In a 2016 Report titled Poverty in a Rising Africa, the World Bank estimated that Africa’s poor fell from 56% in 1990 to 43% in 2012. However, the high growth rate on the continent meant that the numbers actually rose from 280 million to 330 million people in the same period. Clearly, poverty is a significant developmental challenge.
Poor people struggle to meet the basic needs of man – food, shelter and clothing. Although these needs and others have been couched in the language of rights, specifically socio-economic rights, most countries on the continent still do not accord this category of rights the required attention.
Dealing with the identified challenge is hard enough but for many of Africa’s poor, there is an even harder challenge – criminalization of poverty. An example might help put the issues in proper perspective. Imagine going to jail for “wandering” or “street trading”? Across the continent, this is fairly common. Many domestic laws describe loitering, failure to pay debts and street trading as offences for which people could be arrested, prosecuted and/or jailed. These “offences” disproportionately targets the poor. They have a colonial heritage – old English Law – and ought to have been reviewed following liberation from British colonial rule over four decades ago.
In 2003, the African Commission on Human and Peoples Rights through the Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa recognized the problem and invited state parties to the African Charter on Human and Peoples Rights to decriminalize “some offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts, and disobedience to parents” as a strategy to reduce prison populations. Regrettably, only a few countries took advantage of the declaration.
On 25 October 2018, the Commission took a more far-reaching step by launching the Principles on the Decriminalization of Petty Offences in Africa at its 63rd ordinary session in Banjul, The Gambia. Adopted at its 61st Ordinary Session in November 2017, the Principles reiterate the protections guaranteed to all persons in the African Charter, including non-discrimination in the enjoyment of rights and freedoms recognized in the Charter (article 2); right to equal protection of the law (article 3); right to life (article 4); right to dignity and the prohibition against torture, cruel, inhuman or degrading treatment and punishment (article 5); the right to liberty and security, including the prohibition against arbitrary arrest and detention (article 6); right to freedom of movement and residence (article 12); and the right to economic, social and cultural development (article 22).
Petty offences often violate states’ obligations to ensure these protections are available to their citizens. For example, the Charter creates an obligation in article 2 and 3 for states to ensure that the adoption and implementation of all laws, including those that create petty offences, respect, protect and promote the rights of all persons to equality before the law and non-discrimination. Laws criminalizing petty offences often disproportionately targets the poor and its implementation compounds their woes because the poor often do not have access to legal aid.
Beyond identifying challenges, the Principles offer practical guidance on how states might decriminalize petty offences in compliance with the provisions of articles 2, 3, 5 and 6 of the African Charter. For example, states are enjoined to “ensure that laws criminalizing conduct in broad, vague and ambiguous terms are reviewed against the requirements of these principles with a view to decriminalization.” The Principles also encourage states to provide “alternatives to arrest and detention for minor offences that are not decriminalized under these principles” and significantly “address the root causes of poverty and other marginalization,” by developing, implementing and resourcing national poverty alleviation plans using the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter as a tool.
To implement the Principles, states are encouraged to implement measures to guarantee the right to legal advice and assistance; promote wide dissemination of the Principles; ensure continuous and comprehensive training for law enforcement and judicial officers; provide information to the African Commission on the compatibility of the Principles with domestic criminal law and its administration; systematize data collection and reporting on pretrial in(justice), including percentage of pretrial detainees as a proportion of total prison population; number of pretrial detainees who spend more than one year in detention; and number of pretrial detainees with access to legal aid services. The Principles also encourage collaboration with national and regional NGOs.
As game-changing as the Principles sound, they may not change anything unless we take action. The African Commission has taken a principled stand in favour of decriminalization of petty offences. As individuals and organizations committed to promoting human rights on the continent, we ought to take responsibility for working with member states, state institutions and national human rights institutions to implement the Principles with a view to rolling back this horrible colonial legacy.