On December 4, 2020, the African Court on Human and Peoples’ Rights delivered an Advisory Opinion related to a request 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. In particular, PALU contended that several member states of the African Union have laws in force that criminalize “the status of individuals as being poor, homeless or unemployed as opposed to specific reprehensible acts” (generally referred to by PALU as “vagrancy laws”). PALU alleged that the laws are abused by states and that they 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” and “undermine[…] the presumption of innocence and […] threaten[…] the rule of law.” PALU therefore requested an opinion from the Court on four questions concerning the compatibility of such laws with various regional human rights instruments.
The Court found unanimously that:
- Vagrancy laws, including those that criminalize the status of a person (e.g., as having no home or employment) and those that order the forcible removal of such persons, or permit a warrantless arrest of such persons, are incompatible with Article 2, 3, 5, 6, 7, 12, and 18 of the African Charter;
- Such laws that pertain to children are incompatible with Articles 3, 4(1), and 17 of the African Charter on the Rights and Welfare of the Child;
- Such laws that permit the warrantless arrest of women “simply because the woman has no ‘means of subsistence and cannot give a satisfactory account’ of herself are incompatible with Article 24 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; and
- Parties to the African 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.