HAJI MOHAMED DAWJEE: Cape Town is heartless for criminalising the homeless
In 2018, two ordinances in Boise, Idaho (USA) were overturned because they made it a crime to sleep or camp in buildings, streets and other public places. The journey towards overturning this persecution against the homeless started in 2009 when six homeless people, convicted under the laws of the city, decided to sue them because their constitutional rights had been violated. And right they were.
A summary of opinion from the judges reads as follows: “As long as there is no option of sleeping indoors, the government cannot criminalise indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” The federal appeals court, where the case resided, further pointed out that any kind of prosecution of homeless people was a form of cruel and unusual punishment. So, for example, punishment by fines. Which is exactly where we find ourselves in Cape Town, in 2019 where by laws are being enforced which allow local government to fine homeless people from anywhere between R300 and R1,500 because of sleeping in the street, or in a car or hanging their laundry in a public space. These by-laws, which are being enforced are the result of the rotting remains of colonialism.
The Vagrancy Act goes all the way back to 1824. It found its feet in the United Kingdom when the country was unable to deal with the increasing numbers of poverty stricken people in Urban England and Wales. Here’s what happened: the UK fought in the Napoleanic wars, which ended in 1815. They poured money and men into battle. When they were done, they reduced the size of their armies and navies, which resulted in a massive amount of discharged military personnel who were jobless and homeless. With nowhere to go and no state to care for them, they resorted to building makeshift camps and sleeping on the streets. At the same time, England experienced an influx of migrants from Ireland and Scotland who all arrived in London to look for jobs. Unable to provide for them or control them, the House of Commons instead named this collective group of people “vagrants”and gave them them their own “act”, making it illegal for them to “sleep rough” or beg on the streets. And in 1834, settlers in South Africa adopted the same law. Please note, that in both instances, no option to “sleep comfortably” is offered in place of the “rough sleeping”.
Therefore, people living in poverty and on the margins of society are still affected by laws that are centuries old, which seek to persecute and penalise the “lesser than” in society for rather petty offences.
The criminalisation of a life lived on the streets is a result of many by-laws that exist in South Africa. So is the Democratic Alliance criminalising and punishing the homeless in the City of Cape Town? Yes. Are they allowed to? Yes. Should they be allowed to? One hundred percent no, because there is absolutely no way to justify the criminilisation of poverty and no way to argue that any punishment for this is fair or not cruel. There is just no way to defend it.
On Wednesday, City of Cape Town officials reportedly issued 199 fines to homeless people for various by-law infractions.
The city has insisted this was not an attack on the homeless and that they were simply enforcing the bylaws. However, it doesn’t take a scientist to figure out that there is a demographic in society that these bylaws disproportionately affects. Beryl in the ‘burbs never has to hang her laundry in public or sleep rough, and therefore Beryl will never face the brunt of the bylaw.
Isn’t it by-time all this changed?
Haji Mohamed Dawjee is a South African columnist, disruptor of the peace and the author of 'Sorry, Not Sorry: Experiences of a brown woman in a white South Africa'. Follow her on Twitter.