—Christopher Roberts, Assistant Professor, Chinese University of Hong Kong.
During the drafting of the European Convention on Human Rights, Sweden suggested an amendment to the provision protecting liberty and security of the person, stipulating that vagrancy and alcohol abuse be recognized as grounds upon which individuals might be detained.[1] This suggestion eventually took form as Article 5(1)(e), still part of the convention today, which indicates that reasonable grounds for the deprivation of liberty include “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”
The problems with this amendment are manifold, as should be apparent to human rights-minded readers. For present purposes, it is worth pointing out that in addition to the problematic recognition of the intrinsically vague, status and specifically wealth-based crime of ‘vagrancy’ as a reasonable grounds for detention, the provision follows classical vagrancy laws in equating illness, being of ‘unsound mind,’ alcoholism and poverty.
Thanks to the fact that the European Convention on Human Rights provided a template for rights provisions incorporated into the constitutions of states across the former British Empire,[2] identical or near-identical provisions were spread to the constitutions of dozens of states, and remain in the constitutions of more than twenty.[3] While the majority of the millions of rights violations committed through the application of vagrancy and vagrancy-related laws across jurisdictions in the sixty or so years since would doubtless have taken place even without such explicit legitimation, the constitutional authorization of such practices doubtless didn’t hurt.
Inclusion of Article 5(1)(e) within the European Convention on Human Rights has yet to be seriously challenged, despite its overt rights-violating nature. The Court’s jurisprudence on related issues has been less than impressive, moreover. In Garib v. the Netherlands, the Grand Chamber failed to find a human rights violation in the wealth-based discrimination involved in the prohibition of low-income persons from living in certain areas of Rotterdam.[4] More recently, the Court took a significant step forward in Lăcătuş v. Switzerland, in which it found that by criminally penalizing the applicant for begging Switzerland had violated her right to privacy under Article 8.[5] While an important step, the Court’s failure to address Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), 10 (freedom of expression) or 14 (prohibition of discrimination) issues, together with the narrow manner in which it reached its holding, seemed designed to prevent broader issues of socio-economic inequality and concordant rights violations being considered.[6]
In contrast to this tepid step, various African courts have adopted a far more assertive posture. In Dorothy Njemanze the Court of Justice of the Economic Community of West African States ruled that the Nigerian police’s use of the provision of Nigeria’s penal code penalizing ‘vagabonds’ to detain several women who were outside at night on the basis that they were ‘prostitutes’ violated their rights to liberty, dignity, to be free from cruel and unusual treatment and to be free from gender-based discrimination.[7] More momentously still, in a straightforward, clear, forceful and standard-setting advisory opinion issued in December 2020 the African Court on Human and Peoples’ Rights found that the vagrancy laws on the books in numerous African jurisdictions violate the rights to liberty, equality, dignity, a fair trial, freedom of movement and to be free from discrimination protected by the African Charter, the Children’s Rights Protocol and the Women’s Rights Protocol, and ordered state parties to the African Charter to “repeal or amend their vagrancy laws and related laws … within reasonable time.”[8]
The significance of this judgment is hard to overstate. In addition to its call for the abolition of vagrancy laws, it is instructive in terms of the contrast it makes apparent between the African Court’s willingness to begin to confront some of the widespread and systematic rights violations bound up with socio-economic inequality and the European Court’s refusal to do the same. It is to be hoped that the approach to human rights underlying the African Court’s advisory opinion will achieve wide recognition and implementation not only in Africa but around the world, not least in Europe, where explicit condemnation of vagrancy by the European Court and the national repeal of vagrancy and vagrancy-related laws are long overdue.
Suggested citation: Christopher Roberts, The Beginning of the End for Vagrancy Laws?, Int’l J. Const. L. Blog, July 9, 2021 at: http://www.iconnectblog.com/2021/07/the-beginning-of-the-end-for-vagrancy-laws
[1] See Damon Barrett, ‘Drug Addicts’ and the ECHR,EJIL: Talk! (Sept. 3, 2018).
[2] See Charles Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (2007).
[3] Including Antigua and Barbuda, the Bahamas, Barbados, Belize, Botswana, Cyprus, Dominica, Eswatini, Fiji, Ghana, Grenada, Guyana, Kiribati, Lesotho, Malta, Nigeria, Papua New Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sierra Leone, the Solomon Islands and Zambia.
[4] App. No. 43494/09, ECtHR Grand Chamber (Nov. 6, 2017). On the case, see Vaselka David & Sarah Ganty, Strasbourg fails to protects the rights of people living in or at risk of poverty: the disappointing Grand Chamber judgment in Garib v. the Netherlands, Strasbourg Observers (Nov. 16, 2017).
[5] App. No. 14065/15, ECtHR (Jan. 19, 2021).
[6] For further consideration of the holding see Corina Heri, Beg your Pardon! Criminalisation of Poverty and the Human Rights to Beg in Lăcătuş v. Switzerland, Strasbourg Observers (Feb. 10, 2021).
[7] Dorothy Njemanze & others v. Federal Republic of Nigeria, Case No. ECW/CCJ/APP/17/14, ECOWAS Court of Justice (Oct. 12, 2017).
[8] Request for Advisory Opinion by the Pan African Lawyers Union (PALU) for an Advisory Opinion on the Compatibility of Vagrancy Laws with the African Charter on Human and Peoples’ Rights and Others Human Rights Instruments Applicable in Africa, Advisory Opinion No. 1 of 2018, African Court on Human and Peoples’ Rights (Dec. 4, 2020).
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