Parliamentary Committee on Legal Affairs is this week set to summon relevant authorities to discuss delays surrounding the review of Section 184 of the Penal Code.
The committee chairperson Peter Dimba said this in an interview on Thursday on the sidelines of Centre for Human Rights Education, Advice and Assistance cocktail in Lilongwe.
The section criminalises a person, who has no visible means of subsistence, found loitering and cannot give a good account of himself or herself.
High Court Judge Zione Ntaba on July 22 2022 ordered ministries of Justice and Homeland Security and the Inspector General of Police, in collaboration with the Legislature through the Speaker of Parliament and relevant committees, to effectively review the entire section and report back to the court by July 22 2024.
This was apart from declaring the section unconstitutional on the basis that it is tailored to influence arbitrary arrests on assumptions of criminality.
Dimba said it is important that the court order be complied with; hence, summoning the authorities that were highlighted in Ntaba’s ruling.
He, however, said as a committee, they feel Parliament’s inclusion was irregular, pointing out that the Ministry of Justice was better placed.
He said: “As Legal Affairs, we have a role to play in making sure that we follow up with the Ministry of Justice because in this case the Attorney General was a party to it and he knows that a Bill was to be drafted by this time to amend the section.
“This is a law that is archaic and should have been repealed with the coming of a new Constitution in 1994. Otherwise, having such archaic laws is quite baffling because this is a bad law which colonial masters wanted to use to inflict pain on the natives.”
Dimba said if a new amended Bill is drafted, the committee is prepared to support it to ensure the country has progressive laws.
But on February 22 this year, Director of Public Prosecutions Masauko Chamkakala hinted to Nation on Sunday that the review will not take place anytime soon.
He said: “Section 184 was not included in the 2023 Penal Code Amendment. We plan to include it in the next cycle.”
But Dimba said the committee remains optimistic that they can work around the situation to ensure a process to amend the section begins at the soonest time possible.
“If they are not ready, some members of Parliament can even bring it as a Private Members Bill. This is possible. But the thing is there is a court order and it has to be obeyed, it cannot be ignored,” he said.
He stressed that the amendment can still be done even if it was not included in the 2023 Penal Code Amendment.
Southern Africa Litigation Centre justice criminal lead Chikondi Chijozi in a separate interview expressed optimism that the committee’s involvement will trigger relevant authorities to hit the ground running.
Chijozi said they were hopeful that since the court order had given ample time for the section’s review, it was going to be amended within 24 months.
She said: “For us we are happy because that is what we wanted. We wanted to see action and I am happy that the Legal Affairs Committee has actually seen the importance of taking action by summoning the relevant authorities.
“So, we hope that by summoning them, it will translate into action and we hope that by July 22 this year we should have this law reviewed”.
The court order stated that failure to amend the section will continue creating problems for the Judiciary.
Part of the ruling reads: “If the Executive, Legislature and Judiciary continue to handle the vagrancy laws in the manner we have been doing especially Section 184 of the Penal Code, the Judiciary will continue to deal with these matters either as criminal appeals or reviews or constitutional challenges, judicial reviews or false imprisonment claims, to mention a few”.
The ruling followed a judicial review case number 28 of 2018 of Henry Banda and two others versus the State in which they were challenging sweeping exercises that were declared unconstitutional.
Apart from the section’s review, the court order also directed that the Ministry of Homeland Security and Inspector General of Police review the training curriculum for police officers to ensure it covers constitutional fair rights issues, especially the right to be informed of the reasons for an arrest and how sweeping exercises can be conducted.
National Police spokesperson Peter Kalaya told Nation on Sunday on February 23 this year that following the court ruling, a quick review was conducted which resulted in the amendment of guidelines on how police can conduct various specific operations, including sweeping exercises.
