The Nation
8 June 2024
By Zororai Nkomo
Malawi is among African countries that have ratified the African Charter on Human and Peoples’ Rights (ACHPR) but is still administering vagrancy laws which criminalise poverty, homelessness, inequality and marginalisation.
Vagrancy laws are pieces of legislation which perceive poor, homeless and unemployed people as criminals.
In 2017, the Centre for Human Rights Education Advice and Assistance (CHREAA) and Southern Africa Litigation Centre (SALC), in the case of Mayeso Gwanda, successfully challenged the constitutionality of vagrancy offences. The Court ordered Parliament to review these vague criminal offences which resulted in arbitrary arrests. In 2020, the African Court on Human and Peoples’ Rights in an advisory opinion, affirmed the Gwanda decision and held that vagrancy laws across Africa were not compatible with the African Charter because they criminalise livelihood activities of poor people.
Despite the pronouncements by the courts, the police continue to conduct arbitrary mass arrests of people found in public spaces. CHREAA and SALC challenged the constitutionality of the police’s indiscriminate mass arrests, which were conducted under the guise of crime prevention.
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 provisions relating to so-called “rogues and vagabonds” and “idle and disorderly persons” in the Penal Code and report to the Court on the progress of legislative reform by 22 July 2024.
Human rights defenders described the landmark court decisions as great milestones in decriminalising poverty in Malawi.
Malawi human rights lawyer, Chikondi Chijozi, celebrated these decisions since vagrancy laws were being used as tools to punish and harass vulnerable members of communities.
“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,” said Chijozi.
However, both Chijozi and the Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA), Victor Mhango, cautions that the administration of a range of criminal offences, including vagrancy laws, continue to corrode members of the public’s trust in the police.
“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 Mhango.