Lawmakers have moved at a snail’s pace to change some draconian laws and history will record that it took a vendor to get the Constitutional Court to invalidate a section of rogue and vagabond that oppresses the poor.
Yesterday, we met Mayeso Gwanda selling plastic bags as usual in the heart of Limbe Market in Blantyre. The vendor, garbed in stained sports shoes, a faded purple golf shirt and a blue pair of jeans trousers, looked shy when asked about his lengthy war on laws that he blames for making poverty a crime.
Throughout the interview, he kept looking down, spoke slowly and steadily gave flashbacks. Talking about his immense joy following the triumphant ending of a heartfelt battle which painfully begun with a quirky arrest and beatings that left him with a scar on his left earlobe.
“I believe poverty is no crime,” says the vendor. “That is why I maintained the case although many friends of mine urged me not to fight the State.”
The irony is that it took this unfamiliar man, nicknamed Gwape in reference to a duiker on the plastics he sells, to scrape a law that has landed learned Malawians, including lawyers, into congested police cells.
His resolve was irrevocable from the beginning to continue with the case where the Attorney General (AG) and the Director of Public Prosecutions (DPP) were representing the State.
Rogue and vagabond, popularly known as vakabu, is one of the laws often abused by police officers to victimise a majority of innocent Malawians.
Reports are rife of officers who brutally assault suspects and make them pay for their freedom. Sex workers say some law enforcers force them into risky sexual intercourse in exchange for freedom. Those who refused to give in ended up in overcrowded cells and prisons.
On Tuesday, three High Court judges—Dr Michael Mtambo, Zione Ntaba and Sylvester Kalembera—declared Section 184 (1)(c) of the Penal Code unconstitutional and invalid.
Gwanda, who was tried for rogue and vagabond at the Blantyre Magistrate’s Court, engaged lawyer Mandala Mambulasa on March 25 2015 and petitioned the Chief Justice Andrew Nyirenda to determine the constitutionality of the law.
They argued that the section infringes on his constitutional entitlements, particularly dignity, security, freedom of movement, right to humane treatment, freedom and the right to equal protection and non-discriminatory tendencies.
The constitutional matter ended with a 27-page judgement read by Mtambo, which invalidates the law introduced in Africa by British colonial masters “to maintain smooth rule over colonies”.
Adopted in 1934, the look-alike of Section 4 of the 1824 English Vagrancy Act were also inherited by Nigeria, The Gambia, Zambia, Uganda, Botswana, Seychelles and Tanzania.
“In simple terms, a rogue is someone who is dishonest and unscrupulous while a vagabond is one with no fixed home who lives an unsettled and wandering life,” Mtambo stated.
Gwanda—who grew with his uncle since he was six—calls himself an honest, God-fearing vendor. His struggle personifies the anger of thousands of victims of the so-called poverty laws.
He was arrested by three armed police officers near Chichiri (Kamuzu Stadium) Roundabout around 4am on March 20 two years ago, suddenly ending his 10-kilometre walk from Sigelege on the margins of Chilomoni Township to Limbe Market where he sells plastic bags to fish mongers scrambling for catches from Lake Malawi.
He had been walking the lengthy walk for over a year, gaining just about K10 000 a week. That was better than his K15 000 fortnightly pay when he was a shopkeeper, he said. This makes him a low-earner in a city where a family of six needs about K125 000 to survive.
“I had to be up very early for most of my customers are early birds. They come to buy fish arriving straight from Mangochi,” he says.
He recounted that his captors said they suspected he was an armed robber who had just ransacked the nearby University of Malawi (Unima) constituent college, The Polytechnic.
Said Gwanda: “I tried to prove my innocence by taking out the plastic papers that were in my bag, but they beat me up.”
He was 15 when the Constitution, which comprises a Bill of Rights, came into force in 1995.
Gwanda felt dehumanised when the security agents stopped a car and had a friendly chit-chat with the motorist.
“They did not arrest the driver. They asked him to drive us to The Polytechnic where the students said the robber was darker than me. I wondered why the law applied harshly on me not the one driving,” said the divorced father of a six-year-old son.
Gwanda, who wanted to become a mechanic before poverty pushed him to drop out of secondary school, was taken to Soche Police Station where he spent three nights—just when the Constitution requires suspects to be detained for less than 48 hours.
The Catholic faithful lamented: “I asked myself ‘why me God’? Before that, I never imagined myself in a police cell. But there I was, bleeding as I went into a stinking cell on a Friday, the day I sell more.
“My cellmates said I would be out soon, but I remained in until Monday. I was given bail after I pleaded not guilty.”
Constitution law expert Edge Kanyongolo, an associate professor of law at Unima’s Chancellor College, termed the verdict “victory for democracy”, saying: “The law was redundant and unnecessary because countries that do not have this law are not chaotic.”
As Gwanda sits back to savour his triumph and contemplate whether to claim compensation for the physical, mental and economic torture he suffered, he warns Malawians against the misconception that the landmark ruling provides leeway to break the law.
“A thief is a thief. Those who think they will abuse the ruling will face the law,” he observed.
Mtambo said the applicant proved beyond a doubt that his right to dignity was infringed, his right to be presumed innocent was negated; freedom from inhumane treatment was violated in that he was arrested on unsubstantiated ground and kept in custody for three days.
“This was demeaning and humiliating. His right against discrimination and have equal protection of the law was infringed on as the negation of that right does not only relate to the law but enforcement as well. These rights are not derogable whether section 184 is reasonable and necessary,” said Mtambo.
Victor Mhango, executive director for the Centre for Human Rights Education, Advice and Assistance (Chreaa), said they got wind of Gwanda’s incarceration through one of their paralegal officers and engaged the lawyer.
Mambulasa is former Malawi Law Society president which teamed up with Chreaa, Paralegal Services Institute and Legal Aid Bureau as friends of the court in the battle to discard the undemocratic law. n