The High Court sitting Zomba has declared that police’s indiscriminate practice of sweeping exercises is unlawful and in violation of various constitutional rights and international human rights standards.
Henry Banda, Ishmail Mwale and Sikweya Supiyani dragged the State and Kasungu Police Officer in Charge to courte following their arrest on or about the night of 27th March 2018, at around 11:00 hours and at various bars and bottle stores in Kasungu District.
At the time of the arrest, Banda was working as a DJ at American Bar and Bottle Store whilst Mwale was having a drink at Culture Club’s Car Park and Supiyani, was selling Kanyenya (small fried fish) at American Bar.
After spending a night in police cells, they were taken to Court, charged, and convicted of the offence of being a rogue and vagabond contrary to section 184(1)(b) of the Penal Code upon their guilty plea.
The Applicants applied for judicial review before the High Court and submitted that the police’s indiscriminate arrest practices are unconstitutional. The Applicants urged the Court to order the State to develop directives or Standing Orders which will guide the police and ensure sufficient supervision during arrests so that rights violations do not occur.
A ruling by Justice Zione Ntaba delivered on Tuesday said the mass arrest practices, carried out under the guise of crime prevention, referred to informally as sweeping or swooping exercises, are prevalent throughout Africa and are a legacy of colonial-era policing practices that blatantly disregarded human rights.
She said the Court considered the constitutionality of the vagrancy-related offence under which the applicants were charged as well as the arrest practices resulting from such vague and overbroad offences.
The case was supported by the Centre for Human Rights Education Advice and Assistance (CHREAA) and Southern Africa Litigation Centre (SALC). The Applicants were represented by Chikondi Chijozi, Criminal Justice Cluster Lead of the Southern Africa Litigation Centre.
Justice Ntaba noted that “in practice, arrests still retain their colonial character since arrests are easily used as a tool in circumstances where it is not a clear indication of an offence having been committed. In contrast, in a constitutional democracy based on the rule of law, an arrest is prima facie interference with the right to liberty and accordingly, the powers of arrest are supposed to be reduced.”
The case follows the Mayeso Gwanda judgement, which in 2017 ordered Parliament to review vague criminal offences which result in arbitrary arrests. In the Gwanda case, the Court declared section 184(1)(c) of the Penal Code unconstitutional. In the current case, the High Court declared section 184(1)(b) of the Penal Code unconstitutional and ordered Parliament, within 24 months from the date of the judgment, to effectively review the entire section 184 of the Penal and to report to the Court on the progress of legislative reform by 22 July 2024.
“This judgement is important because it can be utilised by organisations throughout Africa who are part of the Campaign to Decriminalise Poverty and Status to lobby for a change in policing practices,” said Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre (SALC).
He added; “Arrests are a powerful tool at the disposal of police which by their nature affect a person’s right to respect for human dignity; the right not to be subjected to cruel, inhuman, or degrading treatment; the right to freedom of movement; and the right to liberty and security of person. For this reason, arrests should comply with legal requirements, be utilised sparingly, and be supervised to ensure compliance with constitutional requirements.”
