The ICCPR guarantees everyone the equal enjoyment of civil and political rights in the Covenant,[1] the right to liberty and security of person,[2] and not to be subjected to arbitrary arrest or detention.[3] The deprivation of liberty must be done in accordance with a procedure established by law.[4]All persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person.[5] Moreover, everyone is entitled to the enjoyment of the rights and freedoms under the AChHPR without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.[6] State Parties to the AChHPR have an obligation to ensure the elimination of discrimination against women, and protection of the rights of woman and children, as stipulated in international declarations and conventions.
The African Commission on Human and Peoples’ Rights (ACHPR) Guidelines on the Use and Conditions of Arrest, Police Custody and Pre-trial Detention in Africa (the Luanda Guidelines) provide that a person shall only be deprived of their liberty based on laws which are clear and precise and consistent with international standards and respect for the rights of the individual.[8] Arrests may not be carried out on the basis of discrimination of any kind.[9] In some African countries, the police are allowed wide discretion to arrest people based on petty offence laws that are often vaguely defined or overly broad. In some cases, petty offences provide a tool for the police to arrest persons whom they think are engaging in, or planning, criminal conduct under circumstances when a charge under a substantive charge or offence cannot be supported.[10] Arrests are frequently unlawful as they do not meet the requirements of having reasonable suspicion, assessing all the elements of the crime, and having an open mind to the guilt or innocence of the .
The United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concern that laws which prohibit begging and loitering effectively criminalise homelessness and that such laws have a disproportionate effect on vulnerable groups, such as racial and ethnic minorities in the United States.[11] Vagrancy and nuisance – related offences are used, almost exclusively against the poor and marginalised and target persons due to their status in society and not because of their actual conduct, or conduct that poses a threat to public safety. [12]
Police officials have considerable discretion to arrest especially when detection is dependent on police .[13] For example, the enforcement of loitering offences is notorious in this regard, as it is an offence of questionable validity and highly dependent on who individual police officers define as persons eligible for arrest. Non-judicial factors also play a role. A US study on arrest rates for public drunkenness isolated three variables that will increase the risk of arrest where there is significant discretion at play. Firstly, is offence conspicuousness – is the person drunk in a place where he is visible to the public and the police, or is it out of the ‘public eye’? The more visible the offence, the higher the chance of arrest. Secondly, the more powerless the offender is, the higher the likelihood of arrest.[15] Thirdly, the more disrespectful the offender is to the police officer, the more likely it is that he will be arrested, although being disrespectful to a police officer is not a criminal offence.[16] It is notable that the three variables (conspicuousness, powerlessness and disrespect) are all non-legal in nature but play an important role in how the arresting officer exercises his discretion. Whether this analysis fits the African context requires further research, but it may be a useful starting point.[17]
There is a substantial body of evidence from Europe and North America that ethnic and racial minorities are at significantly higher risk for stop and search and consequently arrest.[18] In the African context it appears that ethnic minorities are at a higher risk of arrest and ultimately pre-trial detention as was found in Kenya[19], Malawi[20] and Zambia.[21] Although it is not certain whether ethnicity plays a role or not, certain groups such as homeless persons, street children, intoxicated and drug induced persons, street vendors and sex workers in particular contexts are evidently disproportionally targets for arrests for petty offence such as loitering, nuisance, being rogue and vagabond and minor municipal offences.[22]
[1]Article 3, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171,
[2] Article 9, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171,
[3] Article 9, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171,
[4] Article 9, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171,
[5] Article 10, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171,
[6] Article 2, Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“African Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982),
[7] 18 (3), AChHPR
[8] Article 2 (a) Guidelines on the Use and Conditions of Arrest, Police Custody and Pre-trial Detention in Africa
[9] Article 2 (b) Guidelines on the Use and Conditions of Arrest, Police Custody and Pre-trial Detention in Africa
[10] C. Banda and Meerkotter A (2014) Examining the Constitutionality of Rogue and Vagabond Offences in Malawi, Johanesburg: SALC http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/12/7.pdf
[11] The Committee on the Elimination of Racial Discrimination, Concluding Observations (United States), CERD/C/USA/CO/7-9, 29 August 2014 at para. 12, Available at http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/CERD_C_USA_CO_7-9_18102_E.pdf.
[12] Zimmerman, H. (1969) “Louisiana Vagrancy Law – Constitutionally Sound” 29(2) Louisiana Law Review pp. 361 and 363
[13] Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
[14] Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
[15] Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
[16] Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
[17] Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
[18]Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
[19] Muntingh, L. and Redpath, J. (2015 forthcoming) The Socio-economic impact of pre-trial detention, Johannesburg: Open Society Institute.
[20] Redpath, J. (2011) ‘Case flow management’ in Muntingh, L. and Redpath, J. Audit of pre-trial detention in Malawi, Johannesburg: OSISA.
[21] Redpath, J. (2011) ‘Case flow management’ in Muntingh, L. and Redpath, J. Audit of pre-trial detention in Zambia, Johannesburg: OSISA.
[22] Muntingh, L. (2015 forthcoming) Arrested in Africa – an exploration of the issues, Bellville: Dullah Omar Institute.
