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Saturday, 12 February 2011

Malawi law prohibitng the passing of flatulence in public

There have been numerous reports on alleged new legislation in Malawi prohibiting the 'passing' of flatulence in public. Our colleague Mikasha sought information from Reyneck, a Malawi drafter. Reynceck says:

This is not true, and i did not draft it. However, let me give you a bit more information on this "piece of legislation". The piece of legislation that has caused all this hullabaloo is the Local Courts
Bill, which is being debated in our Parliament now. Besides, there is always the de minimis principle. And in any event, the Local Courts Bill isn't creating a new law. The offence already existed in our Penal Code as early as 1921 (then we had the Nyasaland Penal Code in section 158). The section has always been with us, and am sure this applies to most other Common law countries represented in Class of 2010/11. We inherited this provision from the British, may be its time to revisit it.

Now, the section in issue reads as follows-

"Any person who voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be guilty of a misdemeanour".

Now Mikasha, the question that comes to mind is- how can one construe this section as "prohibiting passing flatulence in public"? I know for sure you agree with me that it doesn't, not at all! I can think of things like burning tyres near places where people live, burning rubbish or other noxious substances, and not "flatulence", what do you think? Mik, it appears to me that those that are interpreting this section as trying to prohibit "flatulence in public" are doing so either because they haven't read the section itself, or they have read it out of context. Am saying this Mikasha because if you read the sections that come before and after this provision in the Penal Code, where the section in the Local Courts Bill has been borrowed from, you would be left wondering as to why people are coming up with all sorts of interpretations. In the Penal Code, where this section has been taken from, as i have said, section 192 provides for "negligent act likely to spread disease dangerous to life; s. 193 (Adulteration of food or drink intended for sale); s. 194 (Sale of noxious food or drink); s. 195 (Adulteration of drugs); s. 196 (Sale of Adulterated drugs); s. 197 (Fouling Water); the controversial s. 198 (Fouling air); and s. 199 (Offensive trades). Of course one would understand that most of the people commenting do not have access to the piece of legislation itself so as to read it in context, but still their interpretation of this provision amazes me. Or is it an issue of lack of clarity on our part may be? You are the best judges!

Again, if s.198 of the Penal Code (now in the Local Courts Bill as well) was meant to capture "flatulence", why would the draftsperson go to great lengths using all the words in that provision instead of simply stating "Any person who passes flatulence commits an offence and is liable to a fine of ......... and imprisonment for .....years" ?

In short Mik, all what the bill is trying to do is to give limited criminal jurisdiction to the Local Courts to try misdemeanours, one of them being the one under discussion.

May be the wider issue is, in view of the ICT revolution at the turn of the 20th century, a strong web presence is important for people to easily access laws. Further, the way the general public is made aware of public bills may need re-visiting. Perhaps its time to be pro-active so that before the misinformation hits the streets or our computer and tv screens, there ought to be deliberate steps from the Executive Branch to state proposals in any public bill clearly
to enlighten the general public.

Comments?

3 comments:

  1. The imaginative interpretation of s.198 of the Malawi Penal Code mentioned here reminds me of the hilarious case of Reg v Ojibway, 8 Crim L.Q. 137 (Toronto1965), where it was argued that shooting a horse was equivalent to shooting a bird in contravention of the Cruelty to Small Birds Act in Canada.

    (http://www.vbulletin.com/forum/showthread.php/84090-Is-a-pony-fortuitously-saddled-with-a-feather-pillow-a-quot-small-bird-quot)

    I had first come across it in my first year at law school and only recently found it online.

    This fictitious case was cited and reproduced in Stevens v. City of Louisville, 511 S.W.2d 228, 230-31 (Ky. Ct. App. 1974). (http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=511+S.W.2d+228)

    The law is never lacking in hot air, I suppose...


    kh koh

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  2. Yes, there are a number of fictitious cases that have found there way into the law, generally by first being referred to toungue in cheek by a judge who does know where they came from, and then cited in turn by someone who doesn't! The best example is the famous "cheque on the side of the cow" case - Board of Inland Revenue v Haddock - from the hilarious spoof collection Uncommon Law, which is regularly cited by law students who have heard of it but not appreciated its provenance! As a legislative drafter I believe one should always test ones drafts to see whether they are "void for risibility" as one of my early teachers put it - and a good way of doing that is to ask yourself "could this provision be caricatured any more effectively than I have already done it"!

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  3. Love your suggestion that caricature can be an effective test of vulnerability of what we draft!

    And AP Herbert gave us a wonderful legacy of legal humour.

    His use of humour to push for law reform (divorce) is especially ingenious!

    And one could use his writings as a test - do not hire anyone who does not appreciate the humour, because it will be because they don't get the law!


    kh

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