Matius v R (Misc. Criminal Case 56 of 2021) [2021] MWHC 301 (8 July 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY MISCALLENOUS CRIMINAL CAUSE NO. 56 OF 2021 CHARLES MATIUS VS. THE REPUBLIC CORAM: HONOURABLE JUSTICE MZONDE MVULA; Mr. Z. Ndeketa, Of Counsel for the applicant; Mr. R. Mkweza, State Advocate, for the Republic Mr. A. Nkhwazi, Court Clerk and Official Interpreter. RULING ON APPLICATION FOR BAIL (Following an application made under Section 42(2)(e) of the Constitution of Malawi) Mvula, J. 1 .0 Introduction 1.1 This is an application by the accused person (hereinafter called “the applicant”) for an order that he should be released on bail. The application has with it, a sworn statement in support, deponed by counsel dated 23rd June 2021. This is because the under 13-year-old applicant who at time of arrest was a standard 6 pupil at Liwonde LEA school, hails from Kalolenje village, T. A. Sitola in Machinga District, remains remanded in custody at Mikuyu Prison. 1.2 Counsel states that the applicant was on 11th October 2020 arrested on allegation of a murder charge, emanating from death of Chiyembekezo. He was Charles Matius v Republic Homicide Cause 56 of 2021. Page 1 committed to the High Court per procedure, through Liwonde Magistrate’s Court. Having no connections out of Malawi, and has no travel documents, he is not a flight risk. Moreover, he has a clean record as a citizen. Against these backgrounds, the scales of justice tilt in favour of the applicant, who must be released on bail with a bond which he is prepared to execute. 1.3 The Republic through the State Advocate Chambers deponed a statement in response. In short, they do not object to this bail application, because the investigations are over. What is more, the interests of justice would not suffer if the applicant were to be released on bail. They submit that the applicant indeed must be released on bail so long there are conditions attached to his release so he avails himself at trial. 2 .0 The law on bail 2.1 Bail are sureties taken by a person, duly authorised, for the appearance of an accused at a certain date and place and be justified by law. In Sulemani v Republic 16(2) MLR 793 the likelihood to appear at trial is paramount consideration for bail. There is no doubt in my mind that all the applicant as accused person as we speak has a constitutional right under Section 42(2) (e) of the Constitution of the Republic of Malawi to be released from custody with or without bail. 2.2 In short the accused must ordinarily be released on bail, unless the interests of justice require otherwise. It is also trite law that the right to bail, which is stipulated in Section 42(2) (e) of the Constitution, is not an absolute right but is, as provided in the section itself. Bail must be granted subject to the interests of justice. 2.3 It is also trite law that the burden of showing that it would not be in the interests of justice that the accused person be granted bail rests on the State through reasons. See Fadweck Mvahe v The Republic, MSCA Criminal Appeal No. 25 of 2005 (unreported). The State is required to prove this on a balance or Charles Matius v Republic Homicide Cause 56 of 2021. Page 2 preponderance of probabilities. This was said in the case of Phiri and another v The Republic [2000-2001] MLR 369. The test is, in other words, whether it is probable that the accused will appear to take his or her trial. 2.4 Section 4 of Part II of the Bail (Guidelines) Act sets out some of the principles which the court should take into account in deciding whether or not bail should be granted which include: (a) Likelihood that the accused, if released on bail, will attempt to evade his or her trial; (b) Likelihood that the accused, if released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; (c) Likelihood that the accused, if he or she were released on bail, will endanger the safety of community or any particular person or will commit an offence; and (d) Likelihood that the release of the accused will disturb the public order or undermine the public peace or security. 2.5 The Republic has expressed no fear, on the applicant going out on bail. They submit that the applicant should only detail a fixed place of abode and he should commit that he shall not jump bail. The interests of justice in the eyes of the court seem preserved in this matter. 2.6 Interests of justice as a jurisprudential term has a wide ambit. In part, it includes that all accused who are arrested for alleged commission of an offence, should stand and conclude their cases. Further, it encapsulates that those accused to have committed an offence, and who are more likely than not to jump bail, should remain in custody until the duration of the trial. In short, it involves balancing two interests. One, the right of the accused to be released from detention and be remanded on bail, The second, and from the view point of the Republic, is to have all cases they commence against accused conclude logically because accused were present. Charles Matius v Republic Homicide Cause 56 of 2021. Page 3 I.l Where the Republic does not object to an application for release, bail must be granted in those circumstances. That is what interests of justice demand. To this end the Court shall grant bail to the applicant as follows: 1. The applicant should enter into a cash bond with Government of Malawi valued at K30,000; 2. Produce two reliable sureties to be examined by the Court, who: a. Should have a valid Nzika card issued by the Republic; and b. Each surety should be bonded to K200,000 non-cash bond; 3. The applicant should be reporting at Liwonde Police in the company of a guardian the first Monday of each and every month at 2.00pm (after school) until trial is concluded; 4. The examination of sureties shall be done by the Assistant Registrar for Zomba District Registry on a day, time and manner the parties will agree but not later than 16 July 2021. Made in Court this 8th July 2021 JUDGE. Charles Matius v Republic Homicide Cause 56 of 2021. Page 4