BLANTYRE-(MaraviPost)—Human rights organisations which include Southern Africa Litigation Centre (SALC), Centre for Human Rights Education, Advice and Assistance (CHREAA), Malawi Sex Workers Alliance (MASWA), Centre for Human Rights and Rehabilitation (CHRR), BADILIKA Foundation, ARTICLE 3 Group, Youth and Society, Lawyers Forum for Human Rights and the AIDS and Rights Alliance for Southern Africa (ARASA), have jointly commended the landmark decision by the High Court in Zomba to set aside the convictions and fines imposed on 19 sex workers who were convicted and fined by the Dedza Fourth Grade Magistrate Court in February 2016 for living on the earnings of prostitution.The police in Dedza on 24 February 2016 arrested and charged the 19 with the offence of living on the earnings of prostitution. The Dedza Fourth Grade Magistrate Court proceeded to convict and fine the women on the basis of such contentious charges.
Following the judgement, MASWA approached CHREAA and SALC who took up the matter and mobilised several like-minded civil society organisations to challenge its validity in the High Court.
In her September 8, 2015 judgement, Justice Zione Ntaba of the High Court noted it was clear the arrests of the sex workers were carried out to embarrass and harass them as Section 146 of the Penal Code does not criminalise sex work, but seeks to protect them from those who exploit them.
“The decision demonstrates a strong commitment by the courts to enforce and uphold the enjoyment of human rights by various individuals, with Justice Ntaba observing that the proceedings of the case in the lower court were procedural irregular, unfair and bias, an affront to justice and unconstitutional as their arrest violated the women’s right to liberty,” reads part of the statement made available to Maravi Post.
“This is a significant victory for the fundamental human rights and freedoms of sex workers. We are happy that the court has confirmed that the offence of living on the earnings of prostitution is aimed at protecting sex workers against those who try to exploit them. The arrest of sex workers under the guise of section 146 when there is no evidence to support the charge is a violation of their human rights,” said Victor Mhango, Executive Director of the Centre for Rights Education Advice and Assistance (CHREAA).
“Now sex workers are more aware of the fact that procedures in court cannot be compromised, simply because the accused are sex workers. This is a message to the nation that no one should be denied access to justice based on their status,” commented Zinenani Majawa of the Malawian Sex Worker’s Alliance.
Timothy Mtambo, Executive Director of Centre for Human Rights and Rehabilitation Centre for Human Rights and Rehabilitation, said: “We wish the Judge had gone further to declare it unconstitutional. The judgement has also reveals capacity gaps within the Judiciary, especially in the lower courts. As a nation, we need capacity building for junior magistrates for them to understand their jurisdiction and be able to preside over cases with human rights lenses.”
Mtende Msindama, Director for Lawyers Forum for Human Rights, added: “This is a good judgement from the court. However, the current Penal Code provisions are not just inconsistent with human rights principles but also they are also unconstitutional.”
“The case highlighted ways in which the criminal justice system ignores the rights of accused persons, especially when they form part of a group that is marginalised in society. We, therefore, view the High Court’s decisions as a watershed moment not only in the way the police will treat, and respect the rights of, sex workers in future, but also how the justice system will determine similar cases in future,” reads the statement.