Tarryn Bannister*, Ambika Satkunanathan†, Timothy Affonso‡
This article is directly related to the First African Regional Conference on Law Enforcement and Public Health, held in Pretoria, South Africa, December 2024.
ABSTRACT
Punitive criminal justice responses towards essential life-sustaining activities, such as sleeping, bathing and trading in public spaces, have a detrimental impact upon the most vulnerable and marginalized groups in society. These groups include people experiencing homelessness, people who use drugs, migrants, sex workers, LGBTIQ+ persons, persons with disabilities, informal traders, human rights defenders and racial and ethnic minorities. Gender, class and privilege play a key role in enabling and perpetuating these discriminatory processes within the criminal justice system. Laws that criminalize life-sustaining activities, driven by attempts to survive poverty, are often justified on the basis of public health and public order objectives. Unfortunately, law enforcement officials have often been used as a blunt instrument to enforce these laws that target socio-economically vulnerable groups. This approach, of criminalizing poverty and status, has failed to positively address increasing levels of homelessness and poverty while entrenching systemic disadvantage. These laws are found across the Global South in Africa, the Caribbean and South Asia and are frequently based on vague, dehumanizing language while providing law enforcement officials with wide discretion. This article explores strategies to foster non-punitive, human-rights-based approaches to public space governance. It also explores how law enforcement can play a role in preventing crime and violence while enhancing the human capabilities of vulnerable groups in a gender-responsive manner.
Key Words Public health; criminalization of poverty; law enforcement; public space governance.
Globally, the criminalization of poverty and status has entrenched socio-economic exclusion, and disproportionately impacted the rights of marginalized groups, particularly women (APCOF, 2023). This paper explores the human rights implications of the enforcement by police of laws that punish individuals for engaging in basic survival activities in public spaces. It highlights the disproportionate burden on populations vulnerable to systemic discrimination and socio-economic exclusion (Office of the United Nations High Commissioner for Human Rights, 2024). It critiques existing approaches to public space governance and argues for non-punitive and rights-based alternatives based on a mapping exercise of the laws and their impacts in Africa, the Caribbean and South Asia.
This paper considers three interconnected theoretical lenses. The first is the socio-ecological model on crime prevention. This model constitutes a framework for understanding the complex nature of crime and violence (SADC, 2019). This approach explores and addresses risk factors (that lead to crime) and encourages interventions that address risk factors at each level (SADC, 2019). The second theoretical lens entails the capabilities theory, developed by Amartya Sen and Martha Nussbaum. This theory examines whether individuals have the means and freedom to live the life they have reason to value and emphasizes enhancing an individual’s abilities to achieve the life that they value. The third lens entails a feminist lens. As pointed out by the United Nations Development Programme (1995), “Human development, if not engendered, is endangered.”
The socio-ecological model provides a multifaceted framework for recognising and addressing the risk and protective factors that cause or mitigate crime. This model, which is widely applied in crime prevention and closely linked to the work of law enforcement, recognises that poverty and homelessness comprise complex social challenges. A complementary model used in crime prevention, that of understanding prevention through three tiers – primary, secondary and tertiary crime prevention strategies – is also useful. Primary prevention focuses on addressing root causes before problems emerge (SADC, 2019), for example by ensuring access to livelihood opportunities, social security and affordable housing to reduce reliance on negative coping mechanisms, such as selling drugs (SADC, 2019). Secondary prevention works with victims to address harm and prevent them from falling victim again (SADC, 2019), while tertiary prevention works with offenders to prevent reoffending. This involves diverting offenders from the criminal justice system into counselling and support programmes (SADC, 2019). When used together with the socio-ecological model, these tiers of crime prevention help to identify were, when and how interventions should be implemented.
The capabilities theory, developed by Amartya Sen and Martha Nussbaum, is a framework that can be utilized to strengthen the socio-ecological model of crime prevention in a manner that actively cultivates human dignity and gender equality. Due to the inherent bias against marginalized and vulnerable groups (Muntingh & Petersen, 2015), a theoretical framework is needed that effectively challenges moral judgments regarding the blameworthiness of people whose actions – related to poverty and status – are criminalized.
Socio-economic deprivation and inequality impede one’s capacity to fulfil their life plans, to live a life of dignity and to “participate effectively in political, economic and social life” (Liebenberg, 2005). Police therefore need to be made aware of this dimension and enabled to apply and internalize it in their daily operations. As summarized by Martha Nussbaum (2000), a dignified human life requires physical health, safety from violence, including gender-based violence (GBV), unwarranted search and seizure and the freedom to live without fear, alongside emotional and intellectual growth. It also encompasses the capacity to cultivate meaningful relationships, opportunities for recreation and autonomy in shaping one’s life.
Due to the gendered division of labour (McLean & Chenwi, 2009; Moser, 1989), many women are unable to compete on an equal basis in the labour market, which in turn prevents them from becoming economically independent, ultimately impeding their ability to escape poverty and homelessness (UN Women, 2023).
Many women are also forced to engage in sex work (African Union, 2019) in order to support their dependents, placing them at risk of arrest and prosecution under vagrancy laws in many countries (African Court on Human and Peoples’ Rights, 2020; APCOF, 2023). As underscored by the African Court on Human and Peoples’ Rights (2020), women are particularly vulnerable to arrest “due to their inability to pay fines, bail or legal representation” (Advisory Opinion No. 001/2018). Prior experiences of GBV are also prevalent, with many incarcerated women being prior victims of domestic violence (Mahtani, 2016; UN Human Rights Council, 2023).
Below is a list of laws that need to be repealed or overturned through parliamentary engagement, advocacy and strategic jurisprudence. However, research has revealed that even in instances where laws are repealed or overturned, law enforcement continues to target vulnerable groups.
These laws penalize persons for failing to provide a “good account of themselves,” for not having a fixed residence or for not having proof of a means of income. They use vague wording such as being “rogue,” “vagabond,” “disorderly” or “idle” (OHCHR, 2024). These laws are used to exclude people “on the basis of their race, ethnicity, gender, socio-economic status or other contextual marker of social exclusion or vulnerability” (OHCHR, 2024).
These laws tend to criminalize specific conduct such as sleeping, eating, washing or bathing, causing a noise disturbance or blocking an entrance to a public or private building (OHCHR, 2024).
These laws target littering, unauthorized disposal of waste or garbage, cooking in a public space, urinating in public, washing clothes or bedding in public (OHCHR, 2024).
These laws punish requests for money or any other valuable goods. This can include a blanket ban on all begging or apply to specific areas (OHCHR, 2024).
These laws criminalize individuals who work within the informal labour market, targeting those who undertake hawking, trading, car guarding and washing in a public space (OHCHR, 2024).
These laws prohibit individuals from sleeping or camping in a vehicle, tent, caravan or any other type of temporary or provisional accommodation in a public space (OHCHR, 2024).
Approaches to public space governance mirror broader societal inequalities, often reinforcing exclusion experienced by marginalized groups. This applies both to the legislative framework for public space governance and the strategies applied to public space management by law enforcement agencies.
People experiencing homelessness people who use drugs, migrants, sex workers, LGBTIQ+ persons, persons with disabilities, informal traders and racial and ethnic minorities, among others, are especially vulnerable to persistent discrimination, exclusion and harassment in public spaces for basic acts of survival or on the basis of their status (APCOF, 2023). Women, in particular, experience unique vulnerabilities in public spaces, including heightened risks of GBV and harassment by law enforcement (APCOF, 2023).
The effect is to undermine the rights to dignity, life, equality, health, liberty, assembly and livelihood. Instead, states need to prioritize public space governance approaches that centre concepts of dignity and address increasing levels of homelessness, poverty and status-based social exclusion (OHCHR, 2024). Furthermore, policing practices often involve arbitrary enforcement, discriminatory practices and the violation of human rights, which reinforce systemic inequalities and stigma (APCOF, 2023; OHCHR, 2024).
A comparative analysis of Africa, the Caribbean and South Asia is revealing. Across the Global South, the legal frameworks and strategies regarding policing public space management are often rooted in colonial-era vagrancy statutes which control who can access public spaces, at what time and for what purpose. The analysis reveals significant similarities and distinct regional characteristics.
Across the three regions, outdated and discriminatory laws persist, criminalizing acts related to a person’s poverty or status. These laws frequently target life-sustaining activities such as vagrancy, begging and street vending, which disproportionately affects marginalized groups. Enforcement of these laws often relies on broad police discretion with limited oversight, which heightens risks of abuse, corruption and human rights violations.
African countries often retain colonial-era laws (Okiror, 2023), such as the Penal and Criminal Codes in Botswana (Penal Code of 1964) and Nigeria (Criminal Code Act of 1916), which criminalize vagrancy and other activities on the basis of public order. Specific laws, such as South Africa’s municipal by-laws, penalize everyday survival strategies like bathing or cleaning, disproportionately burdening women. Begging is also widely criminalized, as seen in Libya and Congo.
The Caribbean reflects greater regional variance in offences and punishments. Laws criminalize behaviours such as loitering and carousing, while penalties range from fines to custodial sentences, with notable inconsistencies between countries on severity and enforcement of these penalties. Public narratives also dehumanize people experiencing homelessness, portraying them as nuisances (Leonard, 2023). In Trinidad and Tobago, the conflation of public space governance with other challenges, including sex trafficking, in addition to issues regarding police corruption, highlights the intersections between poverty, gender inequality and systemic exploitation.
In South Asia, laws like Bangladesh’s Vagrancy Act and India’s Street Vendors Act target homeless persons and informal workers, with violence often used during enforcement. Gender and caste dynamics are pronounced in the enforcement of laws, with Dalit Street vendors and transgender persons facing intersecting discrimination (Chowdhury, 2021). Laws such as Pakistan’s Transgender Persons Protection Act ostensibly protect rights but inadvertently marginalize persons further by criminalizing their survival strategies (International Commission of Jurists, 2020).
One of the ways in which police exercise their discretion negatively is to criminalize conduct that is not criminalized de jure. Sex work is not criminalized in India and Sri Lanka, but sex workers are arrested, detained and subject to violence (Ramachandran, 2015).
In Uganda, after the President declared that the police can no longer arrest people on the grounds that they are idle and disorderly, the police started arresting individuals for being rogues and vagabonds (APCOF, 2023).
In Malawi, the High Court decision of The Republic v Phempho Banda and Others Review Case No. 58 of 2016 found that engaging in sex work is not an offence and that sex workers should not be arrested under a law that is intended to protect them from exploitation. However, police continue to arrest sex workers and other vulnerable groups and charge them with being rogues and vagabonds (APCOF, 2023).
A human rights-based approach recognizes these individuals (and particularly women) as an end in themselves. Public space governance must be informed by a recognition of the inherent human dignity of all vulnerable groups, while shifting away from blaming vulnerable groups for their plight. Part of this respect entails not being dictatorial about what it means to live a dignified life. Agency requires that these individuals should have a wide space to make important types of choices and to foster meaningful affiliation (Nussbaum, 2000). A practical example of this is harm reduction programmes. These programmes offer a promising alternative framework to guide law enforcement’s engagement with persons using drugs (OHCHR, 2024).
In accordance with the crime prevention principle pertaining to differentiation, it is necessary to develop responses to poverty that take account of intersecting forms of vulnerability as well as adaptive preferences which can reinforce injustice. This necessarily requires a holistic conception of well-being at the individual, family and community levels and involves not only physical health but also psychological well-being, social inclusion and the ability to participate in community life. Policing strategies should be evaluated not only in terms of crime prevention but also on their impact on the overall well-being and capabilities of individuals, particularly the most vulnerable members of society. Alternatives to imprisonment should be implemented in a manner that addresses the specific needs of individuals, such as women’s caregiving duties.
The capabilities approach requires policing strategies to not only prevent harm but also play a role in dismantling the systemic barriers that limit the capabilities of vulnerable populations. As opposed to being used as a blunt instrument to enforce systemic discrimination, law enforcement authorities can and should protect the rights of persons in street situations (OHCHR, 2024). Law enforcement is thus not only required to refrain from causing harm but can also facilitate the work of supportive social services (such as social workers) in a manner that enhances the protection of human rights (OHCHR, 2024).
It is essential to examine the manner in which police performance is measured and prioritized to identify the impact of performance metrics on policing behaviour and priorities. As underscored by a South African research publication on arbitrary arrest (APCOF, 2022), “the internal culture of policing organisations has long been influenced by historical notions of performance measurement, with arrests traditionally viewed as a key indicator of success.” (APCOF, 2022).
One of the key requirements under an effective crime prevention strategy is that it must be community-based and community-owned. Under a capabilities approach, participation in defining social justice goals by those experiencing social injustice is also inherent. Vulnerable populations should have a say in how policing is conducted in their communities. This participatory approach ensures that policies are responsive to the needs and perspectives of those most affected.
Law enforcement should aim to facilitate access to the relevant resources and support to enable vulnerable populations to exercise their human rights. Law enforcement should consider appropriate non-custodial measures such as verbal warnings and sanctions, the proactive facilitation of access to social or healthcare services (such as counselling) and community service programmes that are geared towards social integration (OHCHR, 2024). Law enforcement can provide critical support for the implementation of these measures.
There is also a need for independent monitoring of human rights abuses committed by law enforcement, along with the development of programmes and strategies to address these abuses and hold perpetrators accountable. Such monitoring should be conducted by independent bodies with the authority to investigate allegations, ensure transparency and make binding recommendations to prevent impunity. (OHCHR, 2010).
The objective of this paper is not to assert a definitive solution. Instead, States should actively engage with affected vulnerable groups to collaboratively develop policies, protocols and solutions that are tailored to their unique needs and contextual circumstances. Below are a number of recommendations that can be further tailored by States that are aiming to apply the above analysis in an operational policing context.
There is a need to decriminalize many acts, such as petty offences and same sex conduct, and to limit police discretion – or to guide police discretion in accordance with human rights – in terms of other offences.
Collect data and information to understand the specific context and the unique challenges pertaining to human rights compliance within that specific law enforcement organization. For example, do officers regularly engage in excessive use of force/sweeping arrests/move-on orders/unlawful evictions/wrongful arrests/discrimination/failure to comply with existing laws, as well as gendered challenges such as GBV? If so, there needs to be an analysis of the underlying causes and drivers and factors that enable the normalization of such actions.
Once existing gaps have been identified, it is necessary to develop a vision that promotes supportive policing, one that fosters human capabilities. States need to ensure that this vision is translated into a coherent policy as well as detailed procedures. The principles mentioned above (adopting a holistic approach, fostering meaningful engagement, etc.) should filter into police policy and practice, as well as existing safety plans. It is also important to traverse and develop guidelines on existing alternatives to punitive responses, such as diversion, community-based sanctions and harm reduction programmes.
The state at the highest levels as well as the respective law enforcement agencies must exhibit commitment to the adoption and implementation of non-punitive, restorative approaches to public space governance and champion the approaches and strategies listed above. Non-punitive, restorative approaches should become part of institutional policy, plans for implementation and action plans. To maintain transparency and build public trust, the government should establish an independent external body (such as human rights institutions) to review, monitor, audit and publish the results of the implementation of said action plans.
While all law enforcement need to be trained on the rights of vulnerable groups, dedicated response teams should receive regular training while also undertaking regular assessments to ensure they remain up to date with developments pertaining to responding to vulnerable groups. It is also essential to provide training on traditional and cultural impediments to effective policing.
There is a need to review regulatory frameworks which provide for the exercise of police powers within the context of poverty and, in particular, who exercises that power, how it is exercised and the extent to which law enforcement are held accountable (Fombad & Abdulrauf, 2020). There is a need for enhancements to accountability mechanisms to ensure fair and just policing.
In alignment with Harm Reduction International’s Divest/Invest Campaign, governments and law enforcement organizations are urged to prioritize budgetary transparency and to reallocate funding from punitive law enforcement policies to evidence-based initiatives that empower vulnerable communities (Harm Reduction International, 2023). These programmes can include harm reduction services, mental health support, access to housing and social safety nets.
It is necessary to establish a duty to coordinate between the police, other organs of the state, public health agencies, human rights organizations and community organizations (SADC, 2019).
The criminalization of poverty and status has failed to address increasing levels of discrimination, poverty and violence in public spaces. Rather, it has had the opposite effect of entrenching socio-economic exclusion and heightening the risk of further human rights violations, with a disproportionate impact upon women. It is therefore necessary to develop alternative ways to govern the use of public spaces. While law enforcement has historically been utilized as a tool to entrench existing patterns of inequality, it is possible to shift their role to one that is able to prevent crime and violence while enhancing the human capabilities of vulnerable groups.
Thank you to Louise Edwards for reading earlier drafts of this paper and providing useful insights and comments.
The research informing this article was made possible through the generous funding provided to APCOF by the Open Society Foundation.
The authors have no conflicts of interest to declare.
*African Policing Civilian Oversight Forum, Cape Town, South Africa;
†Freedoms Collective Trust, Sri Lanka, South Asia;
‡The University of the West Indies, St. Augustine Campus, St. Augustine, Trinidad and Tobago.
Advisory Opinion on the Compatibility of Vagrancy Laws with the African Charter on Human and Peoples’ Rights and Other Human Rights Instruments Applicable in Africa, 001/2018 (African Court on Human and Peoples’ Rights, 2020).
African Policing Civilian Oversight Forum. (2022). Report on the national dialogue on police and human rights: Arbitrary arrest in South Africa. https://apcof.org/wp-content/uploads/report-on-the-national-dialogue-on-police-and-human-rights-arbitrary-arrest-in-south-africa-22-march-2002-pretoria.pdf
African Policing Civilian Oversight Forum. (2023). Annual convening for the global campaign to decriminalise poverty and status. https://apcof.org/wp-content/uploads/report-for-the-annual-convening-of-the-global-campaign-to-decriminalise-poverty-and-status-eng-fr-por-27-29-september-2022pdf.pdf
African Union. (2019). AU strategy for Gender Equality Women’s Empowerment 2018–2028. https://au.int/documents/20190320/au-strategy-gender-equality-womens-empowerment-2018-2028
Budhadev Karmaskar v. State of West Bengal, 135/2010. SCC (2022).
Chowdhury, S. A. (2021). A study on workplace discrimination: Challenges faced by LGBTIQ employees and the perspectives of employers in Sri Lanka. Equal Ground. https://www.equal-ground.org/wp-content/uploads/DAP-REPORT-FINAL.pdf
Criminal Code Act of 1916, § 250 (Nigeria).
Criminal Code of 2005, § 566 (St. Lucia).
Fombad, C. M., Abdulrauf, L. A. (2020). Comparative overview of the constitutional framework for controlling the exercise of emergency powers in Africa. African Human Rights Law Journal, 20, 376–411 https://doi.org/10.17159/1996-2096/2020/v20n2a2
Harm Reduction International. (2023). Divesting from prohibition, investing in the HIV response: Jamaica case study. Invest in Justice. https://cdn.sanity.io/files/qi6v0jaz/production/231516145d3d35b-7f7653e06ff99f561df98d08f.pdf?dl=
International Commission of Jurists. (2020). Pakistan: Transgender persons (protection of rights) act, 2018. https://www.icj.org/wp-content/uploads/2020/03/Pakistan-Transgender-Advocacy-Analysis-brief-2020-ENG.pdf
Liebenberg, S. (2005). The value of human dignity in interpreting socio-economic rights. South African Journal on Human Rights, 21(1), 1–31. https://doi.org/10.1080/19962126.2005.11865126
Crossref
Leonard, M. (2023, May 13). Removing vagrants from downtown a priority. Our News Bahamas. https://ournews.bs/removing-vagrants-from-downtown-a-priority/
Mahtani, S. (2016). Aminata’s story: Justice for women who kill. https://old.sierralii.org/content/aminatas-story-justice-women-who-kill
McLean, K., Chenwi, L. (2009). ‘A Woman’s home is her castle?’ – Poor women and housing inadequacy in South Africa. South African Journal on Human Rights, 25(3), 517–545. https://doi.org/10.1080/19962126.2009.11865215
Crossref
Moser, C. O. N. (1989). Gender planning in the third world: Meeting practical and strategic gender needs. World Development, 17(11), 1799–1825. https://doi.org/10.1016/0305-750x(89)90201-5
Crossref
Muntingh, L., Petersen, K. (2015). Punished for Being Poor: Evidence and arguments for the decriminalisation and declassification of petty offences. Dullah Omar Institute PanAfrican Lawyers Union. https://dullahomarinstitute.org.za/acjr/resource-centre/punished-for-being-poor-evidence-andarguments-for-the-decriminalisation-and-declassification-of-petty-offences
Nussbaum, M. C. (2000). In defense of universal values. In Women and human development: The capabilities approach (pp. 34–110). The Seeley Lectures. Cambridge University Press. https://doi.org/10.1017/cbo9780511841286.003
Crossref
Office of the United Nations High Commissioner for Human Rights. (2010). Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions. https://documents.un.org/doc/undoc/gen/g10/137/51/pdf/g1013751.pdf
Office of the United Nations High Commissioner for Human Rights. (2024, June 26). Breaking the cycle: Ending the criminalization of homelessness and poverty (p. 3). https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session56/advance-versions/a-hrc-56-61-add-3.pdf
Okiror, S. (2023). Poverty: African vagrancy laws continue to discriminate, despite court victories. International Bar Association. https://www.ibanet.org/african-vagrancy-laws
Penal Code of 1964, § 182 (Botswana).
Public Open Spaces By-laws of the City of Johannesburg, No. 179 (2004, May 21).
Ramachandran, V. (2015, August 18). Rescued but not released: the ‘protective custody’ of sex workers in India. Open Democracy. https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/rescued-but-not-released-protective-custody-of-sex-workers-in-i/
Republic v. Mudila and 22 Others.
Republic v. Phempho Banda and 19 Others, MWHC 589 58 (2016).
South African Development Community (2019) “Manual to Facilitate the Operationalisation of the SADC Guidelines on Crime and Violence Prevention”. https://apcof.org/wp-content/uploads/manualtofacilitatetheoperationalisationofthesadcguidelinesoncrimeengfrpr.pdf
United Nations Development Programme (UNDP). (1995). Human development report 1995. Mahbub-ul Haq was the principal coordinator of the research paper. https://hdr.undp.org/system/files/documents/hdr1995encompletenostats.pdf
United Nations Human Rights Council. (2023, July 12). Accelerating efforts to eliminate all forms of violence against women and girls: preventing and responding to all forms of violence against women and girls in criminal justice detention. Res. A/HRC/53/L.5/Rev.1. https://digitallibrary.un.org/record/4020180?v=pdf
United Nations Women. (2023). Why women earn less: Gender pay gap and labour market inequalities in East and Southern Africa. https://africa.unwomen.org/en/digital-library/publications/2023/10/why-women-earn-less-gender-pay-gap-and-labour-market-inequalities-in-east-and-southern-africa
Correspondence to: Tarryn Bannister, Building 23B, Suite 16, Waverley Business Park, Wyecroft Road, Mowbray, Cape Town, 7925, South Africa. E-mail: tarryn@apcof.org.za; tarrynbannisterza@gmail.com
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/. For commercial re-use, please contact sales@sgpublishing.ca.
Journal of CSWB, VOLUME 10, NUMBER 2, June 2025