Cruel hand of the law strikes the poor, homeless

It is often said that one of the purposes of law is to govern individual action by encouraging socially justifiable behaviour while discouraging certain supposedly unsocial action.

In the former case, the law would provide an incentive such as a tax exemption for a person who undertakes the desired action.

On the other hand, the law could discourage that action by prescribing a penalty for it. An example could be the law that criminalises drunken driving or smoking in a public place.

The protection of children or the environment could be an example of the social goods for which the law prescribes certain actions.

This week a law or regulation was passed in Kampala, Uganda, with the desired objective of protecting children, but whose effect in my view was cruel towards those same children.

The law made it a criminal offence for anyone to give food or money to any child without a home and who lives on the streets of Kampala.

The violation of this law would attract a fine or imprisonment for up to six months.

EXPLOITATION

This law came with bewilderment to many people who, like me, thought that although the proliferation of street children is a huge social menace in most countries, Kenya included, the offer of food or money to these children is the least that a well-meaning citizen could do in the circumstances.

The bureaucrats of Kampala see it differently.

The Lord Mayor of Kampala tried to justify the law by stating that the intention was to protect the children form sexual and commercial exploitation.

He noted that many of the children on the streets were actually sent by the parents and guardians to the streets to beg and/or conduct petty trade while posing as orphans and destitute.

This may be true and the intent would be a good one, but it leads one to the general lawmakers’ attitude towards homelessness and poverty which the law has not always viewed with kindness.

The immediately preceding piece I write in this column made reference to the decision by the ninth Circuit of the United Sates in which the court had struck out as unconstitutional a law which had made it a crime for homeless persons to sleep on the streets. The case was filed in 2009 by six homeless persons in California.

ANTI-VAGRANCY LAWS

They claimed that a law which classified sleeping on the streets as disorderly conduct constituted a cruel and unusual treatment to them in light of their inability to afford housing.

The judges said that criminalising poverty was not the best solution to the social problem of homelessness.

These set of laws known as anti-vagrancy laws, consider the poor living on streets a nuisance to the larger society and therefore makes their status of homelessness a crime.

Until 1997, Kenya had a vagrancy legislation which made it a criminal offence for any unemployed person to walk on the public roads with no intent or for the purpose of begging.

This was known as the offence of aimless loitering. The presumption then was that the vagrant was up to no good and was possibly on a mission to steal.

This precolonial legislation took its life from the Vagrancy Act of the United Kingdom.

Passed in 1824, the UK Vagrancy Act made it an offence to sleep rough or beg from a public place or on the streets.

Before that, England had a Vagabonds and Beggars Act of 1494. The reason for this legislation was simply that vagrancy was associated with petty crime and lawlessness.

It was punishable by imprisonment, detention in dedicated labour camps for compulsory labour.

CLASS POLITICS

The essence of these laws was that every able-bodied person must be gainfully engaged in an occupation to fend for himself and not laze around.

In truth, there was also a class dimension to it; in that the privileged classes did not wish to be bothered by unsightly poor people begging on the streets. This was treated as a general nuisance to society.

The other area in which laws were indifferent to or targeted the poor in society was in the issue of the right to legal representation when facing a crime.

Whereas the laws of most countries recognised that a person accused of a criminal charge has the right to be represented by a lawyer of his choice, the laws were clear that this did not provide a right for the accused person for the State to provide an advocate to defend him.

This was the case in Kenya until the Constitution changed in 2010.

Before the Constitution of 2010, the obligation of the State was to provide an advocate for the accused person only for crimes in which the accused would face capital punishment in the event of conviction.

Then, the only capital offences were less than five, out of the hundreds of offences in the statute books of Kenya.

This means that poor people had to face criminal charges in court without an advocate and risk unfair conviction.

REPRESENTATION

Kenya was not alone in this regard. Even in the United States, a poor person’s right to legal aid was not absolute until 1963.

Prior to that, the position was that only defendants of capital offences were entitled to legal representation at the expense of the State.

In the famous case of Earl Gideon, Gideon was charged with breaking and entering with the intent to commit a misdemeanour, which is a felony under Florida law.

He did not have an attorney and was forced to represent himself after the judge denied his request to get one at State expense.

The reason for the denial was that the law only permitted appointment of counsel for poor defendants charged with capital offences.

Gideon represented himself fully. He was found guilty and sentenced to serve five years’ imprisonment.

His first appeal was dismissed and he filed a handwritten appeal to the US Supreme Court.

FAIR TRIAL

After the case was heard, the court held that the constitutional right to counsel is a fundamental right essential to a fair trial which must be provided to every defendant who cannot afford it.

Justice Black stated that “reason and reflection require us to recognise that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”.

He further wrote that the “noble ideal” of “fair trials before impartial tribunals in which every defendant stands equal before the law … cannot be realised if the poor man charged with crime has to face his accusers without a lawyer”.

Simply put, the Supreme Court was upholding the equality of all person before the law and endeavouring to ensure that wealth or poverty play no role.

In Kenya, this right is yet to be fully realised because the right of every accused person to be granted an advocate at the expense of the State is not automatic.

Rather, it is required that the State provides an advocate for a poor defendant only if substantial injustice would result if the person was not given an advocate.

WARPED LOGIC

The practical effect is that State has taken the view that the substantial injustice is considered in light of the severity of the offence and brings back the issue if the State, more often, is inclined to provide advocates for capital offences.

For a country whose Constitution provides for a separate right of access to justice, one must wonder how this basic right of defence by an advocate is made conditional upon the poor having to prove that facing a trial without an advocate is not enough risk of injustice in the first place.

The effect of this brings us back to the example in Kampala where it is an offence to assist the poor. This shows the indifference with which the poor are viewed in law.

The assumption in Kampala would appear to be that if the street children are not given food and money by passers-by, they will go back to their homes and get food from there.

It reminds me of the famous quote in poverty law classes. Anatole France said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

The writer is Head of Legal at Nation Media Group