Why It’s Time to Repeal Petty Offense Laws
What is a petty offense?
A petty offense is a minor infraction of the law. For example, loitering (the act of standing somewhere without an apparent purpose) is a criminal offense in many countries, often subject to unaffordable fines or imprisonment and is one of the most enforced petty offense laws. Other such offenses, written into a country’s criminal codes or municipal bylaws include, among many others, hawking (selling good on the street without a permit) being an idle and disorderly person, wandering at large, and begging.
What happens when police charge someone with a petty offense?
People accused of petty offenses can be arrested and detained for indeterminate periods in police holding cells. Some of these offenses carry a fine. There are people who can afford to pay these fines and move on with their lives, but many cannot. Those who are unable to afford the fine may be imprisoned. Worse, in many instances, a fine is not even an option—and incarceration is the default sentence.
Do petty offenses contribute to prison overcrowding?
Yes. In countries across the globe—including at least 42 countries in Africa, the United States, India, Hungary, Jamaica, and Guyana—overcrowded prisons and police cells are filled with people who are not a threat to public safety. In Kenya, for example, an audit of the criminal justice system published by the National Council for the Administration of Justice, in 2018, found that 70 percent of cases processed by the criminal justice system were petty offense violations.
Who is cited for petty offenses?
People who try to earn money in public places are targets. Police often arrest street vendors in places like Sierra Leone, Tunisia, Kenya, and Nigeria for hawking goods with no license. Touting—or the practice of soliciting for passengers to fill seats on taxis and buses—is a criminal offense in Malawi and many other places. Homeless people or people begging across the world are also regularly fined or detained.
The police and the courts also use petty offense laws to target or control the behavior of those who are viewed as different or “other.” As a result, sex workers, the LGBTI community, people who use drugs, migrants, people with psychosocial or intellectual disabilities, and even human rights defenders are regular targets.
What do petty offense laws have to do with the colonial era?
During colonial times, the British, the French, the Portuguese, the Dutch, and the Belgians used petty offense laws to force local people to work, restrict movement, punish “idleness,” and enable the police to make arrests without proof of the actual commission of a crime. These laws were broad and vaguely defined, giving the police wide discretion to detain just about anyone.
For example, the very same language introduced to British colonies through the English Vagrancy Act of 1824 is still in use today in some places. In Botswana, the Gambia, Nigeria, Tanzania, Uganda, and Zambia, a person can still be cited for being a “rogue and a vagabond.” The penal codes of at least 18 former French colonies—including 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, and Togo—contain a similarly worded offense of “vagabondage.”
Why is it better to repeal these laws than to demand their fair enforcement?
Repealing these laws is a crucial part of any strategy to challenge the criminalization of poverty and status. The laws are vague, overly broad, and often archaic and unconstitutional. They also lend themselves to arbitrary interpretation and enforcement. Overturning them will incrementally limit the discretion of the police to arrest and the courts to prosecute for minor infractions.
We also recognize that unless we understand the true purpose of these laws—as a means of social control, or to advance a political or economic agenda—we cannot effectively dispel the notion that they are necessary for public safety. Further, we will continue to see the use of new proxy laws to replace them. That is why it is necessary to move beyond a narrow law reform agenda and change police practice, challenge impunity, and shape public opinion. We ultimately want to check the power of states to weaponize the criminal justice system against the most marginalized.
What Is Open Society Doing to Help Repeal Petty Offense Laws?
- Open Society is providing financial, communications, and substantive support to an Africa-wide campaign—driven by a coalition of 34 national, regional, and global civil society organizations—to challenge the criminalization of poverty and status across the continent.
- Open Society is providing direct grant support to national-level partners in Malawi, Madagascar, Kenya, Uganda, Guinea, Sierra Leone, Nigeria, Ghana, Morocco, and Tunisia, as well as to seven regional partners.
- Open Society is collaborating with the African Commission on Human and Peoples’ Rights Special Rapporteur Condition of Detention, Prisons and Policing in Africa to implement the Principles on the Decriminalization of Petty Offenses in Africa.
- With Open Society support, our partners secured an Advisory Opinion by the African Court on Human and Peoples’ Rights finding colonial-era vagrancy laws in violation of African human rights standards. Open Society is supporting advocacy to use the ruling to create changes in law and policy across Africa.
- Open Society has set up a litigation fund, managed by the Southern Africa Litigation Centre, to develop local case law in support of decriminalization.
- Open Society is providing support to grantees working at the Regional Economic Community level in East, West, and Southern Africa to connect Pan African and national level litigation and advocacy efforts.
- Open Society has supported the development of a website, an infographic in English and French, a social media video, and a range of other materials to help raise the profile of this issue.
- Open Society is working with campaign members to locate this work within a broader global conversation and place the criminalization of poverty and status on the agenda of the UN Commission on Crime Prevention and Criminal Justice.
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