Iman v Republic (Miscellaneous Criminal Case 20 of 2017) [2017] MWHC 923 (30 March 2017)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY MISCELLANEOUS CRIMINALCASE NUMBER 20 OF 2017 (Sitting at Nkhotakota) MASTON IMAN ………………….……...………………………… APPLICANT BETWEEN: THE REPUBLIC …………………………………………………... RESPONDENT AND CORAM LADY JUSTICE I. C KAMANGA : Chamwenda Ndiyani Tembwe - - - Senior Legal Advocate for the Applicant Senior Legal; Advocate for the Respondent Court Clerk ORDER The Applicant herein is Maston Iman. He hails from Chirimba Village, T/A Namkumba in Mangochi District. He moved this court praying that he be released from detention at Nkhotakota prison or that he be brought before a court of law and be dealt with according to the law. The application is made under Section 42(2) (e), 161 (a) and 161 of the Criminal Procedure and Evidence Code as well as Bail Guidelines Act 2003 Schedule Part II. In his deposition in support of the application the applicant states that he has been in custody since 24th August 2016 and has not been brought before the court of law. More than six months have lapsed since his arrest. He states that he is a businessman. And that in August 2016 he bought a cellphone from an unknown person who was a stranger in his village. On 24th August 2016, he visited Malembo Trading Centre where he was approached by two Police Officers who wanted to buy a Blackberry phone. He told them that he only had a Samsung and X2 phone. The Policemen arrested him and told him that the cellphone that was in his possession belonged to a Police Officer who had been killed at Chipoka. They arrested him as a suspect of the homicide at Chipoka. He has been in custody ever since. Applicant states that if he is granted bail he will live with his family at Chirimba Village, T/A Nankumba in Mangochi District. In responding to the application, State Counsel indicated that the applicant was indeed arrested on the aforementioned date. He also indicated that the applicant is answering a charge of murder contrary to Section 209 of the Penal Code. And that the evidence against the applicant is so overwhelming that chances of securing a conviction are very high. The pre-trial period has indeed since elapsed. The State prayed that incarceration of the applicant should continue because of the evidence that has been gathered against him. Whereupon, the court was interested to find out reasons for the State’s failure to prosecute when there is overwhelming evidence against the applicant. And the State responded by stating that it appears that the Legal Aid Bureau does not have funding for their officers to ably represent the applicant. This court has been moved to make some observation with regard to the state of homicide remandees. There are a lot of applications to release homicide remandees on bail founded on illegality as provided in the Criminal Procedure and Evidence Code. Section 161 F provides that: “Where a person accused of an offence triable in the High Court is committed to the High Court for trial, the maximum period that he may be held in lawful custody pending commencement of his trial in relation to the offence shall be sixty days.” While Section 161 G provides that: “The maximum period that a person accused of … murder … may be held in lawful custody pending commencement of his trial in relation to that offence shall be ninety days.” Despite the above provisions, trial for homicide have stalled. It would therefore be illegal to keep suspects on remand indefinitely when there is no indication on whether they would be tried in the near future. Incarceration is therefore becoming illegal by operation of law. And the court cannot aid illegal incarceration. This observation is made despite the State indicating that there is overwhelming evidence against the applicant and whilst taking cognisance of the Bail Guidelines Act that where there is overwhelming evidence against an applicant, bail ought to be denied. This is because after refusing to release an applicant on bail where there is overwhelming evidence, the next course is the trial of such applicant. In the matter at hand, there are no indications that the applicant can be tried any time soon. The statement that there is overwhelming evidence against the applicant ought to be tested through trial. It has however come to the attention of the court that there have been incidences where, upon releasing applicants on bail, they have been engaging in other alleged similar activities. Again because of the porous nature of most of our districts, suspects that have overwhelming evidence against them tend to be at large when matters are set down for hearing. This is creating an unpleasant atmosphere. The court does not want to aid illegality on the part of the State. At the same time, it does not want to appear to aid or condone homicide suspects. And the only solution to the challenge that is now being presented to the court through these applications is commencement of proceedings. It is against that background that I order that: - The applicant be brought before court to be advised of his continued incarceration at the First Grade Magistrate Court in Salima before the 30th of June 2017. - The matter be set down for trial on 27th July, 2017. - The Director of Public Prosecution shall start to do the necessary by 4th April, 2017, to comply with the twenty – one day provision in which period the Director of Public Prosecution shall serve all necessary documents on the defence, ready for trial on the aforementioned date of 27th day of July 2017. As it has indicated that failure to prosecute is founded on lack of funding on the part of the Directorate of Legal Aid Bureau, I observe as follows: This court does not envisage any challenges with prosecution of the matter. I am aware that there are human rights organisations that are very interested in supporting human rights endeavors. And it is against that background of appreciation of rights of prisoner’s rights and rights of those that are illegally detained that are human rights organisations have provided funding fort this bail hearing. The court applauds the Human Rights Organisations that has funded the State, Legal Aid Bureau and the Judiciary to make this hearing possible. This is commendable. This court observes that while the Organisations have acted in the interest of justice, to ensure recognition of interest of justice, the Human Rights Organisations should also be very interested in ensuring that victim’s rights are accorded cognisance. For interest of justice requires that those that have NOT committed crimes should not be in incarceration. At the same time THOSE that have committed crime MUST BE punished for the wrong. This is the essence of Criminal Justice. As the donor demonstrated commitment to aid criminal justice delivery, they should be ready and available to fund for prosecution of the suspects/applicants. This will demonstrate that they are indeed fully committed to ensuring that they are engaging in promotion of peace and security of all persons and the fundamental right to life. Justice is not only getting suspects who are alleged to have committed offences and detained out of illegal custody. Justice also entails that the suspects are tried by a court of law. There should never be created any impression that the criminal justice system condones homicide suspects. Hence the matter is set down for hearing as aforementioned at the instance of the donor for bail hearings providing funding for homicide trials. Made in Chamber this 30th day of March 2017 at Nkhotakota. I. C Kamanga, JUDGE 5