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Constitutional Court in Blantyre declares Section 184 (1) (c) of the Penal Code unconstitutional

By 13 January 2017January 20th, 2023Criminal Justice, Malawi5 min read

The ruling by the Constitutional Court in Blantyre which Nyasa Times first reported on Tuesday that a panel of three judges have declared Section 184 (1) (c) of the Penal Code that deals with offences of rogue and vagabond as unconstitutional and invalid has dominated the headlines on Wednesday with human rights activists and the press hailing the ‘victory of liberal democrcay’.

“Vagabond ruling stirs excitement” was the headline in The Nation daily newspaper, reporting quotes from law expert Edge Kanyongolo, who is also an associate professor of law at Chancellor College of the University of Malawi, describing the ruling as victory for human rights affirming freedom of movement unless there is reasonable suspicion of committing criminal offence.

Kanyongolo also played down fear mongering following the invalidating of the section, pointing out to what the High Court alluded that there are already enough laws which give police power in appropriate circumstances to effect arrests.

“This law (Vagabond) was completely redundant and unnecessary and countries that do not have this law are not chaotic, some are even he best citities in the world,” said Kanyongolo.

He also observed that Vagabond law enforcement was “discriminatory”.

Under the headline ‘Illiberal laws have no place in democracy’, The Nation editorial comment said liberal democracy which Malawians chose in 1993, took a giant step forward with the High Court ruling that rogue and vagabond law are invalid and unconstitutional.

The paper said it welcomes the ruling “as a historic victory of human rights – an affirmation that law that deepen liberal democracy are only acceptable if they are within the realms of the constitution.”

The publication went further to salute organisations such as Centre for Human Rights Education, Advice and Assistance (Chreaa) and lawyer Mandala Mambula who represented vendor Mayeso Gwanda in challenging the law , for their effort – “something which has led the nation to the victorious ruling.”

However, the paper said the ruling is “not the end we seek”, saying the Panel Codes and Acts of Parliament “still stink with archaic and colonial laws that continue to limit individual freedoms of the people as spelt out tin the country’s supreme law, the Constitution.”

It called for any laws tht contravenes “our liberal democracy” to be repealed, saying the Vagabond ruling “is just a step to a longer journey .”

“Vagrancy law nulliffied” was the headline in The Daily Times, quoting Chreea executive director Victor Mhango, saying that they are satisfied with the ruling.

“We are in a campaign to remove all the discriminatory provisions from our laws. Now that we are doen with the vagrancy laws, we will now be looking at the other discriminatory laws,” Mhango was quoted as saying.

Under the headline, “Vagrancy law was discriminatory”, The Daily Times editorial comment said the petty crimes that send poor people to prison are numerous; from pick-pocketing to stealing chickens but “those who commit real crimes still enjoy their freedom.”

However, the paper said the ruling to invalidate Vagabond offence does not mean criminals must have “an easy ride,” saying it will surely protect poor citizens that have been victimised for a long time but will at the same time test the police’s skills in isolating criminals and bringing them to book.

It also concurred with what its rival daily said in its editorial comment that the ruling should be “an opportunity to look at other laws that contravene our Constitution.”

The ruling follows an application by a local vendor Mayeso Gwanda who was arrested on March 11th, 2015 whilst on his way to the market to sell plastic bags.

Gwanda through lawyer Mambulasa filed a case at High Court in Blantyre arguing that the said law violates the right to dignity; the right to be free from inhumane and degrading treatment; the right to freedom and security of person; the right to equal protection and freedom from discrimination; the right to privacy; and the right to freedom of movement.

A panel of three High Court judges, Justice Michael Mtambo, Justice Sylvester Kalembera and Justice Zione Ntaba upheld Gwanda’s application, arguing the said law limits one or more of the rights contained in sections 19(1), 19(3), 19(6), 20(1), 21 and 39(1) of the Constitution of the Republic of Malawi that it cannot be said to be reasonable, recognized by international human rights standards, and necessary in an open and democratic society.

The case was joined by the Legal Aid Bureau, Centre for Human Rights Education, Advice and Assistance (CHREAA), Paralegal Advisory Services Institute (PASI) and Malawi Law Society who were admitted as amicus curiae.

Malawi: Vagabond Ruling Dominate Malawi Headlines – Papers, Activists Hail Win for Liberal Democracy

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