Taipi v R (Criminal Appeal 9 of 2014) [2015] MWSC 474 (18 May 2015)

IN THE MALAWI! SUPREME COURT OF APPEAL PRINCIPAL REGISTRY MSCA Criminal Appeal No. 9 of 2014 (Being High Court of Malawi, Principal Registry, Bail Application No. 29 of 2014) Mabvuto Taipi Vs The Republic Coram: Honourable Justice A. C. Chipeta, JA Honourable Justice L. P. Chikopa, JA Honourable Justice A. D. Kamanga SC, JA Maele, of Counsel for the Appellant Salamba, Senior State Advocate, of Counsel for the Respondent Chintande (Mrs), Official Interpreter Chipeta, JA RULING The Appellant, Mabvuto Taipi, is due to answer a Murder Charge in the High Court of Malawi. On 23™ June, 2014 his initial application for pre-trial bail in the said High Court was rejected by Honourable Justice Sikwese on the basis that he had “unclean hands.” He appealed to a single Judge of the Supreme Court of Appeal, being Honourable Justice A. K. C. Nyirenda SC, JA, as he then was. He succeeded in persuading the single Judge that it was wrong for the High Court to deny him bail on the basis of a principle that only applies in cases where one seeks an equitable remedy from the Courts. He, however, all the same did not secure the bail he was after. This is because, as had been clear both to the Court of first instance and to the Appeal Court, Mabvuto Taipi is a man who has previously displayed a streak of unreliability as regards the question whether he can be trusted to attend trial if so released on bail. To begin with, from the time of the occurrence of the offence he is to face trial for, the record shows that it took over one year before he was arrested. Having then been arrested on 15" September, 2007 and been remanded into custody at Mulanje Prison, he on 11 November, 2007 escaped from the said lawful custody. After this, it is very clear that it took almost seven years more before he could be re-arrested. It turns out that he was only so re-arrested on 13" January, 2014. In refusing him bail the single Judge of this Court concluded that since the time he escaped from lawful custody, the Appellant had been hiding in order to evade his trial. Thus, the single Honourable Justice of Appeal observed that “..to allow the appellant bail in these circumstances would be to allow him to go out and perfect his art of hiding.” Fearing, therefore, that Mabvuto Taipi would disappear for real this time, the Court, using Guidelines 4(a) and 4 (a)(x) of Part Il of the Schedule to the Bail Guidelines Act (Cap 8:05) of the Laws of Malawi, refused him bail. In his Notice to have the appeal determined by this three member panel of the Supreme Court Bench after the refusal of a single member of the Court, Mabvuto Taipi contends that the single Justice of this Court erred in Law in refusing him bail in the manner he did. In this regard, his first contention is that it was a legal error for the Honourable Justice of Appeal to refuse granting him bail when there was evidence that he had been on remand for a period of time exceeding the maximum pre-trial custody time limit, which according to him rendered his said detention to be unlawful. In his second contention, the Appellant has faulted the single Justice of Appeal for basing his refusal of bail on the concept of “interests of justice” when, he claims, it was clear that the detention the Appellant was seeking to be released from was unlawful. With reference to sections 161 G and 161 | of the Criminal Procedure and Evidence Code (Cap 8:01) of the Laws of Malawi (hereinafter referred to as the C. P. & E. C.), which set 90 days as the lawful pre-trial custody time limit for offences that include Murder, and which permit the consideration of bail thereafter even on the Court’s own motion, he prays that this Court reverses the refusal of bail herein, and that it accordingly releases him on bail. The Republic, which is the Respondent, is opposed to this appeal. Reading the skeleton arguments of the two sides in this appeal, and bearing in mind the way they orally presented their said arguments, it is clear that the contention between them lies in a very narrow campus. As far as the Appellant is concerned what he understands Sections 161 G and | of the C. P. & E. C. to prescribe is paramount in any situation where the pre-trial custody time limit has been exhausted. His contention is that in such cases these provisions even overtake the requirement that has been spelt out in Section 42(2)(e) of the Constitution to grant or to refuse bail subject to the interests of justice. The Appellant thus confines Section 42(2)(e) of the Constitution to the period between arrest and before the expiry of the prescribed custody time-limit for a given offence. Thereafter, he contends that Sections 161 G and | of the C. P. & E. C. take over, and that at that point the Court loses the obligation to assess whatever bail application comes up in the light of the interests of justice requirement. Rather, he argues, that a Court is then supposed to only consider that the detention has since become unlawful, and that it must therefore just grant bail. By way of buttressing his arguments, the Appellant pointed out that provisions in Sections 161 G and | of the C. P. & E. C. having come into being by virtue of amendments that were carried out in the year 2010, which was many years after the advent of the Section 42 (2)(e) principle that is in the Constitution, he believes that when Parliament set time limits for pre-trial detention it was aware of the existence of the interest of justice regime, and that it deliberately decided to introduce a new regime that would ensure automatic bail for whoever had been kept detained beyond the new statutory time limits for pre-trial detention. From 3 this premise, therefore, the Appellant was virtually advocating that when a bail application comes to Court post-expiry of pre-trial custody time limits, the Court no longer enjoys the discretion to vet the application in terms of what the interests of justice would dictate. Rather, he argued, as a foregone and automatic result of such application, the Court must grant such an applicant bail and thereby cure the by then existing illegal detention. In this regard the Appellant cited a number of decisions of the High Court, including Friday Mphindira vs Republic Bail Application No. 75 of 2012 (Unreported), and of this Court, including Gadabwali vs The State MSCA Miscellaneous Criminal Appeal No. 2 of 2013, (unreported). Further than this, he called in aid the Legislature’s use of the words “maximum” and “lawful” in Section 161 G, with aid of the definition of the word “maximum” as pronounced by the Constitutional Court in The State and The Electoral Commission ex-parte Dr Bakili Muluzi and United Democratic Front Constitutional Cause No. 2 of 2009 (unreported). He thus contended that beyond the expiry of the 90 days pre-trial custody time limit that applies in murder cases, such as the present, and the further expiry of the additional 30 days the State could at maximum have secured had it timeously applied for an extension of this pre-trial custody time limit under Section 161 H of the C. P. & E. C., the Court completely loses the jurisdiction to consider any application for bail that ensues hereafter under the banner of “ the interests of justice.” He prayed, therefore, that this appeal should succeed, and that this Court should thus, as of right, grant him the bail he seeks. In contrast to the above, when it was the State’s turn to respond to the appeal, both by its written and by its oral arguments, the Respondent plainly indicated that its candid understanding of the 2010 provisions of the C. P. & E. C. the Appellant had cited is totally different from the understanding the Appellant has attached to them. Whereas the Appellant readily agrees with the Appellant that the provisions in question were indeed meant to curtail the incidence of long and uncontrolled pre-trial detentions that were rampant before the introduction of these time limits, it however does not agree that they were at the same time meant to stand free, or independent, of the Constitution. It was thus the Respondent’s view that in applying Sections 161 G and | Courts cannot be said to 4 lose their obligation, as embodied in the Constitution, to exercise their discretion in considering all pre-trial bail applications according to the principle of “interests of justice.” It was the Respondent’s argument that the principle captured in Section 42(2)(e) of the Constitution, must ever be applicable whether it be in cases where bail has been sought before or where it has been sought after the expiry of the applicable pre-trial custody time limits, be those times extended or not extended. Its contention, therefore, was that even in situations where in a given case the applicable pre-trial custody time limit has elapsed, the detained person’s right to bail is neither absolute nor automatic, as has been advocated by the Appellant. in the view of the State, the Constitution being the supreme law of the land, the provisions of the C. P. & E. C., such as Sections 161 G and |, ought not to rank at par, or to compete on equal footing, with the provisions in the Constitution. They ought always, so the Respondent contended, to be subject to, or subordinate to, them. Thus, the State’s stand was that the principle in Section 42(2)(e) of the Constitution is over-arching, and that it does not, so to speak, shrink from being applicable by virtue of the advent of these 2010 statutory prescriptions on pre- trial custody time limits. A Court Order, it was argued, remains necessary to secure the release of a detainee even after he has been incarcerated beyond the pre-trial custody time limit and its consideration ought to entail discretion. Pointing out then that Section 161 | provides that the Court may grant bail to an accused person that finds himself in a situation where the period of his pre-trial detention has exceeded his statutory allotted time limit, the State’s understanding is that all this provision requires of the Court is to consider granting bail to such a person. In so considering bail, it pointed out, the Court must necessarily decide whether or not granting bail would be in the interests of justice as per the requirements of the Constitution. In the result, the Respondent disagreed with the Appellant’s assertion to the effect that the single Justice of Appeal erred in this case in refusing him (the Appellant) bail on account of his fear that, from previous conduct, the Appellant was a flight risk. It prayed, therefore, that this Court should likewise deny the Appellant the bail he seeks, and that it should accordingly dismiss this appeal in its entirety. 5 Looking at and weighing the parties’ arguments, we must begin by agreeing with both of them that in this case it was factually clear to the Court that was first seized of the bail application herein, as it has also been to this Court both at single Judge and three-member Judge panel levels, that the application was one that had been taken out after the expiry of the 90 days pre-trial custody time limit the Criminal Procedure and Evidence Code sets for persons incarcerated on murder charges. It was, and is, equally plain that the State did not at any point in time make any effort to get this time limit extended by the Court. We must also say that it is also very clear to us in this appeal that both the Courts that have handled this matter before us have asserted the position that the law gives them the discretion to decide this sort of application according to their discretion regarding the result they consider most suitable in the prevailing circumstances, and that whereas the State endorses this view, the Appellant is seriously opposed to it. Our assignment therefore, as we see it, is to determine whether it is legally correct for any Court of Law to exercise discretion when considering bail in cases where the applicable pre-trial custody time limit has been exceeded, or whether in such cases the Court has no choice at all but to grant bail as a matter of course and in any event. Coming from the above premise, we find it important to reiterate the position the State has propounded before us vis-a-vis the supremacy of the Constitution over all other forms of law in our land. Section 5 of the Constitution is abundantly clear in its demand, inter alia, that any law that is inconsistent with the Constitution shall, to the extent of such inconsistency, be invalid. From this we surmise that any statutory provision, including the Sections 161 G and | of the C. P. & E. C. which the Appellant has ascribed some independence to from the constraints of Section 42(2)(e) of the Constitution, ought to be subservient to the Constitution. In our understanding, therefore, statutory provisions including the ones in issue, cannot afford, if they are on one and the same subject matter as the Constitution addresses, to operate independently of what the Constitution provides. Clearly, if they happen to run counter to the requirements of the Constitution, they risk being construed to be invalid. We at the same time take note that under Section 135(a) of the Constitution the Law Commission, which reviews and makes recommendations on the Laws of Malawi, has been mandated whenever it is doing so to see to it that it acts in conformity, inter alia, with the Constitution. We conclude, in the circumstances, that even the Legislature is obliged, when exercising its functions and powers under Section 66 of the Constitution, whether this be after receiving recommendations from the Law Commission or otherwise, to only promulgate statutory provisions that are in conformity with the Constitution, if it is to avoid having its said provisions declared invalid in terms of Section 5 of the Constitution. In our judgment, therefore, as argued by the Respondent in this appeal, Sections 161 G and | of the C. P. & E. C., being mere creatures of a Statute, cannot pretend to be as powerful as, or even to be superior to, the provisions of Section 42(2)(e) of the Constitution. Section 42(2)(e) of the Constitution sets the standard guideline for all Courts in Malawi to follow vis-d-vis the situation of every person that has been arrested for, or been accused of, the alleged commission of an offence. Neither within itself, nor within any other provision of the Constitution, is there a confinement of this general guide to a limited period of time. A statutory provision, we are convinced, even if promulgated later in time than its parent Constitutional provision can never be so potent as to set the boundaries within which the constitutional provision should operate. Without a doubt, therefore, whenever statutory provisions are being measured against Constitutional provisions, as Sections 161 G and | are being measured in this case, they must of necessity be viewed as being subservient and obedient to the said Constitutional provisions. If instead of being so subservient they are rebellious, then they lose their validity as pieces of law. We are, we must say, convinced that in setting pre-trial custody time limits Sections 161 G and | of the C. P. & E. C. were not meant to dislodge, or to otherwise overtake, the constitution on its basic requirements for considerations of bail. Rather, we believe they were meant to aid the Constitution by empowering the Courts to, even on their own motion, step in and consider bail when they see the time limits not respected. We accordingly reject the argument 7 of the Appellant to the effect that these provisions have since set up a new regime of viewing pre-trial bail in all cases where pre-trial custody time limits have been exceeded. While we are aware that in most cases where the State has held a crime suspect for a longer period of time than the prescribed pre-trial custody time limit Courts will almost inevitably conclude that it is contrary to the interests of justice to prolong such incarceration, this to us does not necessarily mean that in every such case Courts cannot choose whatever they consider to be the most just way of determining a bail application that comes before them. Thus, in our understanding of the Gadabwali case, the single Judge of this Court who granted bail in that case on account of the lengthy detention the Applicant therein had suffered beyond the expiry of the applicable pre-trial custody time limit, despite his dismissing that man’s appeal, was precisely exercising the discretion the Constitution gives to the Courts in such matters when he concluded that the man was entitled to be released on bail. Indeed, as it can be seen, before so granting Gadabwali bail, the Court first considered his lengthy 2011 to 2013 incarceration, which it considered to be unfair. In other words the Court, so to speak, found it to be against the interests of justice, even after the dismissal of the appeal it had heard, to keep Gadabwali further incarcerated and to then just send him back to the Court below so he could apply afresh for bail, when he had virtually already earned an entitlement to a consideration of bail, even of the Court’s own motion, at statutory law level. In our view, this need not mean that in so exercising its discretion and releasing Gadabwali the Judge irrevocably bound himself to, at all times and in all circumstances where the pre-custody time limits get exceeded, be granting bail to like Applicants as a matter of course and/or of obligation. - To construe, therefore, that the Court surrendered its Constitutionally given discretion when granting bail in that matter, when it in fact only pronounced its decision therein after it had exercised that same discretion, might amount to reading into the decision more than was intended or explicitly pronounced in it. We hold, therefore, that the discretion Section 42(2)(e) of the Constitution offers to the Courts to exercise in relation to all persons that have been arrested for or accused of crime, does not stop at the expiry of the pre-trial custody time limits that have been set by Statute. In our judgment, a consideration of the interests of justice remains of vital importance whenever a Court is considering a pre-trial bail application, whether such application for bail is initiated before, or it is initiated on or after, the expiry of the applicable pre-trial custody time limit. Indeed, we believe, that is why learned Counsel for the Appellant readily agreed with us, when we so asked him, that a Court Order remanding a person does amount to lawful incarceration, even if it is made after the expiry of the lawful period of detention. To justify this, we need not go further than the 48 hour rule under Section 42(2)(b) of the Constitution, where a Court of Law can legally extend an arrested person’s detention on, or even after, the expiry of his 48 hours of lawful detention following an arrest for alleged crime. Reverting to the case at hand, in the light of the continuing discretion we have just discussed above, we see nothing wrong with the single Justice of Appeal of this Court fearing, as he did in this case, that he could not take the chance of reposing fresh trust in the Appellant that he would return to Court and show up for his trial by granting him bail after he had already demonstrated his ability not to be so trusted. The Appellant, we are inclined to agree, after so escaping from lawful custody and successfully hiding and evading trial for seven consecutive years, is an undoubted flight risk. The Court, we believe, would be acting not less than naively if it, on a silver platter, released the Appellant on bail, and thereby tempted or otherwise licensed him to disappear once more probably for good. Indeed, to be quite honest, we also entertain the very same fears our brother Justice of Appeal entertained in this case. This, we must candidly observe, has nothing to do with imposing on the Appellant what he has referred to as pre-trial punishment. To us, this is simply an exercise of due precaution by us, as a prudent Court, in the light of the overt untrustworthiness the suspect Appellant has already displayed. We accordingly see no merit in this appeal, and we thus dismiss it in its entirety. Be this as it may, we must not to miss the opportunity to express our extreme displeasure at the behaviour the State has so far engaged in regarding its handling of the Appellant’s case. Since the re-arrest of the Appellant, it has not at all shown that it is serious about prosecuting the heavy allegations it arrested and re- arrested him for. It remains mute and idle as the Appellant waits in prison as if time is not running or running out. As already pointed out by the Appellant, and this has not been refuted by the Respondent, when the pre-trial custody time limit was coming to an end, the State did not even bother to seek an extension of the same, although the law permits such under Section 161H when there are good and sufficient reasons. Further, so far there is no visible sign that the State is at all minded to prosecute the Appellant for the murder it is holding him in custody for. Indeed, even when the single Judge of this Court ordered it to promptly bring the Appellant to justice, the State did not do anything. This, we must condemn, is very deplorable conduct on the part of the Respondent. Actually to be quite frank we must say that if only the Appellant had not dented his image so badly as a result of his previous escape and lengthy hiding, we would not have hesitated about granting him bail in this appeal. As it is, however, because of the mistrust he has invoked in us we find it a lesser evil to keep him further incarcerated pending his trial, than to grant him the release he wants. It being almost as clear as day light that given the opportunity of bail, he will abuse it by disappearing for good and not facing his trial, we too will not take that risk. However, despite this being our position, we cannot allow the State to continue on the path it has taken, to wit, keeping the Appellant in, so to speak, endless detention without hope of a trial. We order, therefore, that if within the coming 30 days the State does not commence prosecuting Mabvuto Taipi for the murder it is alleging he committed, the Court below, on notification of that fact to it, must release him on bail. Following on this, it is further our order that the Registrar of this Court should bring our decision herein to the immediate attention of the Director of public Prosecutions, so that if the Court at the expiry of 30 days from today ends up letting this suspect loose despite doubting whether he will voluntarily return to 10 the door of the Court for his trial, there should be no room for that Office to cry foul about that release. Pronounced in Open Court the 18" da ) May, 2015 at Blantyre. | pe 11