THE HIGH COURT OF MALAWI
CASE NO. 13 OF 2006
HON. DR. CASSIM CHILUMPHA SC.
CORAM : HON.
: Mr. Kayira,
Mr. Mbendera Mr.
Kachule, ... FOR THE STATE.
Nyimba, Mr. Kaphale
FOR THE ACCUSED
Mr. Kalua, Mr.
: Ms Maida
case was called on the 26th
of October 2007 for mention whereat two issues were to be determined,
whether disclosure of evidence has been completed and when
should be set for trial.
of Public Prosecutions has confirmed to the satisfaction of the Court
that disclosure has been completed and that
the matter can be set
down for trial. He suggests that trial be set for a date within
November next month.
In the meantime
the State is yet to approach the Court on the outstanding application
on concealment of witnesses. The D.P.P.
has also just brought in
another request, that he intends to apply to Court to arrange for
jurors of a certain level of understanding
in view of the complex
nature of the case. Finally, it has also been conceded by the D.P.P.
that it will soonest be necessary
for the State to brief the Court
and the defence on what arrangements have been made and how the State
intends to go about presenting
its case. This is necessitated by the
peculiar nature of the proceedings which will involve electronic
recordings among other
persons with one voice say it is not just being unrealistic to talk
about November for trial but more importantly it
would be grossly
unfair to them to expect that by that time they would have prepared
for trial in a case which has taken the state
eighteen months to put
together. They ask for eighteen months as well on their part or at
least ten months before the hearing
As for concealment
of witnesses it would appear the state slept on this matter until
reminded by the Court. Otherwise this is a
matter that emerged much
earlier in the proceedings and by now should have been concluded. It
is said the application will now
be of a limited nature. This is
more the reason why it should be disposed off without much ado; in
fact it should have been dealt
with in the context of this sitting
since we are looking at disclosure, including witnesses statements.
I really do not
see the point that the Director of Public Prosecution is making when
he says he intends to make an application to
Court to rule or order
that jury for the case should be of a certain level of understanding,
whatever the level of understanding
will be proposed. My
understanding is that this is an exercise that ideally should be left
for jury selection during trial from
the long jury list that we have.
I do not want to pre-empt the application that the D.P.P. intends to
make in this regard. It
might have dimensions which the Court has
not thought about. It is safe therefore to await the application.
The State wishes
to move on and have urged the court to take a firm charge of the
proceedings. This is quite a legitimate request
if this case is to
make meaningful progress. But that said the State is not helping the
situation. Up until this point it is
not clear exactly what kind of
trial we should be preparing for. This question was posed to the
State by the Court. It became
clear that little thought had been
given to the exact arrangements that have to be made by the State on
how the case would be presented.
The case would
not be an ordinary trial that we are used to. It would appear some
special facilities would need to be arranged
for. It is absolutely
critical, not just for the accused persons, but for the Court as
well, to be clear on what special arrangements
are being made by the
State and what would be the role of the Court in the whole design and
the logistics of the trial. Yet what
is true is that if the required
facilities and the whole design of the trial was not properly
prepared for it could result into
serious practical hitches in the
course of the trial.
Taking charge of
proceedings does not mean the Court directing the State or indeed the
defence on how to present their respective
cases. But if the Court
is not clear on how the case would be presented it could be an
extremely dangerous leap of faith.
The State must
come out clear on what kind of trial we should be preparing for. The
Court needs to have this information in good
time, so do the accused
I have no doubt
we can all see how important it is sort out all these preliminary
matters which have a bearing on how soon the
trial of this case
should be set.
circumstances and for the issues discussed, the State is required to
finalise all the preliminary applications that are
including furnishing the Court with details of all the logistical
are being made for the trial. Immediately thereupon dates for trial
will be determined.
Made at Blantyre
day of November, 2007.
U D G E