They were ordinary Malawians who took on the State and won.
A plastic bag vendor from Blantyre, a Kasungu disc jockey, a bar patron and a fried-fish vendor challenged an oppressive colonial law that had long been used to criminalise poverty while sparing the privileged.
Their courage reshaped Malawi’s constitutional jurisprudence and secured landmark victories for millions of citizens.
Yet none of them lived to see the government implement the reforms the courts ordered.
Nearly a decade ago, Mayeso Gwanda, a plastic bag vendor from Chilomoni Township in Blantyre, became an unlikely champion of constitutional rights after challenging the colonial-era offence of being a “rogue and vagabond”.
Gwanda earned a living by selling plastic bags at Limbe Market. Every morning, he left home around 3am and walked about 15 kilometres because he could not afford transport.
On March 20 2015, at about 4am, three police officers stopped him near Chichiri Roundabout as he walked to the market carrying his merchandise. Although he explained he was going to work, police arrested him, detained him until March 23 and charged him under Section 184(1)(c) of the Penal Code with being a “rogue and vagabond”.
Rather than accepting his fate, Gwanda challenged the law, arguing that it violated the constitutional rights of poor people to dignity, personal security and freedom of movement.
In 2017, the High Court agreed, declaring part of Section 184 unconstitutional and ordering government to reform vague criminal provisions that enabled arbitrary arrests.
Three years later, another group of ordinary citizens mounted a similar challenge.
On the night of March 27 2018, Henry Banda was working as a disc jockey at American Bar and Bottle Store in Kasungu when police conducted one of the routine “sweeping exercises” that rounded up people found in public at night.
Among those arrested alongside him were Ishmael Mwale, who was having a drink at Culture Club car park, and Sikweya Supiyani, who was selling fried fish at the same bar.
Court records show the 23 people arrested were never told why they were being detained. They spent the night in police custody before being charged the following day with being “rogues and vagabonds” under Section 184(1)(b) of the Penal Code.
They later told the court police pressured them to plead guilty by warning they would otherwise be remanded to prison. Each was fined K3 000 or, in default, sentenced to three months’ imprisonment with hard labour.
Their challenge culminated in another landmark judgment.
On July 22 2022, Justice Zione Ntaba ruled that the sweeping arrests were unconstitutional, finding that the applicants’ rights to liberty, dignity, freedom of movement, economic activity and a fair trial had been violated.
The court quashed their convictions, ordered government to refund the fines and declared the entire Section 184 unconstitutional. It also directed the Executive and Parliament to amend the law within 24 months and report progress by July 22 2024.
Four years later, that order remains unimplemented.
The delay has fuelled concerns about government’s commitment to constitutionalism, the rule of law and respect for judicial authority. It has also denied Gwanda, Banda, Mwale and Supiyani the opportunity to witness the reforms they fought to secure.
Head of Criminal Justice Programme at the Southern Africa Litigation Centre (Salc), Chikondi Chijozi, whose organisation supported the litigation alongside the Centre for Human Rights Education, Advice and Assistance (Chreaa), said the delay illustrates the human cost of justice deferred.
“They all died and that speaks to the effect of delayed justice. They will never see the fruits of their litigation, which is very sad,” said Chijozi, who represented the four litigants.
Weekend Nation could not trace the families of the deceased litigants.
Chijozi said the Constitution makes the Judiciary the final arbiter of legal disputes, meaning its decisions are binding on every arm of government.
“Compliance with court orders is not discretionary. Where a public authority fails to comply, the law provides several avenues for enforcement,” she said.
Those options include enforcement orders and, where appropriate, contempt proceedings against those responsible for non-compliance.
She warned that constitutional democracy depends on every arm of government respecting the authority of the courts.
“Where a court order is deliberately ignored or there is no intention to implement the court decision, that is definitely contempt of court,” she said.
According to Chijozi, judicial authority rests not only on the ability of courts to issue judgements but also on the willingness of State institutions to implement them.
“Where court orders remain unimplemented without lawful justification, public confidence in justice weakens and the principle that everyone, including the State, is subject to the law erodes.
“Such situations may also create uncertainty about the effectiveness of judicial protection of constitutional rights.”
Chijozi said constitutional democracy functions effectively only when every branch of government respects the constitutional role of the others.
“Compliance with court orders reinforces the rule of law, institutional accountability and public confidence in democratic governance,” she said.
South Africa-based legal and governance expert Francis Nyarai Ndende said the four-year delay raises profound constitutional and governance concerns.
“The issue extends beyond legislative delay. It goes to the heart of the rule of law, separation of powers, constitutional supremacy and compliance with judicial decisions,” he said.
Ndende, chief executive officer of Corporate and Institutional Integrity Africa, said court orders are binding, not advisory.
“Failure to comply undermines the authority and independence of the Judiciary, which is one of the three co-equal branches of government.”
He cited Sections 9 and 12 of the Constitution, which require public authorities to exercise power lawfully and uphold accountable governance, and Sections 103 and 108, which guarantee judicial independence.
“If judicial decisions are ignored without consequence, the effectiveness of judicial oversight is significantly weakened, thereby eroding public confidence in constitutional governance,” he said.
Ndende said continued failure to implement constitutional court orders is difficult to justify in a democratic society founded on respect for judicial authority.
“If constitutional court orders remain unenforced, affected parties are entitled to seek renewed judicial intervention, while Parliament must ensure that the Executive fulfils its constitutional obligations.
“The effectiveness of constitutional democracy depends not only on courts issuing judgments but also on all branches of government faithfully implementing them.”
Weekend Nation sought comment from Ministry of Justice spokesperson Frank Namangale, Parliament spokesperson Ian Mwenye and Judiciary spokesperson Ruth Mputeni on the status of implementing the court order. They had not responded by press time.
However, Parliamentary Legal Affairs Committee chairperson Gilbert Khonyongwa said the committee had already engaged the Ministry of Justice on progress.
The ministry, he said, assured the committee that it would prepare the necessary amendment Bill and submit it to Parliament.
“To date, however, the National Assembly has not received the proposed Amendment Bill from the Ministry of Justice. Consequently, the committee has not been informed of any formal explanation for the delay,” Khonyongwa said.
He said the committee would re-engage the ministry to establish the cause of the delay and determine what further oversight measures were required.
For the families of Gwanda, Banda, Mwale and Supiyani, however, those assurances have come too late.
The four ordinary citizens helped dismantle one of Malawi’s last colonial legal relics and expanded constitutional protections for millions of people. But the State has yet to honour the court orders their courage secured.
Their legacy endures not only as a triumph for constitutional rights, but also as a reminder that when governments delay implementing justice, those who fought hardest for it may never live to see it done.
