“Rogues” and “Vagabonds” No More: Ending Africa’s Imperial Legacy of Absurd Petty Offenses

“Rogues” and “Vagabonds” No More: Ending Africa’s Imperial Legacy of Absurd Petty Offenses

At 3 a.m. one March morning, Mayeso Gwanda, an informal trader, left his home in Blantyre, Malawi, and traveled to the nearby Limbe market. He carried with him the plastic bags he sells in order to earn a living.

As he made his way along the road, three police officers intercepted him. One of the officers struck him with the flat side of a knife and demanded money. When he told them he had none, they arrested him for a 192-year-old offense, introduced in Britain during the reign of Queen Victoria and to its colonies in the early 1930s. Mayeso was charged with being “a rogue and a vagabond.”

Meanwhile, in Nairobi, Kenya, a man named James, a well-respected schoolteacher with a psychosocial disability, had missed his medication due to a local drug shortage. Police arrested him as he walked along the road singing, perhaps more loudly than some might have wished. Officers charged him with being an “idle and disorderly person.”

James was held in detention for three months and released without chargefor singing. He has been arrested more than a dozen times for similar transgressions, including being shirtless in public and sleeping on the street. On many of these occasions, the police took him into custody only to release him after a few days.

Mayeso and James’s stories reflect a daily reality for thousands of people in Africa. Across the continent, and indeed in other parts of the world, outdated petty offense laws criminalize actions that pose no threat to public safety. These offenses have their roots in the age of empire lawmaking, through which foreign powers sought to control and segregate local populations.

Imposed decades ago by British, French, and Portuguese colonists, and retained by current African governments long after being repealed in their countries of origin, they continue to make the lives of Africa’s most marginalized more hazardous. Many of these laws against loitering, being “a rogue and a vagabond,” having no “ostensible means of assistance,” or being “idle and disorderly” carry prison terms, and are still in place in Mauritius, Nigeria, Gambia, Zambia, Uganda, Botswana, Seychelles, Ghana, Tanzania, and Sierra Leone.

Vague, disproportionate, and arbitrary in nature, these offenses are used to target street children, the poor, the homeless, LGBTI people, sex workers, hawkers, people with substance use problems, and people with disabilities. They enable law enforcement to target people purely based on their social or economic status.

For James, the laws meant days, sometimes months behind bars, putting enormous psychological and financial strain on him and on his family. The arrests worsen his condition, and he has often had to be hospitalized for long periods afterwards in order to stabilize him.

Mayeso was more fortunate. With the support of our grantees, the Centre for Human Rights Education Advice and Assistance and the Southern Africa Litigation Centre, he challenged the validity of the rogue and vagabond law in Malawi.

Last month, the High Court agreed with his claim that the offense was unconstitutional and invalid, violating his rights to dignity, freedom of movement, and security of person. This is a major victory for activistsnot just in Malawi, but potentially for those in other common law jurisdictions where these archaic provisions remain in place. We hope that the progressive precedent set by Malawi, which references a range of African Charter rights, will help efforts to challenge these laws elsewhere on the continent.

Now, working with a wide network of partners, we are supporting a continent-wide campaign targeting these laws.

Civil society groups, together with the Special Rapporteur for Policing and Prisons at the African Commission on Human and Peoples Rights, are developing a set of legal principles on the Declassification and Decriminalization of Petty Offenses in Africa. They are also preparing to approach the African Court to challenge the consonance of these laws with the African Charter. Legal challenges and advocacy to decriminalize petty offenses are also underway at the national level in Kenya, Ghana, and Sierra Leone, among others. The aim is to ensure that they are gone for good well before their 200th birthday.

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21 Comments

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I am an Assistant Editor in Nigeria's most widely circulated newspaper, The Nation (www.thenationonlineng.net) yes all these laws are still in our statue books but I never knew the origins I want to join the campaign and write stories on it. Pls let us work together on this

Step for step people win their rights. Thank you to the Centre for Human Rights Education Advice and the Assistance and the Southern Africa Litigation Centre. God bless your work.

If there is an organization of African States, they are the ones who should be persuaded to act in unity against these atrocious injustices against the helpless.
There should be a global effort to protect the rights of those marginalized by circumstances beyond their control.
The UN has a declaration of human rights, but of what value is that when we are ruled by despots and oligarchs.
What bothers me most of all is how when colonialism ended, it was replaced by forces that were more insidious, because the perpetrators of the inhumanity were native born. The colonials were very good at playing us against each other, however when we were not around, we were all viewed as savages or jungles.

Dear Louise Ehlers,
Greeting!

Heart touching story of James and Mayeso. But there are many James and Mayeso around the world.

What in the present case can be done is (1) Advocacy for constitutional reforms and abolition of outdated laws, (2) Implementation of African Charter for Human Rights, (3) Continued IEC on Human Rights among various stakeholders, (4) Keeping strict vigil on Police behavior, (5) Psycho-social care/development of victims, and (6) Sustainable initiatives by I/NGOs.

This world is full of cases of injustice by the power. Together as human rights activists we should continue our fights against the atrocities of the rule. Remember human rights have always had to be fought for.

There are many such instances of abuse of power/outdated laws in India too.

In solidarity,

thank you for your beautiful intentions.

It is time the we stop relying on old oppressing rules and let all people enjoy equal freedom.

Audit officers are targeting innocent people with threats of imprisonment They get huge bribes from these innocent workers.

I stand for dignity

These laws exist not onely in common wealth countries but as well in french and belgian colonial countries. Let talk about DRCongo where i'm and usually work as a lawyer.i've registered similar cases regarding hawkers/street vendors and street children arrested under such provisions by the police. These provisions are clearly mention in our criminal code book NoII.

Abuse of Law and Power. Unacceptable. Human Rights comes First

These petty offences must fall people need to live and work freely now. No. No. No. Enough is enough.

In many of the African countries where freedoms are inscribed in their constitutions, that freedom is a reserve for a few usually those in favor of the government in power. similarly the "idle and disorderly'' etc, etc are also applied selectively aiding the governments in power to criminalize otherwise innocent and stepping on their rights. They should be repealed.

Reading this article reminds me of the day I was arrested in Kenya for "public indecency". I tripped on a pothole and a young man caught me before I could have a nasty fall. The police who had seen the whole thing categorised that as fondling. Although my case happened during the reign of Moi; when human rights violations were rampant, the situation has not changed much. This is especially so in the case of disadvantaged groups and those living in rural areas.
A group that is increasingly becoming entangled in these petty offenses are the Somali in Kenya. Since the beginning of a crackdown on Al-Shabaab elements in the country, the Somali have become targets of crimes of " loitering, being loud and disorderly" and such. If they do not have money to bribe the arresting officers, they usually find themselves defending against trumped up charges of terrorism related activities. I believe this group requires help in reducing ethnic profiling which makes them more vulnerable to becoming victims of these petty offenses

I strongly agree with you and thanks for commenting such a great point it's true simalis suffer a lot in regards to that issue discussed over

This colonial and insane law, is not only reprehensible, indefencible but barbaric.

I'm happy to hear this great news.We are suffering greatly in Sierra Leone because of this,and i will be greatful if S/Leone will be included in the campaign

This is commendable.we will join in this noble move

Thank you for your support. Am happy to say that our Police has stopped arresting people on Rogue and Vagabond. Join us in this campaign, am happy to see interest from Nigeria. Poverty is not a crime

It is a vary commendable project and it is very correct that Nigeria suffers from same. As a Legal Practitioner, i will like to join this campaign in Africa, especially in Nigeria it will always be a delight to appear in Court to challenge these reprehensible laws.

Criminalisation based on caste,community, gender and sexuality has been a norm,quite a number of people are harassed on a daily basis, I think. the only way is to challenge and put up resistance.

we are a group work to develop and deepen the agency of oppressed individuals and communities called , Me and MY world Network AP, India

It Deeply Saddens and Affects me when I see footage and read about the Humanitarian Situation in Any Country, especially involving Deaths of Children and Families...I Cannot Imagine How Tragic and Devastating it must be..for anyone to have to Suffer and Live like this..

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