Decriminalization of petty offences

After the successful completion of Phase I of the two-year project on Enhancing the Role of African National Human Rights Institutions in Decriminalisation of Petty Offences, the Network of African National Human Rights Institutions (NANHRI) has commenced implementing Phase II of the project targeting three African National Human Rights Institution (NHRIs). Whilst Phase I targeted the  Kenya National Commission on Human Rights, Malawi Human Rights Commission, Commission on Human Rights and Administrative Justice of Ghana, Conseil National des Droits de l’Homme de Côte d’Ivoire and South African Human Rights Commission, the Phase II will focus on the Uganda Human Rights Commission, the Human Rights Commission of Sierra Leone and the National Human Rights Commission of Nigeria.

The project, which is funded by the Open Society Foundation, seeks to:

• Enhance the capacity of NHRIs to undertake reviews of laws, policies and administrative measures to identify areas for reform in line with the regional and international human rights standards.
• Increase dialogue and focus at national level on the importance of decriminalisation of petty offences

• Intensify collaboration between NHRIs and other state actors in the criminal justice system and civil society organisations and to explore alternative ways of dealing with petty offence.

This phase will be cognizant of some lessons learnt from Phase I such as:

1. That petty offences are linked to socio-economic issues, as such, the improvement of lives of the marginalised cannot be separated from the prevalence of petty offences. Therefore, an integrated societal approach towards tackling the issue is required.
2. There is no clear disaggregated data by offences committed in correctional facilities, thus if there is any meaningful impact to be achieved towards decriminalisation of petty offences, there is need to encourage NHRIs to collect this data to inform policy review.
3. It was realized that different contexts/countries, on some issues, may require adoption of different strategies in advocating for decriminalisation of petty offences. Thus the second phase will seek to be aware and sensitive to country contexts. Such may include a re-evaluation of the existing legal architecture and enforcement apparatus.
4. That for a successful advocacy on decriminalisation of petty offences, there is need to have a multi-stakeholder approach. This includes the different departments in the justice system, parliament, law enforcement agencies, civil society organisations, informal sector labour associations and others.

Profile of the Select NHRIs

 Uganda Human Rights Commission

The Uganda Human Rights Commission (UHRC) is established by Article 51 of the 1995 Constitution of the Republic of Uganda and operationalised by the Uganda Human Rights Commission Act – No. 4 of 1997, as well as the Uganda Human Rights Commission Procedure Rules No. 22 of 1998. It investigates, at its own initiative or on a complaint made by any person or group of persons against the violation of any human rights. They visit jails, prisons and places of detention or related facilities with a view of assessing and inspecting conditions of the inmates.

National Human Rights Commission of Nigeria

The National Human Rights Commission of Nigeria (NHRC) is established by the NHRC Establishing Act (1995). This Act was deemed defective and was reviewed under the NHRC Amendment Act (2010). The amendment sought to enhance the capacity of the Commission to discharge its mandate as stipulated by the Paris Principles. It is important to note that decisions of the Nigeria HRC are enforced in court as they are equivalent to decisions of the Court of Appeal.

The Human Rights Commission of Sierra Leone

The Human Rights Commission of Sierra Leone is established by the Human Rights Commission of Sierra Leone Act No 9 of 2004. It has a broad mandate to promote and protect human rights. The Commission is also tasked with drafting and reviewing legislation and advising the government concerning compliance by such laws with the obligations of Sierra Leone under international treaties or agreements. In addition, it is charged with advising the government concerning preparation of periodic reports required by international human rights treaties or agreements to which the State is a party and publish an annual report on the State of Human Rights in Sierra Leone.

Progress Made in each country

Sierra Leone has a New Bail and Sentencing Guidelines (2018) that made provision for Non-Custodial Sentences for Petty Offenses. Center for Accountability and Rule of Law – Sierra Leone (CARL-S), one of the commissions’ partners is conducting court monitoring to determine if judges are complying or using the guidelines, and its impact on sentencing.

To ensure compliance with obligations on application of international and regional normative frameworks for human rights of persons deprived of their liberties, the Uganda Human Rights Commission participated in the amendment of the Prisons Act. Their input was to ensure that the Act is compliant with, the UN- Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), Guidelines for the prohibition and prevention of torture in Africa (Robben Island Guidelines), Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines), UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), International Covenant on Civil and Political Rights, African Charter on Human and Peoples’ Rights, UN Convention of the Rights of the Child and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. The UHRC also led the drafting and advocacy for the enactment of the 2012 Prevention and prohibition of Torture Acts in Uganda, supported and advised on the enactment of the Human Rights Enforcement Act. Currently, the Commission is calling for the decriminalisation of petty offences in Uganda and the amendment of the Penal Code Act to decriminalise colonial provisions which seem to criminalise poverty by targeting the poor.

The National Commission on Human Rights of Nigeria has played a leading role towards the enactment of the Administration of Criminal Justice Act (2015). The Act pushes for a criminal justice system which promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interests of the suspects, the defendants and victims of crime. The Commission has also played a lead role towards the enactment of the Nigerian Correctional Services Act 2019. The enactment of this law repealed the Nigerian Prisons Act. This was to ensure Nigeria conformed to the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa.

All the three human rights commissions note the need for continued advocacy towards the decriminalisation of petty offences. Phase II of the project will continue to support the NHRIs   to build up on work already done by providing platforms for in-country consultation and peer learning to further their advocacy work.

Purpose:

The Network of African National Human Rights Institutions (NANHRI) is undertaking a two-year Pilot Phase Project to strengthen NHRIs engagement in national and regional processes for the Decriminalization of Petty Offences in Africa.

Background:

At the 21^st Extraordinary Session of the African Commission on Human and Peoples’ Rights (ACHPR) (hereinafter referred to as the Commission), the Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa, was tasked to develop the Zero Draft Principles on the Decriminalization of Petty Offences in Africa (hereinafter referred to as the Principles).

 Overview of the Project:

Drawing from the financial support of the Open Society Foundation (OSF), NANHRI is implementing a Pilot Phase project titled, “Enhancing the Role of National Human Rights Institutions (NHRIs) in the Decriminalization of Petty Offences in Africa”.

Project Rationale:

To promote and support the role of five NHRIs: Côte d’Ivoire, Ghana, Kenya, Malawi and South Africa to undertake national and regional level interventions to decriminalize petty offences.

Poverty is not a crime campaign poster. Photo: ICJ.

Role of NHRIs:

The project stems from a recognition of NHRI’s mandate in the promotion and protection of human rights in compliance with the Paris Principles, uniquely placing them to undertake a holistic assessment of the criminal justice system and inter alia advise States on their obligation to conform to regional and international human rights instruments which explicitly curb the vice of violation of fundamental human rights in all its dimensions.

Target audience: Primarily the NHRIs. Secondarily other state and non-state actors.

Project Strategy: The project shall adopt the following three strategies in carrying out its activities:

• Development of five National Action Plans and Memoranda:It is expected that these will guide NHRIs’ interventions at the national level focusing on review of laws and policies, providing advisories to the States on the areas for reforms, training key stakeholders in the criminal justice system on alternatives to detention of petty offenders e.g. non-custodial
• Capacity strengthening of NHRIs:to equip the NHRIs with knowledge on regional and international human rights frameworks relating to decriminalization of petty offences as well as findings of studies that have been undertaken.
• Collaboration between NHRIs, state and non-state actors in the Criminal Justice System:the Project shall build on existing interventions and increase the voice of the actors pushing for law and policy reforms on decriminalization of petty offences to speak in one unified voice through national consultations.
• Documentation of all the interventions:the aim of this is to highlight the best practices and lessons on the role of NHRIs in decriminalization of petty offences in Africa.

Campaign Partners: NANHRI is partnering with 11 other organisations in this Project, all who are involved in the campaign on the Decriminalisation of Petty Offences in Africa.

The partners undertake to promote the adoption and implementation of the Commission’s Principles on the Decriminalisation of Petty Offences in Africa – ACHPR/Res. 366 (EXT.OS/XX1) 2017 and encourages stakeholders, including governments and National Human Rights Institutions (NHRI), to use the Principles to affect law, policy and practice reforms.

To download the Communique of the Ghana Regional Conference on Decriminalisation of Petty Offences in Africa, please click this link https://www.nanhri.org/2018/10/26/baseline-assessment-report-enhancing-the-role-of-nhris-in-decriminalisation-of-petty-offences-in-africa/

For more information on the campaign, please see www.pettyoffences.org.