THE HIGH COURT OF MALAWI
CRIMINAL APPL. NO.137 OF 2007
Chidzonde, Counsel for the State
Kambauwa, Counsel for Applicant
Chulu, Court Interpreter
applicant Tadziwani Kalikili through counsel Nyirenda (standing in
for counsel Kambauwa) applies for bail with/without conditions.
application is under section 118 of the Criminal Procedure and
Evidence Code and section 42(2)(e) of the Malawi Constitution.
deponed by counsel Kambauwa that applicant hails from v:Mawiri, T/A
Kalumo, D:Ntchisi. He was married to the deceased.
experienced troubles because the deceased was alleged to be having an
affair with another man. Applicant severely
beat her. On the
following day she was found dead outside the house. Applicant was
arrested by police on 1st
August, 2004. Since that date he has remained in remand. No further
legal action taken by the state. He now applies for bail or
brought before a court of law.
Chidzonde for the state submitted that the interest of justice would
require applicant to be released on bail with or without
as the court deems fit.
starting point is section 42(2)(b) of the Malawi Constitution. It
Every person arrested for, or accused of, the alleged commission of
an offence shall, in addition to the rights which he or
she has as a
detained person, have the right-
as soon as it is reasonably possible, but not later than 48 hours
after the arrest, or if the period of 45 hours expires outside
ordinary court hours or on a day which is not a court day, the first
court day after such expiry, to be brought before an independent
impartial court of law and to be charged or to be informed of the
reason for his or her further detention, failing which he
shall be released.
applicant has been on remand since 1st
August, 2004. It is not indicated whether the applicant is on formal
court remand or not. It is also not indicated whether he
committed for trial before the High Court.
Kambauwa cited section 42(2)(e) of the Malawi Constitution. I
reproduce it here for purposes of clarity.
to be released from detention, with or without bail unless the
interest of justice require otherwise.
applicant has given two names as possible sureties namely; Mr.
Kalikili Mtsilo(father) and Mr Jeke Mtsilo (uncle) both live
Katchulu, T/A: Kalumo, D: Ntchisi. He has undertaken that once
granted bail he would live with these people at the given
take into account that applicant has been in custody since 1st
August, 2004. A period of over 3 years. During all this time the
state has taken no action to prosecute the applicant or take
necessary legal steps. Remanding the applicant without legal
formalities amounts to illegal detention. The states conduct
cannot be condoned. Hence in the interest of justice the applicant
is released forthwith unconditionally.
in Chambers 21st
November, 2007 at Lilongwe.