Now, if an accused person has the right to be released from detention then why should he be required to prove exceptional circumstances
in order to be released on bail? In other words, why should he be required to prove exceptional circumstances before he can enjoy
his constitutional right? Indeed why should his release be in the discretion of the court when it is his constitutional right to
be so released? Why should the onus of proving the exceptional circumstances be on him when he has the constitutional right to be
presumed innocent? There are many questions to ask but the issue really is that the practice we have followed in our courts in bail
applications in cases of this nature, in my opinion, is erroneous. We have tended to treat bail pending trial the same way we treat
bail pending appeal, which is in the discretion of the court and the applicant has to satisfy the court that there are sufficient
grounds to warrant his release. We have proceeded as if the State has the constitutional right to detain a person accused of committing
a capital offence. Surely it is time we revisited this practice.
In my judgment the practice should rather be to require the State to prove to the satisfaction of the court that in the circumstances
of the case, the interests of justice require that the accused be deprived of his right to release from detention. The burden should
be on the State and not on the accused. He who alleges must prove. This is what we have always upheld in our courts. If the State
wants the accused to be detained pending his trial then it is up to the State to prove why the court should make such an order. It
is ridiculous, in my opinion, to require the accused to prove why he should be released from detention. Let me acknowledge the view
expressed by the justices of appeal in the Lunguzi case to the same effect. However, it is very surprising that despite expressing such a view they turned around and went on to emphatically
prescribe the common law practice which requires the accused to prove exceptional circumstances to be released on bail.
Let me also mention that it would appear that there is a general belief mostly amongst prosecutors that when a person is arrested
it lies upon him to apply to court for his release. This belief is totally misconceived and erroneous. Yes, under section 42(1)(e)
of the Constitution a detainee has the right to challenge the lawfulness of his detention before a court of law. But under section
42 (2)(b) of the Constitution every person arrested for or accused of the alleged commission of an offence, in addition to his aforesaid
right as a detained person, has the right to be brought before an independent and impartial court of law not later than 48 hours
after his arrest to be charged or to be informed of the reason for his further detention failing which he should be released. This
section places the burden on the State to take the arrested person before the court. It is at the court that the state must prove
to the satisfaction of the court that the accused, though entitled to release, should not be released because the interests of justice
require that he be detained further. This must be done within 48 hours after his arrest. The section does not place the burden on
the accused to apply to be brought before court or to apply to be released.
If these provisions are understood correctly one can see that there is no room for the common law practice under our law. In as much
as it is correct that the right to bail is not new to our law and that it is not absolute, with the greatest respect, I do not agree
that the right under section 42 (2)(e) is in the discretion of the court. I fail to see how something, which can only be enjoyed
at the discretion of someone, can be a right. For example, under a contract of employment, if the payment of a bonus were in the
discretion of the employer, it would be incorrect to say that the employee is entitled to a bonus. If we were to accept their lordships
reasoning then it would be incorrect to say that an accused person has a right to be released from detention under section 42(2)(e).
However, I entirely agree that the court will continue to exercise discretion under the section but strongly disagree that such discretion
will be in respect of whether to release an accused person on bail or not.
Coming to the present application it is presented in line with the common law practice. The main ground advanced by the applicant
is ill health. The applicant says that in the year 2000 whilst in prison he was diagnosed to be HIV Positive. That is, he has the
virus that causes AIDS. He was also diagnosed to be suffering from Tuberculosis. The treatment card he has exhibited shows that he
received full treatment for the tuberculosis and was cured. All the same the applicant says that if he is kept in custody awaiting
his trial his health is bound to deteriorate because of the poor conditions prevailing in prison. He even fears that he may die before
The Bail (Guidelines) Act outlines the principles the court should take into account in deciding whether or not bail should be granted.
Section 6 of Part 2 of the Schedule to the Act compels the court, when applying the principles, to weigh the interests of justice
against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if
he or she were to be detained in custody.
The applicant has been in custody since 19th August 2004. It is deposed on behalf of the State that on the said 19th August the State was ready to commence its case but failed to do so because the applicant sought an adjournment. The case has since
been rescheduled for hearing sometime in October this year. It cannot therefore be said that there is a likelihood of delay in the
disposal or conclusion of the trial. Further, the State has alleged that the applicant once escaped from lawful custody when he was
on remand awaiting trial for the Thyolo robbery and that he fled the jurisdiction. He was re-arrested in the Republic of South Africa
and extradited to Malawi. There is therefore a likelihood that he may attempt to abscond his trial once again this time around.
Let me reiterate what I have already said that under our law an accused person is presumed innocent until his or her guilt is proved
in a court of law. Therefore it is important at this stage that the applicant should be presumed innocent. It should also be remembered,
as I have already shown above, that under our law the applicant has the right to be released from detention with or without bail
unless the interests of justice require otherwise.
The question then is, do the interests of justice in this case require that the applicant be remanded in detention pending his trial?
Having carefully considered the circumstances of this matter I come to the conclusion that the interests of justice require that the
applicant be kept in detention pending his trial. I do so because I am fully aware that “the interests of justice require that
there be no doubt that the accused shall be present to take his trial upon the charge in respect of which he has been committed”,
per Ronson J. in Rex v Monvoisin cited with approval in J Z U Tembo and others v The DPP, MSCA Criminal Appeal no. 16 of 1995 (unreported). Can it be said with certainty that the applicant, if released on bail, will present
himself for trial? With respect, I do not think so. It has been deposed on behalf of the applicant that there is no basis to doubt
that the applicant will attend his trial if released on bail because before his arrest, he did attend court on two occasions to answer
the present charges even when he was not summoned by the court but only came to know about the dates through the media. But in the
course of arguing this application it became apparent that before his arrest the applicant was under the belief that the grant of
pardon extended to the present charges as well. It is therefore not surprising that he was so willing to attend court. Now that he
knows that he was pardoned only for the Thyolo robbery whose sentence he was serving and not the rest of the offences he may have
committed, I am sure he may revisit his willingness to attend court for his trial.
As already stated the applicant escaped from lawful custody and also fled the jurisdiction soon after the alleged offences were committed
and was re-arrested in the Republic of South Africa. It is therefore my considered view that bearing this fact in mind and also the
nature and/or seriousness of the offences he is charged with, and the severity of the sentences likely to be imposed if he is convicted,
there is a probability that the applicant might attempt to abscond trial. I am not satisfied that bail will ensure the applicant
appearing for his trial. The interests of justice in this matter, in my judgment, require that the applicant be kept in detention
pending his trial. The application is therefore refused.
Made in chambers this 3rd day of September 2004