The Nation Newspaper, 30th May, 2024
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.
