Picture. Kendridge Mathabathe/ANA File – Homeless people, also referred to as vagrants, sleeping in front of shops on the corner of Bourke and Esselen, in Sunnyside, Pretoria, South Africa. Owners have complained of their presence and hindrance on their door steps.
By Thabo Buthelezi
On May 31, 2023, 28 men were arrested in Harare CBD under the country’s vagrancy laws. These arrests raise the question of why vagrancy laws still exist and are still being used. At least 22 African countries still have vagrancy laws, and Zimbabwe is the latest African country to use vagrancy laws to criminalise poverty and status.
Zimbabwe’s Vagrancy Act
The Vagrancy Act states that a vagrant is any person with no settled or fixed place of abode or means of support, wanders from place to place, and maintains himself by begging or in some dishonest or disreputable manner. The Act also allows a police officer to arrest without a warrant any person he reasonably suspects to be a vagrant. It also criminalises any person who assists or encourages vagrancy. Although the law is framed as “rehabilitative,” it punishes people for living in poverty, being homeless, or living on the street. In most countries that still have vagrancy laws, the definition of a “vagrant” is similar to that of Zimbabwe’s Vagrancy Act.
Section 46 of the criminal code of Zimbabwe contains in it nuisance laws that criminalise persons for offences such as allowing a dog or animal to pursue a vehicle, screaming or shouting in public to the annoyance of the public, and employing any means likely to materially interfere with the ordinary comfort, convenience, peace or quiet of the public or any section of the public, or does any act which is likely to create a nuisance or obstruction.
These laws are vague and overbroad, making them open to misuse and abuse and create petty offences that carry fines and potential detention. These laws also do not clearly state what constitutes a nuisance and thus are open to interpretation by law enforcement agencies.
History of vagrancy laws
Zimbabwe’s vagrancy laws, similar to most African countries’ vagrancy laws, are rooted in colonial rule. These laws were commonly used to control African urbanisation and were later used “to maintain the social order”. Vagrancy laws can be traced back to fourteenth-century Europe, when Britain passed the statute of Labourers, making it unlawful to refuse an offer for employment, stopping workers’ mobility and forcing workers to accept low wages. With the increase of urbanisation, these laws focused more on perceived nuisance, poverty, homelessness, and unemployment. Thus, the law moved from controlling labourers to controlling “undesirables”.
Vagrancy laws have historically been used to limit the movement of persons and criminalise begging, thus ensuring the availability of cheap labour to landowners and industrialists whilst limiting the presence of persons deemed undesirable in the cities. These laws have also been used to reduce the costs sustained by local municipalities to look after people experiencing poverty.
The historically privileged classes used vagrancy laws to exercise control over a marginalised group in society, primarily for their benefit and to impose its ideals of acceptable social behaviours. But vagrancy laws violate human rights and social justice.
A violation of human rights
Vagrancy laws criminalise poverty and the status of persons and violate people’s fundamental human rights. They violate people’s rights to dignity, equality before the law and non-discrimination, freedom of movement and subject them to cruel, inhumane and degrading treatment. Since many of the arrests in terms of this law involve mass arrests, they also infringe on people’s rights to liberty, a fair trial and due legal process.
Zimbabwe’s vagrancy laws do not punish specific individual acts of criminality. Still, they are aimed at a particular group based on their status of “not having a settled or fixed place of abode, or do not have any means of support,” disproportionately impacting persons experiencing poverty, homelessness, and other marginalised groups. The vagrancy law is overbroad and allows law enforcement officials to apprehend persons without a warrant.
The African Court on Human and Peoples’ Rights in 2020 found that vagrancy laws infringed on several rights in the African Charter on Human and Peoples’ Rights. The Court held that these laws allow for differential treatment of individuals based on their status, the vagueness of these laws often leads to arbitrary arrests and detentions, and arrests under these laws are unnecessary as they do not necessarily involve any criminal offence.
Violation of social justice
Social justice is concerned with creating an equal playing field for all those in society and the fair, equal and equitable treatment of all persons. The violation of human rights and discrimination based on poverty and the status of persons under vagrancy laws erase opportunities for persons to access economic, political, and social rights on an equal basis with others, thus further marginalising people experiencing poverty, homeless people, and other marginalised groups.
The law disregards homelessness, poverty, and the lack of access to economic participation as social justice issues that need structural, policy and societal interventions rather than punitive measures. These laws perpetuate discrimination and marginalisation, create a barrier to the development and empowerment of the affected groups, and further fuel inequality and poverty. By punishing people assisting persons deemed to be vagrants, the law also hinders societal interventions by criminalising those in society compassionate enough to offer a helping hand. These laws also restrict interactional justice that requires the state to treat everyone with dignity and respect and requires the same from fellow citizens.
Call for repeal of discriminatory laws
Vagrancy laws discriminate against persons based on poverty and status, fuelling stigma and inequality. These laws are colonial and infringe on several fundamental human rights. Countries that still have vagrancy laws and enforce them violate the rights of those marginalised in society and those experiencing poverty. Some of these laws even criminalise persons who assist those the law deems to be “vagrants”.
In order to get closer to achieving social justice for all, discriminatory laws such as vagrancy laws need to be repealed from the law books, and other strategies need to be employed that may assist in the development, empowerment, and economic participation of society’s marginalised people. Vagrancy laws are inhumane and discriminatory as they do not pursue any legitimate government aim in combating crime, target a specific group, and violate the fundamental human rights of specific groups of persons.
Thabo Buthelezi is a researcher