Colonial era police powers to effect indiscriminate mass arrests in Malawi declared unconstitutional

23 November 2022 · Carmel Rickard

Police in Malawi, like those in other post-colonial African countries, have long enjoyed wide powers to round up, hold and threaten anyone with prosecution under the guise of crime prevention. Typically, these powers are exercised by way of mass arrests, locally known as ‘sweeping exercises’, targeting people the police regard as vagrants or who seem out of place. Though first enacted under colonial rule, these powers have remained on the statute books even after independence. Human rights activists consider these powers unconstitutional because of their blatant disregard for the rights of those rounded up, but now these ‘sweeping exercises’ have been officially condemned by Malawi’s high court.

Read judgment

In a newly-delivered decision, Judge Zione Ntaba has held that the law giving Malawian police power to conduct indiscriminate raids on the public – known locally as ‘sweeping exercises’ – is unconstitutional.

As well as declaring the penal code’s section 184 (1) (b) unconstitutional, she set aside the convictions of three applicants, caught in such a raid during 2018, and ordered that they be compensated for the infringements of their rights.

The court also had some stern words for the executive and the legislature. Judge Ntaba said that while the courts had, under the present constitution, made declarations of invalidity on several legal provisions, it had left the task of amending or replacing the invalidated provisions to the other arms of government. However, she added, ‘it seems the two organs do not take their constitutional role [seriously], as to date most of those provisions remain in our statute book.’

Vacuum

While the court strongly agreed with the separation of powers’ principle, where the other arms of government remained non-compliant or did not carry out their duty in response to a court’s declaration of invalidity, ‘then courts need to make stronger orders and hold certain offices and office bearers responsible’. Otherwise, declarations of invalidity by the courts would create a vacuum in the law, related to the crucial areas of law, order and security.

She therefore gave the government 24 months to review section 184 of the penal code in its entirety, and amend provisions, particularly those already declared unconstitutional in their present form by the court, so that the law is consistent with the constitution and so that any unintended gaps in the law are dealt with. The government must report back to the court on the progress of these reforms by 22 July 2024.

The judge also reminded the government that until a court decision is set aside on appeal, it remains valid, and non-compliance amounts to contempt.

Familiar

If there’s something that seems familiar about the newly-released judgment, that’s because a closely-related clause of Malawi’s penal code was dealt with, and found objectionable, by the courts in 2017. Although changes were to have been made to the law, in terms of the earlier case, nothing has been done about the matter, and it is this problem that Judge Ntaba was referring to in her remarks about the court being ‘frustrated’ with the government not taking its constitutional role seriously and not responding to court orders.

Judge Ntaba also recorded the court’s disappointment with the ‘unprofessional handling’ of the case by the attorney general’s chambers. Citing examples of this poor behaviour, the judge said that disregard by the AG’s staff of their duties towards the court should not be tolerated.

On the central matter before the court, the judge said the impact of incorporating English vagrancy laws into Malawi’s penal code was profound and had already been considered by the courts on several occasions. Typically, powers to conduct ‘sweeping exercises’ given to police to deal with ‘rogues’ and ‘vagabonds’, resulted in massive arrests. Police raids lacked legitimacy, however, when they targeted only certain groups in society, without reasonable grounds or suspicion for arrest.

Hard labour

In this case, the three applicants had been caught up in such a raid with 20 other people. One of the three was working as a DJ at the time, another was having a drink at a club and the third was selling fish kebabs at a bar. They weren’t told why they were being arrested, though they specifically asked for this information. When they were taken to court next day, each of the three noted a guilty plea and each was then charged and convicted with being a ‘rogue and a vagabond’.

They later told their lawyers, however, that the police said they had to plead guilty or they would face further detention in prison. Each was fined K3,000 or three months hard labour.

Judge Ntaba said that the records of the trial court showed there was no ‘reasonable suspicion’ of the commission of a crime that prompted police to arrest them. This was a critical factor, and she agreed with the courts of Malawi that had previously said they ‘abhorred’ the police practice of ‘randomly arresting people without proper grounds, prosecuting and convicting them on vagrancy or nuisance related offences which, upon review, confirmation or appeal, do not stand the test of legality as well as constitutionality.’

Such ‘sweeping exercises’ resulted in human rights violations as people were harassed, forced to plead without proper legal counsel, and then fined or imprisoned for offences that should not even have carried custodial sentences.

Targeting

By continuing to use these powers, Malawi’s police seemed to be ‘going against various constitutional standards’, said the judge. While raids, carried out within the parameters of the law and without disproportionately targeting only a certain section of society, could be constitutionally valid, sweeps such as that which had rounded up the three applicants, were unconstitutional.

The fair trial rights of the three had also been compromised and it was a serious concern that the police forced people to plead guilty by threatening them with possible detention in prison if they failed to do so.

Support for the litigation of this potentially far-reaching case came from the Centre for Human Rights Education Advice and Assistance (CHREAA) as well as the Southern Africa Litigation Centre, whose Chikondi Chijozi was lead counsel for the applicants.

Victor Mhango, executive director of CHREAA, said that sweeping exercises continued and were often applauded in the local media, even though many innocent people might be caught in the net. ‘The judgment highlights the apparent disjuncture between the rules of professional policing and the practices [at] street level, exacerbated by weak mechanisms for accountability and widespread impunity of abusive policing practices,’ Mhango said.

* "A matter of justice", Legalbrief, 15 November 2022

Carmel Rickard

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