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

“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

Each year, on June 20th, the global community comes together to celebrate World Refugee Day, a day dedicated to honoring the resilience and courage of those who have been forced to flee their homes. This International Day of Observance serves as a powerful reminder of our collective responsibility to champion the rights of refugees, support their integration into society, and advocate for sustainable solutions to their plight.

World Refugee Day illuminates the rights, needs, and aspirations of refugees, galvanizing political will and mobilizing resources to ensure that refugees not only survive but thrive. While it is crucial to protect and enhance the lives of refugees every day, this dedicated day focuses global attention on the pressing issues faced by those escaping conflict and persecution. The activities and events held on this day provide valuable opportunities for communities worldwide to demonstrate their solidarity with refugees and to support their journey toward a better future.

As Malawi joins the global community in commemorating World Refugee Day, the undersigned civil society organisations seek to highlight the urgent and critical situation faced by refugees within our borders. On March 27, 2023, the Government of Malawi issued a directive requiring all refugees residing outside designated areas to return to the camp within 14 days. This directive has been enforced with excessive and disproportionate force by the Malawi Police Service, leading to severe human rights violations and the unlawful treatment of refugees.

The public information on this directive was minimal, significantly limiting public discourse and the opportunity to hold the government accountable. During the relocation process, CSOs documented alarming human rights abuses. On May 17 and 18, 2023, 505 individuals, including 202 males, 89 females, and 117 children, were detained under appalling conditions at Maula Prison. These refugees endured overcrowding, unsanitary conditions, physical abuse, and were denied access to legal representation and basic necessities, including menstrual pads. Families were heart-wrenchingly separated, and self-reliant refugees were stripped of their livelihoods due to forced encampment.

Over the past year, refugees in Malawi have faced a litany of abuses, losing property and valuables during government-sanctioned relocations. Despite the time that has elapsed since the exercise, government agencies have yet to account for the lost property, including confiscated goods from Mgona and Area 25 in Lilongwe. The report on forced opening of containers and subsequent selling of confiscated goods has been shrouded in secrecy.

As we join the world in celebrating the resilience of refugees, we must also seek justice for those in Malawi whose rights have been egregiously violated. We are particularly troubled by the

conduct of the Department of Immigration and Citizenship Services for ‘denying’ arriving asylum seekers in Karonga their legal right to protection. As of Thursday, 20 June 2024, there were over 80 asylum seekers sleeping outside the Immigration Offices in Karonga. They have been denied access to Karonga transit shelter by authorities due to their lack of relevant immigration papers. This group has been camped at the immigration offices for over 3 weeks now without access to food or shelter, leading many to rely on charity for survival. This practice is not only illegal but contravenes international law.

Despite these challenges, we acknowledge the positive steps taken by the government of Malawi to address legal and policy gaps that have denied refugees and asylum seekers fundamental rights. The establishment of a Special Law Commission to review the Refugee Act represents a significant stride towards rectifying systemic issues within the refugee sector in Malawi.

We firmly believe in treating all human beings with dignity and humanity. Refugees are entitled to human rights, and seeking refuge is not a crime. It is essential to prioritize the protection and fulfillment of their rights, in alignment with both international law and Malawi’s Constitution.

Signed by:

Victor Mhango

Chairperson

Civil Society Coalition on Migration (CCM)

On behalf of

CHREAA

Youth and Society (YAS)

INUA Advocacy

Catholic Commission for Justice and Peace (CCJP)

Southern Africa Litigation Centre (SALC)

Centre for Human Rights and Rehabilitation (CHRR)

Human Rights Defenders Coalition (HRDC)

Church and Society – Livingstonia Synod

Centre for Democracy and Economic Development Initiative (CDEDI)

National Advocacy Platform (NAP)

Ukhondo Services Foundation (USEF

Background:
On 27 March 2023, the Government of Malawi issued a directive mandating the relocation of all refugees residing outside designated areas back to the camp within 14 days. Since then, our proactive engagement in assessing the human rights implications of this exercise has revealed alarming lawlessness and gross violations. The MPS has resorted to excessive and disproportionate force during arrests of suspected illegal immigrants and refugees, demonstrating outright illegality.

Violation of Human Rights:
In this distressing situation, vulnerable individuals from the Rwandese and Burundian communities have suffered significantly. They have been subject to exploitation by the Police, who demanded bribes and confiscated their hard earned property and money. Furthermore, there is public information implicating the Malawi Congress Party (MCP) cadres and the Police, to have instigated terror and committed serious crimes under the guise of safeguarding national security.

National Insecurity and Inhumane Treatment:
These actions have led to a state of national insecurity, contradicting the very purpose of institutions mandated to ensure safety. The Ministry of Homeland Security’s statements have fueled xenophobia, undermining the principles of Umunthu Philosophy that are deeply cherished by the common Malawian. Incidents like the Salima robbery/theft are indicative of multiple instances of criminality allegedly involving the Malawi Police sponsored by the ruling MCP party.

Systematic Violations during Relocation:
Throughout the relocation process, we have observed systematic violations of human rights. Notably, on 17th and 18th May 2023, a total of 505 individuals suspected to be refugees, asylum seekers, and illegal immigrants were detained at Maula Prison, including 202 males, 89 females, and a concerning 117 children. The relocation from their homes to Dzaleka was accompanied by cruel, inhumane, and degrading treatment amounting to torture. Refugees endured overcrowded conditions, physical abuse, lack of access to legal representation and family, detention without trial, and limited access to basic amenities such as food and menstrual pads. Families were torn apart, and previously self reliant asylum seekers were forced into overcrowded camps, losing their means of sustenance.

Reform and Constitutionality:
Recognizing that our Refugee Act 1989 is an outdated legislation lacking in comprehensive refugee rights protection, temporary Encampment policies have been
put in place, but these have been weakened over time. It is disheartening that even the minimal rights and obligations, such as recognition of their status and protection from refoulement, postulated in this archaic law have not been upheld.

Recommendations:
Given the gravity of the situation, we urgently call for the following actions:

1. The immediate cessation of the refugee relocation exercise.
2. An urgent, independent investigation by the Malawi Human Rights Commission into the human rights violations
3. An independent investigation by the Independent Police Complaints Commission into the conduct of the Malawi Police including the Salima robbery/theft
4. The immediate arrest and timely prosecution of Police and civilians involved in the persecution of refugees and theft of their livelihood/property.
5. An immediate halt to the backdoor extradition exercise, preventing the forced deportation of refugees to countries where they risk persecution.
6. Urgent provision of necessities for over 52 ,000 refugees at Dzaleka, and consideration of temporary permits for those without criminal history and
established lives to support themselves and contribute to the nation.
7. The expedited review of the country s Refugees Act to align it with international standards and ensure the protection of refugees’ fundamental rights, with the
Bill to be tabled in the November/December 2023 Parliamentary sitting.
8. Conduct public awareness campaigns to enlighten the local population about the plight of refugees, fostering empathy, and emphasizing the significance of their
protection and integration.

Conclusion:
Humanity demands that we treat all individuals with dignity, and the Rule of Law obliges us to adhere to legal principles even when dealing with alleged criminals. Refugees, as human beings, are entitled to basic human rights, and seeking refuge should never be considered a crime. It is vital to prioritize their protection and ensure that they are treated in line with both international law and Malawi’s Constitution.

Signed by:

Youth and Society (YAS)
INUA Advocacy
CHREAA
Southern Africa Litigation Centre (SALC)
Church and Society – Livingstonia Synod
Centre for Democracy and Economic Development Initiative (CDEDI)
Centre for Human Rights and Rehabilitation (CHRR)
Human Rights Defenders Coalition (HRDC)
National Advocacy Platform (NAP)
Ukhondo Services Foundation (USEF)
Alexius Kamangila – Human rights lawyer

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.

We acknowledge and appreciate the ongoing steps being taken towards the protection of children. For example, in 2018 the High Court held that children in conflict with the law should not be imprisoned but be referred to safety homes and reformatory centers. In 2021, the High Court further ruled that children ought not be detained in police custody. Unfortunately, the country only has 7 safety homes. Out of these, only 2 are government owned. Worse still, these homes are not child friendly. It is also widely documented that there are rights violations, contrary to the best interest of the child principle as mandated by the Constitution and international law. Instances continue to occur of children living and working on the streets being kept in custody for significant lengths of times both at prisons and police stations.

We urge the government to take greater initiative in protecting all children’s rights including those in conflict with the law and children connected to the streets. The government should establish more safety homes, make the existing ones child friendly and liaise with law enforcement agencies to ensure that no child should ever be found in prison while safety homes are available.

We are determined and committed to ensuring full respect, protection and promotion of children’s rights in Malawi. On this note, we wish all children a Happy Day of the African Child.

“We are delighted by this order, which recognises that not only the Applicants, but all Rastafari children whose rights to dignity, education and religion are affected by the policy,” said Tadala Chinkwezule, President of the Women Lawyers Association of Malawi. “It is critical that the Minister of Education issues a directive ensuring that schools implement the court order.”

“The court’s order recognises the injustice faced endured by many Rastafari children, and is in line with judgments from the courts in Kenya, Zimbabwe and South Africa, which pronounced that exclusion of Rastafari children from school on the basis of their dreadlocks is an infringement of their right to freedom of religion,” said Anneke Meerkotter, Litigation Director at the Southern Africa Litigation Centre.

Background to the Case

In 2017, a Rastafari child was refused registration by the principal of a school and Ministry of Education officials on the basis that it was a policy of the Ministry that all learners have short, combed hair. Over the years there have been a number of reports of schools refusing registration in cases where Rastafari children had dreadlocks, where students wore hijabs, or in cases where students had long hair for religious reasons.

The Applicant was represented by Chikondi Chijozi acting on behalf of the Women Lawyers Association of Malawi. The case is also supported by the Southern Africa Litigation Centre and Centre for Human Rights Education, Advice and Assistance. On 6 December 2017, the applicant was granted an order for an interlocutory injunction to allow the applicant to enrol and register at school without having to cut his dreadlocks pending the determination of the judicial review proceedings. The injunction was granted on the basis that the best interests of the child principle enshrined in the Constitution requires the applicant’s admission to school pending the determination of the case.

In recognition of the broader class of persons affected by the Education Department’s policy, the Human Rights Commission was admitted as amicus curiae since the issues raised by the case were relevant to over 30 complaints attended to by the Commission. Two years later, the case has yet to be determined, and the policy on hair continues to be applies in a discriminatory manner.

On 24 December 2019, the High Court heard a further application for an injunction against the exclusion from school of a female applicant on the basis of her dreadlocks.

On 14 January 2020, the Zomba High Court granted the interlocutory injunction compelling the Minister of Education to allow ALL Rastafari children to be admitted and enrolled into all government schools pending the final determination of the matter. The Court further compelled the applicant’s school to support her to catch up with school work she had missed.

For queries contact: Chikondi Chijozi, cchijozi@gmail.com

ISSUED BY THE WOMEN LAWYERS ASSOCIATION OF MALAWI, CENTRE FOR HUMAN RIGHTS EDUCATION, ADVICE AND ASSISTANCE AND SOUTHERN AFRICA LITIGATION CENTRE