Mpinganjira v R (MSCA Civil Appeal 848 of 2013) [2019] MWSC 19 (13 February 2019)

THE REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL SITTING IN BLANTYRE MSCA CRIMINAL CASE NO. 9 OF 2021 (Being Criminal Case No.7 of 2020 Before Honourable Justice DeGabrielle) BETWEEN: DR. THOMSON MPINGANUTIRA i ssseecssnsesssweccvsnsseeevaseenwnssees ve csaevdeevexa APPELLANT -and- THE REPUBGIG sccseiccs cacestsawscta caverta tes ctisewisneuvecadewseelcaseeseeweres RESPONDENT CORAM: THE HON. MR JUSTICE FE KAPANDA SC, JA Nampota and Maele, Counsel for the Appellant Chiwala and Rapozo, Counsel for the Respondent Ms Chimwemwe Masiyano, Court Clerk Date of Hearing: 13 January 2022 Date of Ruling: 4 February 2022 ANNOTATIONS Cases cited Malawi Brown Mpinganjira v Dumbo Lemani and Davis Kapito Civil Cause No. 222 of 2001 (unreported) Chikwewa v Republic [1995] 1 MLR Cornelius Kaphamtengo and Others v Republic MSCA Criminal Appeal No. 1 of 2020 (unreported) G. L. Chirwa v Attorney General [2006] MLR 175 (HC) Jose Manuel and others v. Republic Criminal Appeal No. 17 of 2017 (unreported) Jose Manuel and others v Republic Criminal Appeal No. 17 of 2017 (unreported) Joseph Kapinga and another vy R MSCA Crim Appeal No. 16 of 2017 (unreported) Kusowa v Republic MSCA Criminal Appeal No 9 of 2015 (unreported) Macdonald Kumwembe and others v Republic Miscellaneous Criminal Appeal Nos. 5A and 5B of 2017 (unreported) Mwawa v The Republic Criminal Appeal No. 50 of 2006 (unreported) Pandirker v Rep [1971 - 72] ALR Mal 204 Pandirker v Republic [1971-72]) 6 ALR Mal 202 Peter Katasya v R MSCA Crim Appeal No 11 of 2020 (unreported) Reserve Bank of Malalwi vs Finance Bank of Malawi Limited Constitutional Cause No 5 of 2010 (unreported) Saukila vy National Insurance Company [1999] MLR 362 (SCA) Suleman v R [2004] MLR 398 (SCA) Sumaili v Republic [1961-1963] 2 ALR Mal 552Jailosi v Republic (1966-68) ALR (Mal) 494 Thomas Mzunga v R MSCA Crim Appeal No 3 of 2020 (unreported) Uladi Mussa and others v R Criminal Case No 2 of 2017 (unreported) William Dovu v Republic Criminal Case No.8 of 2016 (unreported) Willias Daudi v The Republic and Legal Aid Bureau Constitutional Case No. 1 of 2018 (unreported) Viyaviya v Republic [2002- 2003] MLR 423(SCA) Mutharika and Electoral Commission v Chilima and Chakwera, MSCA Constitutional Appeal No.1 of 2020 Sokalankhwazi v Sucoma [2008] MLR 348 (SCA) South Africa Smith vy. S(CA & R 150/09) [2009] ZAECGHC 52 (18 August 2009) S v Viljoen (2002 (2) SACR 550 (SCA) ([2002] 4 All SA 10 Kenya Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR Peter O. Nyakundi & 68 others v Principal Secreary, State Department of Planning, Ministry of Devolution and Planning & another_[2016] eKLR Phillip Tirop Kitur v Attorney General [2018] eKLR, England Director of Public Prosecution v Kilbourne [1973] AC 729 Secretary of State for Communities and Local Government v Bovale_Ltd [2009] EWCA Civ 171, [2009] 1 WLR 2274 R v Taylor (1928) 21 Cr. App. R 20 Nothman v Barnet Council (1978) 1 All ER 1243 India Santhini v Vijaya Venketesh [2018] 1 SCC 56 Meters and Instruments v Kanchan Mehta, Criminal Appeal No 1731 of 2017 Nigeria F. C. D. A v Ezinkwo [2007] ALL FWLR (Pt 393) 95 F. R. N v Fani Kayode 2010 14 NWLR (pt 1214) 481 Canada Carleton Condominium Corporation No 476 v Wong, 2020 ONCA 244 Statutes and Rules The Constitution of the Republic of Malawi Courts Act Corrupt Practices Act Supreme Court of Appeal Act Supreme Court of Appeal Rules The Supreme Court of Appeal Practice Direction Number 1 of 2018 RULING Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA Kapanda SC, JA: INTRODUCTION Before me is an application on notice dated 23 December, 2021 brought under Section 24 (1) and (2) of the Supreme Court Act, Chapter 3:01, of the Laws of Malawi. The applicant seeks to be released on bail pending the hearing and determination of an appeal. The grounds upon which the application is premised are in its body and the supporting affidavits of Fostino Yankho Maele as well as that of Dr. Patrick Kamalo. the application is also supported by the applicant’s skeleton arguments. The application was canvassed by way of oral submissions. The appellant is calling upon this Court to look at four (4) exceptional and unusual circumstances that he contends entitles him, in the interest of justice, to an order for bail pending the hearing and determination of an appeal. The said exceptional and unusual circumstances are put by the Appellant as follows: 1. Possibility that the appeal will succeed. This will also involve a demonstration that the accused was subjected to unjustifiable interferences and intimidation by the presiding Judge during trial occasioning a mistrial in the process. 2. Delays in the processing of the appeal as a result of the court being unable to achieve a quorum in the short and long term. 3. Poor health of the appellant. 4. The fact that the Applicant has all along the trial been compliant of the bail conditions and is a citizen of substantial standing in the Society The Applicant applies for stay of sentence and admission to bail pending hearing and determination of appeal. The Respondents oppose the application. 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_Ruling Justice FE Kapanda SC, JA FACTUAL BACKGROUND The salient facts in this matter, as noted from the affidavits and the record of the court below, are as follows: The Appellant herein appeared before the High Court sitting in Blantyre charged with six counts under the Corrupt Practices Act. In count one, the Appellant was charged with Offering an advantage to a public officer, contrary to section 24 (2) of the Corrupt Practices Act. The particulars of the charge averred that Thomson Mpinganjira, between 1‘ October, 2019, and 30" November, 2019, within the City of Blantyre, offered an advantage, namely, an unspecified amount of money, to Justice Atanazio Tembo, for the benefit of the said Justice Michael Atanazio Tembo and Justice Healey Potani, Ivy Kamanga, Dingiswayo Madise and Prof. Redson Kapindu, all public officers and members of the Constitutional Reference Case Number | of 2019, as an inducement for the five judges to decide the Constitutional Reference Case Number 1 of 2019, in favour of the respondents in the said Constitutional Reference Case. Further, and in the alternative, the Appellant was charged with Attempting to induce a public officer to perform functions corruptly, contrary to section 25A (2) of the Corrupt Practices Act. The particulars of the charge averred that Thomson Mpinganjira, between 1* October, 2019, and 30" November, 2019, within the City of Blantyre, attempted to induce Justice Michael Atanazio Tembo, a public officer and member of the Constitutional Court panel sitting on the Constitutional Reference Case Number 1 of 2019, to exercise or perform his functions corruptly, in relation to the said Constitutional Reference Case, namely to accept an unspecified amount of money for himself and for Justice Healey Potani, Ivy Kamanga, Dingiswayo Madise and Prof. Redson Kapindu, in order for the five judges to decide the said Constitutional Reference Case in favour of the Respondents namely Malawi Electoral Commission and President Arthur Peter Mutharika in the said Constitutional Reference Case. 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA In count three, the Appellant was charged with Attempting to induce a public officer to abuse his public office, contrary to section 25B (2) of the Corrupt Practices Act. The particulars of the charge averred that Thomson Mpinganjira, between 1** October, 2019, and 30" November, 2019, within the City of Blantyre, attempted to induce Justice Michael Atanazio Tembo, a public officer and member of the Constitutional Court panel sitting on the Constitutional Reference Case Number 1 of 2019, to abuse his public office or position as a member of the said Constitutional Court Panel, by offering him an unspecified amount of money, the advantage of the respondent Constitutional Reference Case. In the fourth count, the Appellant was charged with Offering an advantage to a public officer, contrary to section 24 (2) of the Corrupt Practices Act. The particulars of the charge averred that Thomson Mpinganjira, between 1“ October, 2019, and 30" November, 2019, within the City of Lilongwe, offered an advantage, namely, an unspecified amount of money, to Justice Healey Potani, for the benefit of the said Justice Healey Potani and Justice Michael Tembo, Ivy Kamanga, Dingiswayo Madise and Prof. Redson Kapindu, all public officers and members of the Constitutional Court Panel sitting on the Constitutional Reference Casel of 2019, as an inducement for the five judges to decide the Constitutional Reference Case Number 1 of 2019, in favour of the Respondents in the said Constitutional Reference Case. Further, and in the alternative, the Appellant was charged with Attempting to induce a public officer to perform functions corruptly, contrary to section 25A (2) of the Corrupt Practices Act. The particulars of the charge averred that Thomson Mpinganjira, between 1* October, 2019, and 30" November, 2019, within the City of Lilongwe, attempted to induce Justice Healey Potani, a public officer and member of the Constitutional Court panel sitting on the Constitutional Reference Case Number 1 of 2019, to exercise or perform his functions corruptly, in relation to the said Constitutional Reference Case, namely to accept an unspecified amount of money for himself and for Justice Michael Atananzio Tembo, Ivy Kamanga, Dingiswayo Madise and Prof. Redson Kapindu, in order for the five judges to decide the said Constitutional Reference Case in favour of the Respondents in the said Constitutional Reference Case. Lastly, in the sixth count the Appellant was charged with Attempting to induce a public officer to abuse his public office, contrary to section 25B (2) of the Corrupt Practices Act. The particulars of the charge averred that Thomson Mpinganjira, between 1* October, 2019, and 30" November, 2019, within the City of Lilongwe, attempted to induce 9 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA Justice Michael Atananzio Tembo, a public officer and member of the Constitutional Court panel sitting on the Constitutional Reference Case Number 1 of 2019, to abuse his public office or position as a member of the said Constitutional Court Panel, by offering him an unspecified amount of money, the advantage of the respondent Constitutional Reference Case. On 10 September, 2021, after a full trial, the court below delivered its judgment on the matter and the Applicant was found guilty of counts 2, namely, attempting to induce a public officer to perform functions corruptly, contrary to section 25A (2) of the Corrupt Practices Act and count 4 of Offering an advantage to a public officer, contrary to section 24 (2) of the Corrupt Practices Act. On 5 October 2021, following the conviction, the Court sentenced the Appellant to 9 years imprisonment with hard labour on both counts. The sentences were ordered to run concurrently. On being dissatisfied with the conduct of the trial, the conviction and the sentence imposed by the Court below, the Appellant filed a Notice of Appeal against the conviction and the sentence. The Notice of Appeal has since been served on the Respondent. It is averred by the Appellant that he desires to be granted bail pending the hearing and determination of the appeal on the grounds that: First, the appeal herein cannot be heard anytime soon as, pursuant to Practice Direction No. 1 of 2018 dated 6 February 2021, there is currently no quorum in the Supreme Court of Appeal to hear and determine the Appellant’s Appeal as some of the Justices of Appeal in the Supreme Court are conflicted and cannot hear this appeal. Secondly, it is asserted by the Appellant that the appeal has prospects of succeeding and that there was miscarriage of justice at the trial in the court below. The Appellant then sets out the particulars of the miscarriage of justice as well as the grounds to support the assertion that the appeal has prospects of success. These are, inter alia, namely that there was no proof of the essential elements of the offences in counts 2 and 4; that conclusions drawn by the trial court were not supported by the evidence; that the Court below convicted the Appellant on circumstantial evidence while there are several very weak links and leaps in reasoning that make the Appellant’s conviction unsafe; that the Court below reached the conclusion that the Appellant offered inducement to Justices Tembo and Potani even when Justice Potani said in his testimony that he never met the Appellant , he never received a parcel from the Appellant, and he never discussed money or 10 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA parcel with the Appellant. It is said that the Court ignored the unassailable and consistent version of the facts that all the Appellant possibly did — if at all — was to inquire with both Justices Tembo and Justice Potani about what he had heard that the judges were receiving money from all or any political parties involved in the elections case. The Court ignored this exculpatory version and dismissed the same without a solid basis. The Appellant continues to assert that there is no evidence on record that the Appellant intended any political party let alone the Democratic Progressive Party to win the elections case and that this is bolstered by evidence that he was in touch with many if not relevant political parties and/or their leaders and made donations to them for purposes of the 2019 elections. It is further averred that there was no conclusive evidence to support the Appellant’s conviction. The standard of proof beyond reasonable doubt was not met as the evidence upon which the Appellant’s conviction was based was largely hearsay, circumstantial not leading to one and one only plausible conclusion and was insufficient to warrant a conviction. Regarding the issue of a mistrial, inter alia, it is deponed by the Appellant that the conduct of the court below to partially hear the matter virtually infringed his right to a Public trial in accordance with the applicable Criminal law. It is further put by the Appellant that the conduct of the court below by wrongfully and unreasonably interjecting while the accused’s Legal Practitioners were cross-examining state witnesses was unconstitutional, unlawful and therefore void for infringing on the Accused’s right to a fair trial before an independent and impartial court. The Court would wish to add that the Appellant put before it audio recordings of the trial to buttress this assertion. Further, the Appellant states that the conduct of the court below by unreasonably purporting to revoke bail, which bail had not fallen away, without any or any proper reason and repeatedly warning the Appellant that he would be sent to prison if the court thought that he was trying to delay trial and thus intimidating the Appellant was unconstitutional, unlawful and therefore void. Finally, the Appellant put it in evidence that the alleged conduct of the of the Judge President of the High Court of Malawi in allegedly attempting to solicit a bribe from the Appellant allegedly for the purpose of securing a verdict of an acquittal in the court below infringed the Appellant’s right to a fair trial before an independent and impartial court of law is unconstitutional and void. iE 10 15 20 25 Thom Mpinganjira v ‘The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA The Appellant’s health concerns and age have also arisen in the application before this Court. It is averred by the Appellant that he has a medical condition that at his age makes for unusual, special or exceptional circumstances that militate for stay of sentence and his admission to bail pending hearing of the appeal. It is further averred that the Appellant is a patient who has been diagnosed with: Labile hypertension — unstable even on treatment; post Covid syndrome; Migraine headache; anxiety and depression; severe neuropathic pain. Finally, it is common cause that the Appellant applied to the Court below for bail pending hearing and determination of appeal. On 22 December, 2021, the application was declined. Hence, this application to this Court. In opposition, inter alia, the Respondents aver as follows: First, that the evidence tendered before the Court, including the actual telephone conversations and WhatsApp conversations, between the Applicant, Justice Michael Tembo and Justice of Appeal Healey Potani, are so overwhelming that any Court could convict the Applicant. Secondly, on the issue of a mistrial following what the applicant calls a virtual hearing as opposed to a public hearing, the Respondent avers that all the proceedings were conducted at the High Court Principal Registry in open Court save for one occasion where the session was held in camera on the Application by the Applicant. It is the further assertion of the Respondent that virtual session was also conducted in open Court with all parties physically present including the public and the media save for the judge who at the time was in Lilongwe and presided over the session virtually. The question that arises is whether or not virtual hearing or trial is allowed in Malawi. At first glance one would say that it is not provided for under the Criminal Procedure and Evidence Code. However, subject to what the Court will determine on appeal, the following is the position that this Court thinks should obtain. Reforms of courts and judicial processes generally occur at a glacial pace. Not only is law inherently conservative, courts are complex systems. Thus, the implications of change is always reluctantly and carefully considered in order to ensure that relevant protections are maintained and cherished objectives 12 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA promoted.! Recently, the Supreme Court of Appeal in Mutharika and Electoral Commission v Chilima and Chakwera’, whilst granting the applicants for live audio broadcast and denying them for visual live broadcast, had this to say: “In our determination of the applications which relate to the applicants, we grant leave for live audio broadcast only. We do no grant leave for live television/visual broadcast. This is in order to preserve the decorum of the Court. Leave is granted on the condition that, except with the prior approval of the Court, the applicants shall ensure that there shall be no censorship and no editing of the proceedings in Court. Furthermore, the Court reserves the right to revoke the leave granted where the interests of justice so require.” (Emphasis supplied) However, it is no secret that many judicial systems across the globe are stumbling beneath a heavy burden of thousands of suits filed every year in court. The Malawi judicial system is not an exception. As if the burden of thousands of suits filed every year is not enough the coronavirus pandemic of 2020 has affected every aspect of our lives. The World Health Organization declared a pandemic on 11 March 2020.3 The seriousness of the situation is explained by the observations of former Chief Justice of the High Court of Australia Sir Gerard Brennan: “(Courts] are bound to hear and determine cases brought within their jurisdiction. If they were constrained to cancel sittings or to decline to hear the cases that they are bound to entertain, the rule of law would be immediately imperiled. This would not be merely a problem of increasing the backlog; it would be a problem of failing to provide the dispute-resolving mechanism thatis the precondition ofthe rule of law’. ! J, McIntyre, A. Olijnyk & K. Pender, Civil courts and COVID-19: Challenges and opportunities in Australia, Alternative Law Journal 2020, Vol. 45(3) 195-201 p. 195 2 MSCA Constitutional Appeal No.1 of 2020 3 World Health Organization, WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (11 March 2020). 4Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 72(1) Australian Law Journal 33, 35. 13 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA Necessity is forcing changes, particularly in the use of remote and online hearings that were impossible to imagine just before the 2019 elections. It therefore seems inevitable that interaction with the courts will soon be predominantly by digital means. Whether this increases access to justice will depend on how the IT is commissioned and whether sufficient resources are committed to its ongoing maintenance. At the same time, the pace of change in life is quite rapid - access to information and the need for efficiency have motivated many institutions, in the private and the public sector to transfer at least some of their activities and services to websites they manage. These activities have contributed both to social and economic connections, primarily saving time and money; existing backlogs have been reduced, processes have been streamlined, and wait times have been minimized. The Internet provides many and sundry services. The inherent advantage in moving certain activities online has not escaped the attention of the courts. It is no secret that justice systems in many countries are overburdened by a backlog of thousands of suits filed annually. Further, Justice D. Y Chandrachud of the Indian Supreme Court in the case of Santhini v Vijaya Venketesh ° instructively observed as follows: “There is no reason for court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process. Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as videoconferencing) will result in a denial of justice.” As the pandemic has progressed, and jurisdictions have been forced to prolong or periodically reinstate lockdown measures, remote hearings have become commonplace. Courts have moved on from referring hearings as a necessary inconvenience, to affirming remote hearings, even whole trials conducted remotely, can be as fair and as open as to their face to face equivalents. Remote Court procedures are of course not new but they have traditionally been an exception to the default position of face to face proceedings. In some instances, as has been in the matter before this Court, the constitutional and statutory legitimacy of remote court hearings have been questioned. 5 [2018] 1 SCC 560 14 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA This Court accepts that virtual hearing is neither found in the Constitution nor in any statute. The term virtual hearing can only be found in the Practice Direction No. 1 of 2021 but it currently only applicable to the Supreme Court of Appeal. In the said Practice Direction, the term ‘virtual hearing’ was defined as “any hearing by means of teleconferencing, video conferencing or any other means of electronic communication. The term virtual hearing has also been defined elsewhere as “a court hearing or proceedings conducted by video or audio-visual devices.” On the other hand, ‘Public hearing’ was not defined by the Constitution but has been described as a hearing that is open to anybody who wishes to access or observe it.’ It is important to note that what makes a hearing public is the accessibility of the members of the public to the court proceedings. What does hearing in public entail? No reference to a room building or place is designated as court in the Constitution. However, the word public, used in an adjectival sense according to the Cambridge Dictionary online is defined as “Relating to or involving people in general, rather than being limited to a particular group of people”. In Kosebinu & ors v Alimi ® Muhammad JCA opined thus: “A place qualifies under S. 36 (3) of the 1999 constitution to be called “public” ... if it is out rightly accessible and not so accessible on the basis of the “permission” or “consent” of the judge.” In this country, in the case of Gwede v Attorney-General’, the Supreme Court held that an “appellant had been properly tried in a public trial where he was able to cross-examine witness and call his own witness.” As this Court understand it, regarding the public hearing provisions, the question arises in the instant case is whether or not the requirement that proceeding should be held in public can be understood to include virtual hearing. This Court has struggled to find a court decision or legislation on this point but 6 httos:/Avww.supremecourt.vic.eov.au/law-and-practice/virtual-hearings/virtual-hearings-glossary 7 B. A Gamer Black’s, Law Dictionary, ed, (8th ed. St Pauls Minning: West Group, 2004) p. 2111. 8 [2005 JLPELR-11442 (CA) ? [2002-2003] MLR 59 (SCA) 15 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA the recent developments as captured in Practice Direction No. 1 of 2021 seems to suggest that section 42 (2) (f) (1) of the Constitution and Section 60 of the Courts Act could be understood to include virtual hearing. Nevertheless, it is the view of this Court that what satisfies the constitutional requirement of court proceedings held in public is accessibility of the public to the court proceedings. Thus, if the public has access to hearings virtually then it should be understood to have satisfied the requirement of ‘proceedings held in public’ stipulated by the Constitution. Therefore, such proceedings are not unconstitutional. Now, lets us see the constitutionality of the use of technology in court proceedings. First, it is vital that we understand what a Constitution is and what it should ordinarily contain. In this regard, this Court found the decision in the case of F. C. D. A v Ezinkwo"® instructive where it was held that: "The constitution being the organic law of the country and the fons et origo from which all other laws derive their validity...no part of it can be described to be adjectival or procedural law... The Constitution is a substantive law.”!! It is well to note that Constitutions of Kenya, Canada, India and the United States do not provide for remote or virtual proceedings however court proceedings are being conducted virtually or remotely in those countries on a daily basis. It may be concluded then that Malawi should not be any different. As this Court understands it, from the standpoint that the Constitution cannot deal with matters of procedure, the next question to then ask is whether or not there is any provision of the Constitution that prohibits virtual hearing? The Court is of the view that no provision exists in the Constitution prohibiting virtual or remote hearing. In saying this the Court, the has in mind the Constitutional and statutory requirement of hearing in public. Let us look at the provisions respecting public hearings. Section 42 (2) (f) (i) of the Constitution provides: “(2) Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right— 10 [2007] ALL FWLR (Pt 393) 95 '! Thid. 115 paragraphs C-D 16 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA (f) as an accused person, to a fair trial, which shall include the right— (i) to public trial before an independent and impartial court of law within a reasonable time after having been charged; (Emphasis supplied) Section 60 of the Courts Act states: “In exercise of its jurisdiction, powers and authorities the proceedings of every court shall, except as otherwise provided by any other law for the time being in force, be carried on in an open court to which the public generally may have access: Provided that any court shall have power to hear any matter or proceeding or any part thereof in camera if, in the opinion of the presiding Judge, or magistrate, it is expedient in the interest of justice or propriety or for other sufficient reason so to do.” Finally, section 71 (1) of the Criminal Procedure and Evidence Code provides: “(1) All proceedings under this Code shall, except as otherwise expressly provided by any law for the time being in force, be carried on in an open court to which the public generally may have access: Provided that— (a) any court shall have power to hear any inquiry or trial or any part thereof, in closed court and to exclude any particular person from the court, if, in the opinion of the presiding judge or magistrate, it is expedient in the interests of justice or propriety or for other sufficient reason so to do; (b) nothing in this section shall apply to— (1) the proceedings of a juvenile court in accordance with the Children and Young Persons Act; Cap. 26:03 (ii) | any proceedings in the High Court relating solely to a person under the apparent age of eighteen years; 17 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_Ruling Justice FE Kapanda SC, JA (iii) | any proceedings in the High Court, other than the trial of a person of the apparent age of eighteen years or upwards, which the High Court, in its discretion, may think fit to conduct in closed court; (iv) proceedings before a magistrate under section 83 (2), (3) and (4) or under section 84; (v) the deliberation of a jury in the course of any proceedings; (vi) any proceedings, other than an inquiry or trial, which the Chief Justice may, by writing, direct shall not be subject to this section.” It is the view of this Court that, the likely parts of the foregoing provision which a higher court will interpret to inquire whether virtual hearing is constitutional or not are subsections (2) (f) (i) of section 42 of the Constitution set out above. The sections partly states that the proceedings of a court shall be held in public. Neither the Constitution nor the General Interpretation Act explain the term ‘public’. But the proceedings of a court being held in public can be explained to mean that members of the public can physically access the proceedings of the court. Put in another way, the court proceedings are not held in private. In virtual hearing, the public access to proceedings is usually through electronic means either zoom or video conferencing.'* This should be seen as satisfying the constitutional requirement of public access to the court proceedings or proceedings held in public. Alternatively, the approach that could be used to interpret these parts are those recommended by Lord Denning M. R in the case of Nothman v Barnet Council !3 cited with approval and as applied by the Supreme Court of Appeal in Sokalankhwazi v Sucoma \4 Where he commended the purposive approach of interpreting statutes to all jurist as follows: “Tt is no longer necessary for the judges to wring their hands and say: “there is nothing we can do about it”. Whenever the strict interpretation of a statute gives rise to an absurd and unjust '2 See Practice Direction No. 1 of 2021 13.(1978) 1 AIL ER 1243 14 [2008] MLR 348 (SCA) 18 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA situation, the judges can and should use their good sense to remedy it by reading words in, if necessary so as to do what parliament would have done, had they had the situation in mind”. Further, in the Supreme Court of India in Meters and Instruments vy Kanchan Mehta'>, the Court instructively stated that: “The use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is need to categorize cases which can be concluded “online” without physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans.” Furthermore, more recently in the Canadian case of Carleton Condominium Corporation No 476 v Newton Wong, '° one of the parties requested for an adjournment to allow for an in court oral hearing, the Court of Appeal for Ontario in refusing the request and giving directive for virtual proceedings held as follows: “He expressed a preference for taking the panel through the arguments during an in court oral hearing at a future date. That preference is understandable, but it is not in the interests of justice. Moreover, it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated.” Finally, in Nigeria, another common law jurisdiction in F. R. N v Fani Kayode “' their Law Lords opined that: '5 Criminal Appeal No 1731 of 2017 '6 9020 ONCA 244 179010 14 NWLR (pt 1214) 481 19 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA “While judges must refrain from attempting to make laws from the bench, they must not shy away from adopting a proactive approach to the interpretation of the law. Judicial officers must not place on themselves, disabilities not imposed by law.”!® (Emphasis supplied) As it were, the basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted. It is therefore not within the court's interpretative jurisdiction or powers to construe a statute to mean what it does not mean, nor to construe it not to mean what it means. It is required of the Courts in Malawi to adopt a purposive interpretation of the Constitution that will take into account the current realities and the fact that by the tenor of the provisions of section 42 of the Constitution as well as section 60 of the Courts Act, public has not been restricted to the courtroom neither has virtual proceedings been prohibited. In conclusion, there is something also instructive from the Supreme Court of Canada. In the case of Owners, Strata Plan LMS 3905 v Crystal Square Parking Corporation during its first virtual hearing the Supreme Court of Canada stated thus "We are adapting, but nothing is perfect the first time. Just remember that we are here for your arguments, not the angle of your camera or your facility with the mute button. We will get through this hearing, just as we will get through this pandemic.” Further, in Fiji, Justice Madam Loukor” opined that: “Harnessing technology for the benefit of litigants - seekers of justice - is of utmost importance and this is eminently achievable through visionary leadership.” Subject what the Court will find on appeal, this Court observes that, whilst the preference is for physical attendance in court for the conduct of trials especially where the assessment of witness demeanour is likely to be of relevance, there is no law that precludes the Courts in Malawi from allowing virtual hearings or proceedings. '8 Thid. 503 paragraphs F-G ® A Retired Justice of the Supreme Court of India and currently a Justice of the Supreme Court of Fiji 20 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA On the issue of a mistrial on the grounds that the court below was wrongfully and unreasonably interjecting while the Applicant’s Counsel was cross examining the Respondents witnesses, it is averred by the Respondent that the Applicant has not shown or given instances where the Court interjected his Legal Practitioners while cross examining the State witnesses. It is further averred by the Respondent that if there were any interjections by the Court it was when the Court sustained objections by the State. On the issue of bail revocation during trial, the Respondent states that the Court has discretion to grant or revoke bail if the interest of justice so requires. Thus, in the present case, the Court weighed the conduct of the Applicant and the interest of justice and ultimately exercised its discretion in revoking the bail. Respecting the issue of a mistrial on the grounds that the judge president of the High Court of Malawi allegedly solicited a bribe from the Applicant, the Respondent state that this issue was before the trial court where the Applicant failed to substantiate his claims. On the issue of the Applicants health concern and age, the Respondent states that Exhibit TFM 7 shows that the Applicant had severe headaches but on examination, there was nothing remarkable. Further, that Exhibit TFM 8 is also clear that the Applicant’s headache subsided and had no major incidence since admission. Further, that the Applicant has not indicated whether the symptoms have re-occurred, and no report has been attached to that effect. ISSUES FOR DETERMINATION What are the issues that arise and fall to be decided in the application under consideration by this Court? As this Court understands it, the main and only question raised by the application by the Appellant is viz.: whether or not this Court should grant the Applicant bail pending the hearing and determination of the appeal. Put differently, whether or not this is a matter in which it can be said that the it is in the interest of justice that the Appellant should be granted the bail pending the hearing and determination of appeal. THE PARTIES’ ARGUMENTS 21 10 15 20 25 ‘Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA It is now necessary that this Court should look at the arguments that have been raised by the parties in response to this question. We shall start with the Appellants’ arguments then move on to deliberate those put forward by the Respondents. The Appellant The Appellant directed the attention of this Court to the provisions of section 24 of the Supreme Court of Appeal Act and submitted that the court has discretion to admit an appellant to bail pending the hearing and determination of his appeal if the court deems fit to do so. He adds that the discretion is not limited nor are the circumstances limited but that the only limitation comes by the operation of the common law. It was further submitted that the position at law is that the courts have developed the principles that the discretionary power should only be exercised where there are unusual or exceptional circumstances. He added that the two conditions are some of the many exceptional circumstances the court can look at and that the list of what amounts to exceptional circumstances is not exhaustive or closed as it is open to the court to develop others. It was further submitted by the Appellant that in determining an application for bail pending the hearing and determination of appeal, the courts are determining a measure that will serve the interest of justice and interests of justice is what must be looked at in determining all these unusual or exceptional circumstances. Thus, the correct focus for the court is that justice must be achieved, and injustice avoided when the court finally determines the appeal. The Appellant contends that there are three unusual or exceptional circumstances he has demonstrated in this application that would call for his being released on bail pending the determination and hearing of the appeal. These are: first, that there is a likelihood that the appeal will succeed. In this regard, the Appellant argued and submitted that without the evidence of Justice Tembo's recordings, the prosecution's case would crumble as the remaining evidence would be that of Justice Potani and a conviction on such evidence would clearly be a non-starter. The Appellant observed that in his conversation with one of the witnesses he simply referred to a parcel and Justice Potani stated that the accused never mentioned to him any amount of money in the parcel. He added in argument that Justice Potani stated that the parcel could have contained face masks or bottles of water. The Appellant continued to argue that an examination of the 22 10 15 20 25 ‘Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA circumstances in this matter did not draw one to the conclusion that the only inference to be drawn from them was that the accused person corruptly offered an advantage to Justice Tembo, Justice Potani and the others as an inducement that they decide Constitution Reference Case Number 1 of 2019 in favour of the respondents. It was the further submission of the Appellant that the evidence as captured by the court did not work cumulatively in geometrical progression, eliminating other possibilities, that the accused was guilty. He added that the evidence in the High Court is not leading to one reference only but to several inferences. Thus, the Appellant further added, it was therefore not open to the court to convict. Thus, bail pending appeal should be granted. As further demonstration that there is a likelihood that the appeal will succeed, the Appellant argued that there were lots of interjections and intimidation of the accused and his counsel by the court below during trial so much so that there was no fair trial accorded to the Appellant. Thus, the Appellant’s right to a fair trial provided for in the section 42(f)(iv) of the Constitution was breached. As a consequence, in the Appellant’s view, there might be an order of a retrial on appeal. The Appellant continued to submit and argue that in the event of an order for a retrial the trial by the court below, which he believes is more likely, then the interest of justice would require that the applicant be released on bail pending the hearing and determination of appeal. Secondly, the Appellant observed that, in terms of the Supreme Court Practice Direction Number 1 of 2018, for the appeal herein to be heard it will require at least 7 Justices of Appeal members to form a quorum. It was the contention of the Appellant that since the Supreme Court is unlikely to be Quorate anytime soon following the likelihood that the Judges who were comprised in the constitutional case, the subject of this case, will recuse themselves from handling this case, the appeal herein may not take place anytime soon. Thus, the delays in the appeal processes amounts to sufficient unusual or exceptional circumstances warranting granting bail. Thirdly, the Appellant contended that he is experiencing poor health in prison. He then argued and submitted that the evidence of his poor health of proffered through the reports of Dr. Patrick Kamalo constitute a special circumstance and the interest of justice falls in favour of granting bail pending the hearing and determination of the appeal. It was further argued that the interests of justice would require 23 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA that the Appellant be released on bail so that he is able to attend to his medical conditions with a view that in the event of the appeal not succeeding he is able to resume his sentence. In response to the Respondent’s contention that an application for bail in the Supreme Court of Appeal can only be made after the appeal has been heard and not before, the Appellant argued and submitted that the contention by the Respondent is incorrect and out of syne with all the decided authorities this Court and the High Court have rendered. The Respondent Counsel for the Respondent started by arguing and submitting about his understanding of Section 24 of the Supreme Court of Appeal Act. He argued and submitted that Section 24(1) of the Supreme Court of Appeal Act is very clear that bail pending the determination of an appeal may be granted at the discretion of the Court. But continued to contend that this provision deals with matters where an appeal has already been heard by the Supreme Court and is awaiting determination and not before the said hearing of the appeal. He referred to the case of Cornelius Kaphamtengo and Others v Republic?’ to support this argument. As shall be seen later in this ruling, the Respondent’s understanding of the Section 24(1) of the Supreme Court of Appeal Act is not in syne with the so many decisions of this Coutt. The Respondent further submitted that the application before this Court has been brought under section 24(1) and (2) of the Supreme Court of Appeal Act and that it is said to be an application pending hearing and determination of the appeal. He added that section 24 of the Supreme Court of appeal Act does not deal with applications pending hearing of an appeal but specifically deals with applications pending determination of the appeal. Thus, he continued to argue, since the appeal herein has not been heard it follows that the application brought herein is premature and must not be entertained on that basis alone. The Respondent, through Counsel continued to submit that without prejudice to what they have submitted respecting their understanding of Section 24(1) of the Supreme Court of Appeal Act, the said section does not expound on the circumstances or factors which need to be considered before bail 20 MSCA Criminal Appeal No. 1 of 2020 24 10 15 20 Thom Mpinganjira vy The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA pending the hearing and determination of an appeal is granted. Nonetheless, the Respondent agrees with the Appellant that the Courts, through common law, have developed principles to be followed when exercising their discretion to grant or not to grant bail to a convict pending the hearing and determination of an appeal. Such discretion, it was submitted, can only be exercised if there are unusual, or exceptional circumstances. Thus, as propounded in the case of Suleman y R?', bail pending the determination of an appeal will only be granted where there are exceptional and unusual circumstances. It is well to observe though that the argument by the Respondent cannot stand in view of current jurisprudence propounded in Macdonald Kumwembe and others v Republic ” where the Court instructively put it thus: “Bail in the interests of justice is granted after considering all the circumstances disclosed. Consequently, if there are specific or exceptional circumstances for refusing or allowing bail these must be brought to the court. Bail, however, will not be granted on proof or lack of proof of special or exceptional circumstances. Special or exceptional circumstances reduce or enhance the prospect of refusing or allowing bail.” It was further submitted that the burden to establish the exceptional and unusual circumstances warranting release on bail pending appeal is on the applicant. The Respondent submitted that, reading the Affidavit in support of the application and the supplementary Affidavit, the Applicant has failed to show any exceptional and unusual circumstance to warrant a stay of his sentence and to be admitted to bail. It added that, the Applicant’s argument that there is no quorum in the Supreme Court to hear his appeal considering that some Justices of Appeal are conflicted in the matter and that this might cause delay is no proof of exceptional and unusual circumstance. Further, the Respondent is of the view that since the Practice Direction which the Applicant wants to rely on is administrative in nature, the Chief Justice, upon request owing to the peculiar circumstances of this case, may as well issue another Practice Direction forthwith on how cases of this nature can be handled or he can provide guidance on how this specific case should be handled. Furthermore, the Respondent is of the view that it is premature to rely 21 2004] MLR 398 (SCA), 22 Miscellaneous Criminal Appeal Nos. 5A and 5B of 2017 decided on 14 March 2018 25 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA on the issue of quorum as the appeal has not reached hearing stage and the issue of the four Judges being conflicted or the issue of having less number of Judges available to hear the appeal is not before the court and there is no ruling on that. On this basis, the Respondent submitted that it is premature for the Applicant to state that there will be delay in the hearing of the appeal. The Respondent continued to argue that it is only when the appeal is ready for hearing, the judges have recused themselves, no new judges have been appointed to the Supreme Court and there is no direction on the matter and the appeal cannot be heard, that is when the argument being raised can be valid. The Respondent noted that the Applicant is also arguing that there was a mistrial during the hearing of the case and that there was no evidence to support the conviction. It further noted that the Applicant is alleging that the conduct of the presiding Judge in the case and the Judge President of the Civil Division breached his constitutional right to fair trial and that on that basis he should be released on bail pending appeal. In response, the Respondent submitted that these issues go to the merits of the case and should be tested during the appeal hearing and not at this stage of the case. Respecting the Applicant’s reliance on his health concern and age as factors to be considered on his application for bail, it was the argument of the Respondent that the Applicant has failed to show that his health deteriorated since conviction and sentence to be regarded as an exceptional and unusual circumstance. The Respondent is of the view that a health concern on its own cannot be regarded as an exceptional circumstance as the Applicant is at the moment in good health as indicated in the medical reports exhibited in support of his application. Further, on the issue of age, the Respondent submitted that there are many convicts who have served custodial sentences at the age of 60 or more and some are still in custody serving and the Applicant is not different from the other convicts who served their sentences at that age. Therefore, the Respondent submitted, the issue of health concern and age raised by the Applicant does not qualify to be exceptional and unusual circumstance. The court should therefore dismiss this issue as it lacks merit. The long and short of it is that Counsel submitted that the application herein is premature and that the Applicant has further failed to present before this Court exceptional and unusual circumstances for the 26 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA Court to exercise its discretion in favour of granting an order of stay of sentence and admission to bail pending appeal. ANALYSIS AND DETERMINATION THE LAW Is the application premature? It is the Respondent’s contention that an application for bail can only be made after the appeal has been heard and not before. They have cited and relied on the case of Republic v Kaphamtengo”’. This interpretation of the words pending the determination of an appeal is incorrect for the following reasons- First, it is inconsonant with all the decided case authorities this Court and the High Court have decided before and after the judgment in Republic v Kaphamtengo (supra) was made. None of the cases so far decided by this Court have followed this authority. This Court further observes that if this were to be the interpretation the High Court would not have had the power to determine bail pending appeal”, Secondly, this Court understands the law to be that although side notes are not part of the statute they aid interpretation of the section”’. It is therefore this Court’s view that the side notes to section 24 of the Supreme Court of Appeal Act are instructive and it states as follows: “Admission of appellant to bail and custody when attending court”. This envisages that an Applicant can attend court while he is already out on bail. This view is further buttressed by what is provided for in Order IV Rule 13 (4) of the Supreme Court of Appeal Rules. The said Order IV Rule 13 (4) of the Supreme Court of Appeal Rules instructively provides as follows- “An appellant who has been admitted to bail shall be personally present at each and every hearing of his appeal and at the final determination thereof. The Court may, in the event of such 23 MSCA Criminal Appeal No. 1 of 2020 (unreported) % Section 356 of Criminal Procedure and Evidence Code 25 Reserve Bank of Malalwi vs Finance Bank of Malawi Limited Constitutional Cause No 5 of 2010(unreported) 27 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_Ruling Justice FE Kapanda SC, JA appellant not being present at any hearing of his appeal, if it thinks right so to do, decline to consider the appeal, and may proceed summarily to dismiss the same and may issue a warrant for the apprehension of the appellant in Criminal Form 11 in the Second Schedule: Provided that the Court may consider the appeal in his absence, or make such other order as it thinks fit.” The above rule is so clear. An appellant who has been admitted to bail shall be personally present at each and every hearing of his appeal and at the final determination of the appeal. Thus, if the interpretation in Republic vy Kaphamtengo case (supra) was correct then the above rule would not have envisaged the presence of the Applicant in court while he is out on bail. Furthermore, the interpretation being advocated by the Respondent is disingenuous. Pending in its natural meaning means “awaiting decision or settlement”. So, when a convict is released on bail pending an appeal it means a person is released between the filing of an appeal and the handing down of a decision. Often a bail application is made in the Supreme Court of Appeal after bail has been refused by another court. After a bail application is made, there is a court hearing to decide whether or not the applicant should be released from custody to then attend a court for their case on a later date. It is for this reason therefore that if the court grants bail pending appellate review, the terms of bail may include that the appellant will duly prosecute the appeal. Lastly, as this Court understands it, when a person is found guilty of a criminal offence by the court below it may impose a prison sentence. Thus, if the convict believes that he/she should not have been found guilty, or that he/she has been given an unreasonable sentence, then he may wish to appeal and be on bail pending the appeal. When the convict appeals, the court below must prepare and submit a number of documents including a notice of appeal, factum detailing his argument and transcript of the proceedings. Only once all of this information has been gathered can an appeal hearing take place. This means there can be a significant delay between a conviction and the appeal hearing. During this time, a convict must remain in custody — unless he is granted bail. It is for this reason that Section 24 of the Supreme Court of appeal Act comes in. If a convict is granted bail pending appeal, he can return home, on the promise that he will return to custody when requested. 28 10 15 20 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021 Ruling Justice FE Kapanda SC, JA Bail pending the hearing and determination of appeal As this Court understands the law, in an application for a bail pending the hearing and determination of appeal, the presumption of innocence does not apply as the appellant is presumed to have been properly convicted until the appellate court determines otherwise. It is also presumed that the appellant has been properly sentenced. The considerations in an application for bail pending appeal are thus different from those applicable to an application for bail pending trial. Several cases have dealt with this matter. As noted earlier, both the Appellant and the Respondent agree that section 24(1) of the Supreme Court of Appeal Act, does not expound on the circumstances or factors which need to be considered before bail pending appeal is granted. Both parties further agree that the Courts, through common law, have developed principles to be followed when exercising their discretion to grant or not to grant bail to a convict pending the determination of an appeal. A litany of cases are replete with the proposition that such exercise of discretion to grant or not to grant bail to a convict pending the determination of an appeal is exercised if there are unusual, or exceptional circumstances*®. However, it should be noted that these cases were decided before the decisions in, inter alia, Macdonald Kumwembe and others v Republic *? which shall be discussed shortly. Suffice to point out at this stage that there is now new jurisprudence further explaining how the discretion is exercised and the circumstances that will necessitate the granting of bail pending the hearing and determination of an appeal. In Macdonald Kumwembe and others v Republic, Justice of Appeal Mwaungulu SC cogently put it thus: “The discretion that a court has under statutes, given that the right to release with or without bail is a fundamental right under the Constitution, is that the outcome depends on considering all the circumstances of the case and on principles. It is important, therefore, that a lot more information covering all aspects of the discretion is available to a judge for a better exercise of the discretion. 26 Suleman v R (2004) MLR 398 (SCA); Joseph Kapinga and another v RMSCA Crim Appeal no 16 of 2017 27 Miscellaneous Criminal Appeal Nos. 5A and 5B of 2017 decided on 14 March 2018; see also Peter Katasya v R MSCA Crim Appeal no 11 of 2020 29 10 15 20 25 Thom Mpinganjira v The Republic MSCA Criminal Case Number 9 of 2021_ Ruling Justice FE Kapanda SC, JA Consequently, a court considering an application for bail pending appeal, must consider all the circumstances of the matter, exceptional or not, and determine whether it is in the interests of justice to refuse or allow the prisoner on bail awaiting an appeal hearing. Exceptional circumstances better the prospect of granting bail. They are not sine qua nona bail must be refused or allowed. Bail must be refused or allowed in the interests of justice of the State and the prisoner — having regard to all pertinent factors and circumstances. Discretion is improperly exercised where a court fails disregards a material consideration, overstresses a minor factor or undermines a major factor. In applications for bail pending appeal, the prospect of injustice, more especially for the innocent, trumps the usual concern that there is no need for reconsideration because there is an existing conviction. The innocent should not be in confinement for a day longer. It is because of the prospect of injustice that under the Criminal Procedure Rules, England and Wales, applicable to Malawi because of section 8 (a) of the Supreme Court of Appeal Act, the law now, to afford early consideration, require that an application for bail pending appeal must accompany the Notice of Appeal. It is very problematic, therefore, where the application is left to very late.” Further, more recently Justice of Appeal Chikopa SC in Peter Katasya v R ** instructively put it as follows: "[T]he applicant has spoken about his appeals good prospect, his not being a flight risk and the fact that he will have served the sentence by the time the appeal is heard. We do not think they, taken together or each by itself amount to special enough reasons to move us into exercising our discretion in the applicant 's favour. Every convict touts the merits of their appeals. On our part we are always wary of testing such merits. There is always the temptation to while so doing deal with the appeal itself, this court has no mandate to do so. Of course, there is always that once in a while case where the conviction or sentence is so clearly untenable an appellate court is entitled to admit an applicant to bail pending appeal on an appeals prospect of success.... the allegation 28 MSCA Crim Appeal No. 11 of 2020 30