Vendor challenging constitutionality of vagabond law

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The Blantyre High Court will on Tuesday deliver judgment in a case in which a vendor is challenging constitutionality of the vagabond law.

The vendor, Mayeso Gwanda, was arrested in March 2015 and charged with rogue and vagabond when he was caught on his way to sell plastic bags in the commercial city.

State prosecutors said Gwanda violated section 184 of the penal code, which provides that “every person found in or upon or near any premises of in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose, is deemed a rogue and vagabond.”

malawi-high-courtBut Gwanda took the matter to court arguing that the offence of rogue and vagabond resulted in a number of violations of his human rights, including his rights to dignity, privacy, freedom from inhumane and degrading treatment, freedom and security of person, freedom from discrimination, and freedom of movement. The matter was in June 2015 certified as a constitutional matter by the Chief Justice.

The Legal Aid Bureau, Centre for Human Rights Education, Advice and Assistance (CHREAA), and Paralegal Advisory Services Institute (PASI) also joined the case as amicus curiae. PASI submitted that the offence violates the right of access to justice, and the rights of arrested persons.

CHREAA put forward the argument that the alleged objective of the offence, which is to prevent crime, does not have an evidential basis and as such does not meet the required criminal evidentiary threshold.

Therefore, the continued application of the offence in the existing manner violates human rights as the use of the rogue and vagabond provision is not proportional to its objective.

The offence has been widely criticised by civil society, academics and the courts for the arbitrary manner in which it has been enforced.

The applicant is represented by Mandala Mambulasa, and the Attorney General is represented by Senior State Advocate Apoche Itimu and Thabo Chakaka Nyirenda.

The amicus curiae (friends of the court) are represented by Trouble Kalua (Legal Aid Bureau), Fostino Maele (PASI) and Violet Jumbe (CHREAA).

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11 Comments

  1. Mwachidule, oyenda pansi amangidwe,oyenda pa galimoto adutse.
    Lamulo ili ndi la anthu osauka okha basi.
    Ulemu wanu a police.
    ulemu wanu a boma,
    ulemu wanu ma jugde
    ulemu wanu a president.

  2. Some Laws are long overdue & I don’t think we need the British to come back & change them for us after 52 years. The Rogue/Vagabond replaced States of Emergencies which the Colonists had to keep control of peoples movements & of which has now become a source of revenue for Governments & abusive Police officers. How does Government issue Licences to drinking joints & the very same goes around arresting people walking home after drinking where we have no flights or taxis. Drunk people & Prostitutes face injustice which the Police & Courts convert to Justice while those thugs of whom some Police officers are part of are never served with the purpose of such Laws.

  3. Nanu mwasowa chochita?.Osamanga Chaponda yemwe mukumuziwa kuti waba ndalama zathu bwanji kuphatikizapo ndalama yomwe ikanathandizanso kugula Jombo zanu bwanji.Mukuganiza kuti yense oyenda utsiku ndiokuba?.Anthutu amakhala akukapeleka uthenga wamaliro,matenda,kogwira ntchito kutali amakhala alibe transport.Zinazi muziganiza kaye chomwe muziwa ndikumpana osauka basi.Tikaonana bola mukamamwalira muzitenganso maudindo anuwo.

  4. this was only tool for punishing the poor u could see men in uniform arresting pipo walking at old hour while those driving just give wave hahaha worse still one found at bar drinking could be arrested while the same person drinking at mount soche he could be left free equal rights now it has been high time waiting patiently