End of an era for the colonial ‘idle and disorderly’ laws as Museveni issues mass pardon for all suspected of breach in Uganda

President Museveni has ordered the release of all suspects arrested under the colonial era legislation of “idle and disorderly” behaviour.

Police chief Martin Okoth Ochola has written to regional police commanders, instructing them to comply with the president’s directive.

In a report in 2016, a non-governmental organisation, the Human Rights Awareness and Promotion Forum (HRAPF), said the arrests took place under “vagrancy laws” introduced during British colonial rule and mostly targeted poor people who had no permanent home or employment.

A study showed that 958 arrests had been made between 2011 and 2011 at five police stations sampled, it added.

The president also ordered that no person be arrested under the law in future, the privately owned Daily Monitor newspaper reports.

This is the third time that President Museveni has made the order, the last one being in his State of the Nation address in 2017

History of ‘Idle and Disorderly’ Laws in Uganda:

The ‘idle and disorderly laws’ in Uganda can be traced to 14th century England. Being a British colony, the laws were introduced in Uganda during the colonial era pursuant to the 1889 Africa Order – In – Council, and later the 1902 Uganda – Order – In – council. However, the ‘idle and disorderly’ laws were not introduced in Uganda until 1950 when the current Penal Code Act was introduced and adopted.

They have remained unchanged and un-amended since then and remain in the same form in which they were introduced by the British. This is despite global movements to have such laws repealed or amended. It has been argued that they still remain part of Uganda’s law books because of the traditional justifications for their existence, which are public safety, public annoyance and fraud.

‘Idle and disorderly’ laws form part of what are usually referred to as ‘vagrancy laws’ which are laws that criminalise persons regarded as ‘vagrants’- persons who wander from place to place and have no permanent home or employment, in effect the poor. They are regarded as ‘petty offences.’ Petty offences are those offences that are tried by the lowest courts in the land and usually attract the lowest punishments, which in some cases however may include imprisonment.

Although seemingly neutral, ‘Idle and disorderly’ provisions harbour deep discrimination. The people that fall victim to them are almost always those on the margins of society who lack proper documentation, proper employment and economic opportunities, and do informal undocumented work. These laws therefore seem to be intended to legislate poverty out of the faces of the rich and powerful.

The victims of these ‘easy-to-enforce’ laws suffer under them and their basic rights are typically violated. The key rights that seem to fall prey to these laws are: the right to equality and freedom from discrimination, the right to liberty, the right to freedom from cruel, inhuman and degrading treatment, and the right to privacy. Beyond violation of rights, the enforcement of these laws has an effect on the legal system. They contribute to overcrowding in police cells and prisons and thus place a strain on resources in the criminal justice system.

Although no comprehensive study interrogating the enforcement of ‘Idle and disorderly’ laws in Uganda has been done, there has been a sustained discussion of the constitutionality of these laws, and there has been consensus that they are unconstitutional and ought to be decriminalised. The Justice, Law and Order Sector (JLOS) conducted a study on sentencing and offences legislation in Uganda and recommended that status crimes which include being idle and disorderly and being rogues and vagabonds should be decriminalised not only because they are vague and overly broad but because they also discriminate on the basis of economic status.

Elsewhere in Africa, Muntingh & Petersen using examples and evidence from different African countries found that enforcement of these offences perpetuates discrimination and in effect criminalises poverty. They found that their enforcement does not promote public safety and is not proportional to the mischief that they purport to address. Their enforcement also has huge effects on the criminal justice system as they contribute to overcrowding in prisons and also continue to drain money that would have been used more productively. The Southern Africa Litigation Centre (SALC) and Centre for Human Rights Education (CHREAA) conducted a study on these laws in Blantyre, Malawi in 2013, which found that these laws are used to harass the poor and unprivileged in Malawi. Banda & Meerkotter discussed the constitutionality of Malawi’s ‘Idle and disorderly’ laws and concluded that these offences were unconstitutional.

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