Human rights activists and lawyers have hailed as a victory for democracy yesterday’s landmark declaration of the offence of rogue and vagabond as unconstitutional and invalid.
The excitement stems from the decision by a three-member panel comprising High Court judges Zione Ntaba, Michael Mtambo and Sylvester Kalembera—sitting as a Constitutional Court—who ruled that the application and enforcement of Section 184 (1) ( c) of the Penal Code was “reasonably wrong”, as such, it could not be sustained in a democratic society such as Malawi.
Delivering the judgement in a case where street vendor Mayeso Gwanda, through private practice lawyer Mandala Mambulasa, was challenging the constitutionality of the rogue and vagabond offence, Mtambo said the court, having considered foreign laws and drawn insights from international conventions and charters which Malawi is party to, found the section unconstitutional and invalid.
The section stipulates 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”.
However, the court emphasised that it is only Section 184 (1) (c) that has been declared invalid and that the rest of Section 184 is still valid and can still be applied.
On his part, Kalembera said no human being should have their dignity compromised.
He observed that the section violated Gwanda’s right to dignity as he was arrested without a warrant of arrest, without investigations conducted on him and without clear evidence that he indeed had illegal or disorderly intentions.
In her summary, Ntaba stressed that a law is bad if it is discriminatory and arbitrary and looking at the case, Gwanda had his rights violated when he was arrested and declared a rogue and vagabond on the basis that he was found walking in the streets.
The judges also emphasised that rendering the section invalid should not be interpreted that the court has tied the hands of police officers to let thieves harm, kill and rob people, stating that police can still effect arrests using the Criminal Procedure and Evidence Code which gives them power to arrest without warrant any person suspected on reasonable grounds to have committed a cognisable offence.
Mambulasa said he was happy with the ruling. He stated that declaring the law invalid will not bring lawlessness because the judgement is clear that there are other laws in the Penal Code and the Criminal Procedures Evidence Code that provide powers to police officers to arrest people suspected to be criminals or intending to commit an offence.
Commenting on the ruling, constitutional law expert Edge Kanyongolo, who is also an associate professor of law at Chancellor College, a constituent college of the University of Malawi, said the ruling was a historic victory for human rights because it affirmed the position that free citizens in a free country should have the freedom to move wherever they want to move unless there is evidence that they are committing a criminal offence.
He also disputed assertions that invalidating the section would bring chaos as alluded to by some quarters, arguing that there are many cities and rural areas in the world that do not have the vagrancy laws yet they are not chaotic.
Said Kanyongolo: “I think that is an alarmist view intended to scare those who believe in human rights to say that somehow this law was bringing order. As the High Court has said, there are already enough laws which give police power in appropriate circumstances to effect arrests. This law was completely redundant and unnecessary and countries that do not have this law are not chaotic, some are even the best cities in the world.
“The other thing about this law was that its enforcement was discriminatory. I do not remember a person who was arrested while driving; it was generally those found walking.
“This law was even being applied indoors; there are times people were being picked from rest houses and accused of being rogues and vagabonds while no one sleeping at Ryalls Hotel or Ku Chawe Inn was ever picked as a rogue and vagabond.”
Victor Mhango, executive director of Centre for Human Rights Education, Advice and Assistance (Chreaa), one of the local organisations that have been working towards removing the law from the Penal Code on the basis that it was an outdated provision, expressed contentment with the ruling saying the law was fairly targeting marginalised groups such as prostitutes.
“This law was also giving too much power to police officers because when they were arresting people, that was the easiest and nearest offence they were charging them with,” said Mhango in an interview.
A representative of Malawi Sex Workers Alliance (Maswa), name concealed, also expressed happiness at the ruling saying sex workers were facing a lot of challenges in the hands of police who were arresting them on rogue and vagabond offence and thereafter telling them to rescue themselves by sleeping with them (police officer).
Commenting on the judgement, senior State advocate Apoche Itimu said the State has taken the contents of the judgement on board and they will be discussed with the Attorney General (AG) considering that the court has suggested several measures that the legislature should take in relation to laws that deal with rogue and vagabond issues.
“I believe that it was quite reasonable to suggest the issue of amendments because if we look at other countries and other democracies that have dealt with similar issues in the past, they have reviewed their vagrancy laws. They have not completely dealt away with them because they also do deal with protection of countries against crimes but they have amended them so that they are more in line with international human rights standards,” said Itimu who is also Ministry of Justice and Constitutional Affairs spokesperson.
Police, who enforces the law by way of arrest, have said they will comment on the matter later after looking at the judgement, this is according to National Police spokesperson James Kadadzera.
Rogue and vagabond laws have been a bone of contention for some time with people arguing that the laws are outdated and any police arrests when a person has done no wrong violates their right to dignity. n