The SALC E-Newsletter Issue 21 Promoting Human Rights and rule of law in Southern Africa ————————————————————

In Malawi, SALC successfully intervened in the case of a person with
albinism who was being discriminated against on account of his disability.
In a huge win over laws which criminalise poverty, SALC together with
long-time partner CHREAA challenged the constitutionality of rogue and
vagabond offences in Malawi. In another strategic intervention to protect
land owned by an indigent mother and daughter, the Malawi High Court
confirmed that they were rightful occupiers with exclusive rights over the
land in question, which land has now been restored to the women. SALC also
intervened in an appeal in support of a young Malawi mother who was
convicted of the negligent transmission of HIV for breastfeeding a child.
The mother has been released from prison where she was incarcerated with
her infant child. SALC intervened in Malawi to challenge the suspension of
pregnant learners from learners attending schools.

Malawi: S v Precious Michael
SALC worked with the Centre for Human Rights Education, Advice and
Assistance (CHREAA) and a private lawyer, Daniel Kalaya, to review a
discriminatory sentence against a man with albinism. The appeal was heard
in the Thyolo High Court on 8 February 2017. Justice Kamanga delivered a
judgment on the same day. The Court set aside the appellant’s sentence
as unlawful and excessive, having exceeded the statutory minimum. The
Court, however, declined to declare that the lower court’s sentence was
discriminatory. A written judgment remains outstanding. Read more here

** Malawi: State v Gwanda
SALC and the Centre for Human Rights Education, Advice and Assistance
(CHREAA) supported a case challenging the constitutionality of the offence
of being a rogue and vagabond. In March 2015, the applicant was arrested
by police whilst on his way to a market where he works as a street vendor.
He was charged with the offence of being a rogue and vagabond. Section
184(1)(c) of the Penal Code provides that “every person in or upon or
near any premises or in any road or highway or any place adjacent thereto
or in any public place at such time and under such circumstances as to
lead to the conclusion that such person is there for an illegal or
disorderly purpose, is deemed a rogue and vagabond.” The offence of
being a rogue and vagabond exists in the same wording in the Penal Codes
of many African countries and dates back to the era when these countries
were subjected to British colonial rule.

On 4 October 2016, the High Court heard substantive arguments by the
parties and amici curiae. Judgment was delivered on 10 January 2017
declaring the offence unconstitutional and invalid. The judgment was
widely reported on in Malawi and was also discussed at the African
Commission on Human and Peoples’ Rights consultation
on the draft principles on decriminalisation and declassification of
petty offences. In February, SALC and CHREAA met senior police
commissioners in Malawi to discuss the judgment and its impact. The
meeting led to a directive for the police to refrain from arresting
persons under the offence. Since then, CHREAA has visited police stations
and prisons to monitor whether there were any arrests under the offences
subsequent to it being declared unconstitutional. CHREAA and SALC also
arranged a training session with magistrates in Malawi in March to ensure
that they were aware of the recent judgments on the rogue and
vagabond, living on earnings of prostitution and HIV criminalisation
cases. Read more here

A booklet summarising the judgments in SALC’s recent cases in Malawi is
available here

Malawi: Prosecution of a Woman Living with HIV for Breastfeeding
SALC worked with the International Coalition of Women (ICW) based in
Malawi and a private lawyer, Wesley Mwafulirwa, to support an appeal
brought by a woman living with HIV against her conviction under section
192 of the Penal Code after breastfeeding a child. Section 192
criminalises any negligent act likely to spread disease. The woman
approached the Zomba High Court appealing her conviction and sentence and
challenged the constitutionality of section 192 of the Penal Code alleging
that it is vague and overbroad. The State agreed that the appellant’s
conviction and the sentence imposed on her should be overturned and set
aside. The appeal was heard by the Zomba High Court on 2 December 2016.
The Court, per Ntaba J, granted an order that the appellant’s identity
be concealed to protect her confidentiality and that of the children
concerned and released the appellant on bail pending the determination of
the appeal. On 19 January 2017, the High Court acquitted the appellant on
the basis that the charge against her was ambiguous and her plea
defective, noting the trial Court’s violation of her fair trial rights
and bias against her. Read more here

Malawi: Madikhula and Another v Goba and Another
On Friday 2 December 2016,  the High Court of Malawi, sitting in Mzuzu,
dismissed an action brought by the plaintiffs, a wealthy couple, against
two female defendants. The plaintiffs claimed that the land inherited by
the defendants, a single woman (57) and her widowed mother (87) from their
deceased father and husband respectively in 2006, was allocated to the
plaintiffs in 2010 by the Dwangwa Cane Growers Trust. The plaintiffs
sought a declaration that they were the rightful occupiers with exclusive
rights over the land in issue. The defendants were not aware that the
government acquired and leased their land to Dwangwa Cane Growers Trust
and were never consulted. The plaintiffs commenced this matter in the High
Court in November 2013, some three months after the Magistrate’s Court
declared that the property belonged to the defendants. The plaintiffs took
over the defendants’ only property, which was their source of income and
livelihood, forcing them into landlessness and

On 2 December 2016, the High Court ruled that the Magistrate’s Court
that gave the land in issue to the defendants was a competent court with
jurisdiction to hear customary land matters. The High Court noted that the
plaintiffs who were aggrieved by the decision of the Magistrate’s Court
did not seek leave to appeal nor did they apply for a stay of execution.
Instead, the plaintiffs instituted a fresh action in the High Court to
circumvent the appeal process. Without deciding on the merits, the High
Court dismissed the matter and ordered the plaintiffs to pay the costs of
the proceedings. In compliance with the Mzuzu High Court decision, the
plaintiff surrendered a 2 hectares sugar cane plot to the defendants. On
2^ March 2017, the plaintiffs also deposited a sum of MWK 566,472-16 in
the Mzuzu High Court Registry to be paid to the defendants as partial
reimbursement for the value of the sugar cane that was sold while the
matter was pending in the High Court.  The defendants
were supported by SALC and Youth Watch Society. Read more here


** Malawi: ON and Others v Child Protection Team
SALC is working with Youth Watch Society (YOWSO) on a case involving the
suspension of several students from a school in Malawi over pregnancy. The
applicants filed for review of a Magistrates Court decision to fine
parents of students who were pregnant and those responsible for the
pregnancies. The applicants are also challenging the unlawful detention of
students and parents who were held in police cells for failure to pay
fines imposed on them, immediately. The matter was filed in the Mzuzu High
Court in November 2016 and argued on 2 May 2017. A summary of the case is
available here

Find full details of the and other cases in the newsletter on the link posted above.

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