Criminalisation of homelessness and poverty by Zimbabwe’s Vagrancy Act Unconstitutional and against the African Charter

Author: Zororai Nkomo
Centre for Human Rights, University of Pretoria

In the mid-1960s, Zimbabwe prosecuted a protracted liberation struggle officially dislodging the colonial government of Ian Smith in 1980. One of the liberation struggle’s philosophical underpinnings was to do away with unjust laws and all forms of segregation, inequality, injustice, and freedom of blacks.

Despite all the invaluable efforts by freedom fighters, Zimbabwe is among countries in Africa that are administering an archaic, draconian, and segregative colonial piece of legislation – the administration of vagrancy laws in the criminal justice system- the Vagrancy Act Chapter 10:25.

What is a vagrant?

The African Court on Human and Peoples’ Rights (AfCHPR) defined a vagrant as anyone belonging to several classes of idle or disorderly persons, rogues and vagabonds, including anyone who, not having a settled habitation, strolls from place to place; a homeless, idle wanderer.

Section 2 of Zimbabwe’s Vagrancy Act of 1960 defines a vagrant as a person with no fixed abode, no means of support, and one who wanders from one place to another.

Generally speaking, vagrancy laws or vagrancy-related legislation are those laws that view jobless persons and those people of no fixed abode as criminals. Some of the offences which are criminalised due to their close link to vagrancy are begging, loitering, public indecency, and solicitation.

Is Zimbabwe still administering vagrancy laws?

The Vagrant Act in Zimbabwe commenced in October 1960, and continues to be on the statute books to date. For instance, in May 2023, Zimbabwe Republic Police arrested 28 men in the Central Business District (CBD), using this legislation. The fundamental question is why Zimbabwe continues to administer colonial legislation which impairs citizen’s rights and freedoms.

Section 3(1) of the Act allows the police to arrest any person they reasonably suspect and believe is a vagrant without a warrant of arrest. Such legal provisions leave room for the abuse of authority by law enforcement agents. The provision makes a person’s status a criminal offence. The offence is that of being a person of no fixed abode.

Section 46 of Zimbabwe’s Criminal Law (Codification and Reform) Act also provides for criminal nuisance which provides for vagrancy-related offences such as shouting and screaming or any action likely to disturb the comfort of others.

Why should Zimbabwe abolish vagrancy laws?

Zimbabwe is a state party to the African Charter on Human and Peoples’ Rights (ACHPR), which means it should be obliged to put into effect the purport, values, and the tenor of the African Charter in promoting, protecting, and respecting human rights.  In 2020, the African Court handed down a landmark advisory opinion on African vagrancy laws, holding that vagrancy legislation in all African countries is incompatible with the African Charter. While the opinions is not directly binding on Zimbabwe, it stands to logic that Zimbabwe has an obligation to bring its laws in conformity with this opinion of the Court to be deemed to be in compliance with its obligations under the African Charter.

How does administering vagrancy laws impair human rights?

Article 2 of the African Charter, which Zimbabwe has ratified, provides that every individual shall be entitled to enjoy rights and freedoms without being discriminated against on grounds of birth or any other status. Article 3 of the Charter further provides that everyone is equal before the law and is entitled to equal protection of the law. To be arrested and prosecuted just because of homelessness and joblessness is a violation of human rights and the African Charter.

Contrary to the provisions of the African Charter,section 8 of the Vagrancy Act gives a magistrate power to inquire about a person’s homelessness (vagrancy). The magistrate can order the detention of that particular person for being homeless. Only after the magistrate is convinced that a homeless person is living honestly, will they be released. This clearly amounts to the criminalisation of the status of being homeless.  This cannot be right both legally and morally.

The Constitution of Zimbabwe in its preamble envisages a unitary, democratic and sovereign republic with the desire for freedom, justice, equality and enjoyment of human rights by all. Criminalising homelessness is against the tenor of the supreme law of the land – the Constitution.

The criminalisation of poverty and persons based on the economic status of citizens is against the right to human dignity as espoused in section 51 of the Constitution of Zimbabwe. Arguably, arresting and arraigning a person before the courts for being homeless is inhumane and degrading treatment.

Worse still, the majority of these people who are being arrested for homelessness are poor people and in most cases with low levels of education to understand legal proceedings and cannot secure legal representation, exposing them to further abuses within the criminal justice system including the denial of the right to fair trial.

For instance, although bail is a constitutional right in Zimbabwe, vagrants are automatically denied bail in Zimbabwe’s criminal justice system as courts usually don’t grant bail to a person of no fixed abode. This is irrespective of the fact that in most cases the criminal sanction applicable to the offence is a fine. In reality, these are persons who are labelled criminals because of their poverty and economic status. Consequently, from the substantive justice perspective their convictions and arraignment before the courts are unconstitutional.

The criminalisation of poverty and status violates section 56 of the Constitution of Zimbabwe, which provides the right to equality and non-discrimination.  The criminalisation of Poverty, homelessness and joblessness means that those at the lower rung of economic fortunes have no right to equal protection and benefit from the law.

Section 56(3) provides that it will be unlawful and unconstitutional to discriminate against another person based on economic or social status. It would make sense if the law provided that they could be arrested on the reasonable suspicion of having committed a certain offence. However, what is disheartening and disturbing is that the law provides that they are arrested because a police officer has a reasonable suspicion that the person is homeless and jobless. Zimbabwe’s Vagrancy Act is thus entrenching and fostering historical injustices and discrimination by distinguishing its citizens based on their economic status. It is strange, illogical and unfortunate to hear that an African person born and bred in Africa – who never travelled out of Zimbabwe or Africa – without a passport – is a homeless person.

The legislature should understand that vagrancy laws are not meant to achieve anything but to entrench structural racism, poverty, and social exclusion which hinder the people of Zimbabwe from enjoying their rights and freedoms as citizens. The discussion on whether to keep vagrancy laws should be obvious. Vagrancy laws represent colonialism and slavery which forced African countries to prosecute various protracted liberation struggles to dismantle. The existence of the Vagrancy Act is the perpetuation of structural racism and discrimination on the basis of economic or social status, which is contrary to Article 2 of the African Charter and should be repealed immediately.

About the Author:

Zororai Nkomo is a human rights lawyer, journalist and social justice activist. He is a Candidate for Master of Laws in Human Rights and Democratisation in Africa (HRDA) with the Centre for Human Rights at the University of Pretoria