From overcrowding and inadequate resources to lack of rehabilitation, prisons across Africa face many challenges.

In Malawi, prisons are not only overpopulated but also underfunded, leaving inmates in inhumane conditions that violate their basic rights.

Despite a sustained lobby for better budgets and conditions, much work remains to be done.

Kenya’s recent reforms offer a compelling example on how Malawi can transform its prison system into a productive and rehabilitative institution.

Kenya’s initiative to turn prisons into industries is a model worth exploring.

The east African country has 135 prisons which house over 63 000 inmates.

The Kenyan government is shifting the prison system from mere confinement to rehabilitating offenders, training them in various trades and making prisons self-sufficient.

Kenya is enhancing inmates’ skills and making prisons financially sustainable by focusing on agriculture, carpentry, construction and other industries.

Malawi, which has 23 district prisons, can learn from this approach.

Kenya’s prison reforms include introducing vocational and agricultural training to ensure that prisons are not just places of confinement but avenues for rehabilitation and personal development. Already, 8 500 inmates have learned various trades and Kenya is expanding its prison farming programmes to produce food for the correctional facilities and the country.

In Malawi, there are similar initiatives, albeit scanty. With the aid of partners, the Malawi Prison Service runs a skills project focusing on barbering, tailoring, carpentry and bricklaying.

However, these initiatives are financially constrained and they lack infrastructure.

Expanding such programmes to cover more trades and industries would offer inmates the skills to reintegrate into society, reducing recidivism.

Moreover, vocational training can help underfunded prisons become more self-sustaining, as inmates produce goods that boost the economy.

Kenya’s prison industries have already made significant contributions to the economy, producing furniture, baked goods and farm produce.

For example, Kamiti Maximum Prison has Kenya’s largest prison furniture industry and has been involved in multi-billion shilling projects such as renovating Kenya’s National Assembly chambers.

Prisons also produce food through potato farming in Nyandarua and rice milling in Mwea.

Malawi’s prisons have the potential to adopt a similar model.

The idea of converting prisons like Mikuyu and Mwanza into farms, where inmates can grow crops, raise livestock and produce food for the broader market, is promising.

The K100 million allocated for establishing megafarms in the country’s prisons during the 2022/23 Mid-Year Budget review is a step in the right direction. However, this funding must be utilised effectively to expand production and create self-sufficient facilities.

By training inmates in agriculture and other trades, the country could reduce its dependency on external resources and ensure prisons contribute to national food security.

Kenya’s prison reforms include improving inmates’ living conditions and welfare.

These include better housing, medical care and diet as well as environmental and climate change mitigation efforts such as planting trees.

These changes not only benefit the inmates but also reflect a rights-based approach, ensuring that inmates are treated with dignity and respect.

Centre for Human Rights Education Advice and Assistance (Chreaa) and the Southern Africa Litigation Centre (Salc) have long advocated improved prison conditions in Malawi.

The revised prison budget in the 2022/23 mid-year national budget review, which increased the prison food budget, is a positive step.

However, the current living conditions in many prisons remain dire, with overcrowding and low access to healthcare.

Malawi must prioritise improving these conditions to ensure that prisoners’ rights are respected and create a favourable environment for rehabilitation and productivity.

Kenya’s reforms are anchored in legal and policy changes aimed at improving prison governance. This includes reviewing the Prisons Act, the Borstal Institutions Act and the Community Service Orders Act.

In Malawi, passing of the long-awaited Prisons Bill could serve as the foundation for comprehensive reforms.

The proposed law would modernise the legal framework governing prisons for better oversight and management of emerging industries and rehabilitation programmes.

Chreaa urges the Malawi Government and all stakeholders to support reforms that prioritise prisoners’ rights, welfare and rehabilitation. n

*The author is the Chreaa executive director

During the parliamentary sitting, the Chairperson of the Committee Hon. Peter Dimba noted that the review of vagrancy offences would protect fundamental human rights as the laws often lead to arbitrary arrests that affect marginalised individuals. The Committee urged the government through the Ministry of Justice to facilitate the amendment Bill on selected sections as a matter of urgency with due regard to the timelines given by the Court.

The Committee through its second speaker, Hon. Yusuf Nthenda recognised the 2020 advisory opinion by the African Court on Human and Peoples’ Rights which noted that vagrancy laws in many African countries, including Malawi are incompatible with various human rights instruments. It noted that the committee’s recommendations align with the African Court’s findings.

The Committee also noted the importance of capacity-building law enforcement agencies as the effectiveness of legal reforms depends on their ability to implement them properly. During the sitting, the Chairperson of the Legal Affairs Committee also noted that other archaic laws in the Penal Code would need to be reviewed, such as attempted suicide offences.

The Minister of Justice, Honourable Titus Mvalo SC, also supported the review of vagrancy offences in the Penal Code and called for a thorough review to take out  the archaic Penal Code offences.

“This is a huge milestone in the campaign for decriminalisation of petty offences in Africa. It is high time that parliament take time to review colonial laws that have been used to oppress the marginalised groups in society.” Stated Chikondi Chijozi, SALC, Criminal Justice Lead.

Victor Mhango, the Executive Director of CHREAA also expressed his excitement about the development in Parliament, “When we see such overwhelming support coming from the Committee as well as Government, it shows that our democracy has progressed and that we are putting human rights in the forefront. We however hope that Parliament and the Ministry of Justice are mindful that the time set by the Court expired on 22 July 2024 and that they will do their best to table the Bill in the next sitting.”

While this is a good development, more needs to be done to reform the law, such as introducing an amendment Bill to the Penal Code and working in collaboration with civil society organisations to repeal laws criminalising marginalised persons and violating their human rights.

Find full speeches here:

1. SPEECH ON THE REVIEW OF THE PENAL CODE

2. SECONDMENT SPEECH ON THE REVIEW OF THE PENAL CODE

31 July, 2024

By Llyod Chitsulo

Human rights organisations, including the Malawi Legal Aid Bureau, have praised a High Court ruling that gave 30 days for the State to deport illegal immigrants.

The ruling, delivered at the Mzuzu Registry,  followed a case brought before the court by 25 immigrants who were illegally detained at Mzuzu Prison and, during routine prison visits between July 2 and 4 this year, the Malawi Legal Aid Bureau discovered that over 100 illegal immigrants were kept there.

The immigrants were being kept despite their remand warrants having expired in January this year while others had finished serving their respective sentences; hence, being detained illegally.

In a joint statement yesterday, Centre for Human Rights Education, Advice and Assistant (Chreaa), Southern Africa Litigation Centre (Salc) and Malawi Legal Aid Bureau, described the ruling as a progressive, stressing that people should not be detained indefinitely.

Chreaa executive director Victor Mhango said a huge number of undocumented immigrants continue being detained in the country’s prisons for indefinite periods.

He said: “Sometimes the number of immigrants is equal to the prison’s capacity.

“This puts undue pressure on the prisons which are already overcrowded and do not have enough food to feed prisoners.”

Salc criminal justice cluster lead Chikondi Chijozi said it is commendable that the Malawi Legal Aid Bureau took up the matter having observed that there were many immigrants that are detained illegally in prisons.

“The judgement is progressive as it urges the State to consider alternative options such as issuing temporary permits, release on bonds/recognisance and encouraging self-repatriation,” she said.

Malawi Legal Aid Bureau assistant director Chimwemwe Chithope Mwale also expressed delight at the ruling. He said Legal Aid Bureau was compelled to take up the matter as it was concerned about the situation.

He said: “When we visited Mzuzu Prison and found that over 100 immigrants were being detained, we were concerned with the overcrowding in the prisons and our assessment of the cases showed that they were illegally detained and we decided to challenge that.”

In his ruling on Monday, Mzuzu High Court Judge Justus Kishindo said under the Immigration Act, 30 days ought to be ample time within which undocumented immigrants ought to be deported.

He ordered that the State should provide to the court a progress report on the steps taken to deport the illegal immigrants and further sustained an order that children should not be detained in prison.

Chithope Mwale represented the immigrants in the case with support from Chreaa and Salc.

“We are happy with the High Court’s judgment because we have seen a huge number of undocumented immigrants being detained in prisons for indefinite periods. Sometimes the number of immigrants is equal to the prison’s capacity. This puts undue pressure on the prisons which are already overcrowded and do not have enough food to feed prisoners.” Said Victor Mhango, the Executive Director of CHREAA.

Commenting on the judgment, Chikondi Chijozi, said “It is commendable that the Legal Aid Bureau took up this matter “having observed that there are so many immigrants that are detained illegally in prisons. The judgment is very progressive as it urges the State to consider alternative options such as issuing temporary permits, release on bonds/recognisance and encouraging self-repatriation.

“As the Bureau, we are very happy with the judgment of the Court. When we visited Mzuzu prison and found that over 100 immigrants were being detained at Mzuzu Prison with the offence of illegal entry, we were concerned with the overcrowding in the prisons and our assessment of the cases, showed that there were actually some immigrants that were illegally detained and we decided to challenge that,” said Chimwemwe Chithope Mwale, Assistant Director of the Bureau, who represented the applicants.

Background

The Case was brought by 25 immigrants who were illegally detained in Mzuzu prison. During its routine prison visits, the Legal Aid Bureau between 2- 4 July discovered that there were over one hundred persons of foreign nationality incarcerated in Mzuzu prison for the offence of illegal entry into Malawi. The Applicants have been under illegal detention as they continued to be detained in Mzuzu prison despite their remand warrants expiring in January 2024, and others are still being detained even though they had finished serving their sentences and were supposed to be deported by 26 June 2024. The Applicants were represented by Counsel Chimwemwe Chithope-Mwale of the Legal Aid Bureau with support from SALC and CHREAA.

For more information contact:

SALC: Chikondi Chijozi, +265888647847 or chikondic@salc.org.za

Legal Aid Bureau: Chimwemwe Chithope Mwale,+265999421873 or cmwale@legalaidbureau.org

CHREAA: Victor Mhango, +26599952256 or victormhango@chreaa.org

22 July, 2024

By Thomas Kachere

Patricio, now 45, does not remember the year 2003.

“I was in prison that year, when prison conditions were bad. This is despite that some of the convicts that are sent to prison do not serve prison sentences with hard labour while others are imprisoned with hard labour, depending on the magistrate’s pronouncements in court.

“That time, I was one of the prisoners who were serving sentences without the condition of hard. As such, we were supposed to be treated well, albeit this was not the case. We could, sometimes, be asked to go and slash the grass along the road. What makes me remember the year 2003 is that we were informed that the Prison Act was being reviewed and that, in some cases, inmates would be given a chance to earn an income while in prison,” he said.

However, Patricio came out of prison in 2018 without any progress on the issue.

Now the Ministry of Justice has said that the Prison Bill is in its priorities’ tray.

Ministry spokesperson Frank Namangale said they are aware of the challenges that are being faced by the Malawi Prison Service.

“There is that possibility [of taking it to Parliament]. It is one of the bills on our priority list,” Namangale said.

The Prisons Bill was first drafted in 2003 with support from Penal Reform International.

The exercise was meant to reform the current Act, which was enacted in 1956.

The current Prison Act predates the establishment of democracy in Malawi and the Malawi Constitution.

Due to worries that the bill which had been drafted was not reflecting socio-economic circumstances of that time, review exercises on the bill were suspended indefinitely.

In 2013, a renewed attempt to redraft the bill was supported through the establishment of a Special Commission of the Law Commission.

The activity was funded by UNODC, with a report and subsequent updates being published in 2018.

The bill moves away from the theme of retribution and punishment, which is ingrained in the Prisons Act of 1956, towards a more humane treatment of individuals through rehabilitation and reintegration.

It also includes suggestions of open prisons, halfway houses and prisoner release on temporary licence as well as the release of prisoners on parole.

It also removes corporal punishment.

Commissioner General of the Malawi Prison Service Masauko Wiscot confirmed that the bill has stayed for a long time without being taken to Parliament, a development that continues to put more pressure on their department.

The commissioner general also noted that the law commission report has created new divisions, which will help them to implement the new changes.

Further to that, the government has given them the authority to start recruiting officers to fill positions.

“We want the members of Parliament to support the bill when it goes to Parliament. One of the challenges that we, as a service, are facing is overcrowding in our cells and this bill introduces a new division of community correction, where it has the parole, public works and community service.

“Currently, the only way used to decongest our prisons is through pardoning. We feel if this bill is passed with the areas that have been introduced, it will help to decongest our prisons. So we would want the members of Parliament to support the bill once it is taken to Parliament because the Act we are using was enacted in 1956 and most of its provisions have been outlawed by the Constitution,” he said.

As at June 2024, the prison population was 16,536 against a capacity of around 7,000 individuals.

Meanwhile, Legal Affairs Committee of Parliament Chairperson Peter Dimba has said they, as a committee, are ready to support progressive laws in the country.

“The Prison Bill is one of the bills that is in our hearts. We have had this bill for more than a decade now and we have been talking about prison reforms for a long time. What is remaining is to take an action so that the bill is taken to Parliament and passed. “Otherwise, we are not happy that government has done nothing on this, apart from just talking. We, as a committee, will be engaging stakeholders on the issue. It is sad that we are the only one in the region with archaic laws governing the prison service. Our friends in Zambia have moved ahead on this,” Dimba said.

On her part, Southern Africa Litigation Centre lawyer Chikondi Chijozi has expressed worry that Malawi is still using archaic laws at a time several things have changed.

The guiding principles of the new bill, according to Victor Mhango, Centre for Human Rights Education, Advice and Assistance Executive Director, would incorporate rehabilitation, reintegration, social cohesion and reformation and states that conditions of detention shall be humane and in accordance with international human rights principles.

Mhango said through reintegration, released individuals can then contribute to the financial and economic development of the country and break the cycle of repeat offending due to poverty.

“The new bill will create a parole system which will help to alleviate the major overcrowding and inhumane conditions that detainees face currently and signal a move towards humane treatment and rehabilitation and reintegration of detainees guided by the Constitution and international instruments,” Mhango said.

According to Mhango, there is enough support from those within the Prison Service to enact the bill in order to help decongest prisons and improve conditions for those detained, leading to a better-functioning prisons system.

“Is it because it is talking about the prisoners? The process started in 2000 and we have seen bills coming and passing. But this bill was never taken to our Parliament, which means it is an issue of copy and paste from our colonial masters.

“Several things have changed. We have the 1994 Constitution, which has the Bill of Rights,” he indicated.

In 2018, the Malawi Inspectorate of Prisons found that “failure to provide adequate food and medical care is a serious breach of national and international legal and policy instruments and amounts to a breach of human rights”.

It further found that almost all prisons had failed to comply with statutory regulations where they were serving non-diverse diets of nsima with beans or peas, which is notably lacking in vegetables or meat.

Surely, these are indications of a prison system overtaken by events.

BY James Chavula

Two of the three arms of government, the Legislature and the Executive, risk contempt of court sanction for delaying to review colonial penal laws fuelling random arrests of the poor while the well-off go scot-free.

The risk comes after a July 22 2022 High Court of Malawi order issued in Zomba for the Executive and the Legislature to review Section 184 of the Penal Code by July 22 this year.

High Court Judge Zione Ntaba also ordered the two arms to report to the court on June 22 what they have done about the offences deemed petty and discriminatory by activists.

When The Nation asked both the Ministry of Justice and Parliament on the status of implementation of the orders three weeks before reporting to court, the duo could not outline the steps so far taken.

On behalf of the Legislature, Speaker of Parliament Catherine Gotani Hara said: “Our understanding is that the court order was directed at the Ministry of Justice because we don’t generate Bills. Parliament was only mentioned because the House has the duty to debate proposed laws from the Executive and private members.”

However, the court ruling stated: “The Executive through the Ministry of Justice [the Attorney General, Director of Public Prosecutions and Chief Legislative Counsel as well the Ministry of Home Affairs [now Homeland Security] and Inspector General and the Legislature through Speaker working with the relevant committees should within 24 months from the date hereof, effectively review the entire Section 184 of the Penal Code and effectively amend the provisions, especially those declared unconstitutional in a manner that ensures consistency with the Constitution and to take care of any unintended gaps in the law.”

The judge warned the said officers, including Attorney General Thabo Chakaka Nyirenda, that the court judgement “remains a valid order” unless vacated and “non-compliance of the same is contempt”.

On the steps the Executive has undertaken, Ministry of Justice spokesperson Frank Namangale said: “We are mindful of that court judgement. We are taking care of this.”

Since Malawi attained self-rule from Britain in 1964, policymakers and lawmakers have missed critical junctures to modernise laws in line with the wind of change, the Bill of Rights, Malawians’ aspirations and international obligations.

Periodically, some citizens have risen to challenge repressive laws as did nightclub DJ Henry Banda, imbiber Ishmael Mwale and roast meat vendor who were randomly arrested alongside 20 others in Kasungu on March 27 2018.

In the Constitutional Court ruling, Ntaba abolished the sweeping arrests of the Kasungu trio as unconstitutional, a breach of human rights and the State’s departure from its duty to protect all citizens.

Strangely, the court in 2017 had declared the offence, commonly known as vakabu (rogue and vagabond), unconstitutional after vendor Mayeso Gwanda challenged his wee-hour arrest on his way to buy fish.

The vendor who brought changes to the law said he was appalled that the police shoved him into a vehicle driven by someone who went scot-free despite being equally on the prowl the morning he was detained.

Lawyer Chikondi Chijozi represented Gwanda and the Kasungu petitioners with support from the Centre for Human Rights Education, Advice and Assistance and Southern Africa Litigation Centre.

She questioned government arms’ failure to table the law review in Parliament, wondering when they realised the court order was misdirected and what did they do about it.

Suicide continues to be a global health concern, affecting all continents. During the lockdown period to mitigate the impact of the COVID-19 pandemic between April and September 2020, Malawi saw a rise in suicide cases, mainly due to financial hardships.  Between January and August of 2022, the police reported 208 suicide cases, with 168 being male and 40 being female, indicating an increase from the same period last year when they reported 160 suicide cases.[1] This is an average of 26 people committing suicide each passing month. However, it should be highlighted that the pandemic has only highlighted a situation that was already a problem for Malawi – perpetual poverty that threatens the very fabric of Malawians’ existence. It is estimated that about 50% of Malawi’s population lives in poverty, with 20% living in extreme poverty. Suicide from impulsive life stresses is often connected with social and cultural factors such as debt and romantic relationship breakdown. Extreme poverty destabilises lives, crushes self-esteem, and creates despair which can lead to self-harm.[2] Other factors contributing to such high suicide rates in the country include a lack of interventions such as psychosocial therapy, poor coping skills, and/or cultural upbringing, as the Malawian culture does not allow men to be vulnerable and express emotional weakness during difficult times, unlike women; like most African cultures.

Malawi, which once was a British colonial state, still retains the offence of attempted suicide under Section 229 of its Penal Code. [3]  The criminalization of attempted suicide laws in Africa can be dated as far back as the 5^th century in Europe. In England, “self-murder” was regarded as a sin against God, the King, and nature and the British colonial office inevitably introduced this offence in its colonies with the penalty for such offence ranging from 1 to 3 years imprisonment across previous colonial states. In Malawi, the offence attracts a maximum penalty of two years imprisonment.  Despite Britain implementing the Suicide Act, which decriminalized suicide, Malawi still enforces the archaic offence and combined with the discriminatory 1948 Mental Treatment Act of Malawi, suicide retains its stigma in Malawi thus, instead of seeking help, people who have attempted suicide avoid counselling services for fear of being reported to the police.

In the Magistrate Court

In May 2022, 41-year-old YC, a former employee of a construction company in Lilongwe sold assorted company property. When the company owner came to audit the facility following a tip from well-wishers, out of pressure, YC attempted suicide and was found hanging in his home. He was then taken to Njerwa Police Unit where he was charged with the offence of attempted suicide under Section 229 of the Penal Code. YC was brought before First Grade Magistrate’s Court where he admitted guilt but during mitigation, pleaded with the Magistrate that he had children who depended on him. The First Grade Magistrate did not concede and had an 18-month sentence with hard labour meted out to him.

In the High Court

In June 2022, the case was reported in the news, and following public outcry, Chief Resident Magistrate Madalitso Khoswe Chimwaza wrote to the judge presiding over the case’s review that the sentence meted out by the First Grade Magistrate was excessive and that, looking at the rate at which men are committing suicide, the best approach was to refer the man for counselling as he needs psychosocial support to examine the reasons behind his suicidal thoughts.

On 4 August 2022, presiding High Court Judge Bruno Kalemba, in his ruling concerning the review and confirmation of YC’s sentence, faulted the 18-month sentence meted out to YC. The judge confirmed the conviction but reversed the sentence of 18 months imprisonment to a term that could result in the immediate release of the accused. The judge stated that it was wrong to sentence a person against whom no previous conviction is proved, to undergo imprisonment unless it appears to the court, on good grounds (which ought to be set out in the record), that there are no other suitable ways of dealing with him. The judge concluded that if the First Grade Magistrate had considered the first offender status of YC, he would have arrived at the conclusion that there were other appropriate means of dealing with the accused person than sentencing him to such an excessive custodial sentence. As a result, the judge ordered the immediate release of YC.

SALC and CHREAA facilitated YC’s release from prison on 4 August 2022.

The case was supported by the Centre for Human Rights Education Advice and Assistance (CHREAA) and Southern Africa Litigation Centre (SALC). The Applicants were represented by Chikondi Chijozi, Criminal Justice Cluster Lead of the Southern Africa Litigation Centre.

The Malawi High Court held that arbitrary mass arrests violate the rights to liberty, dignity, freedom from cruel, inhuman and degrading treatment, economic activity, fair trial and freedom of movement. The Court ordered the Malawi Police Services to develop proper guidelines for arrests. The Court set aside the Applicants’ convictions and ordered compensation for the rights violations they suffered. Finally, the Court ordered the Ministry of Home Affairs and the Inspector General of Police to review its training curriculum for police officers and to develop standard operating procedures binding on all police officers on the parameters of police arrest practices. Justice Ntaba noted that “in practice, arrests still retain their colonial character since arrests are easily used as a tool in circumstances where it is not a clear indication of an offence having been committed. In contrast, in a constitutional democracy based on the rule of law, an arrest is prima facie interference with the right to liberty and accordingly, the powers of arrest are supposed to be reduced.”

The case follows the Mayeso Gwanda judgement, which in 2017 ordered Parliament to review vague criminal offences which result in arbitrary arrests. In the Gwanda case, the Court declared section 184(1)(c) of the Penal Code unconstitutional. In the current case, 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 entire section 184 of the Penal and to report to the Court on the progress of legislative reform by 22 July 2024.

“This judgment is important because it can be utilised by organisations throughout Africa who are part of the Campaign to Decriminalise Poverty and Status to lobby for a change in policing practices,” said Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre (SALC). “Arrests are a powerful tool at the disposal of police which by their nature affect a person’s right to respect for human dignity; the right not to be subjected to cruel, inhuman, or degrading treatment; the right to freedom of movement; and the right to liberty and security of person. For this reason, arrests should comply with legal requirements, be utilised sparingly, and be supervised to ensure compliance with constitutional requirements.”

“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. The result is that people find themselves imprisoned or detained in potentially life-threatening conditions, especially in cases where they cannot afford bail or a fine, even when there is no proof of an actual offence having been committed,” said Chikondi Chijozi, criminal justice lawyer at the Southern Africa Litigation Centre.

“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 Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA). “The judgment highlights the apparent disjuncture between the rules of professional policing and the practices on the street level, exacerbated by weak mechanisms for accountability and widespread impunity of abusive policing practices.”

Background

The Applicants in the case were arrested in Kasungu District at around 11 pm on 27 March 2018 when Malawi police conducted a sweeping exercise in the district. At the time of their arrest, the applicants were respectively working as a DJ at a local bar, having a drink at a club, and selling Kanyenya (fish kebabs) at a bar. They were not informed of the reasons for their arrest, despite specifically demanding this information from the police. After spending a night in police cells, they were taken to Court, charged, and convicted of the offence of being a rogue and vagabond contrary to section 184(1)(b) of the Penal Code upon their guilty plea. The Applicants applied for judicial review before the High Court and submitted that the police’s indiscriminate arrest practices are unconstitutional. The Applicants urged the Court to order the State to develop directives or Standing Orders which will guide the police and ensure sufficient supervision during arrests so that rights violations do not occur.

The judgment referenced research conducted by SALC and CHREAA entitled No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi. From the interviews conducted with police and magistrates, it was apparent that the police practice of mass arrests (colloquially called sweeping exercises) disproportionately targeted poor and marginalised groups.

The Court referenced the Advisory Opinion issued by the African Commission on Human and Peoples’ Rights issued on 4 December 2020, which encouraged States to reform vagrancy-related offences, such as being a rogue and vagabond and idle and disorderly person since terminology such as ‘loitering’, ‘having no visible means of support’ and ‘failing to give a good account of oneself’ do not provide sufficient indication to the citizens on what the law prohibits while at the same time conferring broad discretion on law enforcement agencies to decide how to enforce vagrancy laws. The African Court noted that enforcement of vagrancy laws often results in pretextual arrests, arrests without warrants and illegal pre-trial detention. Such arrests are not only a disproportionate response to the socio-economic challenges but also discriminatory since they target individuals because of their economic status. The African Court ordered all State Parties to the Charter to “take all necessary measures, in the shortest possible time. The African Commission on Human and Peoples’ Rights’ Principles on the Decriminalisation of Petty Offences sets out the legal requirements against which any criminal offences should be measured.

ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE AND THE CENTRE FOR HUMAN RIGHTS EDUCATION ADVICE AND ASSISTANCE.