The determination was made by a panel of three judges comprising High Court judges Zione Ntaba, Michael Mtambo and Slyvester Kalembera, meeting as a constitutional court.
Astreet vendor Mayeso Gwanda took the matter to Constitutional Court challenging the constitutionality of Section 184 (1) (c) of the Penal Code which provides that “every person in or upon or near any premises or in any road or highway or any place adjacent thereto or in any 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, is deemed a rogue and vagabond.”
Gwanda was arrested around 4am in March 2015 at Chichiri near a bus stop while walking from Chilomoni Township along the Masauko Chipembere Highway going to Limbe.
With plastic bags in hands, he was stopped by police and asked where he was going. He explained but was later taken to Soche Police.
Gwanda,who was helped by the Southern Africa Litigation Centre (Salc) and the Centre for Human Rights Education, Advice and Assistance (Chreaa) , “argued that the offence of rogue and vagabond results in a number of rights violations, including his rights to dignity, privacy, freedom from inhumane and degrading treatment, freedom and security of person, freedom from discrimination, and freedom of movement.”
The judges agreed with Gwanda and declared the offence “unconstitutional.”
Gwanda’s lawyer Mandala Mambulasa, said he was pleased with the conclusion of the case.
The case was joined by friends of the court who included Legal Aid Bureau (LAB), Malawi Law Society (MLS), Paralegal Advisory Service Institute (Pasi) and Chreaa.
Chreaa executive director Victor Mhango said they conducted a the study which identified gaps in the law and that the poor and marginalised groups such as prostitutes have been unfairly targeted.
“The harsh effects of minor nuisance-related offences are felt most by the poor, who are unfairly targeted by these laws and who do not have easy access to legal representation and family resources once arrested,” said Mhango.
The research was aimed at ascertaining the extent of police enforcement of the rogue and vagabond law and it focused on the arrest practices of Blantyre and Limbe police stations and included interviews with magistrates, police officers and sex workers.
First Published by the Nyasa Times.