Experts fault ‘vakabu’ laws

Legal minds have called for a review of the vagrancy laws, arguing that they are applied segregatively.

Making contributions during a public debate held at Crossroads Hotel in Lilongwe on Friday, a panel of magistrates, judges, lawyers and senior police officers noted that the Rogue and Vagabond Law (commonly known as vakabu) is vague and broad, hence it is prone to abuse by the implementing authority.

Sections 180 to 184 of the Penal Code of the Laws of Malawi empower police to arrest any person who is deemed to be idle or disorderly in a public place.

However, a report on Malawi issued by the Southern African Litigation Centre (Salc) and Centre for Human Rights Education, Advice and Assistance (Chreaa) in 2013 showed that rogue and vagabond offences are often used during police sweeping exercises to arrest and detain persons without proof of any offence having been committed.

During the debate, panellists wondered why the law only applies to the poor.

“Why is it that they never apply to people in cars? Criminals who exchange fire with the police do not ride on bicycles or walk on foot,” noted human rights lawyer Chikondi Ngwira.

Judge in charge of the High Court in Mzuzu, Dingiswayo Madise, observed that the law targets the poor, the homeless and the unemployed.

“Is there anything wrong with begging for alms or people renting a room in a resthouse. What is wrong with wandering about?” he noted.

According to Madise, that is why when referred to the High Court, convictions have been reversed as the judges believe the vagrancy laws are not in tandem with the right to association and movement as enshrined in the Constitution.

However, Commissioner of Police (South) George Kainja explained that police enforce the law in its present form.

“The law gives us power to arrest idle and disorderly persons to maintain public order. Our mandate is to enforce the law,” said Kainja. “As a police service, we will enforce the law in its current state. But we are a listening service, we will see how we can change.”

On her part, Lilongwe chief resident magistrate Ruth Chinangwa observed that rogue and vagabond suspects in court mostly plead guilty so as to get a fine and get on with their lives.

She, however, noted that there is need to reform the law.

“Laws should not be stuck in time. I call upon the Law Commission to take up the matter and see what they can change,” she said.

High Court judge Kenan Manda, who is chairperson of the Prison Inspectorate, observed that the short sentences metted out on idle and disorderly convicts turns them into criminals.

“Short prison sentences do not reform anyone. What happens is that rogue and vagabond convicts graduate into sterner criminals,” he said.

During their appearance at the African Commission for Human and People’s Rights in the Gambia last month, the Malawi government was queried as to why it still has archaic laws in its Penal Code.

Representing the government, Minister of Justice and Constitutional Affairs Samuel Tembenu explained that Malawi is aware that there are efforts to draft Prosecution Guidelines that will have a human face.

And that there are some NGOs that have taken the vagrancy law to the Constitutional Court to see if it is in tandem with the Constitution.

“As a government, we can assure the commission that we will respect the court’s ruling,” he said. n