The High Court in Blantyre yesterday dismissed an application by the State to discontinue a case in which a street vendor is challenging the constitutionality of rogue and vagabond offence.
The State made the application on September 1 2016 in its preliminary objections in a case where plastic bag seller Mayeso Gwanda is challenging Section 184 (1) (c) of the Penal Code.
Reads the section: “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.”
However, a three-member bench comprising High Court judges Zione Ntaba, Michael Mtambo and Slyvester Kalembera ruled that hearing of the matter should continue because under the Courts Act, an individual could bring an action to the High Court the way Gwanda brought it, that is through a referral from a subordinate court.
After the State’s application was dismissed, the court continued hearing submissions from Gwanda’s lawyer Mandala Mambulasa, amicus curiae —friends of the court—who include Legal Aid Bureau (LAB), Malawi Law Society (MLS), Paralegal Advisory Service Institute (Pasi) and the Centre for Human Rights Education, Advice and Assistance (Chreaa) as well as submission from the State being represented by the Attorney General and the Director of Public Prosecutions (DPP).
Making his submission, Mambulasa argued that Section 184 (1) (c) of the Penal Code does not only violate the right to freedom and security of a person, but also the right to dignity. He also argued that violations of those rights do not pass the test which is set in the Constitution under Section 44 (2). As such, it should be declared unconstitutional and invalid.
“Any arrest by police when you have done no wrong violates your right to dignity. The law that permits police to arrest a person just walking in the street cannot be described as reasonable in an open and democratic State such as ours,” he said.
Lawyer for Chreaa, Violet Jumbe, argued that the section on rogue and vagabond is too broad and vague, as such, it results in arbitrary reinforcement of the law by police.
On the other hand, LAB lawyer Trouble Kalua, who underlined that the case is an opportunity for the court to break a record and deal with rogue and vagabond once and for all, argued that it is high time Section 184 (1) (c) is thrown to the waste bin where it belongs.
Representing MLS, lawyer Lusungu Gondwe said the offence under the provisions of Section 184 (1) (c) is not in tandem with human rights
In his submission, Pasi lawyer Fostino Maere wondered if there is any valid reason to maintain the law in the country’s Constitution.
He said: “We just adopted this law from England; we never had any debate in our Parliament. This is the only time that has risen to elaborate the law since the passing of our own Constitution and if we look at England, they no longer maintained the law as we have done here.”
Making her contribution, senior State advocate Apoche Itimu said the State cannot dispute that there have been challenges in the way arresting officers and courts implement Section 184 (1) (c) of the Penal Code, but since it is a crime prevention tool, removing it from the statutes would be doing a disservice to the society.
“It is unfortunate that the implementers target poor people and women in sex business, among others.
“Considering that implementation of the law is one that has been highly faulted, the section should not be invalidated or rendered unconstitutional, but perhaps the State being aware of the problems, should look at avenues to address them,” she said.
Hearing will continue at a date to be announced later.
Gwanda, a resident of Chilomoni, was arrested in March 2015 near a bus stop at Chichiri while walking along the Masauko Chipembere Highway to Limbe.
With plastic bags in hands, he was stopped by police and asked where he was going. Not convinced by his response, the officers took him to Soche Police Station. Later, he was taken to court and was charged with rogue and vagabond.