Source of illustrative picture: Transparent Language Blog
OUR second weekly article addressed sexual related offences namely bigamy, rape, defilement, child marriage and abortion. Today’s article considers the decriminalization of petty offences.
Petty offences are minor offences for which the punishment is provided by law to carry a warning, community service, a low-value fine or short term of imprisonment, often for failure to pay the fine. Examples include, but are not limited to, offences such as being a rogue and vagabond, being an idle or disorderly person, loitering, begging, being a vagrant, failure to pay debts, being a common nuisance and disobedience to parents. Like all offences, petty offences are required generally in the law to maintain social order and stability.
Petty offences existed as part of the criminal law of England and were incorporated in the criminal laws of Zambia before independence and today remain in the law as a colonial legacy. Interestingly, in most of the colonising nations from where these offences were inherited, it has been reported that there has been a shift in criminal justice systems from a focus on the punishment of offenders to a more human rights-based approach which seeks to reform offenders therefore decriminalising petty offences among other such measures.
The Penal Code makes provision for minor offences. These include Section 178, which makes it a crime to beg in a public place; Section 179 which makes it a crime to use insulting language; and Section 181 which makes it a crime to be suspected of being a thief, to have no income and to be unable to give an account of oneself. Offenders under these sections are liable to either imprisonment of up to one (1) year or to a fine.
Under Section 178 of the Penal Code, idle and disorderly persons include:
(a) every common prostitute behaving in an indecent manner in any public place;
(b) every person wandering or placing himself in any public place to beg or gather alms, or causing or procuring others to do so;
(c) every person playing at any game of chance, not being an authorised lottery, for money in public; and
(d) every person who in any public place solicits for immoral purposes;
In section 181 rogues and vagabonds include:
(a) every suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself; and
(b) every person found wandering near any premises or in any road or highway or any place near any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose;
In 2017 the African Commission on Human and Peoples’ Rights developed Principles on the Decriminalisation of Petty Offences in Africa which apply to Zambia. The Principals are a recent development in a broader regional effort to articulate standards for acceptable human rights practices, specifically concerning matters of access to justice. This new soft law standard advocates for a holistic approach to the challenges that arise in Africa at the intersection between poverty, justice and human rights. Whilst the Principles are not legally binding, they are a political commitment that countries can use to develop laws.
The Principles stipulate that, laws that create petty offences such as those discussed here are inconsistent with the principles of equality before the law and non-discrimination on the basis that they either target the poor, or have a disproportionate impact on the poor, vulnerable persons, key populations or on the basis of gender. For instance, idle and disorderly persons and rogues and vagabonds as defined in the Penal Code tend to focus their application on poor, disadvantaged and marginalised persons including prostitutes, beggars, gatherer of alms; suspected or reputed thieves and wanderers.
The ZLDC law reform process was accordingly influenced by the disproportionate impact of the enforcement of such laws on the poor, disadvantaged and marginalised sections of the society. The finding was that there was a need to ensure that the law does not target persons based on their social origin, social status or fortune by criminalising life-sustaining activities. During the review by ZLDC it was noted that whilst the need to repeal petty offences is recognised, stakeholders consulted were of the view that these offences should remain in legislation up to the point when an alternative, administrative method of dealing with these vices is developed. Otherwise, this would result in a lacuna in the maintenance of law and order. The Commission therefore recommended that the law on petty offences be repealed and administrative measures be developed and put in place instead.
Our Article next week is titled “Stolen Trials”. Don’t miss it!
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