11 Dec The Criminalisation of Life-Sustaining Activities: Why International Law Requires States to Act
[Tim Fish Hodgson is a Senior Legal Adviser for the International Commission of Jurists, based in South Africa.]
[Jonas Kakule Sindani is an Intern for the International Commission of Jurists, based in the Democratic Republic of Congo.]
In a recent submission to the UN Special Rapporteur on the right to adequate housing and the UN Special Rapporteur on extreme poverty (the special rapporteurs), the International Commission of Jurists (ICJ) draws attention to various laws criminalizing life-sustaining in Africa and Asia. The examples are drawn from ICJ’s research and advocacy in India, Malawi, Nepal, Pakistan, Sri Lanka, South Africa, Uganda and Zimbabwe. The submission highlights the high levels of correlation between the common manner of the enforcement of such laws and societal prejudices against marginalized groups, including sex workers, lesbian, gay, bisexual and transgender (LGBT) persons and street vendors.
In March 2023, after an extensive consultative process with experts from around the world beginning in 2018, the ICJ published a set expert legal principles on a “human rights-based approach to criminal law” (“8 March Principles“). The principles, which attempt to “reiterate” and “reflect” existing international law and standards regarding the impact of criminal law on human rights, contain a specific principle on “life-sustaining activities in public places and conduct associated with homelessness and poverty”, which reads in full:
“No one may be held criminally liable:
a) for engaging in life-sustaining economic activities in public places, such as begging, panhandling, trading, touting, vending, hawking or other informal commercial activities involving non-contraband items;
b) for engaging in life-sustaining activities in public places, such as sleeping, eating, preparing food, washing clothes, sitting or performing hygiene-related activities, including washing, urinating and defecating, or for other analogous activities in public places, where there are no adequate alternatives available; or
c) on the basis of their employment or means of subsistence or their economic or social status, including their lack of a fixed address, home or their experiencing homelessness in practice.”
ICJ’s submission to the special rapporteurs is grounded in this (Principle 21) and other principles in the 8 March Principles, including those on criminal offences proscribing conduct associated with: sexual and reproductive health rights (Principles 14-15); sex work (Principle 17); and sexual orientation and gender identity (Principle 18).
Criminalization of “beggary” and “vagrancy”
The criminalization of “beggary” in India is one of the examples drawn from the ICJ’s research discussed in the submission. In its 2019 “Living with Dignity” report, the ICJ drew attention to a range of laws criminalizing “begging” and associated survivalist activities with a disproportionate impact on transgender persons, many of whom cannot secure alternative means of subsistence or work as a result of discrimination. This renders transgender persons extremely vulnerable to abuse and harassment by the police through such anti-beggary laws, something about which ICJ’s research provides ample evidence. Police officers also frequently assume transgender persons to be sex workers and charge them – without basis – using legal provisions criminalizing “soliciting” and “living on the earnings of prostitution”.
A second example discussed in the ICJ’s submission relates to laws criminalizing “vagrancy” in Sri Lanka. Drawing on its 2021 “A Colonial Relic” report, the ICJ draws the special rapporteurs’ attention to Sri Lanka’s still operable Vagrants Ordinance of 1841, which criminalizes acts such as: behaving in a “riotous and disorderly manner”; “wandering”; “idling”; “gather or collect of alms under false pretense”; “soliciting in public”, “living on the earnings made by prostitution” and any other “acts of indecency”. In particular, the ICJ’s research reveals that such laws are used to criminalize sex workers. Albeit Sri Lankan courts have ruled sex work itself – and sex workers living off earnings from sex work – not to be per se illegal, other provisions of the Ordinance are commonly used by police officers to threaten sex workers and extort them for either money or sex.
Criminalization of Informal Trade
The ICJ’s submission also highlights the use of criminal law in countries such as Malawi, Uganda and Nepal to criminally sanction informal traders’ attempts to eke out a living. In Lilongwe, Malawi, Section 5 of the Market and Vending By-laws criminalizes “establish[ing] a private market or engag[ing] in street vending… without permission”. The enforcement of this and other provisions in the By-laws is riddled with corruption, and officials often attempt to solicit bribes and sexual favours from traders for the return of confiscated goods.
The situation is similar in Kampala, Uganda, where four civil society organizations, including representative organizations of street traders, have approached the Ugandan Constitutional Court to have various by-laws used to criminalize traders’ life-sustaining activities declared unlawful. Under these laws, thousands of vendors have been “evicted” from where they ply their trade. Meanwhile the authorities have failed to provide any viable alternative livelihood opportunities to the evicted vendors. Traders have also had their property destroyed or confiscated and have been physically assaulted by police.
Such abuses also occur in Kathmandu, in Nepal, where authorities have made several attempts to prohibit people living in poverty in urban settings from selling in the street, drawing on the Local Government Operation Act, the Municipal Police Regulation and the Solid Waste Management Act, despite the fact that none of these laws directly addresses – let alone considers – street vendors or their own unique contexts and circumstances. Therefore, street vendors’ life-sustaining activities continue to be effectively criminalized despite providing a vital source of income for an estimated 45,330 people nationally, with more than 30,000 street vendors in the Kathmandu valley alone.
National and Local Laws Continue to Criminalize Life-Sustaining Activities
Under international human rights law, States are legally obliged to address the plight of those experiencing homelessness and those living in poverty. For example, the International Covenant on Economic, Social and Cultural Rights – which is rooted, in turn, in the Universal Declaration on Human Rights whose preamble proclaims that human rights protections are intended to address, among others, “freedom from fear and want” – cements a right to an adequate standard of living (Article 11).
Despite States’ obligations under international law to facilitate and to provide work opportunities and other forms of income generation, many States continue to suppress efforts forged by individuals themselves to subsist in the face of high levels of poverty, inequality and unemployment. This is done by drawing on colonial era laws, in some situations, and in others by enforcing a range of newly adopted by-laws.
Sometimes, as the examples above show, even where the specific conduct in question is not prohibited – as is the case in Sri Lanka regarding sex work – other broadly framed laws are still used to harass, threaten and criminalize people who engage in the very same lawful conduct.
Importantly, legal obligations placed on States by international treaties concern the State as a whole (national, provincial and local authorities) as well all branches of government, including judiciaries, executives and legislatures, who frequently fail to act to repeal laws that are used to violate human rights. Moreover, such human rights obligations bind all State officials, including police officers, who often act to abuse rather than protect human rights.
Advocating for Decriminalization
In this context, the efforts of the “The Campaign to Decriminalise Poverty and Status” – a global campaign broadly seeking to ensure an end to the application of such criminal laws that result in rights violations – are particularly important. Some recent gains won by human rights defenders on the African continent include the African Court’s advisory opinion (concluding that laws criminalizing “means of subsistence” violate the African Charter on Human and People’s Rights) and the African Commission on Human and People’s Rights’ “Principles on the Decriminalization of Petty Offenses”, a powerful legal tool for the decriminalization of such offences giving States significant guidance on how to ensure compliance with the African Charter’s provisions in this context. It is hoped that the timely issuing of the special rapporteurs’ forthcoming report reflects this position on a global level, drawing on submissions from a range of civil society organizations and researchers, and reflecting the consensus in international law expressed in ICJ’s 8 March principles.