Rejecting the colonial legacy of discriminatory laws
States around the world should repeal discriminatory and archaic laws that reproduce historical inequalities and patterns of oppression.
Police talk with a homeless man in Amsterdam, The Netherlands during the coronavirus outbreak in 2020. Credit: Robert vt Hoenderdaal / iStock
In 2018, Theresa May, then UK prime minister, expressed “deep regret” for Britain’s colonial legacy of laws that criminalize same-sex conduct.
The legacy of colonialism extends beyond these laws, though, and is often deliberately obscured and forgotten. Around the world, outdated colonial-era laws and policies discriminate against marginalized communities, including not only LGBTQI+ people but also people living in poverty. The stickiness of these laws denies the rights to nondiscrimination and dignity, which must apply to everyone.
Some of these laws are nearly 500 years old. The Buggery Act of 1533, passed by Parliament during the reign of Henry VIII, outlawed sodomy in England and in what then became the “British Empire.” In 1885, other consensual sexual acts were criminalized in Victorian Britain and its colonies under the concept of “gross indecency between males.”
Nowadays, 67 countries worldwide still criminalize same-sex consensual acts, through laws that often refer explicitly to sex between men. Some 32 of these countries, the majority of which are former British colonies, are members of the Commonwealth, including Uganda, where Parliament has recently approved a new draconian bill targeting LGBTQI+ people and their allies. Some 41 countries explicitly criminalize sex between women, as many extended the British colonial notions of “gross indecency” or “unnatural offences” to women.
But the colonial legacy of British laws runs even deeper. Contemporary laws and practices that discriminate against marginalized communities in the UK and around the world, including during the COVID-19 pandemic, are grounded in the harmful and stigmatizing legacy of colonial-era laws.
In May 2020, at the height of the COVID-19 pandemic, the London Metropolitan Police checked the identity of a homeless migrant man near Liverpool Street Station. The irony was lost on the officers, who decided to fine him because he did not comply with the government’s guidance to “stay at home.” To add insult to injury, they also arrested him because an arrest warrant was pending for a previous minor offence.
In the UK, the 200-year-old Vagrancy Act, which came into being after the Napoleonic Wars, combined with laws and bylaws introduced more recently, has been used to move people experiencing homelessness away from certain areas.
In February 2022, the government announced its decision to scrap the Vagrancy Act. While the decision to repeal the act is final, it has not been removed from the statute books because the government seeks to replace it with alternative legislation, which campaigners fear could be another set of similarly punitive measures.
As Amnesty International highlighted last year, the authorities make use of these archaic laws, combined with other public order laws and bylaws, to penalize people who experience homelessness and sleep rough. Earlier this month, it was revealed that more than a thousand people experiencing homelessness have been arrested since February 2022.
English laws dating back to the fourteenth century and targeting people who are homeless or who live in poverty are still in force in dozens of countries worldwide. These laws were introduced in many British colonies through a model criminal code based on the English Vagrancy Act of 1824. The laws, part of an overall system of racial domination imposed by colonial powers, originally had the purpose of ensuring cheap labor and reducing the authorities’ responsibilities to address poverty and protect property.
Some 33 countries on the African continent still punish people based on outdated notions that largely reflect colonial perceptions and are used to dehumanize individuals with a perceived lower socioeconomic status. For example, the Criminal Code of Malawi, a former British colony, punishes people for “being a rogue and a vagabond,” which often results in mass arbitrary arrests targeting people who live in poverty. In 2017 and 2022, the High Court of Malawi ruled that these provisions were unconstitutional and ordered Parliament to review the Criminal Code before 2024.
Vagrancy laws are discriminatory because they are often used to harass and arrest people who live in poverty, LGBTQI+ people, sex workers, and racially marginalized communities. For example, loitering, a “crime” that simply involves lingering about, is used to harass, arrest, and punish sex workers not only in the UK but also in many of its former colonies, including Sierra Leone, where NGOs are currently challenging these archaic laws before the Court of Justice of the Economic Community of West African States.
There is a growing recognition that laws that criminalize acts associated with poverty and homelessness are discriminatory and violate human rights. The UN Human Rights Committee has raised concerns about discrimination and cruel, inhuman, or degrading treatment in the context of the criminalization of homelessness. In 2020, the African Court on Human and Peoples’ Rights found that vagrancy laws, including laws criminalizing homelessness, are incompatible with several human rights enshrined in the African Charter on Human and People’s Rights, including the right to live free from discrimination and the right to dignity.
States around the world should repeal discriminatory and archaic laws that reproduce historical inequalities and patterns of oppression. Vagrancy laws, laws criminalizing same-sex conduct, as well as other criminal laws, are part of a colonial legacy that must urgently be dismantled.
Several European countries are responsible for having introduced discriminatory laws in their former colonies. Besides the UK, France and the Netherlands also criminalized same-sex sexual conduct in the territories that they controlled, such as Cameroon and the southwestern corner of South Africa, respectively.
European countries must acknowledge the historical damage of their criminal laws beyond the mere expression of regret and repeal laws and regulations that criminalize poverty and discriminate against marginalized communities. Countries that were subject to colonialism must equally repeal these laws if they genuinely intend to challenge the legacy of colonialism.
Marco Perolini works as policy advisor with Amnesty International. He focuses on criminalization, including in the areas of sexuality and reproduction, and criminal justice. He has extensive human rights research experience in the areas of LGBTQI+ rights and discrimination. His PhD thesis and academic research focuses on migrant activism and the construction of human rights from below. Twitter: @esteban80paris.