst limiting the presence of undesirable persons in the cities; second, to reduce the costs incurred by local municipalities and parishes to look after the poor; lastly, and to prevent property crimes by creating broad crimes providing wide discretion to law enforcement officials. These justifications, the Court observes, have not remained stagnant in time or place. At different points in time, various countries have emphasised different justifications for maintaining vagrancy offences. Definitions of conduct caught by vagrancy laws, therefore, have also varied from one country to the other.
60. With regard to the prevailing situation in Africa, the Court notes that several countries still have laws containing vagrancy offences. For example, in the Penal Codes of at least eighteen (18) African countries,Footnote 23 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. In at least eight (8) African countries;Footnote 24 a “suspected person or reputed thief who has no visible means of subsistence and cannot give a good account” of him or herself commits an offence of being a “rogue” or a “vagabond”. The Court also notes that in South Africa, for instance, by-laws prohibit a person without a fixed abode from loitering or sleeping in a public amenity, public space or in the beach.Footnote 25 The Court further notes that in at least three (3) African countries,Footnote 26 the offence of being an idle and disorderly person is defined to include someone who loiters or is idle and who does not have a visible means of subsistence and cannot give a good account of him or herself.
61. At the same time, however, the Court observes that other African countries, for example, Angola, Cape Verde, Kenya, Lesotho, Mozambique, Rwanda and Zimbabwe have repealed some of their vagrancy laws. The Court further observes that courts, in some African countries, have also nullified some vagrancy laws for being unconstitutional. For example, in Mayeso Gwanda v The State, the High Court of Malawi ruled that the offence of “being a rogue and vagabond” was a violation of human rights and unconstitutional.Footnote 27
62. At the regional level, the Court also takes judicial notice of the judgment of the Court of Justice of the Economic Community of West African States (hereinafter referred to as “the ECOWAS Court”) in Dorothy Njemanze and Others v. Federal Republic of Nigeria. Footnote 28 In this case, the applicants, all women, were arrested and detained on suspicion of engaging in prostitution simply because they were found on the streets at night. The Court held that the arrest of the applicants was unlawful and that it violated their right to freedom of liberty, as the Respondent State had submitted no proof that the applicants were indeed prostitutes. The Court also found that branding the women prostitutes constituted verbal abuse, which violated their right to dignity. Further, the Court held that the arrest violated the applicants' right to be free from cruel, inhuman or degrading treatment; and also constituted gender-based discrimination. Among others, the ECOWAS Court found that there were multiple violations of articles 1, 2, 3 and 18 (3) of the Charter; articles 2, 3, 4, 5, 8 and 25 of the Women's Protocol); and articles 2, 3, 5 (a) and 15(1) of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).
63. The Court will now consider whether vagrancy laws are compatible with Articles 2, 3, 5, 6, 7, 12 and 18 of the Charter. In its consideration, the Court will sequentially deal with each of the Articles pleaded by PALU.
a. Vagrancy laws and the right to non-discrimination and equality
64. The Court recalls that Article 2 of the Charter provides that:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.
65. The Court also recalls that Article 3 of the Charter provides that:
(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law.
66. As the Court has noted, the right to non-discrimination under Article 2 of the Charter, is related to the right to equality before the law and equal protection of the law as guaranteed under Article 3.Footnote 29 It is for this reason that the Court is analysing the compatibility of vagrancy laws with Articles 2 and 3 of the Charter at the same time. Admittedly, the scope of the right to non-discrimination extends beyond the right to equal treatment before the law and also has practical dimensions in that individuals should, in fact, be able to enjoy the rights enshrined in the Charter without distinction of any kind relating to their race, colour, sex, religion, political opinion, national extraction or social origin, or any other status.Footnote 30 The expression “any other status” in Article 2 of the Charter encompasses those cases of discrimination, which could not have been foreseen during the adoption of the Charter.
67. Although Articles 2 and 3 of the Charter are unequivocal in their proscription of discrimination not all forms of differentiation or distinction are unlawful.Footnote 31 Differentiation and distinction amounts to discrimination if it does not have an “objective and reasonable justification” and “where it is not necessary and proportional.”Footnote 32 Nevertheless, the Court reiterates its position that Article 2 is imperative for the respect and enjoyment of all other rights and freedoms protected in the Charter.Footnote 33
68. The Court recalls that the Commission has held that:Footnote 34
Articles 2 and 3 of the African Charter basically form the anti-discrimination and equal protection provisions of the African Charter. Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while Article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter.
69. The Court observes that vagrancy laws, in several African countries, criminalize the status of an individual being a “vagrant,” often defined as “any person who does not have a fixed abode nor means of subsistence, and who does not practice a trade or profession,” a “suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of him or herself” or “someone who loiters or is idle and who does not have a visible means of subsistence and cannot give a good account of him or herself.”
70. Against the above background, the Court notes that vagrancy laws, effectively, punish the poor and underprivileged, including but not limited to the homeless, the disabled, the gender-nonconforming, sex workers, hawkers, street vendors, and individuals who otherwise use public spaces to earn a living. Notably, however, individuals under such difficult circumstances are already challenged in enjoying their other rights including more specifically their socio-economic rights. Vagrancy laws, therefore, serve to exacerbate their situation by further depriving them of their right to be treated equally before the law.
71. The Court also notes that while an eternal attribute of all good laws is that they must always be clear and precise, vagrancy laws often employ vague, unclear and imprecise language. Common terminology used in framing vagrancy offences include expressions such as “loitering”, “having no visible means of support” and “failing to give a good account of oneself”. Such language does not provide sufficient indication to the citizens on what the law prohibits while at the same time conferring broad discretion on law enforcement agencies in terms of how to enforce vagrancy laws. This, automatically, makes vagrancy laws prone to abuse, often to the detriment of the marginalized sections of society.
72. The Court recalls that the status of an individual is one of the prohibited grounds for discrimination under Article 2 of the Charter. In relation to the application of vagrancy laws, no reasonable justification exists for the distinction that the law imposes between those classified as vagrants and the rest of the population except their economic status. The individual classified as a vagrant will, often times, have no connection to the commission of any criminal offence hence making any consequential arrest and detention unnecessary. The arrest of persons classified as vagrants, clearly, is largely unnecessary in achieving the purpose of preventing crimes or keeping people off the streets.
73. The Court further recalls that the right to equality before the law requires that “all persons shall be equal before the courts and tribunals”.Footnote 35 Equal protection of the law, the Court observes, presupposes that the law protects everyone, without discrimination. Where different treatment is meted to individuals based on their status, as is the case with the application of vagrancy laws, it is clear that individuals are denied the equal protection of the law. The Court, therefore, agrees with the Commission that laws with discriminatory effects towards the marginalized sections of society are not compatible with both Articles 2 and 3 of the Charter.Footnote 36
74. The Court also recalls that any arrest without a warrant requires reasonable suspicion or grounds that an offence has been committed or is about to be committed. Notably, where vagrancy-related offences are concerned, most arrests are made on the basis of an individual's underprivileged status and the inability to give an account of oneself. In this context, therefore, arrests are substantially connected to the status of the individual who is being arrested and would not be undertaken but for the status of the individual. Arrests without a warrant for vagrancy offences, therefore, are also incompatible with Articles 2 and 3 of the Charter.
75. In light of the above, the Court holds that vagrancy laws, both in their formulation as well as in their application, by, among other things, criminalizing the status of an individual, enabling the discriminatory treatment of the underprivileged and marginalized, and also by depriving individuals of their equality before the law are not compatible with Articles 2 and 3 of the Charter. The Court also finds that arrests for vagrancy-related offences, where they occur without a warrant, are not only a disproportionate response to socio-economic challenges but also discriminatory since they target individuals because of their economic status.
b. Vagrancy laws and the right to dignity
76. Under Article 5, the Charter provides as follows:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
77. The Court recalls that it has recognised three main principles for determining violations of the right to dignity as guaranteed under Article 5 of the Charter.Footnote 37 First, Article 5 has no limitation provisions and thus the prohibition of indignity manifested in cruel, inhuman and degrading treatment is absolute. Second, the prohibition in Article 5 provides the widest possible protection against both physical and mental abuse. Third, personal suffering and indignity can take various forms and the assessment of whether a specific provision of a law or policy violates Article 5 must be made on a case-by-case basis.
78. The Court reaffirms that “[h]uman dignity is an inherent basic right to which all human beings … are entitled to without discrimination.”Footnote 38 The breadth of the protection offered by Article 5 entails, therefore, that the Court should remain open-minded in assessing novel allegations of violations of the Charter.
79. The Court also recalls that the Commission in Purohit and Moore v. The Gambia concluded that the use of the words “lunatics” and “idiots” to refer to persons with mental disabilities dehumanizes and denies them their dignity.Footnote 39 In the same vein, the Court notes that vagrancy laws commonly use the terms “rogue”, “vagabond”, “idle” and “disorderly” to label persons deemed to be vagrants. These terms, the Court holds, are a reflection of an outdated and largely colonial perception of individuals without any rights and their use dehumanizes and degrades individuals with a perceived lower status.
80. The Court also holds that the application of vagrancy laws often deprives the underprivileged and marginalized of their dignity by unlawfully interfering with their efforts to maintain or build a decent life or to enjoy a lifestyle they pursue. In this vein, the Court is particularly mindful that “all human beings have a right to enjoy a decent life … which lies at the heart of the right to human dignity.”Footnote 40 Consequently, the Court finds that vagrancy laws are incompatible with the notion of human dignity as protected under Article 5 of the Charter.
81. The Court also holds that labelling an individual as a “vagrant”, “vagabond”, “rogue” or in any other derogatory manner and summarily ordering them to be forcefully relocated to another area denigrates the dignity of a human being. If the implementation of such order is accompanied by the use of force, it may also amount to physical abuse. The Court thus finds that the forcible removal of persons deemed to be vagrants is not compatible with Article 5 of the Charter.
82. In addition to its earlier finding, the Court reiterates the fact that arrests without a warrant for vagrancy offences are arbitrary since, often times, no rational connection exists between such arrests and the objectives of law enforcement. Practically, such warrantless arrests normally target the underprivileged only. The Court thus also holds that vagrancy laws that permit arrests without a warrant are incompatible with the right to dignity as guaranteed in Article 5 of the Charter.
c. Vagrancy laws and the right to liberty
83. The Court notes that Article 6 of the Charter provides that:
Every individual shall have the right to liberty and the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrary arrested or detained.
84. In line with its jurisprudence, any arrest and detention is arbitrary if it has no legal basis and has not been carried out in accordance with the law.Footnote 41 In the circumstances, deprivation of liberty in line with an existing law does not of itself make the process legal. It is also important that deprivation of liberty be supported by clear and reasonable grounds.Footnote 42 Any restriction of an individual's liberty, therefore, must have a legitimate aim and must also serve a public or general interest.Footnote 43
85. The Court notes that a major challenge with the enforcement of vagrancy laws is that, in practice, the enforcement of these laws often results in pretextual arrests, arrests without warrants and illegal pre-trial detention. This exposes vagrancy laws to constant potential abuse.
86. The Court concedes that arrests under vagrancy laws may, ostensibly, satisfy the requirement that the deprivation of freedom must be based on reasons and conditions prescribed by law. Nevertheless, the manner in which vagrancy offences are framed, in most African countries, presents a danger due to their overly broad and ambiguous nature. One of the major challenges is that vagrancy laws do not, ex ante, sufficiently and clearly lay down the reasons and conditions on which one can be arrested and detained to enable the public to know what is within the scope of prohibition. In practice, therefore, many arrests for vagrancy offences are arbitrary.
87. For the reasons stated above, the Court holds that arrests and detentions under vagrancy laws are incompatible with the arrestees' right to liberty and the security of their person as guaranteed under Article 6 of the Charter. This, the Court holds, is invariably the case where the arrest is without a warrant.
d. Vagrancy laws and the right to fair trial
88. Article 7 of the Charter provides, in so far as is material that:
Every individual shall have the right to have his cause heard. This comprises:
b) the right to be presumed innocent until proved guilty by a competent court or tribunal … .
89. The Court notes that the right to fair trial is a fundamental human right which is enshrined in all universal and regional human rights instruments. In Article 7(1)(b) the Charter reiterates the fundamental principle of the presumption of innocence. As the Court has held, “the essence of the right to presumption of innocence lies in its prescription that any suspect in a criminal trial is considered innocent throughout all the phases of the proceedings, from preliminary investigation to the delivery of judgment, and until his guilt is legally established.”Footnote 44
90. Although the Charter does not have a provision specifically dealing with the protection against self-incrimination, it is clear to the Court that the Charter's omnibus provision for fair trial includes a proscription of self-incrimination. In any event, the Court has already established that Article 7 of the Charter should be interpreted in light of article 14 International Covenant on Civil and Political Rights in order to read into the Charter fair trial protections which are not expressly provided for in Article 7.Footnote 45
91. Additionally, the Court notes that the Commission's Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003 (hereinafter “the Fair Trial Principles”) provide useful guidance in interpreting Article 6 of the Charter. According to the Fair Trial Principles, “[i]t shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him or her to confess, to incriminate himself or herself or to testify against any other person.”Footnote 46
92. The Court observes that because vagrancy laws often punish an individual's perceived status, such as being “idle”, “disorderly” or “a reputed thief”, which status does not have an objective definition, law enforcement officers can arbitrarily arrest individuals without the sufficient level of prima facie proof that they committed a crime. Once they are taken into custody, such arrested persons would have to explain themselves to the law enforcement officer(s) to demonstrate that, for example, they were not idle or disorderly, are not a reputed thief or that they practice a trade or profession. A failure to provide an explanation acceptable in the eyes of law enforcement officers could result in them being deemed unable to give an account of themselves and thereby, supposedly, providing justification for their further detention.
93. The Court notes, however, that forcing a suspect to explain himself/herself may be tantamount to coercing a suspect to make self-incriminating statements. Law enforcement officers may exert undue pressure on suspected criminals by pretextually arresting them under vagrancy laws and then soliciting incriminatory evidence even in relation to crimes not connected to vagrancy.
94. Given the above, the Court holds, therefore, that arresting individuals under vagrancy laws and soliciting statements from them about their possible criminal culpability, is at variance with the presumption of innocence and is not compatible with Article 7 of the Charter.
e. Vagrancy laws and the right to freedom of movement
95. The Court recalls that Article 12 of the Charter provides, so far as is material, that:
1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
96. The right to freedom of movement entails the right of everyone lawfully within the territory of a State to move freely and to choose his or her place of residence.”Footnote 47 As noted by the Human Rights Committee in its General Comment No. 27, such freedom is “an indispensable condition for the free development of a person.”Footnote 48 States must, therefore, guarantee the enjoyment of this right irrespective of the individual's purpose or reason for staying in or moving in or out of a specific place.Footnote 49
97. The Court observes that article 12(3) of the ICCPR explicitly lays out the conditions on the basis of which the right to the freedom of movement can be restricted being “those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” Any limitations on the right, therefore, must not nullify its essential content. The freedom of movement guarantees every individual the right not only to move freely within a territory but also to choose a place of residence.
98. The Court recalls that the Charter does not have a provision comparable to article 12(3) of the ICCPR, setting out when limitations on the freedom of movement are permissible. In Article 12(1), the Charter merely provides that the enjoyment of the freedom of movement is subject to the condition that the individual abides by the law. It is clear from this provision that, in appropriate circumstances, the law may limit the freedom of movement under the Charter.
99. The above notwithstanding, any limitation of the freedom of movement must, firstly, be provided by law. A contrary interpretation of Article 12 would open the door to arbitrary and unpredictable interference with the right. Secondly, any such restriction must be necessary to protect national security, public order, public health or morals or the rights and freedom of others. This ensures that the restrictions are only issued for these limited reasons and not for others. Lastly, the restrictions must be consistent with the other rights recognized in the Charter. This means that a restriction on the freedom of movement must not infringe the other rights of an individual unless the restriction of those other rights is permissible under the Charter.
100. The Court observes that, in many instances, the enforcement of vagrancy laws leads to infringement limitation of the right of freedom of movement. Admittedly, such limitations are prescribed by vagrancy laws, since many African countries have laws outlawing vagrancy, thereby satisfying the first of the conditions earlier enumerated. Such conduct, however, fails to satisfy the second and third conditions. This is because vagrancy laws are not necessary for any of the purposes for which they are often cited. Notably, vagrancy laws are often employed for crime-prevention purposes, but, as the Court has earlier stated, there is no correlation between vagrancy and the criminal propensity of an individual.
101. The Court is also mindful that even if vagrancy laws contribute to the prevention of crimes in some cases, other less-restrictive measures such as offering vocational training for the unemployed and providing shelter for the homeless adults and children are readily available for dealing with the situation of persons caught by vagrancy laws. Where policy alternatives that do not infringe on individuals' rights and freedoms exist, policies that infringe on fundamental human rights such as the right to freedom of movement are unnecessary and should be avoided.
102. The Court finds, therefore, that the enforcement of vagrancy laws, generally, is incompatible with the right to freedom of movement as guaranteed under Article 12 of the Charter. The Court also finds that forced relocation, which is permitted by vagrancy laws in some African countries, is also incompatible with Article 12 of the Charter.
f. Vagrancy laws and the right to the protection of the family
103. Article 18 of the Charter provides that:
(1) The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.
(2) The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
(3) The State shall ensure the elimination of every discrimination against women and also ensure the protection of rights of women and the child as stipulated in international declarations and conventions.
(4) The aged and the disabled shall also have the right to special measures for protection in keeping with their physical or moral needs.
104. The Court notes that underlying Article 18 of the Charter is the responsibility of Member States to take care of the physical and moral health of the family. The Court also notes that international human rights law consistently recognises the family as the fundamental group unit of society requiring protection.Footnote 50 The protection of the family includes the right to family unity which entails that members of the same family are entitled to protection against forcible separation.
105. The Court observes that arrests and detentions under vagrancy laws may result in the forcible removal of the suspected “vagrants” from their families. Due to this, other family members that rely on those arrested under vagrancy laws, most notably children, the elderly and the disabled may suffer from the deprivation of financial and emotional support. The Court is cognisant that every arrest and detention leads to the detriment of the physical and moral health of a suspect's family, irrespective of the crime at issue. For this reason, therefore, not all arrests and detentions are incompatible with Article 18 of the Charter. However, an arrest or detention carried out pursuant to the enforcement of vagrancy laws, as has been demonstrated in this Advisory Opinion, is incompatible with several rights protected under the Charter and such arrests accentuate the vulnerability of families.
106. The Court emphasises that arrests and detentions are permissible when they take place in the course of lawful law enforcement activity which is based on laws that do not violate fundamental human rights. Since vagrancy laws are incompatible with several human rights enshrined in the Charter as well as other international human rights instruments, they cannot be the basis for lawful law enforcement activity.
107. Based on the above considerations, the Court holds that arrests and detentions based on vagrancy laws are incompatible with Article 18 of the Charter. The Court, also holds that the forcible relocation of “vagrants” is incompatible with the preservation of the sanctity of the family as a basic unit of society as guaranteed in the Charter.
B. Vagrancy laws and the Children's Rights Charter
108. PALU has also invited the Court to advise on whether vagrancy laws and by-laws, including but not limited to, those containing offences which, once a person has been declared a vagrant or rogue and vagabond, summarily orders such person's relocation to another area violate Articles 3, 4(1) and 17 of the Children's Rights Charter.
109. PALU submits that vagrancy laws have often been employed to indiscriminately arrest street children thereby undermining their right to dignity and equal protection of the law. Children of parents who have been imprisoned, PALU points out, are more likely to face food insecurity or come into further conflict with the law especially when they are forcibly separated from their parents due to the application of vagrancy laws.
110. PALU also points out that “[i]n many countries, once declared a vagrant, a person can also be banned from [an] area, sent back to his or her place of origin, or otherwise deported, if the person is not a citizen.” PALU submits that this is a violation of Articles 3, 4(1) and 17 of the Children's Rights Charter.
i. Observations by amicus curiae
111. The NAHRI submits that the extent to which vagrancy laws are used to arrest and detain children who live on the streets shows criminal justice systems that ignore the fundamental principle of the best interests of the child. Street children arrested and detained by the police, the NAHRI argues, are often subjected to “exploitation, abuse, discrimination and stigmatisation both on the streets and by law enforcement officials.” The conditions which children endure when detained, the NAHRI also points out, further violate their rights. This, therefore, makes criminal justice systems complicit in the violation of children's rights.
ii. The Court's position
112. The Court notes that Article 3 of the Children's Rights Charter provides as follows:
Every child shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in this Charter irrespective of the child's or his/her parents' or legal guardians' race, ethnic group, colour, sex language, religion, political or other opinion, national and social origin, fortune, birth or other status.
113. The Court also notes that Article 4(1) of the Children's Rights Charter provides as follows:
In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.
114. The Court further notes that Article 17 of the Children's Rights Charter provides as follows:
(1) Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child's sense of dignity and worth and which reinforces the child's respect for human rights and fundamental freedoms of others.
(2) State Parties to the present Charter shall in particular:
(a) ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment;
(b) ensure that children are separated from adults in their place of detention or imprisonments;
(c) ensure that every child accused of infringing the penal law: shall be presumed innocent until duly recognised guilty.
115. The Court recalls that PALU has invoked the compatibility of vagrancy laws with several rights under the Children's Rights Charter. Each of the rights invoked will now be assessed individually.
a. Vagrancy laws and children's right to non-discrimination
116. The Court acknowledges that Article 3 of the Children's Rights Charter is simply an affirmation of the application of the right to non-discrimination to all children. Specifically, Article 3 proscribes any discrimination “irrespective of the child's or his/her parents' or legal guardians' race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.”
117. The Court observes that arbitrary arrests, generally, have a disproportionate effect on impoverished and marginalized children. By way of illustration, where street children are required to give a satisfactory account of themselves to avoid arrests, such children may be left to provide statements to the police alone. In such a situation it may, practically, be very difficult for the children to establish that they should not be arrested. This predicament, however, invariably affects underprivileged and marginalised children in societies across Africa.
118. The Court further observes that children who are routinely in conflict with vagrancy laws often belong to vulnerable and disadvantaged groups in society, including but not limited to children living on the street. In the case of children living on the streets, any forcible removal may entail losing their community and means of livelihood. The treatment that children in conflict with vagrancy laws are subjected to is, therefore, less favourable than that which other children in society experience. The primarily reason for the differentiated treatment is the position of marginalisation and vulnerability occupied by these children. Children in conflict with vagrancy laws, therefore, are discriminated against because of their status.
119. The Court notes that aside from the discrimination directly suffered by children who find themselves in conflict with vagrancy related laws such children's other rights are also compromised when one or more of their parents or primary caregivers are removed from the area in which they reside or work. Parental incarceration or forced relocation leads to children living separately from their parents thereby resulting to instability in family relationships and financial problems.
120. Given the above, the Court thus holds that the enforcement of vagrancy-related laws, which results in the arrests, detention and sometimes forcible relocation of children from the areas of residence, is incompatible with children's right to non-discrimination as protected under Article 3 of the Children's Rights Charter.
b. Vagrancy laws and the best interests of the child
121. Article 4(1) of the Children's Rights Charter restates the general principle of the best interests of the child. This principle also finds expression in Article 3(1) of the United Nations Convention on the Rights of the Child, 1989.
122. In respect of Article 4(1) of the Children's Rights Charter, the Court observes that in General Comment No. 5, the African Committee of Experts on the Rights and Welfare of the Child (hereinafter “the Committee of Experts”) has stated that the principle of the best interests of the child has no conditions attached to it.Footnote 51 The result is that its scope, reach and standard of application cannot be diluted. In the words of the Committee of Experts, there are “no limitations to the domains or sectors within which the best interests of the child must apply, so that its application can extend to every conceivable domain of public and private life.” From the foregoing, the Court concludes that the best interests of the child is a cross-cutting principle which applies to children, irrespective of status, in diverse circumstances.
123. Given that the Court has already established that vagrancy laws, inter alia, are incompatible with children's right to non-discrimination, it is clear that the arrest, detention and forcible relocation of children on account of vagrancy offences also infringes their best interests. Such conduct not only compromises children's fundamental rights but also exposes them to multiple other potential violations of their rights. The Court holds, therefore, that the application of vagrancy laws is incompatible with Article 4(1) of the Children's Rights Charter.
c. Vagrancy laws and children's right to fair trial
124. The Court notes that Article 17 of the Children's Rights Charter extends fair trial guarantees to all children. The provision specifically emphasises the need to accord children special treatment in a manner consistent with the “child's sense of dignity and worth”. Akin to Article 3 of the Children's Rights Charter, which simply extends the application of the right to non- discrimination so that it expressly covers children, Article 17 of the Children's Rights Charter does the same in respect of the right to fair trial. Additionally, however, Article 17 of the Children's Rights Charter spells out some protections and safeguards that are specific to children because of their unique position.
125. As the United Nations Committee on the Rights of the Child has observed, States have a duty to ensure that all necessary measures are implemented to ensure that all children in conflict with the law are treated equally.Footnote 52 This requires that particular attention must be paid to de facto discrimination and disparities, which may be the result of a lack of a consistent policy and involve vulnerable groups of children, such as street children, children belonging to racial, ethnic, religious or linguistic minorities, indigenous children, girl children, children with disabilities and children who are repeatedly in conflict with the law. Additionally, in all decisions taken within the context of the administration of juvenile justice, the best interests of the child should be a primary consideration.
126. Children, the Court reaffirms, are entitled to all fair trial guarantees applicable to adults plus other special guarantees tailored to their special situation. Basic fair trial guarantees require that a law enforcement officer should not effect any arrest except for reasonable cause. However, the ambiguity and lack of clarity in many vagrancy offences, as earlier pointed out, entails that law enforcement officers are conferred an undue latitude in determining when to make an arrest. Just as is the case with adults, the right to fair trial requires that children's rights be upheld during arrest, detention or even trial. An arrest without a warrant, therefore, could be the precursor for further violations of the rights of children.
127. Any judicial system, therefore, must accord children in conflict with the law a treatment that is consistent with their sense of dignity and worth. This includes, among other things, treating children in a manner that accords with their age and promotes their reintegration into society.
128. As the Court has earlier observed, numerous fair trial rights are violated during the enforcement of vagrancy laws. Although these violations affect both adults and children, in response to PALU's question, the Court holds that the arrest, detention and forcible relocation of children due to vagrancy laws is incompatible with their fair trial rights as protected under Article 17 of the Children's Rights Charter.
C. Vagrancy laws and the Women's Rights Protocol
129. PALU has requested the Court to advise as to whether vagrancy laws and by-laws, including but not limited to, those that allow for the arrest of someone without a warrant simply because the person has no “means of subsistence and cannot give a satisfactory account” of him or herself, violate Article 24 of the Women's Rights Protocol.
130. PALU submits that women are particularly vulnerable to arrests based on vagrancy laws because they often spend longer time in pre-trial detention due to their inability to pay fines, bail or legal representation.
131. PALU also reiterates its submission that the enforcement of vagrancy laws “further perpetuates the stigmatisation of poverty by mandating a criminal justice response to what, in actuality, are socio-economic and sustainable development issues.” PALU points out that imprisonment on vagrancy-based laws “disproportionately affects people living in poverty and directly contributes to the impoverishment of the prisoner and his or her family.” According to PALU, therefore, vagrancy laws reinforce discriminatory attitudes against marginalised persons.
i. Observations by amici curiae
132. The HRC-Miami and Lawyers Alert submit that the use of vagrancy laws to criminalize women and gender non-conforming people and deny their access to public spaces is a violation of the basic rights to liberty and security of a person. They also observe that while women targeted under vagrancy statutes in Africa are sometimes only detained overnight or released within a few days, some of them are forced to stay behind bars for indefinite periods of time causing them to lose time that could have been used to engage in productive activity. It is thus submitted that the discriminatory and arbitrary application of vagrancy laws to women may also violate their economic rights.
133. The CHR and DOI submit that women in African countries are disproportionately affected by poverty and often engage in activities such as street trading, which may put them at risk of prosecution under outdated vagrancy laws. Poorer women are, therefore, more likely to be arrested under vagrancy laws because their attempts to earn a living often put them in conflict with the law. It is further submitted that the enforcement of vagrancy laws is used to exploit women in the informal sector. The highly discretionary nature of law enforcement for vagrancy offences presents a prime opportunity for law enforcement officials to exploit women's vulnerability and extort bribes.
134. The CHR and DOI further submit that the socio-economic consequences for the arrest and detention of women for vagrancy offences is disproportionate and more harmful to “women particularly their children than the ‘crime’ being committed which is not harmful to society.” Women who are detained under vagrancy laws are thereby deprived of the opportunity to exercise their role as primary care givers and where their husbands or partners are detained, they bear the brunt of the household responsibilities.
ii. The Court's position
135. The Court recalls that in at least six (6) African countries, criminal procedure laws allow the police to arrest without a warrant where a person has no ostensible means of subsistence and cannot give a satisfactory account of him or herself.Footnote 53
a. Vagrancy laws and Article 24 of the Women's Rights Protocol
136. The Court recalls that Article 24 of the Women's Rights Protocol provides as follows:
The State Parties undertake to ensure the protection of poor women and women heads of families including women from marginalised population groups and provide an environment suitable to their condition and their special physical, economic and social needs.
137. The Court notes that Article 24 of the Women's Rights Protocol creates a composite obligation for States in respect of poor women, women heads of families and other women from marginalised populations. This obligation requires States to create an environment where poor and marginalised women can fully enjoy all their human rights.
138. Against the above background, the Court notes, for example, that vagrancy laws perpetrate multiple violations of the rights of poor and marginalised women. Some of the rights that are compromised by the application of vagrancy laws on poor and marginalised women include women's right to dignity, non-discrimination and equality.
139. The Court remains alive to the fact that many poor and marginalised women across Africa earn a living by engaging in activities that put them at constant risk of arrest under vagrancy laws. By sanctioning the arrest of poor and marginalised women on the ground that they have “no means of subsistence and cannot give a satisfactory account” of themselves, vagrancy laws undermine Article 24 of the Women's Protocol.
140. In answer to PALU's third question, therefore, the Court holds that vagrancy laws are incompatible with Article 24 of the Women's Rights Protocol for permitting the arrest without a warrant of women where they are deemed to have “no means of subsistence and cannot give a satisfactory account” of themselves.
D. The obligations of State Parties to the Charter in respect of vagrancy laws
141. In its final question, PALU has asked the Court to advise whether State Parties to the African Charter have positive obligations to repeal or amend their vagrancy laws and/or by laws to conform with the rights protected by the African Charter, the Children' Rights Charter and Women's Rights Protocol, and in the affirmative, determine what these obligations are.
142. PALU points to the Commission's 2017 Principles on the Decriminalisation of Petty Offences in Africa which have emphasised that:
Criminal laws must be a necessary and proportionate measure to achieve that legitimate objective within a democratic society, including through the prevention and detection of crime in a manner that does not impose excessive or arbitrary infringements upon individual rights and freedoms. There must be a rational connection between the law, its enforcement and the intended objectives.Footnote 54
143. PALU draws the Court's attention to the Kampala Declaration on Prison Conditions in Africa,Footnote 55 which has called on governments to review their penal policies and reconsider the use of prisons to prevent crime. Given the inhumane conditions in prisons for both prisoners and staff, the Kampala Declaration on Prison Conditions in Africa concluded by pointing out that mass-incarceration neither serves the interests of justice nor proves to be a good use of scarce public resources.
144. PALU also draws the Court's attention to the Commission's Ouagadougou Declaration and Plan of Action on Accelerating Prisons' and Penal Reforms in Africa.Footnote 56 According to this Declaration, African States were encouraged to decriminalise some petty offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents in a bid to reduce prison populations.
i. Observations by AU Member States and amici curiae
145. Burkina Faso submits that under article 151 of its Constitution of 2 June 1991 “[t]reaties and agreements that are regularly ratified or approved shall, as soon as they are published, have precedence over the laws, subject, for each agreement or treaty, to its application by the other party.” In line with this constitutional obligation, it points out, it reviewed its Penal Code on 31 May 2018 to decriminalise the offence of wandering.
146. According to the ICJ-Kenya, the Ouagadougou Declaration and Plan of Action on Accelerating Prisons' and Penal Reforms in Africa called for the decriminalization of offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents. The ICJ-Kenya has also highlighted that decriminalization takes numerous forms and it can be partial or full. The distinctions between these policy choices, it has been highlighted, are enormous. The reclassification of a crime into a civil infraction means that vagrancy-related offences would no longer be criminally punishable. By contrast, under the practice of partial decriminalization, offences retain their criminal character and attendant burdens. Partial decriminalization could mean that defendants cannot be incarcerated for the offence, but it could also mean shortened or deferred sentences, supervision and treatment.
147. The NANHRI submits that some countries have already experimented with mechanisms aimed at reducing prison populations by releasing prisoners convicted with minor offences. The examples provided by the NAHRI include Kenya, South Africa and Egypt. The NANHRI submits that given that prison overcrowding is an imminent problem across Africa, abolishing vagrancy laws would contribute to stemming the flow of convicts to prisons. It is also submitted that abolishing vagrancy-related offences would send an important signal to law enforcement agencies that they should respect the dignity and rights of the poor and vulnerable children and women.
148. The OSJI submits that prison congestion, which results from enforcement of vagrancy laws, poses a great challenge to the right to health of prisoners especially those with underlying conditions. It further submits that given the COVID-19 Pandemic, the time may be ripe for African countries to decriminalise vagrancy offence and ease the congestion in prisons while at the same time safeguarding the right to health of prisoners.
ii. The Court's position
149. The Court notes that Article 1 of the Charter provides that:
The Member States of the Organisation of African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.
150. The Court also notes that Article 1 of the Children's Rights Charter provides as follows:
Member States of the Organization of African Unity, Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.
151. The Court further notes that Article 1 of the Women's Rights Protocol provides thus:
1. States Parties shall ensure the implementation of this Protocol at national level, and in their periodic reports submitted in accordance with Article 62 of the African Charter, indicate the legislative and other measures undertaken for the full realisation of the rights herein recognised.
2. States Parties undertake to adopt all necessary measures and in particular shall provide budgetary and other resources for the full and effective implementation of the rights herein recognised.
152. The Court observes that there are two dimensions to PALU's final question and these are, first, whether an obligation to amend vagrancy laws exist and, second, the precise nature of this obligation.
153. Given the Court's findings in this Advisory Opinion, the Court holds that Article 1 of the Charter, Article 1 of the Children's Rights Charter and Article 1 of the Women's Rights Protocol obligates all State Parties to, inter alia, either amend or repeal their vagrancy-laws and by-laws to bring them in conformity with these instruments. This would be in line with the obligation to take all necessary measures including the adoption of legislative or other measures in order to give full effect to the Charter, the Children's Rights Charter and the Women's Rights Protocol.
154. As to the nature of the obligation, the Court holds that this obligation requires all State Parties to amend or repeal all their vagrancy laws, related by-laws and other laws and regulations so as to bring them in conformity with the provisions of the Charter, the Children's Rights Charter and the Women's Rights Protocol.
VII. OPERATIVE PART
155. For the above reasons:
THE COURT,
Unanimously,
On jurisdiction
i. Finds that it has jurisdiction to give the Advisory Opinion requested; On admissibility
ii. Declares that the Request for Advisory Opinion is admissible; On the merits
iii. Finds that vagrancy laws, including but not limited to those that contain offences which criminalise the status of a person as being without a fixed home, employment or means of subsistence, as having no fixed abode nor means of subsistence, and trade or profession; as being a suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of him or herself; and as being idle and who does not have visible means of subsistence and cannot give good account of him or herself violate; and also those laws that order the forcible removal of any person declared to be a vagrant and laws that permit the arrest without a warrant of a person suspected of being a vagrant are incompatible with Articles 2, 3, 5, 6, 7, 12 and 18 of the Charter;
iv. Finds that vagrancy laws and by-laws, including but not limited to, those containing offences which, once a child has been declared a vagrant or rogue and vagabond, summarily orders such child's forcible relocation to another area, are incompatible with Articles 3, 4(1) and 17 of the Children's Rights Charter;
v. Finds that vagrancy laws, including but not limited to, those that allow for the arrest of any woman without a warrant simply because the woman has no “means of subsistence and cannot give a satisfactory account” of herself are incompatible with Article 24 of the Women's Protocol; and
vi. Declares that State Parties to the Charter have a positive obligation to, inter alia, repeal or amend their vagrancy laws and related laws to comply with the Charter, the Children's Rights Charter and the Women's Rights Protocol within reasonable time and that this obligation requires them to take all necessary measures, in the shortest possible time, to review all their laws and by-laws especially those providing for vagrancy-related offences, to amend and/or repeal any such laws and bring them in conformity with the provisions of the Charter, the Children's Rights Charter and the Women's Rights Protocol.
Signed:
Sylvain ORÉ, President
Ben KIOKO, Vice President;
Rafâa BEN ACHOUR, Judge
Ângelo V. MATUSSE, Judge
Suzanne MENGUE, Judge
M- Thérèse MAKAMULISA Judge
Tujilane R. CHIZUMILA, Judge
Chafika BENSAOULA, Judge
Blaise TCHIKAYA, Judge
Stella I. ANUKAM, Judge
Imani D ABOUD, Judge;
and Robert ENO, Registrar.
Done at Arusha, this Fourth Day of December in the Year Two Thousand and Twenty in English and French, the English text being authoritative.
In accordance with Article 28(7) of the Protocol and Rule 70 of the Rules, the Separate Opinion of Justice Blaise TCHIKAYA is appended to this Opinion.
