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Malawi: Challenging constitutionality of offence which criminalises poverty

Factual Background

One of the enduring legacies of colonialism in Africa is the police practice of arbitrary mass arrests. These so-called ‘sweeping’ or ‘swooping’ exercises are typically conducted by police over weekends and at night. Such sweeping exercises tend to have very general objectives, meaning that 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 whoever the police deem to be ‘undesirable’, including sex workers, vendors, street children, 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, in reality people find themselves imprisoned or detained in potentially life-threatening conditions, especially in cases where they cannot afford bail or the fine, even when there is no proof of an actual offence having been committed.

The African Commission on Human and People’s Rights’ Guidelines on Arrest, as with most Criminal Procedure Codes, only allows arrest without a warrant if there are reasonable grounds to suspect that a person has committed or is about to commit an arrestable offence. The African Commission’s Principles on the Decriminalisation of Petty Offences in Africa further notes that the enforcement of petty offences through mass arrests is inconsistent with the right to dignity and freedom from ill treatment.

The persistence of these practices of mass arrests is facilitated through various vague and outdated Penal Code offences that serve to give these arrests a veneer of lawfulness, including common nuisance, being idle and disorderly, soliciting for an immoral purpose, being a rogue and vagabond, loitering and breach of peace.

In the High Court

Three applicants were arrested in Kasungu District at around 11 pm on 27 March 2018 after Malawi police a sweeping exercise in the District, at which time they were respectively working as a DJ at a local bar, having a drink at a club, and was selling fish kebabs at a bar. They were not informed of the reasons of 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 own guilty plea. The applicants launched two cases, one challenging the constitutionality of section 184(1)(b) of the Penal Code which provides that “every suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself” shall be deemed a rogue and vagabond; and the other, challenging the police’s conduct in conducting an indiscriminate sweeping exercise; failing to promptly give reasons for the arrest and detention; and coercing the applicants to plead guilty to the offence of being a rogue and vagabond. Section 184(1)(c) of the Penal Code was previously declared unconstitutional in the Gwanda case.

In February 2019, the Zomba High Court, before Judge Ntaba, heard a case in which the applicants challenged the police practice of conducting arbitrary mass arrests under the guise of crime prevention. The applicants are represented by Chikondi Chijozi. The Legal Aid Board applied to join the case as amicus curiae. Prior to merits being argued, the State filed preliminary objections to the case. The High Court rejected the objections and the State proceeded to request an appeal. The Court ordered that, pending an appeal, the State should issue directions that the police refrain from conducting sweeping exercises. The case about the constitutional challenge to the offence itself is currently awaiting certification.

The applicants are represented by Chikondi Chijozi and supported by SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA).

On 21 June 2021, the High Court heard an application challenging the indiscriminate police arrest. The Applicants argued before the Court that in a constitutional democracy based on the rule of law, arrest is a prima facie interference with the right to liberty and accordingly the powers of arrest are supposed to be reduced. The legal framework relating to arrests in Malawi deliberately avoids the colonial character of policing and specifically does not provide for mass arrests. Therefore, before the police’s indiscriminate sweeping exercise and arrest violated their constitutional rights. Read the news release here.




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