Uladi and 4 Others v R (Homicide Bail 157 of 2023) [2024] MWHC 43 (29 July 2024)

; cos EEA Bey REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION HOMICIDE BAIL NUMBER 157 OF 2023 (Before Honourable Justice J. M. Chirwa) BETWEEN VANKHO ULADL ..u. cece ece cece neceererecccenesseseeeseeensenenes 18? APPLICANT KINGSLEY KABINDA..........ccccecesceceseescsevscessscsesenereces 2NP APPLICANT GIFT SITIMA...........ccccccsesecnscscceneeseensenecensenenssensonsnees 38? APPLICANT MWAIWAO) CHIDZINO.......cccccccssevecccescenscncencceeceesseace 4™H APPLICANT ROBERT SMART .........ccccceccesccccseccsscevscseenavesenseeneaseses 5™| APPLICANT -AND- THE REPUBLIC. ...........cccesceccecsececesccscessscesersenssenesrenes RESPONDENT CORAM: HONOURABLE JUSTICE J. M. CHIRWA Miss. C. Mkuwira, Counsel for the State Mr. G. Luzu, Counsel for the Applicants R, Chanonga, Official Court Interpreter M. Chirwa, Court Marshall * LLLP EPPS Pod Hem eg gmematcn te RULING 1. Introduction:- There is before this Court an application by Yankho Uladi, Kingsley Kabinda, Gift Sitima, Mwaiwao Chidzino and Robert Smart (“the Applicants”) for an order that they be released from unlawful detention on the following grounds: (a) A period of 90 days [pretrial custody time — limit] has since elapse from the time they were arrested and remanded to Chichiri Prison; (b) The period in ground (a) above has not been extended by the court and any further detention of the Applicants is thus unlawful and an infringement of their rights; and (c) On the basis of grounds (a) and (b) above-stated, it is in the interests of justice that they should be released from unlawful custody forthwith. The application is supported by an affidavit of Gracian Luzu, a legal practitioner with Messrs Ritz Attorneys at law, and skeleton arguments. The Respondent has filed an affidavit in response sworn by Chifundo Mkuwira, a Senior State Advocate, and skeleton arguments. Both the parties adopted their respective documents at the hearing of this application. 2. Background:- The Applicants were at all material times employees of Smallholder Tea Company as security guards at Amarika Forest in Malika Village in the District of Thyolo. It is alleged that the Applicants were all arrested by the police at Bvumbwe Police Station on the 25" of November, 2023 at Amarika Forest on an allegation that they had participated in the killing of a person who had, allegedly, gone to the said forest to steal trees. It is further alleged that from the date of their arrest, as aforesaid, the Applicants were detained in police custody until the 28" of November, 2023 when they appeared before the Resident Magistrate’s Court sitting at Midima, Limbe where they were informed that they were being detained on allegation that they had taken part in the killing of a person in Amarika Forest. The Applicants were subsequently remanded to Chichiri Prison without any formal charges being leveled against them. The Applicants still remain remanded at Chichiri Prison. 3. The position of the parties hereto:- It is the case of the Applicants that since the 90 days pre-trial custody time limit prescribed for the offence of murder by Section 161 G of the Criminal Procedure and Evidence Code (“the CP & EC”) have expired without extension by the Court they are thus entitled to be released as of right and that such a right is not any less absolute even though it is subject to the interests of justice considerations. The Applicants have cited and relied heavily on the case of Samuel Kaudzu & others — v_- The Republic MSCA Criminal Appeal Number 16 of 2016 (unreported). It is the further case of the Applicants that there are no interests of justice considerations which militate against their release from unlawful custody. It is thus, the prayer of the Applicants that they be released from unlawful custody. It is surprising to note that the Respondent has responded to the Applicants’ application as if it were an application for bail and not an application for release from unlawful detention or custody. This is evident from both the Affidavit in response and skeleton arguments. It is the case of the Respondent that the primary consideration as to whether bail should be granted is whether there exists doubt that the applicant will avail himself for trial. It is the further case of the Respondent that in the present case there is no evidence to suggest that the Applicants will evade trial, hence the Respondent does not object to their application. It is thus, the prayer of the Respondent that the Applicants’ application should be granted on such terms as this Court deems fit. 4, Issue for determination:- The issue for determination by this Court is whether the Applicants herein should be released from detention with or without conditions. 5. Determination:- Section 42(1) of the Constitution of the Republic of Malawi (“the Constitution”) confers upon every person who is detained the right’s inter alia to challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law (see: Section 42 (1)'{e)) and to be released if such detention is unlawful (see: Section 42(1) (f)). Turning to the present application it is not in dispute that the Applicants herein were arrested on the 25" of November, 2023 at Amarika Forest in the Thyolo District by police at Bvumbwe Police Station on allegation that they had participated in the killing of a person who had, allegedly, gone into the forest to steal some trees. It is also not in dispute that since the date of their said arrest, as aforesaid, the Applicants who are currently being detained at Chichiri Prison have been in detention to this date. And when one computes the length of their detention, it is evident that they had as at the date of the application been in detention for a period of about 7 months, which is well in excess of the prescribed pre-trial custody time limit of 90 days for the offences of murder, In these premises, this Court would be inclined to concur with the contention of Counsel for the Applicants that since 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 which is ninety days (vide Section 161 G of the (CP & EC) has expired the continued detention of the Applicants herein is indeed unlawful. Thus, and in the absence of any court order extending the said period the Applicants herein would be entitled to their release from custody as a matter of law. This was the position held by this Court in the case of Godfrey Chiwaya —y- Republic Miscellaneous Criminal Application Number 9 of 2015 (unreported) cited with approval by the Supreme Court of Appeal in the case of Samuel Kaudzu & 4 others -v- Republic (supra). Be that as it may Section 161 I of the CP & EC gives power to this Court to grant bail on the expiry of the custody time limit. For the avoidance of doubt this Court prefers to reproduce the wording of the section as follows: “At the expiry of a custody time limit or of any extension thereof, the Court may of its own motion or on application by or behalf of an accused person or on information by the prosecution, grant bail to an accused person: In order to ensure that the Applicants feel obligated to attend their trial whenever so required to do this Court would thus, be inclined to invoke the provisions of Section 161 I of the CP & EC and order the release of the Applicants herein, not unconditionally but on bail with conditions. 6. Conclusion:- Having determined to order the release of the Applicants herein, not unconditionally, but on bail with conditions, this Court now proceeds to set the bail conditions as follows:- (a) that each Applicant should be personally bonded to this Court in the sum of K100,000.00, not cash; (b) that each Applicant should secure two blood-related sureties with each surety being bonded to this Court in the sum of K 100,000.00, not cash. The Registrar of this Court is to assess the suitability of the said sureties; (c) that the Applicants do each report to the Officer-in-Charge at Bvumbwe Police Station once every month on Mondays before noon; and (d) that each of the Applicants should surrender to the Registrar of this Court any travel documents which he/she may have in his/her possession. It is so ordered. Dated this Twenty-ninth day of July, 2024.