ABSTRACT
Poverty is rife in Africa. By World Bank estimates, sub-Saharan Africa holds 67% of the global population living in extreme poverty. For this population, life is ordinarily difficult. Unfortunately, the continent’s criminal justice systems complicate issues. Without access to the three Bs of the system – bribes, bail, and barristers, most poor people in conflict with the law are stuck. Even more devastating is the fact that several African states have maintained colonial-era laws that penalise poverty. Laws creating offences such as loitering – offences originally designed to keep ‘subjects’ away from areas occupied by the invading colonialists. Offences that focus on the socioeconomic situation of the ‘offenders’ rather than their acts and/or omissions. Decades after most African states became independent, these laws remain in the books, continue to push many poor people into needless incarceration, and go contrary to Goal 16.3 of the United Nations Sustainable Development Goals (SDGs), which prescribes equal access to justice for all. Fortunately, a network of organisations, including the Pan African Lawyers Union (PALU), decided to challenge the compatibility of these laws with human rights obligations states owe under the African Charter on Human and Peoples’ Rights (African Charter). In a landmark advisory opinion rendered in December 2020, the African Court on Human and Peoples’ Rights (African Court) agreed that these laws are incompatible with obligations states owe under the African Charter. The court also urged states to decriminalise those offences. This chapter reflects on how to translate this decision into tangible benefits for Africa’s poor.
