This is the recent decision of the ECOWAS Community Court of Justice in Advocaid Ltd V Republic of Sierra Leone ECW/CCJ/JUD/33/24.
Facts of the Case
The Applicant asked the court to declare that the maintenance and continued enforcement by the Republic of Sierra Leone, of laws on loitering by authorising the police to arrest any person “who is idle in a public place and cannot give a good account of himself” is discriminatory and violates the freedom of movement of various vulnerable groups in Sierra Leone. The Applicant further asked the court to direct the Respondent to repeal its loitering laws.
Decision of the Court: by maintaining and enforcing the laws on loitering, the respondent violated articles 1, 2, 3(1), and 12 of African Charter on Human and Peoples’ Rights (the Charter).
It violated article 1 of the Charter by failing to take legislative measures to modify or repeal its loitering laws in order to guarantee the full realisation and enjoyment of the rights contained in the Charter.
It violated article 12(1) of the Charter (freedom of movement and residence within the borders of a State, which State parties to the Charter have an obligation to uphold. However, on this violation, the Court began by noting that, not being absolute, article 12 permits derogation. To determine whether the Respondent’s loitering laws violated article 12(1) or fell within the permitted derogation, the court adopted a two-pronged test – did the laws satisfy the requirements of “, provided for by law”?; If they did, were they for legitimate purpose, proportional and necessary?
The Court had no difficulty in holding that the loitering laws constitute limitations provided by law, as they are statutory provisions enacted by the Respondent.
On whether the loitering laws met the international human rights standards of legitimacy, proportionality and necessityas well assatisfied the requirement that a criminal statute must be clear and precise, providing individuals with sufficient notice about the conduct that is prohibited. The Court was unable to hold that the laws fulfilled any of these requirements.
On legitimacy of purpose: on this,the respondent state claimed that the laws serve legitimate purposes and were proportionate because they are aimed at preventing crimes and maintaining law and order. The Court rejected this argument on the ground that the loitering laws criminalize certain states of being, rather than specific unlawful acts committed by an individual. The court categorically declared that ‘being “vagrant” (i.e., having no visible means of subsistence, inability to give account of oneself or being idle) is not coterminous with criminality or criminal behaviour’, thus undermining the Respondent’s contention that the loitering laws serve a legitimate purpose of crime prevention or law and order.
On proportionality and necessity,the Court took cognizance of the fact that laws targeting loitering during specific hours disproportionately affects marginalized or vulnerable groups, such as homeless individuals, who may have legitimate reasons for being out during the regulated hours, such as seeking shelter or social support. The court declared that such individuals should not be subjected to automatic arrest solely based on their presence in public spaces. The court also noted that the laws affect other groups of persons – individuals who are engaged in normal activities, such as going to, or returning from, work or simply enjoying nightlife – are also disproportionately targeted. The court was particularly concerned that the laws impose arbitrary restrictions on individuals’ movement, as they do not distinguish between those engaging in lawful activities and those potentially engaging in criminal behaviour.
On absence of vagueness, the Court found that the Respondent’s loitering laws contain several vague and imprecise terms, such as having no ‘”visible means of subsistence,” being unable to give a “good account of himself/’ and being “idle” or “disorderly”’. The Court took judicial notice that such vagueness ‘automatically, makes vagrancy laws prone to abuse, often to the detriment of the marginalized sections of society. And was concerned that by their vagueness and imprecision, they lend themselves to arbitrary application and therefore fall short of international human rights standards, thereby violating the freedom of movement under article 12(1) of the African Charter, because they are vague and imprecise and do not meet the requirements of legitimate purpose, proportionality, and necessity in a democratic society.
Flowing from the above, the Court held that arresting individuals for merely being present in public spaces during certain hours is disproportionate and unnecessary in a democratic society, as less restrictive measures could be implemented. As alternative to arrest, the court recommended such measures such as offering vocational training for the unemployed, providing shelter for the homeless, offering addiction rehabilitation programs, and implementing other social intervention programs are more compliant with human rights and address the issues that the loitering laws aim to solve. In any event, the court affirmed the competence of the Respondent to enact laws targeting specific unlawful conduct in public spaces, if it so desires, rather than merely criminalizing the status of individuals who are often poor and vulnerable.
Thus, although the court found that the Respondent’s loitering laws, as a limitation on the freedom of movement, satisfied the requirement of being provided for by law, it was unable to hold that they constitute valid exception to article 12(1) by reason of their vagueness, and failing the proportionality, necessity requirements.
The Laws Violated Articles 2 and 3(1) of the African Charter – Non-Discrimination and Equality before the Law: the Court noted that the application of loitering laws inevitably attaches criminal suspicion to certain classes of individuals, based on their low economic or social status, rather than any specific unlawful acts they have committed, and that this stigma is not typically applied to individuals of high economic and social status. The Court reiterated that “most arrests are made on the basis of an individual’s underprivileged status and the inability to give an account of oneself”. The Court further reiterated that arrests are substantially connected to the status of the individual who is being arrested and would not be undertaken but for the status of the individual.”
Drawing from its conclusion that “status” is one of the prohibited grounds of discrimination under article 2 of the African Charter, the Court held that the application of loitering laws unavoidably subjects poor and vulnerable members of society to discrimination and unequal application of the law, in violation of articles 2 and 3 of the African Charter. Accordingly, the Court, declared that the maintenance and continued enforcement of the Respondent’s loitering laws violate Articles 2 and 3(1) of the African Charter.
Implication for other ECOWAS States: although this decision was rendered against Sierra Leone, which by article … of the Protocol of the court, the general principles arising from the decision – that such laws violate articles 1, 2, 3 and 12 of the African Charter – have become part of the body of caselaw of the Charter and thus applicable to all state parties to the Charter. This is more so, because the decision of the ECOWAS Court copiously followed the decision of the African Court in Pan-African Lawyers Union (PALU), Advisory Opinion, [2020] 4 AfCLR 874
