In 2020, new offences were created for non-compliance with COVID-19 related laws and emergency measures in many countries, in some places resulting in detention (see Imprisonment and prison overcrowding). Criminalising non-compliance with coronavirus regulations has in many instances criminalised poverty, affecting the most marginalised. In the Philippines for example, quarantine protocols and prolonged restrictions on movement disproportionately affected poorer communities with higher numbers of arrests as people had to leave their homes for food, water and work out of economic necessity. In Malaysia, two men were imprisoned for three months when they violated a stay-at-home order as they went fishing for food. The Malawi High Court in late April upheld a stay on the lockdown, after a human rights coalition highlighted the impracticalities of a lockdown where the majority of the population live below the global poverty line, and 90 per cent of households rely on water from outside their homes.
The imprisonment of people involved in illegal drug markets, and particularly people who use drugs, continues to be a major contributing factor to prison overcrowding globally. Punitive drug laws have imposed disproportionate criminal sanctions over the past decades and have led to an estimated 2.5 million people worldwide in prison sentenced for drug offences. Of these, 22 per cent (470,000 people) are sentenced for drug possession for personal use. Among the further 1.6 million people estimated to be convicted of drug offences, 54 per cent (860,000) are convicted for possession for personal use.
International bodies have criticised the use of detention for drug-related offences, in line with the UN System Common Position on drug-related matters, which calls for alternatives to conviction and punishment for drug offences, including the decriminalisation of drug use and possession for personal use. In 2020, the UN Committee on Economic, Social and Cultural Rights reiterated that the criminalisation of drug use could act as an impediment to the realisation of the right to health. On International Human Rights Day in December 2020, the International Narcotics Control Board also highlighted that the UN drug control conventions require governments to give special attention to alternatives to conviction and imprisonment for drug-related offences, including education, rehabilitation, treatment and aftercare.
Positively, a number of countries have made progress towards decriminalisation of drug use and possession for personal use. Ghana became the first African country to decriminalise drug use and possession of small amounts for personal use. Oregon became the first US state to decriminalise personal possession of all drug in November 2020; Vancouver in Canada has voted to do the same, and Norway is considering a decriminalisation proposal. A bill was also tabled in Guyana in February 2021 which would remove prison sentences for possession of up to15 grams of cannabis, although this would be replaced by mandatory counselling ‘for a period to be determined by the counsellor’.
At least 42 countries in Africa have laws on petty offences such as loitering and vagrancy which effectively criminalise poverty.
Efforts to address vague, arbitrary, colonial-era petty offences were stepped up over the past year. In Africa, at least 42 countries have laws against vagrancy, being idle or disorderly, or a “rogue and vagabond”, which are actively enforced, criminalising minor infractions and behaviour that is otherwise not criminal. In November 2020, the African Commission on Human and People’s Rights adopted a simplified version of the 2017 Principles on the Decriminalisation of Petty Offences in Africa. This soft law instrument provides a continental legal standard on the type of petty offences that African states should review and provides a roadmap for civil society advocacy, and for all African States to repeal these laws.
Furthermore, in a landmark ruling, the African Court on Human and Peoples’ Rights issued an Advisory Opinion in December 2020 that holds that vagrancy laws, which criminalise poverty and status or identity, violate human rights and discriminate against marginalised populations, and that states have a positive obligation to repeal or amend these laws. Litigation is now underway in approximately 15 new cases in Malawi, Nigeria, Sierra Leone and Uganda to challenge petty offences. Most recently, a case was filed in South Africa in March 2021 challenging the criminalisation of homelessness using the African Court Advisory Opinion.
In January 2021, the European Court of Human Rights found that a blanket ban on begging in Switzerland, punishable by a fine or a five-day custodial sentence in the event of non-payment, breached the right to private and family life. In their decision the Court took account of the fact that begging constituted a means of survival for the woman in the case.
The criminalisation of certain actions, beliefs, behaviours or other socio-economic factors continue to have a particular impact on women. A 2020 study in Sierra Leone found that 34 per cent of women had either been convicted of or charged with crimes related to poverty and drug use. Larceny was the most common non-violent offence and, according to testimony from these women, they had usually stolen small sums of money, mostly from family members, to provide for their children. Laws prohibiting witchcraft or sorcery also tend to be applied predominantly to women. This is the case in Central African Republic, where most of the approximately 24 women in prison have been accused of witchcraft, which attracts a prison sentence of five to ten years and a fine.
Women continue to be imprisoned under laws restricting their reproductive rights, such as in Malawi, where some women in prison have been charged with infanticide for having miscarriages and stillbirths. In El Salvador, as of September 2020, 19 women who said they had suffered obstetric emergencies remained imprisoned on charges of abortion, homicide, or aggravated homicide. At least 16 of them had been convicted of aggravated homicide.
See a complete list of references in the full report, Global Prison Trends 2021.