Evidence tells us that around the world, marginalized groups are at increased risk of right violations in their interaction with the criminal justice system and indeed in almost all spheres of public life. Laws against loitering, being a “rogue or a vagabond,” or having no “ostensible means of assistance” are prolific and are frequently used to target the poor, minorities, and marginalized groups. Others discriminate against people with disabilities, giving broad powers to police to detain anyone perceived of being of “unsound mind” or found “wandering at large.” People end up detained or incarcerated, often for prolonged periods, for non-criminal behavior, or behaviours associated with poverty, substance use, or disability with a profound impact on rights and physical, psychological and economic wellbeing.
The Open Society Foundations Human Rights Initiative believes that removing or limiting the scope of laws that legitimize and facilitate the enforcement of petty offences will provide some reprieve for these groups. In doing this we recognize the common view that citizens have a right to live and work in an environment that is safe and functional, with access to justice, health, accommodation, education etc. and that in order to ensure this, there is a need for laws and policies that govern our interaction with our environment and with each other. However, we maintain that these imperatives are possible without the application of draconian laws that criminalize minor infractions or behaviours that may arbitrarily be defined as detrimental to law and order.
Our challenge is how we build broad support for a criminal justice and law enforcement approach that balances the need for safety with a rights framework that ensures that sanctions are fair and proportionate. In Malawi our partners, the Centre for Human Rights Education, Advice and Assistance (CHREAA) in parallel to litigation and law reform, has been working with the media to report responsibly on this issue. This month, a group of young journalist compiled an exclusive report which appeared as a pull-out in Malawi’s Nation newspaper which dealt with both the constitutionality of existing rogue and vagabond “vakabu” laws and the impact that the heavy-handed approach of the police in applying these laws has on the lives of ordinary citizens. We are very encouraged by CHREAA’s efforts to campaign around a new and sometimes controversial issue using a range of tools and entry points. For those of you who are interested you can view the pullout in the PDF attached.