THE HIGH COURT OF MALAWI
CRIMINAL NO 14 OF 2004
CORAM : JUDGE
I.C. KAMANGA (MRS)
for the Applicant
for the State
Msiska; Court Interpreter
U L I N G
matter comes before this court, moving the court, in its original
unlimited jurisdiction and under Section 42(2)(e) of the
Malawi Constitution and Section 118(3) of the Criminal Procedure and
Evidence Code for the court to review its earlier
release the applicant on bail.
background to the application is in the following manner: on 19th
August 2004, the applicant sought bail pursuant to Section 42 of the
Constitution and Section 118 of the Criminal Procedure and
Code. He had been in custody since 20th
February 2002 as a murder suspect. Upon hearing from both the
applicant and the state, the court observed that the applicant
been in custody for a period of 2 years which in the circumstances
constituted an exceptional circumstance. The court also
it was unclear as to when the applicant would be brought to court for
trial despite his being committed to the High
Court on 23rd
July 2004. So the court ordered that the applicant should be
brought to trial during the next homicide assizes. In the event
any failure so to deal with the applicant, it was ordered that he
should be released on bail with the following conditions.
pay into court K5000.00 cash
produce two sureties who shall each pay into court K2000.00 cash
surrender all travel documents into court.
report at Nkhotakota police every Monday and Friday before 12.00
except when coming to court.
should not leave Nkhotakota or Malawi without the written authority
of Nkhotakota Police, when traveling out of Nkhotakota
Headquarters in Lilongwe Area 30 if traveling out of the
has brought this application is the fact that the bail has not been
effected as the next
have not yet come into being. Counsel for the applicant now contends
that it is unclear as to when or whether there shall be
assizes in the foreseeable future. He contends that the uncertainty
necessitates that his client be granted bail.
The State objects the
application. The State advocates that homicide assizes will resume
in two weeks time and the uncertainty
now falls away. The State
further advocates that the earlier order that the court made is open
ended that the State brings the
applicant in the next assize so the
State is complying with the said order.
am in agreement with both counsels that there is uncertainty on the
next homicide assizes as well as the fact that the earlier
open ended that the State brings the applicant in the next assize.
The uncertainty comes into being in that much as the
committed to the High Court, it is still unclear as to when the
applicant will actually be tried. There is need for
the State to
act with certainty and define when the applicant shall be brought to
court for trial. It is for that purpose that
for avoidance of
doubt, the next homicide assizes is now being defined in the
following term the
State should bring the applicant for trial and actually prosecute him
in the homicide assize that is set down for hearing
in the period of
August to October 2005.
Should the State fail to prosecute the applicant in the stated
period, the conditions for bail as set down in the order of
August 2004 shall come into effect. The examination of sureties to
wit shall be done by the Registrar.
in Chambers this 11th
of August 2005.
U D G E