Penalisation of poverty needs attention of the African Commission

On 21 October 2013, during the 54th Ordinary Session of the African Commission on Human and Peoples’ Rights holding in Banjul, The Gambia, the Community Law Centre at the University of the Western Cape and the Office of the UN Special Rapporteur on extreme poverty and human rights organised a side event on Penalisation of Poverty as a Human Rights Challenge in Africa.

The event, chaired by Hon. Commissioner Alapini Gansou, the former chairperson of the African Commission and the current Special Rapporteur on Human Rights Defenders in Africa, had as panellists Lukas Muntingh, Head Civil Society Initiative on Prison Reforms at the Community Law Centre, Federica Donati, Coordinator of the Equality, Non-Discrimination and Participation Unit in the Special Procedures Branch at OHCHR and Ebenezer Durojaye, Head Socioeconomic Rights Project, Community Law Centre. Participants at the side event were mixed including representatives from Human Rights Watch Eastern African Office, Open Society Initiative, Solitaire, IPAS Open Society Foundation and Danish Institute for Human Rights.


In her opening address, Gansou commended the organisers of the event since the issue of Penalisation of poverty has not received enough attention of the African Commission. She said that when she was invited to chair the event she kept wondering what role the Commission could play in addressing the challenges people living in poverty face in the region. She observed that poor and marginalised groups are not only disadvantaged in most African societies but are also susceptible to human rights violations including unlawful arrest and detention.


According to Gansou, there is a common saying in Benin to the effect that the poor are always treated inhumanely and can hardly be justified in the eyes of the law. She blamed the negative treatment of people living in poverty on some of the inherited laws from the colonial masters. Gansou noted further that across Africa people living in poverty are treated almost in same way and their fundamental rights easily eroded. She, therefore, noted that the side event could not have come at a better time given incessant harassment of the poor in many African countries. She concluded by noting that as the Special Rapporteur on human rights defenders in Africa, her mandate had an important role to play in addressing the challenges posed by penalisation of poverty in Africa.


In his presentation, Muntingh discussed the outcome of a research that was conducted which showed the link between poverty and detention and imprisonment in South Africa. According to him, almost two decade after democratic rule and the fact that the South African Constitution explicitly guarantees the right to equality and non-discrimination, socioeconomic status, race and gender remain important factors for prison population.

He noted further that the South African policing and prison systems are still bedevilled by racial differences and social inequality. According to him, coloured population in South Africa are more likely to be imprisoned than blacks and other races in the country. He noted that the high imprisonment rates among the coloured can be traced to historical reasons which include the use of forced prison labour in the Western and Northern Cape and the high levels of institutionalisation of Coloured boys by the previous regime after WWII.

His study also highlighted that fact that different population groups and genders also experience pre-trial detention differently, with Coloured females standing the highest chance of being detained pre-trial and White females the lowest chance. According to Muntingh, the majority of the 1.6 million arrests made in 2011/12 were for non-priority crimes. He observed further that if women and children were excluded from the arrest data it was calculated that one out of every 13 South African adult men were arrested in 2011/12.

Arrest and detention place poor people at the risk of further marginalisation and exclusion, and when arrests and detention are concentrated in particular geographical areas, the effect becomes structural and inter-generational in those areas. He concludes that poor African and coloured experience pre-trail detention and imprisonment differently. He submitted that almost 20 years after the end of Apartheid it is simply unacceptable to practice a criminal justice system where the poor and historically disadvantaged are made worse off by a system that ought to make society safer without asking question.

In her presentation, Donati focusses on the importance of the report of the UN Special Rapporteur on extreme poverty on penalisation of poverty, which was released in 2011. She noted that the report expressed concerns about developments across the world where states adopt policies, administrative measures and laws that tends to impact negatively on the rights of people living in poverty.

She pointed out that penalisation measures is a reflection of misunderstanding among states of the realities of poor people and most vulnerable of the pervasive discrimination and mutually reinforcing disadvantages they suffer. Federica noted that the report identified some penalisation measures that may interfere with the enjoyment of rights of people living in poverty to include laws that make vagrancy and begging as unlawful. She equally pointed out that sometimes in the name of urban transformation, privatisation, beautification and redevelopment the rights of people living in poverty are undermined. This often happens when states penalise acts associated with living in the street such as sleeping, sitting, lying, littering camping or storing belongings in public places, and public drunkenness.

Also, in some countries it may even be illegal for a person to be found in a public place without visible means of subsistence. She noted that such laws that ban begging and vagrancy constitute serious violations of the rights to equality and non-discrimination enshrined in human rights instruments. Moreover, such laws tend to give wide discretion to law enforcement officers in their application and may further aggravate the situation of people living in poverty.

The report then made some recommendations to states. These include that states must address legal, social and administrative barriers that prevent people living in poverty from gaining access to food and, shelter, employment, education and health services. In addition, states must guarantee access to justice for people living in poverty and ensure their participation in decision-making that may affect their lives.


In his presentation, Ebenezer Durojaye highlighted the importance of the Guidelines on extreme poverty and human rights adopted by the Human Rights Council in September of 2012. He noted that the process leading to the adoption was participatory as it involved civil society, groups, academics, research institutions and representatives of states. While the Guidelines are by no means binding on states, they serve as useful tolls in measuring states commitments to addressing the challenges posed by poverty in many parts of the world. He urged civil society groups to bring the Guidelines to the attention states and vulnerable and marginalised groups. He suggested civil society should strive to disseminate the Guidelines across the region and make them more accessible to vulnerable and marginalised groups. This can be done by translating the Guidelines into local languages and working together with policy makers at the national level

During the discussion session some issues were raised regarding how criminal laws in some African countries tended to worsen the situation of marginalised groups such as sex workers and people in same sex relationship. One participant noted that in many parts of Africa activities relating to sex work are still criminalised thereby rendering women who engage in these acts susceptible to abuse, violence and detention. Other participants expressed concerns about the wide use of outdated criminal laws that tend to target vulnerable and marginalised groups in many African societies and wondered if the African Commission could do something about this.

In her response, Commissioner Gansou, said that she was impressed by the nature of discussion at the side event and would urge the organisers to carry the discussion forward by coming up with a draft resolution addressing some of the challenges people living in poverty encounter with the criminal justice systems in Africa. She expressed her willingness as the Special Rapporteur on the Rights of Human Rights Defenders in Africa to support such an initiative. She noted that penalisation of poverty is a serious challenge in Africa that has not received the deserved attention of states and even the African Commission.

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