DECRIMINALIZING PETTY OFFENCES: A CALL FOR JUSTICE AND EQUALITY IN SIERRA LEONE
By Michael Charles Esq.
In Sierra Leone, as in many countries around the world, the criminal justice system is riddled with the harsh consequences of offences that are disproportionately targeting the poor and vulnerable. Petty offences, which include acts like loitering, public drunkenness, and disorderly conduct, are criminalized and often result in the arrest and imprisonment of the less privileged. The arrest and punishment for such offences, most often of the vulnerable and less privileged, do not only fail to address the root causes of the conducts warranting such arrests but also exacerbates the social inequalities and injustices that come with them. The wrongdoing or acts warranting the arrests for petty offences, such as being caught on the street at night as a prostitute for loitering, or public drunkenness, are conducts found only in the poor and vulnerable group. The point is, a rich clubber driving in his car at night cannot be arrested for loitering. People who fend and struggle for survival like prostitutes, “fry-fry” sellers and their children, errand boys around bars and entertainment places at night, etc. are the preys to law enforcers for offences of this nature. In this social annotation, my argument is that, it is about time Sierra Leone decriminalized petty offences and aligned its legal framework with international agreements that promote human rights and social justice.
The African Commission on Human and Peoples’ Rights (ACHPR) defines petty offences as minor offences for which the punishment is prescribed 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 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; offences created through by-laws aimed at controlling public nuisances on public roads and in public places such as urinating in public and washing clothes in public; and laws criminalizing informal commercial activities, such as hawking and vending. Petty offences are entrenched in national legislation and, in most countries, fall within the broader category of minor offences, misdemeanors, summary offences or regulatory offences.[ ACHPR, Principles on the Determination of Petty Offences in Africa p10. ] In a Position Paper by AdvocAid and the Centre for Accountability and the Rule of Law, these Rights based organizations defined Petty Offences in Sierra Leone to include laws which are vague and disproportionate to the level of offences committed, which are often wrongly applied and which violates human rights standards and the constitution of the country.[ See p 2 of the Position Paper by AdvocAid and the Centre for Accountability and the Rule of Law, August 2019.] AdvocAid and CARL catalogued these offences to include offences such as loitering, being an idle, being in a place and not providing a sufficient account of why someone is in that place, non-payment of debt, etc. Petty offences include public drunkenness, minor traffic offences targeting Okada and Kekeh riders, “pump-water-mami-cuss” cases to name but a few.
In most African countries, petty offences have been a feature of colonial criminal laws, many of which are currently found on our statute books, inherited from the colonial era. Accordingly, in Sierra Leone, these offences are littered all over our statute books. Section 7 of the Public Order Act 1965 provides that “Any person loitering in or about any stable house or building, or under any piazza, or in the open air, and not having any visible means of subsistence, and not giving a good account of himself, shall be deemed an idle and disorderly person, and shall, on conviction thereof, be liable to imprisonment for any period, not exceeding one month”.[ Section 7 of the Public Order Act (of Sierra Leone) 1965. ] The mind boggling concern to be raised, if you may want to inquire, is whether the defaulters of theses offences are the rich and wealthy people, who are likely to be arrested, tried and punished for offences of these types. By Section 13(1)(e) of the Criminal Procedure Act 1965, any constable may without a warrant of arrest, arrest any person whom he finds between the hours of six in the evening and six in the morning lying or loitering in any street, highway, yard, compound or other place, and not giving a satisfactory account of himself.[ See Section 13(1)(e) of the Criminal Procedure Act (of Sierra Leone) 1965.] A law like this is a direct target against the homeless, night prostitutes, Okada riders, “fry-fry” sellers and their children. Obscene language, gesture or behaviour, or says or signs, any offensive song or ballad are offences pursuant to section 3 of the Public Order Act of 1965, and on conviction punishable to a fine or imprisonment for a period not exceeding three months or both.[ Section 3 of the Public Order Act of 1965. ] Sections 7 & 8 of the said Act punish idle and disorderly persons, rogues and vagabonds.[ Sections 7 & 8 of the Public Order Act of 1965. ] In Sierra Leone, offences of these types only target the poor and vulnerable. They are otherwise called “status offences” because they target a class of people, the poor and vulnerable. For these offences, people are merely jailed because they are poor and less influential in society. The rich people smoke cannabis and Kush, partake of other dangerous substances but they do so only within the confines of their fenced houses. The poor and vulnerable in the ghettoes are likely to be nested, tried and punished for substance abuse. It is no gain saying that these colonial laws allow for discriminatory application of the law in Sierra Leone. They are in violation of the standards set in Article 5, 6 and 12 of the African Charter,[ See Article 5, 6 and 12 of the African Charter. ] as much as they remain irregular with sections 17, 18, 20, 21, 22 and 27 of the Constitution of Sierra Leone, Act No. 6 of 1991.[ Chapter III of the Constitution of Sierra Leone, Act No. 6 of 1991. ]
Petty offenses often disproportionately affect the poor and vulnerable for several interconnected reasons: they typically result in fines or minor penalties and for individuals with limited financial resources, these fines can have a significant impact on their ability to meet basic needs like housing, food, or healthcare. Wealthier individuals are better positioned to pay these fines without experiencing substantial hardship. Additionally, the poor often lack access to legal representation, making them more susceptible to unfair treatment in the criminal justice system. Without a lawyer to advocate for their rights, they may not fully understand their legal options and may be more likely to plead guilty, resulting in convictions. Again, more often than not, and for offences of these types, law enforcement agencies are likely to focus their attention on low-income neighborhoods, leading to frequent interactions and arrest of the poor and vulnerable. There can be systemic biases within the criminal justice system that disproportionately affect disadvantaged communities. For example, police may target minority and low-income communities more frequently, leading to disparities in arrests and convictions. Socioeconomic factors, such as limited access to education, employment opportunities, and social services, can contribute to an increased likelihood of engagement in petty criminal activities. These factors can create a cycle where the poor are more likely to be involved in low-level offences, making them more vulnerable to enforcement. Again, individuals who are unable to meet their bail conditions or pay fines may spend time in pretrial detention, leading to job loss, disrupted family life, and a higher likelihood of being convicted or accepting a plea deal to avoid further incarceration. Convictions for petty offenses can have long-term consequences, such as limited job prospects and housing options, which can further marginalize the poor and vulnerable.
To address these issues, many criminal justice reform efforts focus on reducing the impact of petty offences on disadvantaged communities. This may involve decriminalization, declassification and diversion programs, and efforts to improve legal representation and access to social services for individuals in need.
These laws are often used by law enforcement officers as a means of keeping certain individuals in check, particularly those who are homeless, unemployed, or living in poverty. As a result, those who can least afford to pay fines or legal representation end up trapped in a cycle of arrests, fines, and incarceration. Therefore, one can safely state that the criminalization of petty offences in Sierra Leone is tantamount to criminalizing poverty. It is no gain saying that only the poor and vulnerable like night prostitutes, “fry-fry’ sellers and their children, etc. are likely to commit offences such as loitering, often committed out of economic necessity by those struggling to make ends meet. These individuals, who are already living on the margins of society, face the dual burden of poverty and criminalization.
Sierra Leone is a signatory to several international agreements and conventions that emphasize the importance of human rights, social justice, and the rule of law. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples' Rights, and the Convention on the Rights of the Child all highlight the principles of equality before the law, non-discrimination, and the right to a fair trial. It is clearly outlined in Article 6 of the African Charter, and for compliance purposes, any law of a member state defining criminal conduct must be clear, precise and accessible. Such laws should be necessary and proportionate to a legitimate objective, aligned with regional and international human rights standards.[ See Part 5 of the African Commission’s Principles; look up p2 of the Position Paper of AdvocAid and Centre for Accountability and Rule of Law, August 2019. ] Sierra Leone has ratified the African Charter. By ratifying the African Charter in 1983, the Country agreed to recognize the rights, duties and freedoms enshrined in that instrument and to take measures to uphold them. The continued criminalization of petty offences in Sierra Leone is therefore in direct violation of these commitments. It is therefore appropriate to state that criminalization of petty offenses in Sierra Leone infringes upon the basic human rights of its citizens. It denies them the right to equal protection under the law, subjects them to arbitrary arrests and detention, and restricts their freedom of movement. Such practices go against the very essence of international agreements designed to protect and uphold human rights.
It is safe to therefore argue that the enforcement of these laws disproportionately affects the poor and vulnerable members of society. Homeless individuals, for example, are frequently charged with loitering or public drunkenness simply for being in public spaces. Those living in poverty often struggle to pay fines, leading to further legal trouble and, in some cases, imprisonment. Such practices deepen the cycle of poverty and create barriers for individuals attempting to escape it, especially marginalized groups, including street children, homeless individuals, and those living in informal settlements. These communities are subject to harassment, fines, and even imprisonment, further entrenching their vulnerability.
It is important to note that decriminalizing petty offences in Sierra Leone is not synonymous with the absence of law enforcement or accountability or ignoring public order concerns. Rather, it opens the door to alternative approaches that address the underlying issues. Alternative approaches, such as community service, warnings, or rehabilitation programs, can be more effective in addressing the root causes of petty offenses. These methods align with international best practices and promote the reintegration of offenders into society. It can be part of a broader effort to reform the criminal justice system and promote more effective and humane approaches to addressing low-level offences. Alternative remedies and strategies may include replacing criminal penalties with civil fines. Offenders would be required to pay a monetary penalty without facing criminal charges. Mandating community service as an alternative to incarceration or fines may be an instructive tool. Offenders could contribute positively to the community through volunteer work. There could be the implementation of restorative justice practices, where offenders meet with victims and community members to discuss the impact of the offence and work together to find a resolution. Counseling and rehabilitation rather than punishment is therapeutic, backed by educational programs to address the root causes of the offences. Diversion programs that channel offenders away from the criminal justice system could include educational programs, substance abuse treatment, or mental health interventions. Introducing warning or caution systems for first-time offenders instead of formal charges, is a useful tool. In other jurisdictions, educational interventions for certain offences, such as mandatory classes or workshops to raise awareness about the consequences of specific behaviours have served well. Social services, community outreach, mental health support, and addiction treatment can be more effective tools for improving the lives of those affected by petty offences. Criminalizing petty offenses also has severe economic consequences. It burdens the already overburdened justice system, leading to congested prisons and clogged court dockets. These financial and administrative costs could be better utilized in addressing more serious crimes and societal issues. These measures can help people reintegrate into society, rather than pushing them further to the margins.
Utilizing mediation services to resolve conflicts between offenders and victims in a structured and supervised setting, coupled with regulations, such as imposing administrative penalties or restrictions rather than criminal sanctions are effective tools. Reinforcing community policing strategies that involve law enforcement working collaboratively with communities to identify and address local issues, including those related to petty offences, and allowing the expungement of certain low-level offences from an individual's criminal record after a certain period of good behaviour, does incentivize rehabilitation. Adjust fines based on income to ensure that penalties are fair and do not disproportionately impact individuals with lower socioeconomic status. Implement public awareness campaigns to inform the public about the consequences of certain behaviours and discourage petty offences through education.
In conclusion, the criminalization of petty offences in Sierra Leone perpetuates inequality and social injustice, targeting the poor and vulnerable while failing to address the root causes of such behaviours. It is crucial for Sierra Leone to align its legal framework with international agreements that promote human rights and social justice. Decriminalizing petty offences and adopting alternative approaches will not only serve as a step towards a fairer and more equal society but also enhance the nation's commitment to international human rights standards. This change is a crucial step in the direction of justice, compassion, and true social progress for all Sierra Leoneans. This will in turn break the cycle of poverty and injustice targeting the most vulnerable members of society. To honour its commitment to international agreements emphasizing human rights and social justice, Sierra Leone must take steps to decriminalize these offences. By doing so, the nation can foster a more inclusive and equitable society where all individuals have the opportunity to live a life of dignity and respect, free from the threat of arbitrary arrest and imprisonment.