21 June 2021, Blantyre – Today, Judge Zione Ntaba heard the case of State v Officer in Charge, Kasungu Police Station and Inspector General of Police, Ex Parte Banda and 2 Others, which challenged arbitrary arrest practices, The Applicants raised the issue of the unreasonableness of the arrest, taking into account that the Applicants’ circumstances did not constitute any offence and that the police ought not arrest with the intention to investigate; they need to have evidence of criminality before arrest.
The case is supported by the Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC). Both organisations have long campaigned against unlawful police arrest practices and have challenged the constitutionality of overly broad catch-all offences used to justify arbitrary arrests. The Applicants are represented by SALC lawyer, Chikondi Chijozi.
“For far too long, people have been unfairly subjected to the criminal justice system in the absence of any criminal offence having been committed and in the absence of any criminal intent,” says Victor Mhango, Executive Director of CHREAA. “Practices of arbitrary mass arrests are blatantly unlawful, yet they continue unhindered simply because those arrested cannot afford to challenge these arrests.”
“The Malawi Courts have previously expressed their dismay at the lack of procedural compliance entailed by such mass arrests and the consequent rights violations,” says Chikondi Chijozi from SALC. “This case provides an opportunity for the court to explicitly declare the practice of arbitrary police sweeping exercises unlawful and to compel the police to remedy these practices in line with their constitutional mandate to protect human rights.”
FACTS OF THE CASE
The Applicants in this 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 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. They have launched a separate case 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.
The Applicants filed a judicial review of the following decisions made by the police:
- The indiscriminate sweeping exercise and arrest of the Applicants;
- The failure to promptly give reasons for the Applicants’ arrest and detention; and
- Coercing the Applicants to plead guilty to the offence of being a rogue and vagabond.
RELIEF SOUGHT FROM THE COURT
The Applicants seek the following relief:
- A declaration that the police’s indiscriminate sweeping exercise and arrest is unconstitutional.
- A declaration that the police’s indiscriminate sweeping exercise and arrest is contrary to their duty to protect human rights.
- An order compelling the police to develop proper guidelines for sweeping exercises which shall ensure full protection of human rights.
- A declaration that the failure by the police to promptly inform the Applicants of the charges against them at the time of arrest and detention is unlawful and unconstitutional.
- A declaration that the conduct of the police in forcing the Applicants at the police station to plead guilty to the offence of rogue and vagabond and threatening them with possible detention in prison if they failed to do so is unconstitutional.
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, children who live and workon 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, 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 arereasonable 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.
On 4 December 2020, the African Court on Human and Peoples’ Rights found that rogue and vagabond offences violate the rights enshrined in the African Charter. It further held that such offences empower law enforcement officers to arbitrarily arrest individuals without the sufficient level of prima facie proof that they committed a crime. The Court held that “arresting individuals under vagrancy laws and soliciting statements from them about their possible criminal culpability, is at variance with the presumption of innocence.”
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, loiteringand breach of peace.
The Applicants submit that the community can only maintain trust in the police, if the police behaves in a rights-oriented, ethical, accountable and objective manner. The Applicants submit that sweeping exercises in which persons are arrested for minor offences and non-criminal behaviour are unreasonable, unlawful and in violation of human rights. Such arrest practices have not proved to lead to reductions in serious crime and place a strain on the resources of police, courts and prisons.
More information on the case is available on https://www.southernafricalitigationcentre.org/our-programmes/prisoners-rights/ Also follow @CHREAAMalawi and @follow_SALC for updates on the case.
Both organisations are part of the Campaign for Decriminalisation and Reclassification of Petty Offences in Africa – more information on the campaign is available at www.pettyoffences.org
ISSUED BY SOUTHERN AFRICA LITIGATION CENTRE AND CENTRE FOR HUMAN RIGHTS EDUCATION, ADVICE AND ASSISTANCE