THE HIGH COURT OF MALAWI
CRIMINAL APPL. NO.155 OF 2007
Chidzonde, Counsel for the state
Tukula, Counsel for Applicant
Chulu, Court Interpreter
Shadreck Phiri through counsel Tukula applies for bail under section
42(2)(e) of the Malawi Constitution and section
118 of the CP &
EC. Counsel filed in court a sworn affidavit and skeleton argument
which he adopted. The skeleton argument
state that the applicant was
October, 2007 driving a lorry from Blantyre to Lilongwe. He
carried Afford members to a convention in Lilongwe. He was involved
in a fatal road accident at Linthipe in Dedza district. Twenty-eight
(28) members died in that road accident. The said accident
so it is alleged, because the applicants vision was blamed by
dazzling full beam lights from an on coming motor vehicle.
applicant sustained bodily injuries and was admitted at Dedza
district hospital. On 21st
October, 2007 he was arrested by police and placed in custody. Then
October, 2007 he was charged with manslaughter at Dedza Magistrate
Court. He is said to have denied the charge. Thereafter he
remanded by court to wait his trial at the High Court.
It is submitted
that applicant is still in agony as a result of the injuries
sustained. He wants special medical attention in private
because presently he receives pain killing tablets. Several case
authorities on bail have been cited. Notably, Zgambo
Criminal Appeal Case No.
of 1998. on this proposition:
is presumed by law to be innocent until his or her guilt has been
proved in Court, and bail should not ordinarily be
withheld from him
as a form of punishment. The Court should therefore grant bail to an
accused, unless this is likely to prejudice
the interests of
for the state submitted that the offence against the applicant is a
road traffic offence namely manslaughter.
The police docket has not
been transferred to the DPPs office. Once it is received the DPP
would decide whether to proceed
with manslaughter or reckless
driving. Meanwhile the state did not object to bail being granted.
My starting point
is section 42(2)(e) of the Malawi Constitution:
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-
released from detention, with or without bail unless the interests
of justice require otherwise.
The right to bail
which is stipulated in section 42(2)(e) of the Constitution is not an
absolute right. It is subject to the interests
of justice. In
Lunguzi Vs Rep, MSCA, Criminal Appeal No. 1 of 1995 their Lordship
stated as follows:
view the right to bail which section 42(2)(e) of the Constitution now
enshrines does not create an absolute right to bail.
still reserves the discretion to the courts and it makes the position
absolutely clear that courts can refuse bail
if they are satisfied
that the interest of justice so requires.
I am obliged to
concur with their lordships. However in the present application
there are matters which are unclear. First where
does he come from?
The home particulars have not been disclosed.
Second, the nature
and particulars of his employment are not disclosed. That is whether
he is self employed or works for a
Third, it is
unclear whether applicant appeared before Dedza Magistrate Court for
purposes of plea or committal for trial in the
High Court. A copy of
the court record should have been attached to the application to
enable this court know the legal position..
fourth, much as it
could be true that applicant sustain injuries. The nature and degree
of the injuries is undisclosed. It would
be unreasonable to accept
such assertion without the support of medical opinion recommending
specialized medical treatment.
Indeed the state
has no objection to applicant being granted bail. That not
withstanding, I have to be satisfied that there is
information about the applicant. The sworn affidavit of counsel
Tukula is brief and lacks the required essential information
mentioned above. In the circumstances it would be unsafe and against
the interest of justice to grant bail. Bail not granted.
Chambers on 21st
day of November, 2007 at Lilongwe.
U D G E