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Dismiss Gwanda’s challenge on vagabond law, state asks Malawi Constitutional Court

Nyasa Times
2 September 2016

Attorney General’s office has asked the Constitutional Court to throw out an application by Blantyre-based vendor Mayeso Gwanda who is challenging  the constitutionality of the rogues and vagabonds law in an attempt to have it abolished.

Section 184(c) of the Penal Code describes a rogue and vagabond as every person found in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose.

In the case, Gwanda argues that the law is outdated, frequently targets the poor and are out of step with a modern democracy with a constitution that protects basic human rights.

Gwanda’s legal counsel Mandala Mambulasa described the rogues and vagabonds law as a bad law that needs to be pushed out of the Penal Code as it has no room in democracy.

But Senior State Advocate, Apoche Itimu told a panel of three judges comprising Michael Mtambo, Zione Ntaba and Sylvester Kalembera that Gwanda had jumped the gun to apply for judicial review by referring the case from Magistrate Court to Constitutional Court without being hein at the High Court.

She referred to  Section 9 (2) of the Courts Act, saying “ for a matter to be determined at the constitutional court, it has to be  a matter that arises from the High Court. In this case the proceeding are coming from the magistrate court.”

Malawi Law Society has joined the case as friends of the court.

A Centre for Human Rights Education, Advice and Assistance (Chreaa) recent study  revealed that there is massive abuse of the outdated provisions in the Penal Code on rogue and vagabond.

Chreaa executive director Victor Mhango said the study identified gaps in the law and that the poor and marginalised groups such as prostitutes have been unfairly targeted.

“The harsh effects of minor nuisance-related offences are felt most by the poor, who are unfairly targeted by these laws and who do not have easy access to legal representation and family resources once arrested,” said Mhango.

The research was aimed at ascertaining the extent of police enforcement of the rogue and vagabond law and it focused on the arrest practices of Blantyre and Limbe police stations and included interviews with magistrates, police officers and sex workers.

Mhango said there is need to revisit the Penal Code or train the law enforcers on how to implement it.

Project lawyer for Southern African Litigation Centre (SALC), Anneke Meerkotter, whose organisation was also part of the research, stressed the need to review some archaic laws which she said are not in tandem with the modern times.

“The Penal Code provisions on rogue and vagabond date back to the English vagrancy laws of previous centuries and they are out of step in the modern constitutional democracy like Malawi,” said Meerkotter.

Deputy Dean of Law at Chancellor College Chikosa Banda said enforcement of the law is subjective.

“That law has got problems because every suspect is presumed innocent and guaranteed human rights, including the right to freedom of movement.

“The fact that you have been seen somewhere loitering around does not in itself mean that you have committed an offence. It might lead to a suspicion that you have committed an offence, but then why should one be arrested on suspicion?” asked Banda.

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