Skip to main content

Malawi High Court declares mass arrests (sweeping exercises) unconstitutional

By 9 Nov 2022Jan 18th, 2023Criminal Justice News, Malawi5 min read
malawi-flag-wave-large

Blantyre, 9 November 2022 – On 8 November 2022, the High Court of Malawi issued a judgment declaring the police’s indiscriminate practice of sweeping exercises unlawful and in violation of various constitutional rights and international human rights standards. Mass arrest practices, carried out under the guise of crime prevention, referred to informally as sweeping or swooping exercises, are prevalent throughout Africa and are a legacy of colonial-era policing practices that blatantly disregarded human rights. The Malawi High Court considered the constitutionality of the vagrancy-related offence under which the applicants were charged as well as the arrest practices resulting from such vague and overbroad offences.

The case was supported by the Centre for Human Rights Education Advice and Assistance (CHREAA) and Southern Africa Litigation Centre (SALC). The Applicants were represented by Chikondi Chijozi, Criminal Justice Cluster Lead of the Southern Africa Litigation Centre.

The Malawi High Court 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 judgement, 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.

“This judgment is important because it can be utilised by organisations throughout Africa who are part of the Campaign to Decriminalise Poverty and Status to lobby for a change in policing practices,” said Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre (SALC). “Arrests are a powerful tool at the disposal of police which by their nature affect a person’s right to respect for human dignity; the right not to be subjected to cruel, inhuman, or degrading treatment; the right to freedom of movement; and the right to liberty and security of person. For this reason, arrests should comply with legal requirements, be utilised sparingly, and be supervised to ensure compliance with constitutional requirements.”

“Police sweeping exercises often target whomever the police deem undesirable, including sex workers, informal traders, children who live and work on the streets, persons who beg, and persons with disabilities. The result is that 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,” said Chikondi Chijozi, criminal justice lawyer at the Southern Africa Litigation Centre.

“Sweeping exercises continue unabated and are frequently applauded in local media, although many innocent people might be caught in the net. This corrodes trust in law enforcement, making it harder for police to enforce the law in the future,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA). “The judgment highlights the apparent disjuncture between the rules of professional policing and the practices on the street level, exacerbated by weak mechanisms for accountability and widespread impunity of abusive policing practices.”

Background

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.

The judgment referenced research conducted by SALC and CHREAA entitled No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi. From the interviews conducted with police and magistrates, it was apparent that the police practice of mass arrests (colloquially called sweeping exercises) disproportionately targeted poor and marginalised groups.

The Court referenced the Advisory Opinion issued by the African Commission on Human and Peoples’ Rights issued on 4 December 2020, which encouraged States to reform vagrancy-related offences, such as being a rogue and vagabond and idle and disorderly person since terminology such as ‘loitering’, ‘having no visible means of support’ and ‘failing to give a good account of oneself’ do not provide sufficient indication to the citizens on what the law prohibits while at the same time conferring broad discretion on law enforcement agencies to decide how to enforce vagrancy laws. The African Court noted that enforcement of vagrancy laws often results in pretextual arrests, arrests without warrants and illegal pre-trial detention. Such arrests are not only a disproportionate response to the socio-economic challenges but also discriminatory since they target individuals because of their economic status. The African Court ordered all State Parties to the Charter to “take all necessary measures, in the shortest possible time. The African Commission on Human and Peoples’ Rights’ Principles on the Decriminalisation of Petty Offences sets out the legal requirements against which any criminal offences should be measured.

The judgment can be accessed here

ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE AND THE CENTRE FOR HUMAN RIGHTS EDUCATION ADVICE AND ASSISTANCE.