Malawi: Challenging arbitrary arrest of sex workers

Salc : Anneke Meerkotter

Factual Background

In the late evening of 22 September 2017, police conducted a sweeping exercise. They arrested 24 persons and charged them jointly with the offence of “being found wandering and failing to give a good account of themselves”.

In the High Court

The applicants were represented by Gift Katundu and supported by the Centre for Human Rights Education, Advice and Assistance Centre (CHREAA). Judgment was handed down by Justice Kachale in the Lilongwe High Court on 22 December 2017.

On the strength of the precedent set in the Pempho Banda case, the Court held that the convictions against the applicants be set aside and the fine they paid be refunded.

The Court emphasized that “there is no crime under our law for a person to simply wander about without giving an explanation”.

“The rule of law presupposes that in the exercise of its judicial mandate the court will be vigilant to ensure that nobody is unduly deprived of his liberty or otherwise subject to legal sanctions without due process. In ensuring that a proper charge is proffered and adequate information is supplied at the plea stage to warrant informed decision by the accused person, the court acts as a guardian of the rule of law. In this instance, unfortunately, the trial magistrate did not exercise his mandate with the requisite vigilance, which is to be lamented.”