Vendor challenging constitutionality of vagabond law

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.”

But 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).