Poverty a criminal offence in Malawi

Despite being a constitutional democracy, local authorities in Malawi continue to perpetuate the colonial legacy by criminalising poverty and inequality through the incessant administration of draconian colonial pieces of legislation and bylaws which militate against fundamental rights of marginalised persons.

In 2022, the Blantyre City Council indicated its intention to demolish the market opposite Queen Elizabeth Hospital and forcibly evict the informal traders without providing them with notice and reasons for eviction.

These marginalised communities were later rescued from the abuse after the legal intervention by a human rights defenders, the Southern Africa Litigation Centre (Salc) and the Centre for Human Rights Education, Advice and Assistance (Chreaa) through a temporary High Court application to restrain the local authority from forcibly evicting them without taking proper legal channels.

Fortunately, after the protracted legal battle, the High Court of Malawi granted a temporary order restraining the Blantyre City Council from forcibly evicting them without due notice and reason.

This development was described by Salc executive director Anneke Meerkotter as a continuation of colonial legacy meant to worsen poverty levels among marginalised African communities.

“We need to address the colonial legacies underlying urban planning, which do not acknowledge those on the periphery of the formal economy, particularly women, who have little choice but to engage in trade in public spaces to make a living,” she says.

Meerkotter said marginalised African communities’ right to human dignity continue to be impaired by local authorities and law enforcement agents through arbitrary and unlawful evictions of informal traders.

“In cities throughout Africa, there is an ongoing struggle for the use of urban space. For many, vending provides crucial household income and ensures the distribution of basic goods through informal networks,” she adds.

Malawi human rights lawyer, Chikondi Chijozi reiterated that the decision of arbitrary eviction of people from their spaces was a flagrant violation of human rights because it was not done in a procedural and legal manner.

“Our law requires that decisions which will affect peoples’ lives are made in an open, transparent and participatory way. Informal traders are frequently a target of local government authorities, yet the response of councils is often ad hoc, disproportionate and likely to lead to violations of human rights,” she says.

Recently, the African Court further specifically stated that authorities should not criminalise poor and vulnerable individuals who use public spaces to earn a living.

The routine eviction of informal traders in Malawi is unconstitutional. Chapter four of the Constitution provides that human rights are entrenched and protected in the supreme law, the Constitution.

The arbitrary eviction of informal traders is against Section 19(1) of the Constitution which provides that the dignity of all persons shall be inviolable. Inviolable means that the dignity of every person shall not be violated or derogated.

However, chasing vulnerable and poor people who are trying to make a living without committing a criminal offence strips people of their dignity.

Although informal traders lack the resources and power to protect themselves, it is the government’s duty to make sure that its vulnerable population’s right to human dignity is protected.

It is an undisputed fact that informal traders are people who are at the lower rung of economic status. This unfortunate economic development was imposed on innocent people by inequalities which can be traced back to colonialism.

Therefore, local authorities should not violate informal traders by chasing them and forcefully evicting them from places where they are earning a living without providing them with alternatives.

Instead the government and all local authorities in Malawi should come together in the spirit of social justice, to find lasting and sustainable solutions on how to improve the lives and working conditions of informal traders.