Data gathered during the audit of pre-trial detainees in Malawi suggests that the yearly exposure of the population to prison on remand could be as high as 1 in 100. One of the key concerns raised in the audit was that a significant number of people were on remand for outdated or petty offences such as being a ‘rogue and vagabond’, touting or loitering. But Malawi is far from alone in southern Africa, which is why OSISA and the Open Society Foundations Human Rights Initiative (HRI) are working across the region to advocate for the decriminalisation of these kinds of outdated and petty offences.

Indeed, research findings from Malawi police stations from both the audit and work done by the Southern African Litigation Centre (SALC) show that these kinds of offences, such a loitering, are routinely used as a reason to arrest sex workers, the homeless and people with psycho-social or intellectual disabilities – even though many of them would not be considered crimes at all in most jurisdictions. Some of these offences date back to colonial times and both the audit and SALC’s report – No Justice for the Poor – recommended an urgent overhaul of the criminal code in light of Malawi’s human rights obligations and in order to ease the burden of remand detention on the poor and marginalised.

OSISA and HRI have a number of projects underway in Malawi that seek to reform the way that detainees are dealt with in the criminal justice system. These include work on ensuring adherence to custody time limits, developing a legal framework for diversion and advocating for the review of the Prisons Act (1956) and the implementation of the Legal id Act (2010). These initiatives have created a high level of trust with both government and civil society partners, and created a conducive environment for advocacy around the decriminalisation of anachronistic and petty offences.

And OSISA and HRI are discussing a number of potential interventions for the future, including possibly supporting their partners to advocate with the Malawi Law Commission to review the country’s Criminal Code with a view to repealing these offences. The Law Commission – in its founding documents – identifies public participation as a key pillar of its work and is open to receiving submissions and discussion documents from civil society groups and this may create an opportunity for this reform effort. However, everyone acknowledges that this will be a long term process, which will probably require a sustained advocacy campaign over time.

Another option is strategic litigation to challenge the constitutionality of one or more of these offences. For example, it could be argued the criminalising loitering infringes the right to freedom of movement. Or perhaps a Malawian NGO with observer status at the African Commission could be supported to ask the African Court for an opinion on these anachronistic offences – as Malawi’s national courts are more likely to hand down a progressive judgment on a decriminalisation case if general guidance has already been issued by the African Court.

OSISA and HRI are also discussing whether it might be worth supporting partner organisations to advocate for practice guidelines for law enforcement agencies, primarily the police as well as other early interveners such as the Directorate of Public Prosecutions (DPP), which can advise the police on the conduct of the case, including releasing the suspect on bail, withdrawing the charges or deciding what charges, if any, to bring against suspect. The Legal Aid Bureau could also be lobbied to intervene to challenge the legality of arrests, apply for habeas corpus or demand that the suspect be released.

Through OSISA/HRI’s on-going support, paralegal organisations will also be encouraged to continue providing basic legal advice to suspects about their rights or bringing particular cases to the attention of key criminal justice players, such as the Legal Aid Department and the DPP.

Overall, the aim of any future interventions would be to help to ensure that:

• Decriminalisation is on the agenda of key criminal justice institutions in Malawi, such as the DPP as well as the Legal Aid Bureau;
• The Malawi Law Reform Commission agrees to review the Criminal Code and repeal outdated and petty offences;
• The country’s courts uphold a challenge to the constitutionality of at least one outdated or petty offence;
• There is increased access to justice for indigent or marginalised defendants charged with petty or outdated offences in Malawi;
• Practical guidelines are put in place for the police and the DPP with regard to the arrest and charging of defendants in relation to petty or outdated offences.

But OSISA and HRI are also aiming to change legislation in other parts of southern Africa based on the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa of (2003), which endorsed recommendations calling for the decriminalisation of anachronistic offences, such as being a rogue and vagabond, loitering and prostitution among others. Many of these anachronistic laws pre-date the African Charter on Human and People’s Rights and are at odds with national constitutions and international norms and standards. Yet, ten years on from Ouagadougou, few countries have made any progress in implementing this strategy despite its endorsement by the African Commission on Human and Peoples Rights (ACHPR).

OSISA and HRI have a substantial portfolio of work on pre-trial detention in Africa and a growing body of evidence that the criminalisation of marginalisation is not limited to one or two countries, especially in southern Africa. Therefore, it is important that it be dealt with not only at the national level but also through a regional solidarity campaign that makes strategic use of the various organs of the African Human Rights system and sees pressure being brought to bear on signatories to the African Charter on Human and Peoples Rights to include decriminalisation in their reform agendas.

In order to achieve significant momentum on decriminalisation at the regional level, OSISA and HRI are considering a three-pronged approach.

Firstly, through their support for the work on the development of the African Commission Guidelines on Pre-trial Detention, a positive relationship has been fostered with the Special Rapporteur on Prison Conditions in Africa at the ACHPR but direct advocacy will still be needed to secure his endorsement of this effort and to champion it within African commission processes. Additional support could also be provided to the Special Rapporteur to conduct country visits where appropriate to strengthen in-country decimalisation efforts. Furthermore, he could be encouraged to co-ordinate activities with other relevant Special Rapporteurs and Working Groups of the African Commission and United Nations that may be able to influence the decriminalisation discourse.

Secondly, OSISA and HRI – as explained earlier – are exploring the possibility of supporting a Malawian NGO (since Malawi is currently the only one of OSISA’s countries that has signed a declaration accepting the jurisdiction of the Court and allowing non-state parties to petition the court directly) to ask the Court for an opinion regarding the matter. Any opinion would subsequently be considered by courts beyond Malawi.

Finally, targeted research is being, or has been, undertaken in Malawi and Kenya to gather evidence about how these laws are being used to further particular agendas. This information – as well as research findings from Zambia for example – will be fed into the reports of as many treaty monitoring bodies as possible, such as the UPR, the APRM and the Committee against Torture. Furthermore, the Special Rapporteur is expected to submit an annual report to the African Commission, while State Parties are expected to submit country reports bi-annually. Efforts will be made to ensure that research findings are included in both these reporting mechanisms.

Using this three-pronged approach, OSISA and HRI are hoping to contribute towards ensuring that:

• The issue of decriminalisation is on the agenda of as many of the organs of the African Human Rights system as possible;
• Treaty monitoring bodies, such as the UPR, APRM, and CAT, include progress with regard to decriminalisation in their reports;
• State Parties monitor and report on progress with regard to decriminalisation in their reports to the African Commission;
• The Special Rapporteur includes decriminalisation in his priorities for the next two years and champions it at the African Commission;
• An opinion is received from the African Court on decriminalisation; and
• State Parties are directed by the African Commission to review their criminal codes with a view to repealing outdated offences.