Law commission wants Parliament to address enforcement abuse

M

alawi Law Commission has urged the parliamentary Legal Affairs Committee address issues of abuse of laws by law enforcement agencies, arguing the country’s laws are not necessarily problematic but they are not applied properly.

Speaking when the commission appeared before the parliamentary committee to give input into the amendment of vagrancy laws in the Penal Code, commissioner Rosemary Kanyuka said the review of the section of the Penal Code is not a responsibility of the Law Commission.

The Constitutional Court in 2017 declared the vagrancy laws unconstitutional, and in 2022, the High Court also ordered a review of Section 184 of the Penal Code.

However, Kanyuka observed that there is nothing wrong with the law, but that its application might have been a problem.

“There is nothing wrong with the law, maybe the terminology of rogue and vagabond is what we need to change,” she said, adding that the law does not give the police excessive powers.

Kanyuka added that citizens also need to understand the laws.

“Laws are there to regulate our behaviour. All of us as the constitution is saying, we are equal before the law including the law enforcers, they are supposed to abide by the law.

“So there is nothing wrong with the laws, it is how we apply the law. So that is just a caution that has to be given,” explained the commissioner.

On his part, the commission’s director of law reform Mike Chinoko said the Malawi Law Commission already did a comprehensive review of the Penal Code and its report came out between 2000 and 2001, way after Malawi become a democracy, with a new constitution.

“The law reform exercise that took place that time tested this provision against the Constitution that we are using right now,” he said.

Chinoko said the court declared the actions of the police illegal because of the way the police applied the law and not necessarily how the law should be applied.

In response, Legal Affairs Committee chairperson Peter Dimba said the committee respects the court order in holding consultations for review of the vagrancy laws in the Penal Code.

He added that the laws are archaic and needed to have been dealt away with back in 1994.

The Constitutional Court in 2017 declared that rogue and vagabond laws were unconstitutional.

In 2022, High Court judge Zione Ntaba went further to direct Parliament and the Ministry of Justice to review Section 184 of the penal code. Parliament was given up to July 22 to starting looking into processes of review of the law.