Advisory opinion of the Court requesting the abrogation of vagrancy laws

A majority of countries in Africa¹ have some type of “vagrancy laws”, meaning laws which consider people that are or are perceived to be poor, homeless or unemployed as criminals. Examples are laws against “vagrants” or “vagabonds” defined as people who do not have a fixed home or livelihood, laws against “suspected person or reputed thief who has no visible means of substance and cannot give a good account of themselves”, or laws forbidding people of “being an idle and disorderly person”.

In 2018, the Pan African Lawyers Union (PALU), a Pan-African lawyers’ association, decided to go to the African Court to ask for its opinion with regards to the compatibility of these laws with African human rights law. On 4 December 2020, the African Court issued a comprehensive advisory opinion demonstrating that these laws, by their nature and their application, violate many rights of the people punished by them.

The judges found that vagrancy laws criminalize the perceived status of an individual and, because they target “the poor and underprivileged, including but not limited to the homeless, disabled, gender-nonconforming, sex workers, hawkers, street vendors”, further discriminate those who are already vulnerable and marginalized. These laws also label the people they target with derogatory terms which, as judges said, are “a reflection of an outdated largely colonial perception of individuals without any rights” and dehumanize these individuals. For all these reasons alone, these laws violate the right to dignity of these people, deprive them of their equality before the law and are discriminatory².

In addition, the judges found that when enforcing these laws, police officers can arrest people without the need to prove they have done any crime. These people can be arbitrarily arrested and detained, or forcibly relocated somewhere else, just for the way they look or the location where they are standing. These situations violate the rights to liberty and security, to the freedom of movement, and the presumption of innocence³ of the people they punish.

The judges also recalled that sometimes these laws even lead children being arrested or forcibly relocated from their areas of residence, which also violates the right to family and the children’s rights to not be discriminated against and to have their best interests protected. In conclusion, the African Court is of the opinion that all African States, which have all ratified the African Charter on Human and Peoples’ Rights except Morocco, have an obligation to amend or repeal their vagrancy laws. This opinion could therefore have great impact on the continent: if those recommendations are followed, it could significantly improve the protection of those most vulnerable in the streets.

[1] Algeria, Burundi, Burkina Faso, Cameroon, Chad, Comoros, Republic of Congo, Cote d’Ivoire, Gabon, Guinea, Madagascar, Mauritania, Mali, Morocco, Niger, Sahrawi Arab Democratic Republic, Senegal, Togo, Botswana, Gambia, Malawi, Nigeria, Seychelles, Uganda, Zambia, Mauritius, Namibia, Sierra Leone

[2]Violations of articles 5, 2 and 3 of the African Charter respectively

[3]Violation of articles 6, 12 and 7 of the African Charter respectively