On 2 December 2022, in a ground-breaking decision for street vendors and other informal workers, the Constitutional Court of Uganda in Francis Tumwesige Ateenyi v Attorney General found the country’s vagrancy laws to be unconstitutional. Vagrancy laws have come under the spotlight across the world because many define vagrancy in a vague way, which gives authorities free rein to arrest people in public spaces arbitrarily. Moreover, they are drawn from a colonial and elite conception of public space, which shapes who can and cannot use public spaces at a particular time or place. Because most people who are arrested under vagrancy laws are of low economic status, they effectively make it a crime to be poor.
Vagrancy laws can be used to evict or arrest workers such as street vendors who work on or transit through public spaces. Many vendors face arrest, harassment and threats of eviction from the state. This is what happened in the Malawian case of Mayeso Gwanda v The State (High Court) Constitutional Cause No. 5 of 2015. Gwanda was a street vendor who was stopped by police on his way to work early one morning. The police did not believe his explanation that he was on his way to sell plastic bags. They used the vagrancy laws to arrest him. Gwanda challenged their constitutionality. The court struck down the definition of vagrancy because it gave the police too much leeway to decide whether or not a person was a vagrant. The court also found that the definition violated the constitutional right to equality because authorities are more likely to apply and enforce it against the poor than against the rich.
The Ugandan decision coincides with Africa’s growing movement towards reforming vagrancy laws. Several organizations are collaborating on an Africa-wide campaign for the decriminalization of petty offences, which include vagrancy. In 2017, the African Commission adopted the Principles on the Decriminalisation of Petty Offences in Africa, which includes vagrancy-related offences. In December 2020, the African Court on Human and Peoples’ Rights issued an advisory opinion which notes that certain definitions of vagrancy are likely to infringe the rights to non-discrimination and equality, dignity, liberty, fair trial, and freedom of movement, amongst others. The Court recommended that African states review all vagrancy laws and bring them in line with the African Charter on Human and Peoples’ Rights. WIEGO’s Law Programme has analyzed how this opinion affects street vendors in its Law and Informality Insights.
The Ateenyi case challenged the constitutionality of sub-sections (168(1)(c) and 168(1)(d)) of Uganda’s Penal Code. These provisions allowed the authorities to presume that anyone is a rogue or vagabond if he or she were “a suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself or herself” or “found wandering in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose”. One of Ateenyi’s key arguments was that the police, acting on the vagrancy provisions, “arrest people who seem to be poor though going about their lawful business such as hawking, boda boda riding, and others especially when these people are found moving on busy streets and in exclusive elite residential areas”.
The Ugandan Constitutional Court found that the vagrancy provisions were unconstitutional because they violated several rights and principles. The first was the principle of legality, which states that the law should clearly define a criminal offence in a way that is not ambiguous or vague. The Court found that the above sections of the Penal Code violated the principle of legality because they did not define the offence precisely, leaving police, prosecutors and judges free to make arbitrary decisions. Second, they violated the presumption of innocence because one could be presumed to be a rogue or vagabond for, amongst others, “having no visible means of subsistence”, whatever that means. Moreover, the rights to liberty and to freedom of movement were also violated because a person could be arrested or imprisoned on vague and ambiguous grounds.
Disappointingly, the Court rejected the claim that the vagrancy provisions discriminated against the poor. The court concluded that Ateenyi had failed to bring enough evidence to show discrimination. He did not present any direct evidence from any victims who had been arrested or imprisoned in terms of the vagrancy law. The court also found that he had also failed to prove police misconduct. The lack of evidence may be due to the way in which the case was brought to the court. In certain cases, Ugandan law allows individuals to challenge laws that do not directly affect them if the outcome is in the public interest. This was such a case. Ateenyi is a lawyer, who (in the court’s words) had acted as “a good Samaritan”. Nothing suggests that he collaborated with grassroots organizations, including street vendor organizations whose members may have been harassed, arrested or prosecuted in terms of these laws. These organizations could probably have provided evidence to support the petition.
It would have been ideal for the Constitutional Court to have also relied on the right to equality and non-discrimination to declare the sections of the law unconstitutional because it is a fundamental right that lies at the very heart of vagrancy laws. The African Court on Human and Peoples’ Rights has noted that vagrancy laws unfairly target the poor – including those who work in public space – and deny them the right to be presumed innocent like all other people. In its own words: “vagrancy laws, effectively, punish the poor and underprivileged, including…sex workers, hawkers, street vendors…”
It is nevertheless a positive development that the laws were taken off the books. Without expressly referring to it, the Ugandan court implemented the African Court’s advisory opinion. In addition, it strengthens the Africa-wide initiatives to decriminalize vagrancy and other petty offences on the continent. The decision is particularly relevant to street vendors and other informal workers who work on public spaces as it protects them from arbitrary action in terms of vagrancy laws.