Inmates celebrating the international women week with Kenya Red Cross at the Garissa main women prison. (File)
Petty offences that criminalise poverty-related and survival activities remain embedded in Kenya’s legal framework despite constitutional guarantees on equality, dignity and socio-economic rights, findings highlighted by a new assessment done ahead of the launch of a new Petty Offences Scorecard show.
The scorecard, an initiative by the Network of African National Human Rights Institutions (NANHRI), was launchedon Friday tomonitor African countries’ implementation of the African Commission on Human and Peoples’ Rights (ACHPR) Principles on the Decriminalisation of Petty Offences in Africaas part of the ongoingcampaign to decriminalise Poverty and Status.
The digital platform aims to measure progress in reforming laws that disproportionately criminalise poverty and survival-related activities such as begging, loitering, street hawking and sleeping in public spaces.
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According to NANHRI Executive Director Gilbert Sebihogo, the scorecard has been piloted in Kenya, South Africa and Côte d’Ivoire, where similar assessments were done.
The assessment of Kenya shows that laws and by-laws at both the national and county levels continue to penalise activities such as loitering, begging, street hawking and broadly defined public nuisance offences, many of which disproportionately affect people living in poverty, exposing vulnerable groups to arrest, prosecution and repeated interactions with the criminal justice system.
“Petty offences are minor, non-violent offences that criminalise everyday acts associated with poverty, status, or survival in public spaces. These include laws against loitering, being ‘idle and disorderly’, begging, hawking without a permit, or sleeping in public places. These offences are often vague and overly broad, giving wide discretion to law enforcement and disproportionately targeting people who are poor, homeless, or otherwise marginalised,” NANHRI says.
A review of laws across Kenya’s five metropolitan municipalities, Nairobi, Mombasa, Kisumu, Nakuru and Eldoret, which together are home to an estimated nine million people, found that several by-laws and statutory provisions continue to penalise activities associated with poverty, despite constitutional guarantees on equality and socio-economic rights.
For instance, the Nairobi City County Public Nuisance Act, 2021, criminalises“public nuisance”,broadly defined to include acts or omissions that annoy, creating wide discretionary powers for enforcement.
At the national level, vagrancy-related offences remain in law under Section 182 of the Penal Code and Section 29(g) of the Criminal Procedure Code.
Similar provisions also exist in county legislation, including Section 18(1) of the Machakos County Commuter Motor Vehicle Act, 2015, which outlaws behaviours such as loitering and other conduct deemed disorderly.
Although begging is not recognised as a standalone offence, it remains effectively criminalised under Section 182(b) of the Penal Code, which classifies certain forms of begging as conduct by an “idle and disorderly”person.
The Machakos County Commuter Motor Vehicle Act also indirectly prohibits begging through provisions that outlaw obstructing or interfering with people boarding or alighting from vehicles.
The assessment further found that informal economic activity is similarly regulated through county legislation.
For instance, hawking without a valid permit or trading outside designated areas remains an offence under various county by-laws, including those in Nairobi City County, exposing many informal traders to fines, arrests and confiscation of goods.
These laws are among those the newly launched Petty Offences Scorecard seeks to assess against the African Commission on Human and Peoples’ Rights Principles on the Decriminalisation of Petty Offences in Africa, to encourage legal reforms that better protect the rights of people living in poverty.
“Beyond tracking compliance, the platform seeks to encourage African governments to align domestic laws with regional human rights standards while strengthening accountability in addressing laws that disproportionately affect people living in poverty,” Sebihogo said.
