The Malawi Penal Code provides for various nuisance-related offences, including common nuisances (s168); gaming and betting offences (s169-177); idle and disorderly persons (s180); conduct likely to cause a breach of the peace (s181); use of insulting language (s182); nuisances by drunken persons (s183); and rogues and vagabonds (s184). Many of these offences reflect fundamental defects of vagueness, over breadth, disproportionality, and arbitrariness in application. Some create a reverse onus forcing the accused to prove his or her innocence, whilst others define an offence based upon the status of a person instead of upon their actions.
In 2012, Malawi amended its 1930 Penal Code to conform to the aspirations of the people of Malawi which are reflected in its 1994 Republican Constitution, which includes the respect of human rights for all. However it is sad to note that the amendments of 2012, did not take into account the repealing of the vagrancy laws which have the effect of discriminating some poor sections of society.
The Penal Code offences such as being an idle and disorderly person (section 180) and being a rogue and vagabond (section 184) are sometimes used indiscriminately to arrest persons, contributing to overcrowding in police cells and placing a strain on resources in the criminal justice system. These laws tend to give law enforcement officials a wide discretion in application, which increases the vulnerability of persons living in poverty to violence and harassment. CHREAA partnered with the Southern Africa Litigation Centre (SALC) to conduct research regarding the use of outdated vagrancy laws to arrest and detain persons in Blantyre. The research revealed that police officers would arrest a person under section 180 for being drunk, urinating in public, kissing in public, loitering without purpose or engaging in prostitution, when section 180 does not cover such activities. Similarly, section 184 was inconsistently interpreted by police officers. Police officers, who were interviewed during the research, expressed an entitlement to arrest persons who stood on the road without doing anything, or who were outside late at night, or who did not carry proper identification.
Arrests under these vagrancy laws have been effected in most cases in what are called sweeping exercises by the police which are believed to reduce crime and target would be offenders. It is sad and a miscarriage of justice to note that most of the people arrested under these offences when taken to court will just plead guilty to the offences even though they do not fully understand the offence against them either because they were persuaded by the police to plead guilty or that they do not want to remain in police custody when they plead not guilty or be coming to court for trial. Courts in Malawi have expressed concern on the applicability of such laws and have stated that such laws are discriminatory in nature.
In light of the above, CHREAA, in collaboration with SALC, is engaged into an intensive campaign to decriminalize such petty offences and improve the arrest practices of police and their attitudes towards marginalized groups.
CHREAA is specifically working towards the repeal of section 184 of the Malawi Penal Code, which deems various persons rogues and vagabonds, including every suspected or reputed thief who has no visible means of assistance and cannot give a good account of himself and any person found on a road or at a public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose.