Malawi must repeal vagrancy laws
Petty colonial era laws target poor and marginalised
Too many poor Malawians continue to end up behind bars for petty and outdated offences. Since this violates peoples' rights and overwhelms the judicial system, human rights organisations have called on the Malawi government to urgently repeal the country's outdated, colonial era vagrancy laws, which are being used by the police to target the poor and marginalised in Blantyre.
A research report released recently by the Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC) highlights how old English offences, such as being an idle and disorderly person or a rogue and vagabond, are being inconsistently applied by police and magistrates, and result in the violation of people’s rights.
“Our research confirms that people continue to be arrested and detained for minor nuisance-related offences, often when no probable cause existed for their arrest,” said Victor Mhango, Executive Director at CHREAA. “Those most at risk of such unlawful arrests are the poorest and most vulnerable – such as street children and sex workers.”
The report - No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi – recommends the repeal of outdated and vague offences, and an end to the use of imprisonment or detention as a punishment for non-serious nuisance-related offences.
“The Penal Code provisions on rogues and vagabonds date back to the English vagrancy laws of previous centuries and they are out of step with a modern democracy such as Malawi with a constitution that protects basic human rights,” said Anneke Meerkotter, a project lawyer with SALC.
The report also calls – while the process of repealing the vagrancy laws is underway – for the development of specific directives for police officers, which set out the scenarios in which arrests for nuisance-related offences would be appropriate, including guidelines on the use of sweeping exercises by police officers.
“It is extremely worrying that police continue to arrest children for minor nuisance-related offences when the laws of Malawi require that the arrest of children be a last resort,” said Mhango. “During our research we found children in custody without access to food and in the same cells as adults. Clearly, police officers must be encouraged to consider alternatives to arresting children for these outdated ‘offences’.”
The report makes it clear that sex workers also suffer routine abuse by police officers, who use the vagrancy laws as an excuse to violate their rights.
“Our interviews with sex workers showed that the police abuse of sex workers is endemic in Malawi and includes frequent assaults, extortion and rape – all conducted under the threat of arrest for the colonial era laws,” said Meerkotter. “Urgent action must be taken to stop the police from abusing sex workers – and repealing these outdated laws is an important step.”
The authors of the report point out that, while Malawi has made significant progress in developing laws which curb the extent of pre-trial detention, people arrested for minor nuisance-related offences are often not detained for long – but their unlawful arrest and/or detention is often accompanied by a violation of their rights, including being detained in abject conditions without food, and experiencing physical or sexual abuse.