High Court frees 24 convicted of renewed ‘vakabu’ offences

The High Court in Lilongwe on Friday ruled that the arrest of 24 people in a police sweeping exercise was unlawful.

The women-dominated group challenged the legality of their detention and conviction for being “idle and disorderly”.

The applicants won back the K3 000 fines each paid to escape imprisonment when a lower court found them guilty “without facts to substantiate the case”

But the quashing of their convictions represents a landmark victory to rights defenders campaigning  for an  end to ambiguous colonial laws the police usually use to justify sweeping exercises,  arbitrary arrests and restrictions on freedom of movement.

In the verdict passed in chambers three days ago,  Justice Chifundo  Kachale affirmed that it was no crime under existing laws for a person to wander without any explanation–unless one is begging,  gathering alms or causing another person to do so.

The applicants were walking home in the wee hours when the police captured them.

Their lawyer, Gift Katundu, likened arrests of the so-called idle and disorderly persons to rogue and vagabond laws the High Court declared  unconstitutional in January.

Following the end of what was popularly known as vakabu, the police widely use pressuposed idle and disorderly conduct to detain people without during sweeping exercises.

After the judge declared the  accused guiltless,  Katundu said: “The police with their overzealousness still arrest people arbitrarily, especially sex workers, when they are found moving on the streets or those coming from beer joints if they do not give a proper account of themselves and charge them with the offence of being an idle and disorderly person.

“Usually the person’s actions do not add up to that offence at all.”

In the verdict,  Justice Kachala faulted the magistrate court for not  vigilantly exercising its powers as “a guardian of rule law” by convicting the 24 without substantiating the ruling.

He said: “The rule of law presupposes that in the exercise of its judicial mandate the court will be vigilant to ensure that nobody is unduly deprived of his liberty or otherwise subject to legal sanctions without due process. In ensuring that a proper charge is proffered and adequate information is supplied at the plea stage to warrant an informed decision by the accused person, the court acts as a guardian of the rule of law.

“In this instance, unfortunately, the trial magistrate did not exercise his mandate with the regular vigilance, which is to be lamented.”

Centre for Human Rights Education and Advice and Assistance (Chreaa) and the Southern Africa Litigation Centre (Salc) supported the applicants  quest to expose the laws which mostly incriminate the poor, especially women.

“The judgment is important for its condemnation of the ongoing practice by magistrates to accept guilty pleas when it ought to have been clear to them that due process was not followed in mass arrests and that the accused were unaware of the charges they were pleading to” said Chreaa executive director Victor Mhango.