Human Rights Groups expect urgency on vagrancy offences review Bill

The Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Southern Africa Litigation Centre (SALC) are anticipating that the government will expedite processes to introduce the Bill that seeks to review vagrancy offences in the country.

This expectation comes following parliament’s adoption of the Legal Affairs Committee report to review vagrancy offences in the Penal Code.

The adoption of the report follows a 2017 High Court judgment in Mayeso Gwanda v State that declared section 184 (1) of the Penal Code unconstitutional and a 2022 judgment in State v Banda and others, that called for a review of section 184 in its entirety.

Among others, section 184 of the Penal Code criminalizes every person going about as a gatherer or collector of alms, or endeavoring to procure charitable contributions of any nature or kind, under false or fraudulent pretense, and every suspected person or reputed thief who has no visible means of subsistence and cannot give good account of himself.

Additionally, it criminalizes every person found in or near any premises or 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.

Many times, these rules have been used to infringe upon the basic human rights of marginalized people through unjustified arrests. As a result, human rights activists have been calling for a review of these provisions, arguing that they do not align with various human rights instruments.

“We are very excited that finally, our parliament has adopted this report, agreeing with the recommendations that came from the court. We have been advocating for a review of all provisions that are discriminating against the poor, so we are happy and we are looking forward to the day this is going to happen,” CHREAA Executive Director Victor Mhango told Capital FM.

He added; “This shows that our democracy has progressed and that we are putting human rights in the forefront. However, we hope that parliament and the Ministry of Justice are mindful that the time set by the Court expired in July and they will do their best to table the Bill in the next sitting.”

While applauding the adoption of the report as a positive development, Mhango emphasized the need for further reforms in the law. This includes introducing an amendment bill to the Penal Code and collaborating with civil society organizations to repeal laws that criminalize marginalized persons and violate their human rights.

“There are several of them. If you read from sections 180 to 184, you find that several laws are vague and archaic as they are coming from our colonial masters. You find cases like idle and disorderly, and begging. These are provisions cut and pasted from our colonial masters that were never debated in our parliament,” Mhango said.

“So, this is the right time for the Malawi parliament should own the provisions rather than taking it from colonial masters. They had their intentions, and the intention was not to mix with natives,” he stated.

Chikondi Chijozi, the SALC Criminal Justice Lead, described the adoption of the report as a significant milestone in protecting the fundamental human rights of marginalized groups in society.

“This is a huge milestone in the campaign for the decriminalization of petty offences in Africa. It is high time that parliament take time to review colonial laws that have been used to oppress the marginalized groups in society,” Chijozi said.

During the presentation of the report in parliament, Legal Affairs Committee Chairperson Peter Dimba noted that the review of Vagrancy offences would protect fundamental human rights as the laws often lead to arbitrary arrests that affect marginalized individuals.

The Committee urged the government through the Ministry of Justice to facilitate the amendment Bill on selected sections as a matter of urgency with due regard to the timelines given by the Court.

Minister of Justice Titus Mvalo supported the review of vagrancy offences in the Penal Code and called for a thorough review to take out archaic offences in the Penal Code.