‘Scrape off poverty laws’
A constitutional court recently ruled that Section 184 (1) (c) of the Constitution infringed on several constitutional rights of plastic bag seller Mayeso Gwanda. KONDWANI KAMIYALA engages Centre for Human Rights Education, Advice and Assistance (Chreaa) executive director VICTOR MHANGO on the matter.
Q
Recently, you joined as friends of the court—amicus curiae—a case in which a plastic bag seller was challenging the constitutionality of rogue and vagabond charges. With the Constitutional Court saying Section 184 (1)(c) of the Penal Code is not in tandem with the Constitution, does that mean the battle is won?
A
This is just a starting point in the fight since we still have most of the vagrancy laws. It must be noted that this is just a sub-section of a whole section dealing with rogue and vagabond. The subsection was prone to abuse by law enforcers since it was not specific. Simply put, these are poverty laws that are mostly applying on the poor. You should know that the laws could be used at any time of the day. You can imagine how some could be arrested on these charges when they were looking for jobs.
Q
You said there are other laws that can be used against the poor, what other laws are there?
A
An example is the whole Section 180 of the Penal Code on Idle and disorderly persons. These include beggars and those asking for alms and those just wandering about. Then there is Section 181 which seeks to prosecute those who conduct themselves in a manner likely to cause breach of peace. These are laws that can lead to arbitrary arrests. Basically, most of these laws are archaic and we inherited them from the English Common Law. We must know that the laws were repealed from our colonisers’ laws.
Q
In the past, you used to pay fines for people in police custody on rogue and vagabond charges. Were you paying too much to consider the new approach?
A
Gwanda was one of the people we assisted in handling these rogue and vagabond charges. These are charges police were using to sweep poor people into police cells like trash. Poverty, they say, is not a crime, yet many poor people were ending up being convicted and failing to pay fines, they were sent to prison. This was a misdemeanour yet many were failing to pay fines. Some were getting sentences as long as two years. What surprised us is that police raised the fine from K3 000 to about K10 000, saying they were applying the law of conversion.
Q
Have you ever used this strategy in challenging some sections that infringe on the rights of people?
A
Yes. There was the case of Evans Moyo, a juvenile who spent some years in prison. In that case, the judge convicted him, but said his incarceration or release remained with the pleasure of the President. After a legal fight, he was released. How can one’s imprisonment or release rest on the pleasure of one man.
Q
What is the way forward now?
A
Just as the presiding judges observed, there is need for our legislature to look at some of the laws that need to be scraped off the law books. When there are law reforms, those who really matter are not involved. The Penal Code was reviewed in 2010 but these poverty laws were maintained since the grassroots were not involved.
Q
Any other comments?
A
We must continue clearly stating that scraping off that sub-section does not mean leeway to crime. And the fight against the poverty laws must continue. n
