DECRIMINALIZATION OF VAGRANCY AND PROMOTION AND PROTECTION OF RIGHTS OF SEX WORKERS
CHREAA has been implementing this project since 2014 with funding from Open society Foundation(OSF), Open Initiative for Southern Africa (OSISA) and in partnership with Southern Africa Litigation Centre(SALC). The goal of this project is to provide law reform initiatives aimed at the decriminalization/declassification of minor nuisance related offences in Malawi and the region and reduction in human rights violations by the law enforcement agencies and health services providers.
The Malawi Penal Code provides for various nuisance-related offences including common nuisances(s 168), Idle and Disorderly persons( s 180), and Rogue and Vagabond(s 184). Most of these offences reflect fundamental breaches of vagueness and arbitrariness in the application.
Several key achievements have been realized from this project
- CHREAA through a Constitutional challenge case saw the declaration of section 184(1)(c) of the Penal Code as unconstitutional. This was based on the fact that the section violated the right to dignity, freedom from inhuman and degrading treatment and punishment: freedom and security of persons, freedoms from discrimination. The section was broad hence gave too much discretion to police officers when effecting arrests.
- CHREAA also initiated the development and launch of Public Prosecution Guidelines on nuisance related offences meant to reduce human rights violations by law enforcement agencies when enforcing minor nuisance related offences. These were issued by the Director of Public Prosecutions and were launched in December 2018. The guidelines provide specific elements, specific guidelines and specific charge sheets for nuisance related offences.
- CHREAA also successfully challenged the arrest of sex workers under section 146 of the Penal Code which provided for the offence of living on the earnings of prostitution. In the case of Republic vs Pempho Banda and others (Review Case Number 58 of 2016). Sex workers were arrested in a bar and charged and convicted under section 46. The court on review stated that the section was actually meant to protect sex workers from exploitation and abuse. The cases stated that most sex workers are arrested merely as a way to embarrass and harass them, which is unconstitutional.
- The project has also seen increased awareness on the rights of sex workers among the police, health workers and the general public. This has thereby resulted in the reduction of violations of the rights of sex workers