The Nation Newspaper (28 April 2026)
Chikondi Chijozi Jere
When the High Court on 22 July 2022 delivered its landmark ruling on police “sweeping exercises,” it did more than condemn unlawful arrests; it issued a clear directive for reform. The Court recognised that rogue and vagabond laws were being misused to justify arbitrary arrest. The Court gave the State and Parliament 24 months to review the relevant provisions of the Penal Code. That deadline has long passed. Yet today, the same laws remain in force, and the same policing practices continue.
The case, which stemmed from the arrest of individuals in Kasungu during a nighttime police sweep, exposed how people engaged in ordinary activities, working, trading, or socialising, were detained without explanation and pressured into pleading guilty.
In response, the Court underscored that such practices violate fundamental constitutional rights, including dignity, liberty, and freedom of movement. It also highlighted how vague offences are used to target people without evidence of actual wrongdoing. But crucially, the Court went further: it recognised that the problem was not only policing practice, but the law itself.
By directing a review of the Penal Code, the Court made clear that lasting change required legislative reform, not just adjustments in police conduct. Parliament, through its Legal Affairs Committee, considered the issue and approved a report calling for the review of the Penal Code provisions that enable these arrests. The matter was referred to the Ministry of Justice, through the office of the Director of Public Prosecutions, to draft the necessary amendments. But years later, there has been no visible legislative reform. No amendment bill has been tabled. No revised legal framework has been enacted. In effect, the responsibility to act has stalled within the Executive.
As long as the law remains unchanged, police continue to rely on broadly worded offences to conduct sweeping arrests. Individuals, often the poorest and most vulnerable, are still picked up in mass operations, detained, and pushed through the criminal justice system for conduct that may not amount to a crime. Many cannot afford legal representation or bail. Faced with the prospect of spending days in custody, they plead guilty simply to regain their freedom. This is not justice, it is survival. The result is a cycle where poverty itself becomes grounds for criminalisation. The judgment warned against exactly this outcome, noting that arrest without evidence undermines the presumption of innocence and erodes human dignity.
The failure to act also raises a deeper constitutional concern: compliance with court orders. When a court identifies a law as problematic and calls for its review, ignoring that directive risks undermining the authority of the judiciary and weakening the principle of separation of powers. In a constitutional democracy, court decisions are not advisory; they are binding.
Delay in implementation send a troubling message: that even clear judicial findings on rights violations can remain unaddressed.
The judgment made it clear that Malawi must move away from outdated policing practices that rely on vague offences and mass arrests. Modern policing must be grounded in evidence, proportionality, and respect for human rights. Without legal reform, however, the old framework remains intact, making it easier for these practices to persist.
The continued existence and use of these laws place Malawi at a crossroads. On one hand is a constitutional vision grounded in dignity, fairness, and the rule of law. On the other is a system where vague offences allow for arbitrary enforcement, disproportionately affecting those with the least means. The High Court has already spoken. Parliament has acknowledged the problem. What remains is action.
Each day without reform is another day the law continues to punish poverty and undermine constitutional rights. The longer the delay, the clearer the message becomes: that even when the courts defend the most vulnerable, justice can still be postponed.