How Uganda’s vagrancy laws fuel extortion of key populations
By Justine Balya, advocacy officer at Human Rights Awareness and Promotion Forum (HRAPF) and participant in the Alliance's Photovoice project in Uganda.
In Uganda, a number of offences relating to being ‘idle and disorderly’ and ‘rogue and vagabond’, commonly referred to as the vagrancy offences, exist – and they are being used to exploit and extort many people from key populations. In 2016 HRAPF began researching the human rights implications of these vagrancy laws and how they are enforced. Our findings suggest that most arrests made under vagrancy charges are made purely for the purpose of extortion.
Cycle of arrests
Police will tend to arrest large groups of people on vagrancy charges, arresting as many as 170 people at a time and taking them to a police cell. Although police bond is free nowadays, in a number of cases the arresting officers will insist on some payment before releasing the arrested persons. This bribe could range from anywhere between 5,000 Uganda Shillings (1.50 USD) to 50,000 Uganda Shillings (about 15 USD).
People who have the means will be freed immediately. But there will be a few people who can’t pay. These people will be registered and put in a police cell, and told that somebody has to come from their families to bail them out, usually simply by paying the requested bribe, or else the case is taken to court.
If they have the means, of course people will pay, because they would rather do this than go through the whole court system. But those without money, and with no way of getting any from friends or relatives either to pay the bribe or pay bail fees, will spend up to six months on remand – usually for transgressions such as walking at night, looking unkempt, standing on the street, etc.
While in jail, people will be sent to do hard labour, which often involves working on somebody’s farm.
By law, the penalty for being idle and disorderly or rogue and vagabond ranges from six months to two years, depending on the circumstances of each case. In reality however, the state will continue to say they are still investigating for a long period of time, meaning a person’s time in jail, and working for free, can run into seven months as they wait to be tried.
At trial, the magistrates dismiss the majority of cases for want of prosecution. Nearly all the convictions on the charge of being a rogue and vagabond are upon the accused’s own plea of guilty, a phenomenon that is all too common as most people would prefer to have the criminal record and a non-custodial sentence, which is the usual result of a conviction on a plea of guilty, to spending the long period of time on remand. The cases that go to trial are always dismissed because the offence is simply impossible to prove beyond reasonable doubt, so people who are actually tried will have spent six or seven months of their life doing nothing for themselves, working for somebody else.
Targeting key populations
We have many sex workers in Uganda and they are also being extorted through our vagrancy laws.
The majority of the sex workers we meet will have been arrested at least once before, but it is extremely uncommon that they are arrested for prostitution, which should be the obvious charge. The vast majority are arrested for the offence of being ‘rogue and vagabond’.
A police officer may suspect someone is selling sex but he may not have the proof of this. As far as he’s concerned, if arresting them under a vagrancy offence keeps them off the street for six months, that’s fine - he has done his job. So they will go to jail and in the meantime there will be no one to take care of their children. By the time they leave the prison, they have lost their rented accommodation over non-payment of rent and their workspace will also be occupied by someone else because the brothel owners usually demand a daily payment on pain of eviction.
As such, incarceration always destroys the entire livelihood of the sex worker and disrupts the family life of her children and dependants, yet the general attitude seems to be, ‘We don’t really want to care, they will survive’. When they come out, they are expected to have magically acquired skills in jail to become say a teacher or a bricklayer. But of course they won’t have, so they will go back to sex work because that is how they can make money.
Incarceration always destroys the entire livelihood of the sex worker and disrupts the family life of her children and dependants.
On average, police will arrest around 20 sex workers in one raid. If they get 20,000 Ugandan shillings [$5 USD] from each person, they will make around 400,000 [just over $100 USD] in total. If there are three officers carrying out the arrests they will share the money between them. So they keep doing it because they know there is money to be made.
Similarly, when police see people who use drugs in a drug den, they’ll arrest them. It doesn’t matter what they are doing. If they can’t charge them with possession, well, then they were ‘idle and disorderly’. Or perhaps they were ‘frequenting a place used for smoking opium’, never mind that they may have been in the place for the first time in their lives, or even simply passing by at the time of the raid. It just keeps going.
The impact of incarceration
The effect this kind of incarceration has on people is hard to imagine. A large number of people who are being arrested under these offences are HIV positive. But when they are incarcerated, they are unlikely to be able to access antiretroviral (ARV) drugs especially during the time they spend in police custody.
Even in the best prisons, where ARV drugs are available, most people don’t want to say they are HIV positive because they don’t want to be exposed to the stigma that comes with it. So they will keep quiet, thinking they will be out soon and just take a break from taking their ARVs until they go to court. People genuinely do think “I’ll be fine, I’ve been taking my medicine religiously for seven years, so three weeks won't kill me.” There is a common saying which, loosely translated, means ‘One day (without preservation) is not enough for meat to putrefy’, and this guides some people’s philosophy in regards to ART when they get into contact with the criminal justice system. But they wait, and the weeks pass and turn into months. By the time they come out of prison, it’s been seven months and they’ve not taken their medicine once. A lot of them get very sick after that.
When people who use drugs are arrested and jailed they won’t be offered any counselling or rehabilitation services in jail. But they will be able to access drugs from other inmates or from the prison wardens and they will continue using them. When they come out, they are often more dependent on drugs than before, so demand has not been reduced.
What’s more, when people come out of jail, they will have to look for a new place to stay because, after six months, they will have been evicted. If they had a job, their boss will have probably fired them. Quite simply, they have to start again. But where does this person start from?
We are working very actively with the Commissioner of the Anti-Narcotics Unit of the Police Force. He is accommodating because he accepts that drug use is not going to end and drug supply is not going to go away. He has worked with people who use drugs for so long that he has an appreciation of the need for harm reduction services.
Because of this we are now working with his department, as well as the Directorate of Human Rights and Legal Affairs, which is instrumental in police training. When the Directorate invites police officers for a training, whether on harm reduction for people who use drugs or on marginalisation of LGBTI (lesbians, gay, bisexual, transgender and intersex) persons, they are more willing to engage than if a civil society organisation invited them. They assume that if it’s coming from headquarters, it has to be valid and at least they will sit and listen.
It’s a big step to be working with the police leadership and getting them to understand. For a very long time, we pretended that sex workers, people who use drugs and LGBT people did not exist in Uganda.
To me, this work has shown me that the offences of ‘idle and disorderly’ and ‘rogue and vagabond’ are the most dangerous laws we have in Uganda.
To me, this work has shown me that the offences of ‘idle and disorderly’ and ‘rogue and vagabond’ are the most dangerous laws we have in Uganda. Yes, laws against ‘unnatural offences’, sex work and drug use are harmful, but not nearly as harmful as the vagrancy laws because despite the pitfalls in the other laws, they at least have defined parameters for law enforcers. Vagrancy laws are couched in such terms as to give the arresting officer absolute discretion, even allowing arrests of persons who, in the view of the arresting officer, appear suspicious, or appear to be in a place for a ‘disorderly purpose’, whatever that may mean.
There’s a lot of work that has to be done in changing these laws and their enforcement in order to promote respect for the rights of LGBTI persons, sex workers and people who use drugs. It is vital that service provision and changing the laws should be at the forefront of our response: not just to HIV, but to all social issues affecting the key population groups we work with.
Human Rights Awareness and Promotion Forum (HRAPF) is a partner in PITCH, a five-year strategic partnership between the Alliance, Aidsfonds and the Dutch Ministry of Foreign Affairs.