Media Advisory: Malawi High Court to deliver judgment on constitutionality of the offence of being a rogue and vagabond

Salc : Staff Writer

Blantyre — On Tuesday 10 January 2017, a three-member bench of the High Court of Malawi will deliver a judgment on the constitutionality of section 184(1)(c) of the Penal Code. The applicant is a street vendor by trade who was arrested on his way to sell plastic bags. The applicant was charged under section 184(1)(c) and his criminal trial was subsequently stayed, pending the determination of the constitutional petition filed by the applicant.

The applicant submitted that the offence is outdated and vague, hence its arbitrary enforcement by the police. The applicant argued that the rogue and vagabond offence infringes on several human rights, including the rights to dignity, privacy, freedom from inhuman and degrading treatment, freedom and security of person, freedom from discrimination and freedom of movement.

The Legal Aid Bureau, the Centre for Human Rights Education, Advice and Assistance (CHREAA), and the Paralegal Advisory Services Institute (PASI) joined the case as amicus curiae. PASI submitted that the offence violates the right of access to justice, and the rights of arrested persons. CHREAA argued that the alleged objective of the offence, which is to prevent crime, does not have an evidential basis and that the continued application of the offence in a manner that violates human rights is not proportional to its objective.

What:             Gwanda v State
Where:           High Court, Blantyre, Malawi
When:             9:30 am, Tuesday, 10 January 2017

Context

Section 184(1)(c) of the Penal Code provides that “every person found in or upon or near any premises of 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, is deemed a rogue and vagabond.” The offence has been widely criticised by civil society, academics and the courts for the arbitrary way it has been enforced. The offence of being a rogue and vagabond exists in the same wording in the Penal Codes of many African countries and dates to the era when these countries were subjected to British colonial rule, including Nigeria, Gambia, Zambia, Uganda, Botswana, Seychelles and Tanzania.

The applicant is represented by Mandala Mambulasa, and the Attorney General is represented by Senior State Advocate Apoche Itimu and Thabo Chakaka Nyirenda. The amicus curiae are represented by Trouble Kalua (Legal Aid Bureau), Fostino Maele (PASI) and Violet Jumbe (CHREAA).

Issued by:  The Southern Africa Litigation Centre (SALC) and the Centre for Human Rights Education, Advice and Assistance (CHREAA).

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