One of the enduring legacies of colonialism in Africa is the police practice of arbitrary mass arrests. These so-called ‘sweeping’ exercises are typically conducted by police over weekends and at night, and they tend to have very general objectives, meaning persons are arrested, for example, for being on the street at night, even when they have not committed a specific offence or engaged in suspicious activity. Sweeping exercises are targeted at whomever the police and community themselves deem to be ‘undesirable’, including sex workers, informal traders, children who live and work on the streets, persons who beg, and persons with disabilities. Often the objective of sweeping exercises is to assure the public that sufficient attention is paid to crime prevention. However, people find themselves imprisoned or detained in potentially life-threatening conditions, especially in cases where they cannot afford bail or a fine, even when there is no proof of an actual offence having been committed.
Facts of the Case
The Applicants in the case were arrested in Kasungu District at around 11 pm on 27 March 2018 when Malawi police conducted a sweeping exercise in the district. At the time of their arrest, the applicants were respectively working as a DJ at a local bar, having a drink at a club, and selling Kanyenya (fish kebabs) at a bar. They were not informed of the reasons for their arrest, despite specifically demanding this information from the police. After spending a night in police cells, they were taken to Court, charged, and convicted of the offence of being a rogue and vagabond contrary to section 184(1)(b) of the Penal Code upon their guilty plea. The Applicants applied for judicial review before the High Court and submitted that the police’s indiscriminate arrest practices are unconstitutional. The Applicants urged the Court to order the State to develop directives or Standing Orders which will guide the police and ensure sufficient supervision during arrests so that rights violations do not occur.
In the High Court
On 8 November 2022, The Malawi High Court delivered its judgment and held that arbitrary mass arrests violate the rights to liberty, dignity, freedom from cruel, inhuman, and degrading treatment, economic activity, fair trial, and freedom of movement. The Court ordered the Malawi Police Services to develop proper guidelines for arrests. The Court set aside the Applicants’ convictions and ordered compensation for the rights violations they suffered. Finally, the Court ordered the Ministry of Home Affairs and the Inspector General of Police to review its training curriculum for police officers and to develop standard operating procedures binding on all police officers on the parameters of police arrest practices. Justice Ntaba noted that “in practice, arrests still retain their colonial character since arrests are easily used as a tool in circumstances where it is not a clear indication of an offence having been committed. In contrast, in a constitutional democracy based on the rule of law, an arrest is prima facie interference with the right to liberty, and accordingly, the powers of arrest are supposed to be reduced.”
The case follows the Mayeso Gwanda judgment, which in 2017 ordered Parliament to review vague criminal offences which result in arbitrary arrests. In the Gwanda case, the Court declared section 184(1)(c) of the Penal Code unconstitutional. In the current case, the High Court declared section 184(1)(b) of the Penal Code unconstitutional and ordered Parliament, within 24 months from the date of the judgment, to effectively review the entire section 184 of the Penal and to report to the Court on the progress of legislative reform by 22 July 2024.
Chikondi Chijozi of SALC represented the Applicants in the Case.
Case in the News:
22 July 2022 Chikondi Chijozi from SALC and Victor Mhango from CHREAA had an interview with TIMES TV