SALC and CHREAA launch study on nuisance-related arrests

The Southern African Litigation Centre (SALC) and Malawi's Centre for Human Rights Education, Advice and Assistance (CHREAA) launched a report at the Golden Peacock Hotel in Lilongwe on their study of the law and practice relating to arrests for nuisance-related offences in Blantyre, Malawi. Senior judges and magistrates were in attendance at the launch, and Justice Edward Twea gave the keynote address.

In Malawi, Penal Code offences such as being an idle and disorderly person and being a rogue and vagabond are sometimes used indiscriminately to arrest persons, contributing to overcrowding in police cells and placing a strain on resources in the criminal justice system. These laws tend to give law enforcement officials a wide discretion in application, which increases the vulnerability of persons living in poverty to violence and harassment.

The report recounts how in 1902, English law became effective in Malawi through the British Central African Order in Council. English criminal laws were thus introduced in Malawi, altering the existing customary legal methods of dealing with crime. These criminal offences were later included in the Malawi Penal Code of 1930, which provided that it was to be interpreted in accordance with English principles of legal interpretation and that expressions used in it should be presumed to be used with the meaning attaching to them in English criminal law.

The report further found that today nuisance-related offences are to be found in Chapter 17 of the Malawi Penal Code, including common nuisance offences (s168); gaming and betting offences (s169-177); idle and disorderly persons (s180); conduct likely to cause a breach of the peace (s181); use of insulting language (s182); nuisances by drunken persons (s183); and rogues and vagabonds (s184). Many of these offences reflect fundamental defects of vagueness, over-breadth, disproportionality, and arbitrariness in application. Some create a reverse onus, forcing the accused to prove his or her innocence, whilst others define an offence based upon the status of a person instead of upon their actions. Malawian courts, in the cases of Republic v Lawanja and Others [1995] 1 MLR 21, Republic v Balala [1997] (2) MLR 67 and Stella Mwanza and 12 Others v Republic [2008] MWHC 228 have expressed concern that that the charge of being a rogue or vagabond could be used to target non-criminalindigent persons, meaning that imprisonment could be based upon mere poverty, homelessness or unemployment.

The study found that at Blantyre Police Station, there were approximately 10 arrests every week in relation to these offences over a 17 week period in which the study was carried out. The study further found such arrestees were frequently held in custody for more than one day, and many never appeared before court.

The full report is available here.