Consultative meeting: Assessing the prospects for the decriminalisation and declassification of petty offences in Africa

From existing case law and research, it is evident that certain offences are outdated, offensive and discriminatory (e.g. being a rogue and vagabond) and that such offences need to be removed from the statutes. There are, however, other offences that may fall in the proverbial grey area – they may have, or had, some purpose but that purpose may have been forgotten and the law has been repurposed, or there are numerous problems with its enforcement to the extent that is discriminatory or it is used extensively for extortion or the prescribed sanctions are excessive. It may also be the case that for certain of these offences arrests and custody is used almost as a default action without the behaviour posing any notable threat to public safety and good order. The questions raised below aim to guide a factual enquiry into the merits of so-called petty offences, their enforcement and whether they still serve a purpose for the greater public interest, or whether they have been repurposed (i.e. captured) to serve a different purpose.

It is against this background that on 4 December 2019, Africa Criminal Justice Reform together with a number of partner organisations held a consultative meeting on a draft paper titled ‘Assessing the prospects of decriminalizing and declassifying petty offences’. The purpose of the meeting was to elicit comments on the draft assessment tool which is envisaged to be used to engage with policy makers and government officials regarding the decriminalisation and declassification of petty laws. The discussions were extremely lively and we are most appreciative for the high quality inputs we received from the participants.

The assessment tool guides a step-by-step enquiry rationally assessing the nature, legal definition and impact of so-called problem behaviour, the impact that it has on others, as well as the consequences of its enforcement.

A number of key points were raised during the discussions, one of which is the question of intent. It was highlighted that most petty offenders have no intention to commit a crime, but often find themselves void of options due to their dire socio-economic conditions.

The meeting also interrogated the impact that the enforcement of petty laws has on police-community relations, socio-economic development as well as the burden that it places on the state as far as the police and the courts are concerned. It was stressed that persistent and repetitive targeting of specific groups results in them harbouring negative perceptions of the police. The meeting also noted that the enforcement of petty laws negatively affects vulnerable people most.

As a way forward, the meeting resolved to (1) incorporate the comments and inputs into a revised document which will be shared with the participants present at the meeting, (2) sponsor an agenda item focusing on the revised version of the paper at the planned regional meeting in March-April 2020.

The participants present at the meeting included:

 Africa Criminal Justice Reform (ACJR)

 African Policing Civilian Oversight Forum (APCOF)

 Lawyers Alert

 Commonwealth Human Rights Initiative (CHRI) Africa Office

 Human Rights Awareness and Promotion Forum (HRAPF)

 Open Society Foundations – Human Rights Initiative

 Pan-African Lawyers Union (PALU)

 Amnesty International (Southern Africa)

 Sonke Gender Justice.