On 5 December, we at the Human Rights Awareness and Promotion Forum (HRAPF) received an alert from Uganda’s Constitutional Court.

The court was about to pass judgment in our case challenging the constitutionality of parts of the offence of being rogue and vagabond.

Vagrancy offences were part of a retinue of laws introduced during the colonial era to ensure cheap labour for imperial ventures and to control the movement of “natives” into areas seen as the preserve of white people. The case filed by Francis Tumwesige – with the support of the HRAPF – argued that these laws were being used to violate the rights of poor and marginalised members of society.

I served as Tumwesige’s lead counsel, and was far from sure which way the case would go. And when the registrar- a court official who can read judgements on behalf of the judges- started by saying that we had not made a compelling case, my heart sank. I whispered to Tumwesige that we had lost.

But then the registrar said the provisions violated the principle of legality due to their vagueness. By the time he reached the part that declared the provisions unconstitutional, we were aware of the gravity of what we had just achieved. We had got Uganda’s second-highest court to declare that looking like “a reputed thief” and “wandering” in public were no longer criminal offences.

Although we had not managed to get the whole law on being rogue and vagabond decriminalised, we had targeted its two most notorious provisions, under which hawkers, petty traders, street vendors, sex workers, and sexual minorities, especially transgender persons, were routinely picked up and detained.

The nasty history of petty offences

The African Commission on Human and Peoples’ Rights already regards offences such as being rogue and vagabond, as well as idle, disorderly and a common nuisance, as “petty”. The Commission’s 2017 Principles on the Decriminalisation of Petty offences in Africa defined these “minor” offences as having “the effect of punishing, segregating, controlling and undermining the dignity of persons on the basis of their socio-economic status”.

Vagrancy offences were a tool of social control, a relic of the Statutes of Labourers created by the English parliament in 1351. They were intended to force poor people to provide cheap labour after the Black Death, the plague that ravaged Europe from the mid-1300s, wiping out a big part of its working class.

It is disturbing that post-colonial African governments still maintain laws that were intended to keep the “natives” as second-class citizens. Petty offences remain on the books in many African countries because they serve the same purpose today as they did during colonial times – they keep the poor out of public spaces and thus serve as a tool of social control, as well as often meaning a quick buck for police.

In 2016, we at the HRAPF (where I am executive director) conducted a study on the provisions governing petty offences. The study, which was presented to the Constitutional Court, found that these provisions were used by law enforcement to unfairly detain people. Over a four-year period from 2011, nearly 1,000 charges of petty offences were recorded from four police stations within the capital Kampala alone. Many cases went unrecorded. Sex workers and street vendors reported random police swoops, at brothels and on the streets. Sometimes, more than 100 people were arrested in one go. The provisions were so vague that one could never be sure what people had done to deserve arrest.

That is why the police loved this law. All they had to do was look at someone, size them up and arrest them. The poorer one looked, or the more one diverged from what was seen as the norm, the better. It became an easy way to extort people, as many opted to pay for their freedom rather than face weeks, if not months, in jail. Deciding to stand trial did not yield better results: denying the charges often led to remand in prison for weeks, since most of the accused could not afford the “substantial sureties” or conditions for bail. Pleading guilty was the only other option, but it meant a criminal record. There was no way out, and many found themselves labelled criminals despite having done nothing wrong.

In 2017, the African Commission on Human and Peoples’ Rights said the use of these offences in this way violated, among others, the right to equality and freedom from discrimination; the right to dignity; the right to liberty and security of the person; and the right to freedom from torture, inhuman and degrading treatment. This was reiterated by the African Court on Human and Peoples’ Rights in a 2020 advisory opinion. It said that the criminalisation of petty offences, which include being rogue and vagabond, was in contravention of the African Charter on Human and Peoples’ Rights, which was ratified by Uganda in 1986.

Last week, the Constitutional Court of Uganda agreed, at least in part. Although it stated that evidence of the discriminatory nature of the ‘rogue and vagabond’ law was not made clear, it nullified the provisions, based on the right to liberty and to freedom of movement.

The struggle is not over

However, on a more sombre note, nullifying these provisions won’t achieve rapid change on its own. The Inspector General of Police has cautioned officers not to arrest people under these provisions any more, but the police and other law enforcement agencies could arrest people for other petty offences such as being a common nuisance.

This means there is need to do more if the court’s decision is to carry meaning. There has been a willingness to decriminalise petty offences, not least from Uganda’s president, the Uganda Law Reform Commission, and parliament’s committee on legal affairs. The court’s ruling offers the perfect opportunity to immediately follow through and remove all similar petty offences from the books. The courts have led the way and clarified the constitutional position; the executive and the legislature should now do what is expected of them, which is to strip the penal code of similar colonial relics and protect the poor from violence, discrimination and marginalisation.