A Question Of Speed
by George Mwale LLB (Hons) UK, Advocate (Zambia)
Speed limits on any road are set for specific reasons, mostly to prevent road accidents. This article is not in any way meant to encourage over speeding on the roads of Malawi; nor is it intended to help those who break the law to avoid punishment if found to be in the wrong.
If you have ever had a run-in with the speed laws, you will already know that they are complicated, confusing and sometimes even contradictory. The police will tell you they are just there to enforce the law. But are the laws fair laws? Has there really been any satisfactory speed law that has been invented over the years?
As you drive on the roads of Malawi, you will have seen various road signs indicating speed limits ranging between 40, 50 and 60. However, the signs do not actually state whether those are miles or kilometres per hour. We just have to assume that they are intended to indicate kilometres rather than miles per hour as Malawi uses the metric system. These speed limits vary depending on the type of road and whether, for example, it is a built-up area. The limits are prescribed by the Minister in consultation with the Director of Road Traffic. Hence, the Road Traffic Act under Section 92(4) prohibits any person driving on the public road from driving in excess of the prescribed speed limits. This provision excludes drivers of vehicles belonging to the Director’s department, fire-fighting organisation, a rescue organisation or hospital and traffic police department (Section 93, Road Traffic Act).
The most common way of determining one’s speed by the police is by the use of radar. By pointing the radar gun in the direction where the vehicle is coming from or going to, the police can determine the speed of that vehicle. Hence, using this gadget, they can tell whether the vehicle is being driven at a speed below or above the prescribed speed limit.
Now, it has been observed that the offences written on the notification when one is stopped for speeding are “over speeding”, “excessive speeding“ and so on and so forth and the fine meted out is almost invariably MK5,000 regardless of how fast one was driving.
So, the first issue to be dealt with is: Do the said offences exist under the Road Traffic Act? Upon perusal of the Act, you will notice that there is no specific offence as “excessive speeding” or “over speeding”, although the Act prohibits persons from driving on roads in excess of the prescribedlimits. It is a very important tenet of natural justice that one should be clear on what one is accused of and which law one is accused of breaking. If found to have been driving above the specified speed limit, which in most cases are signposted, a person could be liable to the following offences: Section 91 - failure to obey a traffic sign, Section 126 - reckless or negligent driving, and Section 127 - inconsiderate driving. It is my understanding that the read-out of the radar is part of the evidence to prove the said offences.
The offence concerning exceeding the speed limit was sensibly created to improve road safety and offer guidance to drivers. When it is applied with intelligence, it can do exactly that. However, speed limits are, by their nature, arbitrary. You will soon discover that, in many circumstances, the speed limit is not the best to drive at. As local conditions vary, the optimum speed varies too. In most built-up areas in Malawi, the speed limit is 40 km/hr - but is this realistic? You try driving at that speed!!! Some speed limits tend to seem ridiculous and cause frustration for many drivers. What many drivers feel would be beneficial to everyone would be for qualified traffic engineers to set traffic speeds as they have the necessary knowledge and experience in setting safe and sensible speed limits for every type of road environment.
Now, let’s look at the fines. Each offence has a punishment in the form of a fine and/or imprisonment. The fines prescribed in the Act are the maximum fines that one can pay, depending on the gravity of the offence. For the offence related to speeding, I understand that the maximum fine is MK5,000. However, it has been observed that everyone is made to pay the same MK5,000 regardless of whether one was driving at 2 km/hr or 50 km/hr above the speed limit! If a “one boot fits all” application of the law is meted out, can this be said to be fair? Surely there is a need to exercise judgment and fairness here!
After all, while most of us glance at our speedometer occasionally as we’re driving, we spend most of our time concentrating on the road ahead – and quite rightly so! Therefore, quite unintentionally, one can sometimes be driving a few km/hr above the speed limit and so, technically, breaking the law. Surely, this hardly merits the same punishment as a motorist who knowingly and deliberately flouts the law and drives at 120 km/hr where signposts clearly indicate a limit of only 50 km/hr?!
I sincerely believe that, in applying the on-the-spot fine, the police could fine a lesser amount for a minor offence and leave the maximum amount for those “excessive” speeding drivers. Perhaps the authorities could also think about introducing a sliding scale system? In some cases, where a driver has been found to have been exceeding the speed limit by, say, only 5-15 km/hr, surely the police could use their discretion and just issue a caution to the driver to avoid the exercise being regarded simply as an easy form of income collection?!
Every driver has the right to challenge a decision by indicating on the notification a plea of “not guilty”.
If you have ever had a run-in with the speed laws, you will already know that they are complicated, confusing and sometimes even contradictory. The police will tell you they are just there to enforce the law. But are the laws fair laws? Has there really been any satisfactory speed law that has been invented over the years?
As you drive on the roads of Malawi, you will have seen various road signs indicating speed limits ranging between 40, 50 and 60. However, the signs do not actually state whether those are miles or kilometres per hour. We just have to assume that they are intended to indicate kilometres rather than miles per hour as Malawi uses the metric system. These speed limits vary depending on the type of road and whether, for example, it is a built-up area. The limits are prescribed by the Minister in consultation with the Director of Road Traffic. Hence, the Road Traffic Act under Section 92(4) prohibits any person driving on the public road from driving in excess of the prescribed speed limits. This provision excludes drivers of vehicles belonging to the Director’s department, fire-fighting organisation, a rescue organisation or hospital and traffic police department (Section 93, Road Traffic Act).
The most common way of determining one’s speed by the police is by the use of radar. By pointing the radar gun in the direction where the vehicle is coming from or going to, the police can determine the speed of that vehicle. Hence, using this gadget, they can tell whether the vehicle is being driven at a speed below or above the prescribed speed limit.
Now, it has been observed that the offences written on the notification when one is stopped for speeding are “over speeding”, “excessive speeding“ and so on and so forth and the fine meted out is almost invariably MK5,000 regardless of how fast one was driving.
So, the first issue to be dealt with is: Do the said offences exist under the Road Traffic Act? Upon perusal of the Act, you will notice that there is no specific offence as “excessive speeding” or “over speeding”, although the Act prohibits persons from driving on roads in excess of the prescribedlimits. It is a very important tenet of natural justice that one should be clear on what one is accused of and which law one is accused of breaking. If found to have been driving above the specified speed limit, which in most cases are signposted, a person could be liable to the following offences: Section 91 - failure to obey a traffic sign, Section 126 - reckless or negligent driving, and Section 127 - inconsiderate driving. It is my understanding that the read-out of the radar is part of the evidence to prove the said offences.
The offence concerning exceeding the speed limit was sensibly created to improve road safety and offer guidance to drivers. When it is applied with intelligence, it can do exactly that. However, speed limits are, by their nature, arbitrary. You will soon discover that, in many circumstances, the speed limit is not the best to drive at. As local conditions vary, the optimum speed varies too. In most built-up areas in Malawi, the speed limit is 40 km/hr - but is this realistic? You try driving at that speed!!! Some speed limits tend to seem ridiculous and cause frustration for many drivers. What many drivers feel would be beneficial to everyone would be for qualified traffic engineers to set traffic speeds as they have the necessary knowledge and experience in setting safe and sensible speed limits for every type of road environment.
Now, let’s look at the fines. Each offence has a punishment in the form of a fine and/or imprisonment. The fines prescribed in the Act are the maximum fines that one can pay, depending on the gravity of the offence. For the offence related to speeding, I understand that the maximum fine is MK5,000. However, it has been observed that everyone is made to pay the same MK5,000 regardless of whether one was driving at 2 km/hr or 50 km/hr above the speed limit! If a “one boot fits all” application of the law is meted out, can this be said to be fair? Surely there is a need to exercise judgment and fairness here!
After all, while most of us glance at our speedometer occasionally as we’re driving, we spend most of our time concentrating on the road ahead – and quite rightly so! Therefore, quite unintentionally, one can sometimes be driving a few km/hr above the speed limit and so, technically, breaking the law. Surely, this hardly merits the same punishment as a motorist who knowingly and deliberately flouts the law and drives at 120 km/hr where signposts clearly indicate a limit of only 50 km/hr?!
I sincerely believe that, in applying the on-the-spot fine, the police could fine a lesser amount for a minor offence and leave the maximum amount for those “excessive” speeding drivers. Perhaps the authorities could also think about introducing a sliding scale system? In some cases, where a driver has been found to have been exceeding the speed limit by, say, only 5-15 km/hr, surely the police could use their discretion and just issue a caution to the driver to avoid the exercise being regarded simply as an easy form of income collection?!
Every driver has the right to challenge a decision by indicating on the notification a plea of “not guilty”.
