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and-you-thought-the-smoking-ban-was-bad

The ban on smoking in private public places has been much-criticised by freedom-loving liberals, who argue that it should be the decision of the property owner whether smoking may occur in his or her establishment. The debate around genuinely “public” places is more complex, but the general argument goes to the very heart of the definition of a free society, and raises the hoary old chestnut of positive verses negative liberty: whether one person’s freedom to smoke is an assault on another’s liberty.

Still, at least smoking is a choice. Imagine a society where the government banned natural bodily functions for the same reasons that ours has banned smoking.

Or, if your imagination fails you, why not visit one!

Malawi, it seems, may have accidentally banned farting in public.

The Local Courts Bill, to be introduced next week, contains a clause that reads "Any person who vitiates the atmosphere in any place so as to make it noxious to the public 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, Solicitor General Anthony Kamanga insists that "fouling the air" refers to pollution and that this is purely an environmental protection provision. "How any reasonable or sensible person can construe the provision to criminalising farting in public is beyond me," he said.

However, the unreasonable and foolish person to whom he is alluding is none other than his cabinet colleague, Justice Minister George Chaponda, a trained lawyer who argues that the new bill would criminalise flatulence. After all, he explained on Capital Radio, “"Would you be happy to see people farting anyhow?".

Frankly, I’d be utterly shocked to see people farting, and none too happy to discern it through either of the more usual senses. However, the question of whether it should therefore be prohibited is rather a different matter. There are many things that are unpleasant, from smoking through halitosis to profane language. In a free society, the response should not be coercive. In a free society, the response might be to move away from the source of the offence; to ask the offender to desist; to apply peer-group pressure (an appalled demand to know “Who farted?!” can cause a great deal of embarrassment to the offender); or to ask the owner of the establishment to adjudicate (for example, by calling the restaurateur and asking him or her to decide).

Banning activity so as to promote "public decency", as Mr. Chaponda would seek to do, or prioritising one person’s freedom over another’s, as does the smoking ban, is an attack on the freedom both of the person whose action is criminalised and the owner of the property in which that action takes place (who should be free to decide what is permissible in his or her establishment). In the case of a natural bodily function, it is also a clear case of discrimination: many people – notably but not solely the elderly (and vegetarians) – are unable to control this particularly habit.

It is unclear at the time of writing whether Mr. Chaponda or Mr. Kamanga will be successful in defining the meaning of this clause of the Local Courts Bill. But one thing is for sure: the result will cause rumblings in Malawian society for some time to come.