Kambonje v R (Misc Criminal Application 89 of 2017) [2018] MWHC 1318 (8 February 2018)

Wilson Kambonje v Th e r?epublic Miscellaneous Criminal Application No. 89 of 2017 Bail application THE REPUBLIC OF MALAV\/1 IN THE HIGH COURT OF MALAVVI MZUZU DISTRICT REGISTRY MISCELLANEOUS CRIMINAL APPLICATION NO 89 of 2017 Bail Application Wilson Kambonje .... .... .. ..... . ....... ..... .. ..... ... .. .............. ..... ..... ..... Applicant BETWEEN -and- , ,. . The Republic ... .... .......... .................... .... ...... .. ......... ............ .. .. Respondent Coram: The Honourable Justice D. A. DeGabriele MrW. Nkosi Mr. C. Ghambi Ms. Munthali Mrs Chirwa for the State for the applicant Official Interpreter Court Reporter DeGabrieie, J RULING This matter comes for a bail 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 Malmvi. The applicant filed an affidavit in support of the application and the State filed an affidavit in opposition . The applicant who hails from Thoko Village, TIA Nkhokwe in Machinga District was arrested on 1 oth February 2010 for allegedly causing the death of Mr. Majawa. The State has responded that bail should be denied as the State is having prob!ems in prosecuting homicide suspects who are on bail, 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 tria!. - J. Wilson Kambonje v The Republic Miscellaneous Criminal Application No. 89 of 2017 Bail a·pplication VVhile the applicant is entitled to be released on bail, the right to be released on bail is not an absolute right but has to be granted subject to the interest of justice in accordance to Section 42(2)(e) of the Constitution of the Republic of Malawi and Section 1 of Part II of the Bail (Guidelines) Act, and the case of Fadweck Mvahe v The Republic MSCA Criminal Appeal No. 25 of 2005. The applicant herein was arrested on 1 oth February 2010. According to section 161 (G) of the Criminal Procedure and Evidence Code the pre-trial custody limit of 90 days has been exhausted. The applicant has been in custody for 8 years now and the State has not at any time made any application to extend that time limit. The arguments by the State that it is difficult to prosecute homicide suspects because most of them cannot be traced or do not attend court hearings should not be the reason to reject the granting of bail universally. The reason why sureties are identified is to ensure that they can compel and guarantee the presence of the suspect. If he or she fails to fulfil the conditions of bail, the surety should be held accountable. The State has not stated whether or not the matter is nm,v ready for trial, and if so ready, when the matter can be brought to court for tria!. It is unjust to lump all murder suspects as persons who will abscond baii, fail to attend trial and interfere with witnesses without providing clear evidence of the same. In exercising its discretion, the cou1i must address its mind to the peculiar facts of each case and must examine any evidence that may lead to the granting or denial of granting baii. The State has not outlined any such evidence in this case. Having heard subrnissions made in Couii and having read the affidavits as filed, I find that it is in the interest of justice that the applicant be granted bail on the fo!lovving conditions: 1. The app!tcants must each pay MKS0,000.00 cash into Court; 2. The applicants must each have tvvo honest and reliable sureties with integrity, bonded at MK50,000.00 each, not cash; - Wilson Kambonje v Th e Republic Miscellaneous Criminal Application No. 89 of 2017 Bail application 3. The applicants must each report at the nearest police once every two weeks, on Mondays before 12 noon; 4. The applicants should not leave their respective villag es without taking leave of the Officer in Charge of the said nearest pol ice station where they will be reporting; 5. The applicants must surrender any travel documents to the High Court; 6. The examination of sureties will be done before the Registrar. The State has submitted that the matter should be set down for trial. Therefore, I further direct and order that; a. The State and the investigators must conclude all necessary procedures for the trial to commence and these include; finalising the investigations, fi ling and serving disclosures and the ch arge sheet, observation of and compliance with the provisiC?ns unde r Chapters VIII or IX of the Criminal Procedure and Evidence Code b. The matter must be set down for trial in the Richard Banda Sitting of 2018 . The applicant is at liberty to make an application to have the matter discharged under the law if the State has failed to fulfil the conditions outlined above . Made in Chambers this gth day of February 2018 - JUDGE 3