Mhango v S (Misc. Criminal Cause 29 of 2016) [2016] MWHC 704 (9 June 2016)

Ir; �-1 C ,.-:. 1------H . , , . . ., • !,. c:· ·· � ; > • ! f '"• ( ;;� i••I { ·•-..... u .... �, ·- IN THE HIGH COURT OF MALA WI REGISTRY ZOMBA DISTRICT MISCELLANEOUS CRIMINAL CAUSE NO. 29 OF 2016 IN THE MATTER OF SECTION 118 AND 161G OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE AND IN THE MATTER OF SECTION 42(2)(e) OF THE REPUBLIC OF MALAWI BETWEEN CONSTITUTION EDSON MANYOWA MHANGO ................................ .... APPLICANT ...... AND THE STATE . . . . . . . . . . . . .. . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . ... RESPONDENT CORAM ZNTABA,J. Mr. P. Chinguwo, Ms. M. Munthali, Mr. D. Banda, Court Clerk Counsel Counsel for the Applicant for the Respondent Ntaba J. 1.0 BACKGROUND RULING and the Paralegal 1.1 The High Court, State Advocate Advisory Services remandees The parties camp courts in order to hear bail applications. on the bail premises bail applications Chambers, �ervices Region was alarming Legal Aid Bureau, noted that the number of homicide embarked agreed in the Eastern Judicial to take place within Malawi Prison that for these on prison 1.2 The court decided that during this process and State to make oral applications the State and PASI verified Notably Applicant instead of sworn affidavits. to the date of the offence, it will allow for both the the facts relating and submissions Edson Manyowa Mhango of the deceased, offender The rationale were to ascertain where the offence took place as well as the particulars as well as the stage of the investigations. and bail camp courts have who have been in remand for more than the required see if prison was an opportunity to be brought system before court and be dealt with. Lastly, to take stock of cases which might be speeded which is overcrowded for those accused the number service person could be relieved. on remand to have an opportunity it was to allow the justice to trial. for these applications who remandees statutory and period it Furthermore, of homicide 1.3 The applications were brought under section 42(2)( e) of the Republic sections 161 G and 118 of the Criminal of Malawi Procedure and Constitution Code. Evidence as well as 2.0 THE BAIL APPLICATION 2.1 The Applicant, Edson Manyowa Mhago aged 63 and hails from Mwatakata in Mangochi The district. under Traditional Authority Chimwala when he was arrested highlighted that He also highlighted that since his arrest assertion that he has 161 of the Criminal in August, that there is no record he has not been brought overstayed Procedure 2010, that is, more that his case to court to be a and thus being and Evidence in custody Code. He village Applicant than five (5) years. heard. tried violation of section therefore prayed trial. He argued and it was his for the court exercise its discretion and grant him bail pending 2.2 The State in response on 26th August, arrested Lucy Mhango Chikopa Authority Traditional 2010 on allegations aged 40 who hailed that he had caused from Chigonera District. in Mangochi Nankumba indicated that the facts gathered indicated that he was the death of village under 2.2 The State indicated that they were not objecting to bail as there were no factors to show that it would be against on bail. They did however that the offence was committed escaped and was only rearrested correct on 22nd June, 2008 however 2010. in August, the interest of justice to release the position on the date of arrest the Applicant by stating the Applicant had 3.0 COURT'S DETERMINATION 3 .1 This court recognizes of the Malawian that the constitutional Constitution. Malawian and is subject 42(2)(e) right to bail is not an absolute right of justice. Apl. No. of the interests in the Fadweck Mvahe v Republic, that - 25 of 2005 stated law also recognizes to limitations right to bail is enshrined that the Their Lordships in section Misc. Crim. we have indicated "Just to recapitulate, the High Court has power to release offence including murder. that the right to bail stipulated right; not an absolute We have indicated in section it is subject to the interests of justice. " that it is common ground that on bail any person accused of any 42(2)(e) of the Constitution is also that it is common case Edson Manyowa Mhango 3 .2 Courts, must be mindful that in dealing with bail applications, therefore ensure they and that is fundamental this fundament of justice such interes be weighed and remember of the case should that the interest should all circumstances principle. balanced granting th.e issues should as all other legal requirements. Secondly, for both the State and the Applicant. of bail is further examined This court is very aware that the all duty and the Constitutional laid before it. Notably, by taking by the court's this balancing act is the court's be exercised restricted discretion be carefully into account t should against provisions as well al and properly after examining 3.3 In this application, the first issue would be pretrial custody. The Criminal Procedure detention the said period, (30)days. Notably he arrested remand. and Evidence Code has set down in section 161 G that pretrial for homicide shall suspects the State has to petition be ninety on 20th August, in terms of the Applicant 2010 thereby herein, confirming the court requesting for an extra thirty it has been indicated that he has overstayed that on (90) days and after the elapse of 3 .4 Furthermore the Bail Guidelines Act have in Guideline 4 of Part II, stipulates that- The principles whether which the court should be granted or not bail should take into account include the following- in deciding that the accused, (a) the likelihood attempt to evade his or her trial; court may, where applicable, factors- if released and in considering take into account this principle the following on bail, will the be and family, on another the accused the accused of the offence for community of the punishment and the severity of the case against should the accused attempt that he or she may in consequence him or her; is in custody to be imposed of the offence against and the seriousness is to be tried; (i) the nature which the accused (ii)the strength the temptation to evade his or her trial; (iii)the nature which is likely convicted (iv)whether charge; (v) the emotional, ties of the accused tried; (vi)the assets assets (vii)the means and travel ac��sed which may enable (v111) the extent, to forfeit the amount of bail which may be fixed, thereby inducing the extradition (ix)whether should readily of the Republic in an attempt (x) any other factor which in the opinion should to evade his or her trial; of the court the borders and him or her to leave the country; to the place at which he or she is to be if any, to which the accused him or her to jump bail; be taken into account; held by the accused he or she flee across are situated; documents be effected and where such can afford held by the or occupational of the accused could Edson Manyowa Mhango 3.5 Markedly, has raised the State in favour of granting prescribed favour of granting (2)years after he committed pretrial no objection of bail because firstly stating detention bail to the Applicant Secondly, despite period. they have breached the interests that he was on the run for two of justice are in that the facts and the law are the offence. the statutory 3.6 This court after carefully no objection. State's right although justice the facts and law and coupled This court also recognizing that bail is a constitutional to all accused of as long as the interest the Applicant not absolute this court therefore but available examining his prayer. require, grants with the 4 ORDER 4.1 This court therefore orders that bail be granted. 4.2 The Applicant is therefore - bound on the following conditions 4.2.1 he pay a bail bond of a cash sum of K50,000.00 into Court before being released; 4.2.2 he produce two (2) sureties and each surety to be bonded in the sum of not cash. The said sureties be examined by the Registrar twenty one (21) days of this order on a date and time to be fixed Kl00,000.00 within by her; 4.2.3 he report nearest court) except every Monday and Friday station police station (which if required should to report to Court on the same day; to Mangochi Police or his Station to the be communicated 4.2.4 surrender any travel documents to the said Police and not to the written authority Station of the officer-in-charge leave the country without of the Police Station; 4.2.5 seek written permission if they wants to travel from the officer-in-charge Mangochi; Station outside of the said Police 4.2.6 be bound to keep the peace and refrain from tampering with state witnesses; and 4.2.7 not commit any crime during the subsistence of his bail. 4.3 The State is further including committal at the High Court in ordered procedures Zomba on 28th July, to do all necessary issues for pretrial if it was not done as plea taking shall procedures take place 2016 at 09.00 hours I order accordingly. Made in chambers this 9th day of June, 2016 . . ,.,, Edson Manyowa Mhango Ntaba Z. J. V. Judge Edson Manyowa Mhango 5