Whither constitutional supremacy?

It is now close to two decades since Malawi became a democratic State and adopted a new Constitution. Throughout the years, the 1994 Constitution has been tried and tested through court battles and amended and repealed where necessary, sometimes to reflect people’s aspirations and at times for political expedience. The cases of Fred Nseula (crossing the floor) and the repeal of the recall provision (Section 64 of the Malawi Constitution) come to mind at this point. This brief aims at comparing some of the penal provisions which are inconsistent with the Constitution and are used by the authorities (whether) to harass and/or violate people’s enjoyment of their human rights.

For starters, Section 5 of the Malawi Constitution reads: “Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid.”

Indeed, there are until today some laws that are being applied and yet they are not in tandem with the Constitution. Oftentimes, we hear stories of arrests by the police. They invoke Section 184 of the Penal Code which is about rogues and vagabonds and Section 180 of the same which covers idle and disorderly conduct. However, taking a closer look at such crimes in this political environment leaves a lot to be desired. In the first place, how do you define a rogue or a vagabond?

Secondly, what constitutes idle and disorderly conduct? The Bill of Rights in Chapter IV of the Constitution provides for the recognition and protection of human rights by the State. Individual rights to personal liberty (Section 18), right to privacy (Section 21) and freedom of movement and residence (Section 39), are all guaranteed among other fundamental rights. The stated sections from the Penal Code are heavily relied on by the police to arrest individuals drinking in pubs late into the night and/or walking home from a drinking spree. Such arrests can be traumatising and degrading to the individuals affected. Their personal liberty and dignity are heavily eroded. The right to freedom of movement entails that every human being is free to move within the boundaries of our country whatever time he pleases, without being taken to task by the authorities.

If anything, the State is under an obligation to protect such individuals by at least escorting them to their destinations if found to be in danger travelling on their own.

It has been observed that the police has been going about in our major cities arresting people, even to the extent of entering rest houses and lodges, and charging them as rogue and vagabond, or with idle and disorderly conduct. This behaviour is abhorrent and needs to be condemned in the strongest terms. It amounts to gross violation of people’s rights. One then wonders whether these acts are meant to instil fear in the citizenry. Whatever time one wants to stretch his/her legs, let them do so without being taken to task. Added to this, wherever one wants to stop at, either at night or during the day to take in some fresh air, let them enjoy the breeze with no unnecessary questions asked.

The police, in their daily operations, should bear in mind that their core function, as per their enabling Act, is to protect the lives and property of the citizens. In this light, taking people into custody (protective custody) should only be effected when the situation allows for such, that is, when there is real or perceived danger to the individual and not just because one is standing by the road side at night or when one is walking home or merely taking a stroll. If the police would like to flush out suspected criminals, they should devise a safer and better plan to execute that, other than arresting innocent people.

Having gone this far, it should be appreciated that personal liberty and human dignity should be respected at all times and a favourable environment created to enable the citizenry enjoy their rights to the fullest. The State should be in the forefront uplifting such rights, instead of muzzling them at the peril of those whom such rights were meant for. It then beats logic to enforce a law which is inconsistent with the Constitution to subjugate individuals when the Constitution itself gives them better standing. A stitch in time saves nine.

The author likes commenting on social issues.

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