Mist over ‘vakabu’ laws

Last year, the Constitutional Court in Blantyre declared rogue and vagabond unconstitutional.

In their ruling, the three judges—Michael Mtambo, Sylvester Kalembera and Zione Ntaba—invalidated the so-called vakabu laws because they violate the right to security and freedom of movement and fail to meet  international human rights standards befitting a democratic society.  The January 10 2017 verdict created excitement though some people thought scrapping the offence would undermine security.

However, some welcomed it as a long-awaited victory—freedom to wander at night without fear of arbitrary arrests and interrogations. Others thought this would mark the end of night patrols and sweeping exercises orchestrated by the police.

Alas, almost a year on, sweeping exercises continue and truckloads of people are still being arrested when found on the streets at night.

In disbelief, the detained ask: why should anyone be arrested when the court declared rogue and vagabond laws invalid, unreasonable and unconstitutional? Are police officers defying the court?

The ruling was somehow misrepresented and misunderstood.

In fact, Section 184 (1) of the Penal Code, which criminalises rogue and vagabond, had five parts, from (a) to (e).

The court only repealed Section 184(1) (c), meaning that the rest of the provisions still have legal force.

Section 184(1) details how one can be deemed to be a rogue and vagabond.

Under the repealed provision, a person could be arrested for merely being found upon or near public places if a police officer suspected that such presence would lead to illegal or disorderly purposes.

No specific conditions would be given for such a conclusion, giving the police’s enormous power to arrest any person they thought was a rogue and vagabond.

Many victims bear witness that its enforcement and implementation mainly targeted the poor and those walking on foot. That is why the majority welcomed the change.

However, although vakabu is touted to have been abolished, the remaining provisions still criminalises rogue and vagabond, albeit in a more liberal approach than the repealed section.

The precise effect of the court ruling is that no person can now be charged with rogue and vagabond as provided under section 184 (1) (c).

However, one can still be charged using the remaining stipulations of Section 184 (1).

Additionally, the court did not put an end to night patrols and sweeping exercises. The police have a statutory duty to maintain public safety and order. They are justified to conduct night patrols as one way of fulfilling this obligation.

It is from this understanding, therefore, that despite the abolition of Section 184 (1) (c), a person can still be regarded as a rogue and vagabond.

This justifies the continued night patrols and arrests in which one may face charges relating to the spared sections.

The judges rightly observed that the invalidation should not be misinterpreted to mean that the court has tied the hands of the police to arrest those suspected to be criminals. The police can still arrest criminals, however in a more investigative manner.

It is evident then that there has been a misunderstanding since the judgement was passed.

There is need for civic education to sensitise the public to the effect and extent of the judgement.

This will help address the misconceptions ordinary members of our society seem to harbour when arrested by police during night patrols.

Moreover, ignorance of the law is neither an excuse nor a defence. Everyone must be made aware of the law reforms and its implications.

It will do justice to inform the public that the invalidation only affects  Section 184(1) (c) to clear the mist on vakabu. n