Mtambo & Anor. v R (Misc. Criminal Application 2 of 2018) [2018] MWHC 968 (26 February 2018)

Laurent Mtombo ond Another v The Republic Miscei!aneous Criminal Application No. 02 of 2018 Mz./-/C Bail application THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALA\/vi MZUZU DISTRICT REGISTRY M!SCELLP,NEOUS CRIMINAL APPLICATION NO 02 of 2018 Bail Re-Application BETVVEEN Laurent ivaambo and Another .... .... .. ............. ....... ..... .. ...... .. .. .... ..... Applicants -and- The Repubiic ................... ........... ........ ... .... ............. ................. ..... Respondent Coram: The Honourable Justice D.f.\. DeGabriele Mr D. Shaibu fv'ir. C. Ghambi fv1s. rv1unth2!i Mrs ChirNa for the State for the applicants Official Interpreter Court Reporter ----· .. -·-·------·-· ---------· - - - - - - - - - - --- - -· =··-· - -- · - -- -- - RULING This matter comes for a bai! application pursuant to section 12 of the Bail Guidelines Act, section 118 of the Criminal Procedure and Evidence code and section 42 (2 )( e) of the Constitution of the Republic of Malawi. The applicant filed an affid avit in support of th e application and the State filed an affidavit in opposition. ha!! from Chovve \/iHage, TIA VVenya in Chitipa District • that time. - The. State: i:J opposing the application for bail on the grounds that the Laurent Mtombo ond Another v The Republic Misce!!cmeous Criminal Application No. 02 of 2018 r,1zi-lC Boil application problems in prosecuting homicide suspects 1,,vho are on bai l, and the State is failing to trace the suspects and the suspects are negatively influencing the witnesses. The State prays that the matter be set for trial. Section 42(2)( e) of the Constitution of the Republic of Malawi provides that; "(2) Eve0; 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 - to be released from dete ntion, with or without bail unless the (e) interests of justice require othenNise" The right to bail is not an absolute right but has to be granted subject to the interest of justice and in the discretion of the court, see also Section 1 of Part I I of the Bail (Guidelines) Act, and the case of Fadweck Mvahe v The Republic li!ISCA Criminal Appeal No. 25 of 2005. The applicant can make several applications but as long as the interests of justice a re not satisfied, bail cannot be granted . The arguments set forth by the State in support of their opposition to granting bail herein are not acceptable. It is unjust to lump all murder suspects as persons who \Viii abscond bail, fail to attend trial and interfere with witnesses without providing clear evidence of the same . Each case of bail application must be treated on its ovvn merit. This Court has looked at the date of arrest and conclude that the pre-trial custody time limit as set out under section 161 (G) of the Criminal Procedure and Evidence Code has not been exhausted and the Court cannot grant the Applicants bail on the ground that they have overstayed in custody. Having heard submissions made in court and having read the affidavits as filed, this Court makes the following orders; - a. The State and the investigators must conclude all necessary procedures for the trial to comrnence and these indude: . filing and servino ~ disc!osurns and the charoe shest, observation of and corno!iance vv·ith -..; i 2. Laurent Mtambo and Another v The Republic Miscellaneous Criminal Application No. 02 of 2018 MzHC Bail applicution the provisions under Chapters Viii or IX of the Criminal Procedure and Evidence Code b. The matter be set down for trial in the Richard Banda Sitting of 2018. The Applicants are at liberty to make a fresh application for bail if the State has failed to fulfil the conditions outlined above . Made in Chambers this 26th day of February 2018 - 3