Matemba v R (Miscellaneous Application 1 of 2021) [2021] MWHC 401 (22 March 2021)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION MISCELLANEOUS APPLICATION NUMBER 1 OF 2021 IN THE MATTER OF SECTION 41 (3), 42 (1) (e) & (f), 46 (2) and (3) OF THE CONSTITUTION OF THE REPUBLIC OF MALAWI IN THE MATTER OF SECTION 16 (6) (a) (i) and (ii) OF THE STATUTE LAW (MISCELLANEOUS PROVISIONS) ACT AND SECTION 161G & H OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE BETWEEN AWALI MATEMBA .... cece cece ccc ec eee eecneneesne crete eee eeeeneeneenneneere eres THE APPLICANT AND THE REPUBLIC... ccc ccccc eee ee eee ee eens nena eneereneeenenseneeneensencaes THE RESPONDENT CORAM: HON. JUSTICE PATEMBA Mr Kamangira, Counsel for the Applicant Mr Nsume, Counsel for the State Mr Amos, Official Interpreter RULING 1. This is the Court’s decision following an application by the Applicant to be released unconditionally from custody and an application for an effective remedy. The application is brought under Sections 41 (3), 42 (1) (e&) & (f), (2) (e), 46 (2) and (3) of the Constitution as read with Sections 16 (6) (a) (i) and (i1) of the Statute (Miscellaneous Provisions) Act and Section 161 (G) and (H) of the Criminal Procedure and Evidence Code. The application is supported by a sworn statement sworn by Alexious Emmanuel 1 Silombela Kamangila of Counsel for the Applicant. Counsel Kamangila also filed skeleton arguments in support of the application. In response, the State filed its sworn statement, sworn by Gift Msume, the State Advocate, and does not oppose to the application. 2. The Applicant, who is aged 48 years, hails from M’bola village, Traditional Authority Lundu, Blantyre. He was arrested by the Police in January 2007, on the basis that two unidentified people had been robbed near his shelter in Machinjiri where he used to sell diesel. One of the victims of the said robbery died at the hospital. The Applicant, however says that on the day of the robbery he was out of Machinjiri to purchase merchandise for his business and was wrongly suspected of being responsible for the crime. He was remanded at Chichiri prison and no warrant of commitment or any documentation was available in connection to his case. Efforts to trace the documentation were made all these years but to no avail. The Applicant has spent 14 years in custody and the State has not brought him before court for trial. 3. The Applicant remembers to have been taken to court in 2011] where he appeared before late Justice Manyungwa. The Court adjourned for the State to do further investigations. It has been 10 years of waiting for the State to complete its investigations and prosecute the Applicant herein, hence the Applicant’s application to be released from custody unconditionally and his prayer for an effective remedy due to unlawful detention. Whether the Applicant was in unlawful detention 4. Section 42 of the Constitution provides for arrest, detention and trial of an accused person. The law enforcement agencies i.e., the Police must have a genuine reason for arresting an individual and detaining them in custody, and must follow set down procedures and the law. Should an arrest be deemed unlawful, then any related period in detention would also be classed as unlawful. Police officers should always fully consider whether there is a need to arrest, and it cannot be done simply for their own convenience and to make their investigations easier. If they do not have a lawful reason for arresting and detaining an individual, then it could amount to false imprisonment. See Bango V. 2 Attorney General and another 532 of 2012 2014 MWHC 474 Alternatively, if it could be shown that somebody was held for longer than required, or that other realistic alternatives had not been considered, it could be classed as unlawful period of detention see the cases of In Re: Nankwenya and S. 42 (2) of the Constitution of Malawi and the Matter of Habeas Corpus (Misc Criminal Application No. 62 of 2003) ((2)) [2003] MWHC 59 (19 September 2003). The police might have had a reasonable ground to suspect that the Applicant committed an offence. Thus, the arrest was lawful. The law clearly provides for detention period within which to detain a suspect. Section 161 G of the Criminal Procedure and Evidence Code ( Cap 8:01) of the Laws of Malawi ( herein referred to as C. P. & E. C.), sets out 90 days as the lawful pre-trial custody time limit for offences of genocide, murder rape, defilement and robbery. And upon the expiry of 90 days, section 161H of the C. P. & E. C, gives power to the prosecution to make an application before a court for an extension of custody time limit. That was not the case in the present case. The Applicant has been held in custody for longer than what is required in the law without any documentation that shows that he is being detained lawfully. The Applicant’s detention for 14 years without trial infringes on the right of the Applicant to personal liberty. The Supreme Court of Appeal in the case of Sandras Frackson & others v The Republic, MSCA Criminal Appeal No.1 of 2018 had this to say: “As depicted by Section 18 of the Constitution, personal liberty is a high profile right under the constitutional dispensation that exists in this Jurisdiction. Thus whenever it is revoked, even by the State for alleged crime, the inclination of the law is that the circumstances surrounding such revocation be looked into at the earliest opportunity with an eye towards the possible restoration of the said liberty. Accordingly, as early as within the first 48 hours of any person's arrest for alleged crime, or at the latest as early as by the expiry of that period of time from arrest. Section 42(2)(b) of the Constitution sounds alarm bells for State institutions to see to it that the arrested person is brought before an independent and impartial court of law to be charged or be informed of the reason for his further detention, failing which he shall be released. Further, where _on such maiden appearance before the court the said arrestee has ended up being further detained by the court, under Section 42(2\(e) of the Constitution he has, and he retains, the right to be released from detention, with or without bail, unless the interests of justice require otherwise. As will clearly be evident upon checking, for the offence of murder, which falls within the category of the most serious crimes in our land, Section 161G of that part of the Code sets a maximum of 90 days as the longest lawful incarceration a person accused of that level of crime can undergo before the commencement of his trial. However. in terms of Section 161H of the same Code this is subject to court-sanctioned extensions that must cumulatively not exceed an extra 30 days. Again here, in true reflection of the sanctity of personal liberty, Section 161 | of this Code comes _in to empower courts, even of their own motion, to consider releasing whoever is affected at the expiry of the pre-trial custody time limits. Beyond this stage, it will be seen that hereafter even in situations where, for instance, it has not been found to be in the interests of justice to have someone arrested for alleged crime released, whether with or without bail under the above- referred Section 42(2)(e) of the Constitution, the existing system of justice requires that_as the affected arrestee thus continues to be held in custody, he be at least accorded a fair trial, and that the such trial should be conducted within a reasonable time [see: section 42(2)(f)G)of the Constitution]. Further, it is a basic requirement of the law that at the trial in question, the person so accused of a crime shall be presumed innocent until proved guilty [see: section 42(2)(f)(iii) of the Constitution]. In this regard, the Criminal Procedure and Evidence Code (Cap 8:01) of the Laws of Malawi readily walks in the footsteps of the above constitutional provisions by, inter alia, setting deadlines for the commencement of various categories of criminal proceedings before the different levels of court that are available, and also by, through its Part IVA, specifying pre-trial custody time limits for the detained accused persons in respect of the categories of cases they are meant to face trial ”° for. 7. From the above Supreme Court of Appeal decision, any detention beyond the pre-trial custody limit set under Section 161 of the C. P. and E. C. is unlawful especially where the detention will not afford the accused person a right to a fair trial. The Applicant has been detained at Chichiri Prison for more than 14 years without being tried. I find that indeed the Applicant has been so unlawfully detained and ought to be released. It is rather unfortunate that all these 14 years the criminal justice system could not detect that the Applicant is being detained unlawfully and ought to be flushed out of the system. The Prison authority cannot keep someone in custody for such a long period of time without any documentation and yet not raising any alarm bells regarding such an illegal detention. In as much as the Prison Service is at the receiving end, it is imperative that they execute their mandate within the prescribed legal mandate. To avoid such scenarios from occurring again in the future, the Court therefore orders that the Prison Service should devise mechanisms and systems that will automatically sound an alarm bell to call for a release of someone who is in their custody without any documentation or expired documentation. Does the Criminal Court have powers to make orders regarding compensation in unlawful detention? 8. Whether a court sitting in a criminal matter can award damages to an accused person who has been in custody for a prolonged period is the next question that the Court must address. The Criminal Procedure and Evidence Code which provides for the law relating to procedure and evidence in criminal proceedings and for incidental matters is silent on whether a criminal court can provide for compensation in unlawful detention. 9. Although a court sitting in a criminal matter is obliged to consider an accused’s rights, including the right to be tried within a reasonable time as per section 42 of the Constitution, when so sitting, the court’s primary role is toapply criminal law, including criminal procedure and determine the guilt or not guilt of the accused person. While not specifically dealing with legal issue under consideration here, the dicta in the case of Ashley (Fc) and Another (Fc) V Chief Constable of Sussex Police [2008] UKHL 25 are nonetheless helpful. At para 17 of the judgment, Lord Scott stated as follows: “In my opinion, however, this plea for consistency between the criminal law and the civil law lacks cogency for the ends to be io by the two systems are very different. One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society.” 10. Top of the agenda, therefore, in criminal law is the ascertainment of the wrongdoing of the accused. This is unlike civil law which is the body of law that protects people’s rights. Lord Scott continued as follows on para 18: “The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others.” 11. Because it is the civil body of law that takes the responsibility of protecting people’s rights, it is primarily that body which compensates the person whose rights have been infringed. In the same judgment, Lord Carswell (at para 76), in further distinguishing criminal and civil matters, went on to state that: “The function of the civil law is quite distinct. It is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people.” Lord Carswell (at para 84) then concluded that: “Both Dobbs J and Auld LJ expressed the opinion, which I think is correct, that the civil courts exist to award compensation, ... the existence of a sanction by way of damages is the essential mark of a tort: Salmond & Heuston, op cit, p 9.” 12. When a court sits in a criminal matter, its role is primarily to apply criminal law rules and principles. While section 32 of the Penal Code expressly provides that a court can award compensation to a victim of a crime, the law is silent on whether an accused can equally be awarded compensation in criminal proceedings where his or her rights have been violated. The only possible exception is section 142(2) of the C. P. & E. C. which empowers a court to order the prosecutor to pay costs to an accused who has been discharged or acquitted where the prosecutor had no reasonable grounds to prosecute the matter. However, even this only applies against a private prosecutor. 13. Malawi’s legislative framework, therefore — pretty consistent with the dicta in Ashley (Fc) and Another (Fc) V Chief Constable of Sussex Police (supra), paints the picture that when a court sits in a criminal matter, ordering the State to compensate the accused where it has violated his rights falls beyond its purview. The law further recognizes that even the compensation that can be awarded to the victim may not be sufficient. As such, it does not bar the victim from instituting civil proceedings on the same facts, but merely requires the court in a civil matter to, when awarding damages to the victim, take into consideration the compensation awarded in a criminal matter. 14. In the case of an accused, any award of damages to him in a criminal matter would be premised on the fact that his rights have been violated. While awarding damages to an accused in a criminal matter where it is clear that his or her rights have been infringed may seem proactive and beneficial in that, among others: it gives the accused an instant remedy, saves him from incurring extra costs in instituting civil proceedings, and preserves court’s time and resources, the approach, besides being unconventional, is problematic and undermines several civil procedure principles. 15. 16. Firstly, it is axiomatic that criminal matters in Malawi are handled by the Director of Public Prosecution’s (DPP) chambers while civil matters against the government are defended by the office of the Attorney General. If an accused claims compensation against the State, it means he is alleging that a government department or agency has infringed his/her rights. That allegation and the relief sought are civil. In other words, it a civil body of Jaw and a civil court that can address his claim — Ashley (Fc) and Another (Fc) V Chief Constable of Sussex Police (supra) (Lord Carswell). In terms of government representation, therefore, the appropriate office to respond to that claim is the Attorney General’s office and not the office of the DPP, which the prosecutor appearing in the criminal matter represents. Therefore, besides the claim being raised in the wrong court, the State may be unable to properly respond to a claim for compensation in the criminal matter as the appropriate officer for the State to respond to that claim may not be in the court. Secondly, an assessment of compensation in a civil matter considers the heads of damages as pleaded by the claimant. In a civil matter, the claimant needs to clearly state the allegations of facts and heads of damages being claimed, and then go ahead to prove the claims. The Attorney General needs to respond to the heads of damages, whether disputing some or all or none. The court is bound by these pleadings by the parties (Littleways Building Contractors Limited v Northworks Limited, [2013] MLR 187 (SCA); Jack Banda v Alliance Once Tobacco, MSCA Civil Appeal No.59 of 2016 (Supreme Court of Appeal, sitting at Lilongwe)). Since there is no statement of claim in a criminal matter, whilst the allegations of facts may be clear (i.e. that the accused was in custody for a prolonged period), the court and the parties may not be on the same page regarding what heads of damages are under consideration when awarding compensation. Resultantly, the State may be unable to adequately respond to the claim for compensation. Equally, the court runs the risk of either under-compensating or over- compensating the accused because of lack of proper clarity regarding the heads of damages that the compensation must capture. 17. 18. Thirdly, a claim for compensation by the accused in a criminal matter will inevitably turn the matter into a civil one or at least a hybrid. This is so considering that the body of law that aims to protect people’s rights and awards them compensation when rights have been violated is civil law. As such, when considering the issue of compensation to be awarded to the accused, the court will be required to apply civil law principles. One important principle of civil procedure is that the parties to the case are adversaries and the court is an impartial arbiter which must not enter the ring. The court is bound by what the parties are claiming (Malawi Telecommunications Limited v S. R. Nicholas Limited, MSCA Appeal Case No. 01 of 2011). The challenge with a claim for compensation in a criminal matter is that there are no pleadings. Chances are high, therefore, that the court will be left to second-guess what heads of damages and what type of damages (e.g. aggravated, loss-centred, rights-centred (or vindicatory) or nominal) the compensation it orders should cover. That will amount into entering the ring which ordinarily should be for litigants. In a case where an accused has been in custody for a long time, the appropriate compensation that maybe a court in a criminal matter can order is a vindicatory purpose compensation. This compensation is ‘rights-centred’. Lord Scott (at para 22) in Ashley (Fc) and Another (Fc) case (supra) distinguished ‘rights-centred’ damages from ‘loss- centred’ damages when he said: “In a later case, Dunlea v Attorney General [2000] 3 NZLR 136, Thomas J drew a distinction between damages which were loss- centred and damages which were rights-centred. Damages awarded for the purpose of vindication are essentially rights-centred, awarded in order to demonstrate that the right in question should not have been infringed at all.” However, according to Lord Carswell at para 80, vindicatory damages are awarded only “when there is no other remedy which will meet the case - there being perhaps no provable loss -- except a nominal award of damages to establish formally the validity of the claim.” 19. In this matter, the accused has other remedies such as claiming the loss-centred damages in a civil court. Any vindicatory damages that can be awarded, therefore, cannot go beyond nominal damages. 20. Counsel for the Applicant submitted that apart from the Court ordering for the Applicant to be released from custody, the Court should also give an order for compensation. Counsel relies on Section 41 and 46 (2) and (3) of the Constitution. Counsel further cited the case of Professor Arthur Peter Mutharika & Another v Dr. Saulos Klaus Chilima & Another, MSCA Constitutional Appeal No. 1 of 2020, and he also cited section 41 of the Constitution which provides that: (1) Every person shall have a right to recognition as a person before the law. (2) Every person shall have the right of access to any court of law or any other tribunal with jurisdiction for final settlement of legal issues. (3) Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law. He further cited section 46 (2) and (3) provide as follows: (2) Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled — (a) to make application to a competent court to enforce or protect such a right or freedom; and (b) to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require. (3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that_are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists 10 21. 23. to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated. (Emphasis supplied) The reliefs sought for compensation made by the Applicant is misconstrued. To begin with the application for release from custody is rightly made before this Court. In an application of this matter made under Section 42 of the Constitution and Section 16 of the Statute Law (Miscellaneous Provisions) Act and Section 161E of the Criminal Procedure and Evidence Code the effective remedy provided for is release from detention. Claiming compensation in the above sections does not come as an effective remedy before a criminal court. The effective remedy under section 42 of the Constitution, is to release the person from unlawful detention: . In Professor Arthur Peter Mutharika & Another v Dr. Saulos Klaus Chilima & Another, which Counsel cited was clear on what was the effective remedy in the context of the election bearing in mind what the Parliamentary and Presidential Elections Act provides. Thus, the Court had to affirm the position of having fresh elections because it is what Section 100 of the Parliamentary and Presidential Elections Act provides as an effective remedy. Reverting to the case at hand, the moment the Court has established that there has been an unlawful detention of a person, it must make an order for the person to be set at liberty. As for orders of compensation, the Applicant must initiate a civil suit to obtain a civil judgment for un-liquidated damages. . A release from custody for being unlawfully detained does not mean the person 1s acquitted. The State is at liberty to bring the accused person to trial once they are ready with the evidence against the accused person. A release from unlawful detention does not exonerate the Applicant from the crime he is suspected to have committed. This court has not acquitted the accused person. Based on Section 161 of the Criminal Procedure and Evidence Code and the Supreme Court of Appeal of Sandras Frackson & others v 11 25. 26. The Republic, supra if a person is not tried within the set pre-trial custody limit, he is not acquitted, rather he should be released with or without bail. Finally, the law attaches supreme importance to the liberty of individuals. A person who believes that they have experienced unlawful detention may be entitled to claim compensation. But the claim can only be brought before a civil court and not in a criminal court. Upon careful consideration of the facts presented in this case, the Court is of the considered view that the Applicant was unlawfully detained and I ORDER his immediate release from unlawful detention. That awarding compensation to those whose rights have been violated, including accused persons, lies within the realm of civil law and civil courts as such this court will not make an order regarding compensation, let the Applicant institute a civil suit against the government if he so wishes. That the Prison Service should put in place mechanisms and systems that will sound an alarm bell and flush out people who are unlawfully in their custody and the said mechanisms and systems be communicated to ALL stakeholders in the criminal justice system within 90 days from the date of this order. Delivered 12