Source: Southern Africa Litigation Centre

The use of outdated Penal Code provisions and abuses by police against poor persons and sex workers specifically has caused some concern among many working on legal and human rights issues in Malawi. This research emanates from concerns by the Southern African Litigation Centre (SALC) and Centre for Human Rights Education, Advice and Assistance (CHREAA) specifically regarding the use of the Penal Code provisions relating to idle and disorderly persons and rogues and vagabonds in Malawi:

1. The provisions relating to idle and disorderly persons and rogues and vagabonds in the Penal Code are dated and vague in formulation. To apply such offences in their current form is unfair and constitutes an abuse of the rights of those arrested on such charges.
2. Arrests for offences relating to idle and disorderly persons and rogues and vagabonds often violate the requirements for a lawful arrest. In addition, such arrests contribute to overcrowding in police cells and are often used without any consideration of alternatives to an arrest.
3. The arrest of persons for minor nuisance-related offences is often applied disproportionately to the poor in society, who are more likely to be assumed to violate such offences, and are more likely to be found in circumstances that could lead to such arrests and who are less able to assert their rights and access legal support to dispute unlawful arrests.

Despite the existence of laws and constitutional provisions which seek to protect rights, little has been done to ascertain the actual experiences of community members, especially of vulnerable groups, when confronted with police enforcement of idle and disorderly and rogue and vagabond offences. As such this research is original, but also shows that further enquiry is needed to determine the impact of these laws on the poor in Malawi.

The purpose of this research was to ascertain the extent of police’s enforcement of offences relating to idle and disorderly persons and rogues and vagabonds. Research was conducted in Blantyre, Malawi and focused on the arrest practices of Blantyre and Limbe police stations. Over a four month period, the researchers collected information on the number of arrests effected at these police stations for nuisance-related offences. Researchers interviewed ten police officers and five magistrates to understand the reasons for such arrests and the courts’ approach to persons who appeared before them on nuisance-related charges. The researchers were aware that sex workers were often targeted by police through the use of offences relating to idle and disorderly persons and rogues and vagabonds. However, the data obtained from police stations did not shed light on the number of such arrests made by police officers. For this reason, the researchers also interviewed fifteen sex workers to better understand their experiences with the police.

Chapters 1 to 3 provide a background to the research and set out the history of the offences of being an idle and disorderly person and rogue and vagabond from their roots in the English vagrancy laws to their incorporation into the Malawi Penal Code.

Chapter 4 outlines the manner in which these offences should legally be interpreted and the extent to which the offences violate the Malawi Constitution. This provides the basis for understanding the research findings, contained in Chapters 5 to 8, which show that the offences of being an idle and disorderly person or rogue and vagabond are often applied in a manner which is inconsistent with the law.

Chapters 9 explains the importance not only of complying with the Penal Code provisions, but also of applying the laws relating to arrest in a manner which recognises that detention should be a final option and that arrested persons’ rights should be respected. Chapter 10 discusses the necessity of developing alternatives to arrest. The key recommendations flowing from this report are summarised in Chapter 11.