At the heart of this unusual decision by Malawi’s senior magistrates’ court lies a dramatic account of the dangers involved in trying to protect the fragile ecosystem of the country’s fish-rich Lake Chilwa. Apart from ecological concerns the court also speaks with some anxiety about the way police put their members in unnecessary danger by sending them to deal with well-armed, illegal fishing people while hopelessly outnumbered. They were provided with just a paddle boat – against the engine-powered boats used by the fishermen – and were not adequately armed. The police also failed to send reinforcements, even when their members sent desperate pleas for help.
The dangers facing poorly armed police trying to enforce off-season fishing for Malawi’s Lake Chilwa have been graphically illustrated in a new judgment delivered by the country’s senior magistrates’ court last week.
Steven Pahuwa 28, and Jack Luswea 39, appeared in court charged with three counts of murder, relating to the deaths of three illegal fisherman, shot and killed last month. Senior magistrate Rhoderick Michongwe said that his court did not have jurisdiction to try murder cases, but he had to consider a preliminary inquiry as to whether the matter should transfer to the high court for trial.
Every year, the lake is closed for fishing between 1 December and 1 March to allow for fish supplies to restock, but many fishermen refuse to observe the closed season, saying that they are too poor to stop catching fish. Legally-recognised Beach Village Committees (BVSs) oversee the annual off-period and they often need to ask the police for help against the armed ‘notorious fishermen’ who pay no heed to the ban.
In mid-February, members of the BVS came to ask the police of the Kachulu unit for help and the officer in charge authorised Pahuwa and Luswea to go on patrol with the committee members. Both were issued with a rifle, although one was later discovered not to work. They left on patrol at about 8pm. At 8am, one of them sent an urgent message back to the officer in charge to say they needed more help as they were being attacked by the illegal fishermen.
Police did nothing. Michongwe accepted evidence that this was because the police boat wasn’t working and they were short-staffed. An hour later the police chief received another message, this time saying that the ‘fracas was severe’ and that bullets were flying. The local officer in charge referred the matter to the more substantial police station in Zomba itself, but still nothing happened and no-one went to rescue the two officers.
Two hours later, the officer in charge heard that three men had been severely injured and an hour later, three bodies were brought in by members of the local community. When he asked where the two police officers were, he was told they were still in hiding, along with members of the BVC. It was only around 3pm that afternoon that the two officers were rescued.
The Kachulu officer in charge said that in his experience, illegal fisherman, using their nets during the off-season, ‘severely harrassed’ any police officer who tried to intervene. He said that he would have acted as the two police had done, to ‘disperse the illegal angry and notorious fishermen’. They had ‘done what they were employed for,’ he said.
A BVC member who was with the two police officers at the time said the police did not have access to boats with engines. Instead, they had to paddle their boats. When they confiscated nets, they were attacked by about 150 illegal fishermen armed with spears, pangas, stones and burning logs.
Two other witnesses had been among the illegal fishermen. They said they knew they were not allowed to catch fish during this period but do so anyway ‘due to poverty’ and they resent the police when they ‘interrupt’ the fishing.
Considering the issues he had to decide, Michongwe said the police were enforcing a lawful ban. They were issued with firearms by the officer in charge who ordered them to ‘discharge their lawful duties’. Witnesses made it clear that the police and BVC members were under attack, were faced with imminent death or serious injury and could have been killed if they had not fired.
There were just nine people including the two police, and only one operational firearm between them, expected to enforce the ban, facing off an angry crowd of about 150. ‘The court believes that in the circumstances, the firearms [were] not for fun or for decorative purposes. [They] were meant to protect them and the whole group.’ The police had tried to call the station for help, but nothing happened and they had to rescue themselves.
Finding that the murder case against the two should not proceed, the magistrate said he wanted to make some ‘observations’ about how the police handled the matter.
It was well known that illegal fishing continued during the off-season and that incidents of ‘severe harrassment’ of police officers was routine. Given that knowledge, it was dangerous to send just two officers into a situation so dangerous that they had to shoot. If they had not done so, however, they would have lost their lives.
‘The right to life is not only to the protected ones,’ the magistrate said. ‘The protector has this right too.’ Just because they were police officers did not mean they lost this right. They could only do their work properly if they were safe and protected.
It was reckless and negligent for the employer not to have responded in almost seven hours, to their calls for help. While the illegal fishermen had boats powered with engines, the police had to paddle their craft. ‘How could they run away from this danger or risk, with such boats?’ The officer in charge disregarded the lives of the two policemen and abused his power when he issued the order that they attend the illegal fishing party, knowing their lives would be at risk.
The magistrate said he realised that the local officer in charge could not defy orders from higher up the chain of command. However, ‘the police service, at all levels, can do better [than] unreasonable orders that risk the lives of its own trusted employees. Orders from above must be reasonable [and] respect the rights of officers. They are human beings just like the one making the orders.’
* While recent reports from Malawi quote women complaining about the impact of over-fishing of that country's lakes, Uganda's parliament is considering tough new proposed legislation that would impose a sentence of seven years or a fine of Shs 200m on anyone who catches immature fish. The Bill would also stipulate an eight year sentence - without the option of a fine - on anyone who catches fish via poisoning, explosives or firearms.