Promoting Human Rights and Rule of Law in Southern Africa

Dear Reader,

SALC's most recent report, produced together with Malawi's Centre for Human Rights Education, Advice and Assistance (CHREAA), No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nusiance-Related Offences in Blantyre, Malawi, examines the use of outdated penal provisions -- specifically those criminalising so-called "idle and disorderly persons" and persons deemed "rogue or vagabond".

These laws are used disproportionately to target the poor, meaning those already marginalised are only further marginalised. Without the resources to provide bail or offer bribes, those charged with these offences languish in detention, contributing to horrific prison overcrowding and forcing their dependents into ever deepening cycles of poverty.

In too many instances the application of these Dickensian-type laws is the work of Dickensian-style villians: petty, cruel officials indifferent to the misery they cause others. And it is hard to think of a more callous, irrational criminal justice system than one which would deploy limited policing and punitive resources against persons that cause no real social harm.

But in many other instances, those applying these laws simply don't know of or fail to understand the reforms and amendments that have come about,  particularly the way in which constitutional guarantees supersede and condition application of these nuisance-related offences. That is why SALC is particularly gratified to have the opportunity to participate in specialised pre-trial justice training currently underway in Malawi aimed at magistrates, prosecutors, judicial officers and paralegals. The training is offered together with Chancellor College at the University of Malawi and the Institute of Professional Legal Training (IPLT) at South Africa's University of KwaZulu Natal.

Still, for a particularly insidious illustration of the application of "idle and disorderly persons" laws and their manipulable nature, one need look no further than the recent case in Zambia( described below) involving HIV activist, Paul Kasonkomona. Asked to appear on a Zambian television interview show, Kasonkomona argued that the rights of sexual minorities should be recognised so that the HIV epidemic might be effectively addressed. He was thereafter promptly arrested and charged under a Zambian criminal law that provides that “every person who in any public place solicits for immoral purposes” is deemed an idle and disorderly person, and liable to imprisonment for one month or to a fine. SALC is supporting his defence.

Nicole Fritz
August 2013


Government of the Republic of Namibia v LM and Others 

SALC is working with the Namibian Women’s Health Network and the Legal Assistance Centre in a case before the Supreme Court of Namibia challenging the coerced sterilisation of three HIV-positive women in public hospitals. The case is an appeal from a decision of the High Court finding that the three women were subjected to coerced sterilisation in violation of their rights under common law and were thus entitled to damages. Oral arguments will be heard on 17 March 2014.

Read more.

E K v Commissioner General of  the Zimbabwe Republic Police and Others

SALC is working with the Sexual Rights Centre in a case before the Bulawayo High Court challenging the abuse of sex workers by police. In August 2013 papers were filed on behalf of the plaintiff, a woman who was assaulted by the police. The plaintiff is represented by Webb Low and Barry Legal Practitioners.

Read more.

Ramoge and Others v Attorney General 

SALC is supporting a case in Botswana before the High Court challenging the refusal by the Director of the Department of Civil and National Registration to register the organisation, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), on the basis that the Botswana Constitution does not recognise the rights of homosexuals. In March 2013 the applicants filed papers, and the case is expected to be heard on 18 March 2014.

Read more.

P v Kasonkomona 

SALC is supporting a case challenging the arrest of an HIV activist in Zambia and the constitutionality of a provision in the Zambian Penal Code. Paul Kasonkomona, an HIV activist, was arrested after he appeared on television arguing that the rights of sexual minorities should be recognised in order to effectively address the HIV epidemic. Kasonkomona was charged with violating section 178(g) of the Zambian Penal Code which provides that “every person who in any public place solicits for immoral purposes” is deemed an idle and disorderly person, and liable to imprisonment for one month or to a fine. Kasonkomona’s legal representative filed a constitutional application challenging the prosecution’s failure to provide the defence with evidence prior to the trial, as well as the constitutionality of section 178(g). On  5 June 2013 the Lusaka Magistrates Court ruled that the criminal case against Kasonkomona should be transferred to the High Court for a hearing on the constitutional issues raised by the defence around the right to freedom of expression. In August 2013, the High Court declined the constitutional application and referred the matter back to the Magistrates Court for trial. The trial is expected to commence on 12 September 2013.

Read more.

R v P and Another 

SALC is providing support to two men in Zambia who have been charged with engaging in and/or permitting a male person to have carnal knowledge of him against the order of nature. The two men have been in custody since 5 May 2013. The criminal trial in the Magistrates Court is expected to continue on 28 and 29 August 2013.

Read more.

Ramantele v Mmusi and Others  

SALC is supporting a case before the Botswana Court of Appeal challenging a customary law rule which provides for male-only inheritance. The case is an appeal from a decision of the High Court finding that the customary law rule violated the right to equality under the Botswana Constitution, as it denied women the right to inherit. On 19 July 2013 the Court of Appeal heard oral arguments and a decision is expected on 2 September 2013.

Read more.


Training on Issues Surrounding Pre-Trial Justice in Malawi

From 22 to 29 August 2013, SALC, together with Chancellor College at the University of Malawi and the Institute for Professional Legal Training at the University of KwaZulu-Natal, provided specialist training targeting pre-trial justice concerns in Malawi. The training aimed to address substantial challenges besetting the Malawian pre-trial detention system resulting in significant rights violations, such as dangerous overcrowding in prisons and the incarceration of detainees for many years without trial. The training was attended by magistrates, prosecutors, justice officials and paralegals and used a detailed and updated manual of relevant Malawian law and practice produced to support the training.

Read more.


SALC and CHREAA Release Report on Vagrancy Laws in Malawi

In July, SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) released a report, No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi, which discusses how the Malawi Penal Code provisions dealing with nuisance-related offences are outdated and vague, and how their application constitutes an abuse of the rights of those arrested on such charges.

Download the report here.


Living on the Earnings of Sex Work in Malawi

There is no provision in the Malawi Penal Code that criminalises sex work, although police officers routinely misinterpret provisions to justify an arrest. This analysis discusses this misinterpretation in detail, and explains how it is yet another example of misusing legal processes to conveniently criminalise sex workers.
Read more.


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