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Bad laws fuelling injustice in Malawi

Mambulasa: Injustice will continue affecting the common person unless the country’s laws on petty offences are revised
Mambulasa: Injustice will continue affecting the common person unless the country’s laws on petty offences are revised

Private practice lawyer Mandala Mambulasa says injustice will continue affecting the common person unless the country’s laws on petty offences are revised.

Mambulasa, who is also president of the Malawi Law Society (MLS), but made the statement in his personal capacity, said most laws in the Penal Code are problematic because they are ill-defined, a development he observed also gives most police officers a loophole to abuse them in the course of discharging their duties.

The lawyer, speaking in an interview on the sidelines of a media training workshop on Crime, Criminal Law and Access to Justice organised by the Centre for Human Rights, Education, Advice and Assistance (Chreaa), observed that the laws were drafted in a broad language such that it is difficult for citizens to comply with or conform to them.

He cited from the Penal Code sections 180 (idle and disorderly persons), 181 (conduct likely to cause a breach of the peace) and 184 (rogues and vagabonds) as requiring a review.

Mambulasa said when a law is criminalising a certain conduct, the section must clearly define what conduct it is stopping a person from doing.

He said: “The conduct has to be clear to you so that you have a chance to comply or to conform to that law, but the problem we have with petty offences is that sometimes it is not very clear what these laws want you not to be doing.

“We are against them in the sense that they are too broad and they violate the principle of legality. These laws are problematic and if possible we must review them with the view that we should [strike] them off our statutes and if that can’t happen, a possibility could be explored to challenge these laws in courts.”

He said due to the ambiguity of the laws, the police sometimes take advantage to unreasonably punish people by wrongly using the laws.

Recent research findings by Chreaa and the Southern Africa Litigation Centre (Salc) also reveal that police officers violate rights of vulnerable people when discharging their duties by using outdated Penal Code provisions.

The two human rights bodies also established that police officers employ these offences as catch-all categories to address a number of different types of behaviour, when, in actual fact, only some of them suggest possible criminal circumstances.

The report is based on the research that was conducted in Blantyre and focused on the arrest practices of Blantyre and Limbe Police Stations.

Director of Public Prosecutions (DPP) Mary Kachale and Ministry of Justice and Constitutional Affairs spokesperson Apoche Itimu are yet to respond to our questionnaire, which they requested and was sent to them on Sunday.

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