R v Chilumpha and Another (Criminal Cause 13 of 2006) [2023] MWHC 128 (18 October 2023)

IN THE HiGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL CAUSE NO. 13 OF 2006 THE REPUBLIC VS RT. HON. DR. CASSIM CHILUMPHA, Sc.....ccccccccsecsscscscsssecescnensereeeee I ACCUSSED YUSOR MAT UM DA sccxnasas 10+ consasnenmnenisa oa 1 SaxaaonIoNNRANNENEEAS 16 eReaNRA EE 8a 2™ ACCUSSED CORUM: JUSTICE R. M CHINANGWA Malunda D. & Gwaza J. State Advocates Chilumpha S. 1 Accused Counsel Amos Court Clerk _ RULING ON APPLICATION TO DISCHARGE THE ACCUSED 1. The 1* accused (herein after the accused) person filed an application to discharge the accused persons or discontinue the matter and or dismiss the matter for want of prosecution. 2, The application was supported by an affidavit which was opposed by the State. 3. In the affidavit in support of the accused’s application he states that the present action was commenced sometime in the year 2006. He was charged with the offences of treason contrary to section 38 of the Penal Code and conspiracy to murder contrary to section 227 of the Penal Code. The hearing of the substantive matter was delayed due to preliminary matters being raised over a number of years. 4. Itis argued that the State has not shown any interest in prosecuting the matter for over 11 years by taking any step in the prosecution of the matters. This inordinate delay on the part of the State is inexcusable and unjustifiable in any circumstances. Even if the matter was somehow heard by the Court a trial would neither be fair nor credible considering the delay involved, 5. In response the State confirmed that a number of preliminary applications delayed the commencement of the matter and the matter was adjourned when one of the witnesses, Mr. Ndhlovu had testified. Being a complex matter, the State required considerable attention from the prosecutors before obtaining a fresh date of hearing. The State prayed for 90 days to get organized and prosecute the matter. Issue for Determination 6. This court ought to determine whether the present action should be a) discontinued or b) dismissed for want of prosecution or c) whether the accused should be discharged? Analysis of Law and Evidence 7. On the first part the accused has requested the court to discontinue the matter. The accused has relied on section 77(1) of the Criminal Procedure and Evidence Code which provides for discontinuance of a criminal matter. This section would not apply because it provides for discontinuance of a matter at the instance of the Director of Public Prosecution and not an accused person. 8. On the second part the accused has requested the court to dismiss the matter for want of prosecution? It is not in dispute that this matter has remained dormant and has delayed for 15 years, since the last proceeding. It is unreasonable considering that the duty to prosecute lies with the State. It should be noted that there is no specific provision within the Criminal Procedure and Evidence Code to dismiss a matter for want of prosecution. A specific provision on dismissal for want of prosecution has been made for civil matters in Order 12 rule 54(1) of the Courts (High Court) (Civil Procedure) Rules, 2017. The question is what remedy is available for the accused whose matter has remained unreasonably dormant at the instance of the State? 9. Section 286 of the Criminal Procedure and Evidence Code does allow the accused to make an application where there is delay in prosecution. At such a hearing the High Court ‘iis considers that there is sufficient cause for the delay, postpone any trial of the accused to the subsequent sessions of the High Court. Where the High Court postpones a trial if may (a)direct that the trial be held before itself sitting at some other convenient place, (b)respite the bonds of the complaint and witnesses; or (c)release the accused unconditionally, or commit him to prison, or release him upon his entering into a bond with or without sureties, 10. Il. 12, 13, at its discretion, for the purposes of ensuring his appearance at the time and place directed by the court for trial’. The applicant has argued that proceeding with the matter after 15 years of no progress that is counting from 25" January 2008 to date, would not accord the accused the right to fair trial. Section 42(2) (f) (i) of the Malawi Constitution provides that every person arrested for, or accused of, the alleged commission of an offence hall, in addition to the rights which he or she has a detained person, have the right as an accused person, to a fair trial, which shall include the right to public trial before an independent and impartial court of law within a reasonable time after having been charged. The law on fair trial has been provided in Article 10 of Universal Declaration of Human Rights (UDHR) which is part of law of Malawi by virtues of section 211 of the Malawi Constitution. Article 10 of the UDHR provides that ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. The above quoted section, allows the court consider a discharge of the matter when, ‘if has been fixed for hearing or at the time of the hearing the matter is adjourned, the prosecutor is absent or unwilling to prosecute’. Ina pronouncement dated 25" January 2008, which happens to be the last date the court sat as per the court record, the court recorded in its ruling at page 39 as follows, ‘This case will be set for a date in May this year for trial. The specific date will be discussed with all Counsel in Chambers’. Since then, and for 15 years, the matter was not set down for trial. It would seem section 286 of the Criminal Procedure and Evidence Code would have been the appropriate law for the accused to invoke because of the delay in the matter. However, the remedy available is a release on bond which the applicant is already enjoying as he is on bail. What remedy is available to the accused where the wheels of justice have simply stopped? On the third part the accused has requested the court to discharge the present action. The accused has relied on section 247(1) of the Criminal Procedure and Evidence Code. It reads as follows: ‘When proceedings have been instituted under section 83 and, at the time fixed for the hearing of the case or the time to which a hearing is adjourned, the complainant or the prosecutor, as the case may be, is either absent or unable or unwilling to proceed with the case against the accused, the court, if it is satisfied that the complainant or prosecutor has had reasonable notice of the time and place fixed for the hearing, shall, unless it considers there is good reason to adjourn the hearing, discharge the accused’. 14. The question is what is the definition of a hearing as provided in section 247(1) of the Criminal Procedure and Evidence Code? A hearing refers to any formal proceeding before a court. The term usually refers to a brief court session that resolves a specific question before a full court trial takes place... www.https://law.cornell.edu, It is this court’s view that the application to have the matter discharged is a hearing. The matter having been set down for a hearing allows the court to consider whether the matter should be discharged or not. In this case the State has shown no willingness to prosecute the matter because the matter has remained dormant for 15 years. Apart from that the State is also asking the court for a further 90 days to if at all they were to continue prosecuting the matter. It seems that this matter was a forgotten cause for the State. If anything, it speaks volumes on how the prosecution manages the prosecution of its cases. To say the least this matter has been poorly managed. It is only lawful to have the matter discharged in the circumstances. Finding 15. The application to discharge the accused is granted under section 247(1) of the Criminal Procedure and Evidence Code. 16. Any aggrieved party has the right to appeal within 30 days from the date of pronouncement. Pronounced this..........+.++ 12 sa» sau day of October 2023 at BLANTYRE. (A Z—- RM CHINANGWA — JUDGE