This morning, the High Court of Malawi ruled that Section 184(1)(c) of the Penal Code of Malawi is unconstitutional. Known commonly as the “rogue and vagabond” provision, it allows for the police to arrest individuals on the suspicion that they are rogue and vagabond, or that they are on their way to commit a criminal act. This statute was applied when the police arrested and detained a vendor, Mayeso Gwanda, who was on his way to the market to sell plastic bags. Gwanda’s attorneys argued that Section 184(1)(c) violates the human rights of the defendant, and abrogates several principles of legal due process. More information on the background to the case, and the arguments made by the defence and the prosecution, can be found here: http://www.southernafricalitigationcentre.org/cases/ongoing-cases/malawi-challenging-constitutionality-of-rogue-and-vagabond-offence/
Early this morning, the mood of excitement and anxiousness was palpable among staff, volunteers and supporters of the Centre for Human Rights Education, Advice and Assistance (CHREAA), as we jumped into pickup trucks and cars, and headed to the High Court of Malawi in Blantyre, to show our support for Mr. Gwanda’s appeal. CHREAA, as one of the amicus curiae (third party) litigants in the case, has been involved in this appeal process for months preceding today’s verdict. The CHREEA team wore t-shirts with the words “Poverty Is Not a Crime!” printed on them. Those who are subject to arrest under Section 184(1)(c) are often the most vulnerable in our society, including vendors and small traders, sex workers, and others who have little recourse to defend their rights against abuse by law enforcement officers. The law criminalizes poverty in its application; for example, it is virtually never applied to someone who is traveling in a motor vehicle.
The High Court justices took turns presenting their analysis and arguments, and in the end, each justice determined that the “rogue and vagabond” statute is unconstitutional, arbitrary, and is written in such a manner that invites the abuse of power by authorities. The ambiguity of the law, and its language which lends itself to the assumption of the guilt of the accused, directly leads to the indignities which Mr. Gwanda and others have endured at the hands of law enforcement. A particularly poignant statement made by Justice Mtambo: “The presumption of innocence is a hallowed principle, integral to the protection of human dignity.” As a result of today’s ruling by the justices, Mr. Gwanda’s prior conviction under the rogue and vagabond statute will be vacated.
Following the ruling, CHREAA staff and supporters were jubilant outside the court, as the tireless efforts of all of the individuals and organizations who worked to appeal the conviction of Mr. Gwanda paid off today. In the negation of Section 184(1)(c), Malawi has become a more just society today. Congratulations Mayeso Gwanda, for your bravery and perseverance throughout this process. A tremendous thanks is due to our partner organizations in the Vagrancy Campaign, including the Southern Africa Litigation Centre (SALC), the AIDS and Rights Alliance for Southern Africa (ARASA), the Open Society Foundation (OSF) and the Open Society Initiative of Southern Africa. And finally, a thank you to the High Court justices for the conscience and principle that you demonstrated in today’s ruling.