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Decriminalisation of Vagrancy Laws in Malawi

The goals of the project include law reform initiatives aimed at the decriminalisation and/or declassification of minor nuisance-related offences in Malawi and the region; and the reduction in human rights violations by law enforcement agencies when enforcing minor nuisance related offences.

Background
The Malawi Penal Code provides for various nuisance-related offences, including common nuisances (section 168); gaming and betting offences (s169-177); idle and disorderly persons (s180); conduct likely to cause a breach of the peace (s181); use of insulting language (s182); nuisances by drunken persons (s183); and rogues and vagabonds (s184).

Many of these offences reflect fundamental defects of vagueness, over breadth, disproportionality and arbitrariness in application of the law. Offences such as being an idle and disorderly person (section 180) and being a rogue and vagabond (section 184) are sometimes used indiscriminately to arrest persons, contributing to overcrowding in police cells and placing a strain on resources in the criminal justice system.

These laws tend to give law enforcement officials a wide discretion in application, which increases the vulnerability of persons living in poverty to violence and harassment.

In light of the above, CHREAA, in collaboration with SALC, are engaged in an intensive campaign to decriminalise such petty offences and improve the arrest practices by police and their attitudes towards marginalised groups.

CHREAA is specifically working towards the repeal of section 184 of the Malawi Penal Code, which deems various persons rogues and vagabonds, including every suspected or reputed thief who has no visible means of assistance and cannot give a good account of himself and any person found on a road or at a public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose.

Activities
On 20th and 21st August 2014, CHREAA organised a workshop in Mangochi on ‘Interpretation and use Malawi’s Penal Code provisions relating idle and disorderly persons and rogue and vagabonds’ for police trainers.

Participants to the workshop were police trainers from police training schools of Limbe, Mtakataka, Mlangeni and Zomba Police College. The workshop was a result of collaboration between the Malawi Police Service (MPS) and CHREAA.

The collaboration seeks to support capacity building and institutional strengthening of MPS to have a better understanding of vagrancy and nuisance related offences and procedures to be followed when arresting and detaining suspects—including sex workers—thereby reduce discriminatory enforcement of such penal provisions which victimise poor and vulnerable citizens.

Owing to its nature as a national advocacy project, CHREAA has made a deliberate strategy to engage the media in raising awareness on the impact of the vagrancy laws on the rights of poor people in the society.

CHREAA trained journalists on ethical and human rights friendly reporting of vagrancy issues in preparation for the advocacy campaign. As a result of that training, CHREAA partnered with Nation Publications Limited (NPL) to commission its journalists to write articles on the negative impact of police enforcement of vagrancy laws on human rights.

CHREAA conducted interactive radio programmes during which members of the public sent text messages to live programmes.

MIJ Radio has also been instrumental in reporting, documenting and following up issues related to rogue and vagabond offences. One of its reporters, Thomas Kachere, produced a special report on the history and impact of rogue and vagabond cases on human rights in Malawi.

Times Television has lately also developed an interest in rogue and vagabond cases and it produced a 45-minute programme with CHREAA discussing the impact of rogue and vagabond offences on poor Malawians
CHREAA held a meeting with the Minister of Justice and Constitutional Affairs Hon Samuel Tembenu, which was arranged to create an environment for political support for the intended law reforms. CHREAA was encouraged by the support from the minister, who assured the organisation of his support for the intended law reforms.

Director of Public Prosecutions (DPP)CHREAA also held a meeting with the DPP Mary Kachale with the sole purpose of pushing for finalisation and adoption of Prosecution Guidelines. Although the DPP expressed concern that there was need to do more consultation on the guidelines, she indicated that the guidelines were very important and that she will initiate consultations with relevant stakeholders in order to finalise guidelines in the near future.

Inspectorate of PrisonsThe Inspectorate of Prisons has also been a strategic partner to work with under the project. CHREAA has had several meetings with the Inspectorate whose discussions centred on the impact of arrests for minor offences on overcrowding in prison.

Paralegals
CHREAA also trained its own and PASI paralegals in order to empower them as they engage in the campaign for decriminalisation of the vagrancy laws and understand the relations between human rights and the vagrancy laws.

Case study
CHREAA identified a case of Republic vs Mayeso Gwanda, in which the accused was charged with the offence of being rogue and vagabond contrary to Section 184(c) of the Penal Code. With support from SALC, CHREAA identified lawyers to represent Gwanda who was granted bail after a plea of not guilty.

The High Court, sitting as a Constitutional Court, has been asked to determine whether the offence of rogue and vagabond under section 184 (c) of the Penal Code is consistent with sections 19(1), 19(3) and 19(6) of the Constitution which provides for right to dignity, right not to be subjected to cruel, inhuman and degrading treatment and the right and freedom of security of a person respectively.

The High Court has also been asked to determine whether section 184 (c) of the Penal Code infringes on the right to non-discrimination under section 20(1) of the Constitution and also the right to privacy of the accused person under section 21 and the freedom of movement under section 39 of the Constitution.

The project has so far made a huge impact as it has raised a lot of awareness relating to vagrancy laws and its impact on human rights. There has been increased awareness of concerns around the manner in which sections 180 and 184 of Penal Code are enforced. Identify which courts are most susceptible to litigation and identify the factual scenario most useful to litigate on.

The beneficiaries of this project are the people of Malawi and through the media interaction and through interactions with the paralegals, it is evident that the beneficiaries support the initiatives of the project. However, there is still fear among the general public in cases where they are arrested by the police and charged with the offence of rogue and vagabond.

First Published by Chreaa

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