THE HIGH COURT OF MALAWI
CRIMINAL APPLICATION NO. 1 OF 2004
Counsel for the State
Counsel for the Applicant
The applicant Sam
Tate Zimba through counsel Tambulasi brought this application. The
purpose is to move this court to discharge
applicant for want of
prosecution on the criminal charges against him.
From the court
record the applicant appears to be a member of the Malawi Defence
Force, that is to say a soldier, based at Kamuzu
He is alleged to have committed criminal offences in the course of
discharging his duties. The case was registered
as criminal case no.
1 of 2004. On 5th
May, 2004 he was granted bail on these conditions:
he was to
deposit K25,000 cash with the
he was to
produce two sureties bonded in the sum of K500,000.00
he was to
report at Kawale police station every Monday.
He was to
surrender all travel documents to police.
complied with the conditions reporting at Kawale police station every
Monday. However, in August, 2004 applicant stopped
disappeared. Official information revealed that applicant, though he
had surrendered his passport to the police,
he fraudulently obtained
another passport. By sheer luck, police arrested applicant on 13th
June, 2006. On 30th
June 2006 his bail was revoked by court which resulted to custodial
After 10 months in
custody applicant brought a habeas corpus application heard before
Mrs Kamanga, J on 25th
April, 2007. The judge expressed displeasure on the states
failure to prosecute applicant. She ordered the state to commence
prosecution within 21 days from date of her order and that trial be
concluded within 3 months. Should the case not be concluded
applicant be admitted to bail. The judge was reluctant to
immediately grant bail to applicant because of his past record of
June, 2007 applicant was granted bail by Singini, J. on these
to furnish two surities bonded on the sum of K5,000 each not cash.
To be examined by the Registrar.
to report to the nearest police once every fortnight on Fridays.
to leave the area of jurisdiction of the police without the
permission of the officer-in-charge.
The court record
shows that the applicant is enjoying liberty as a result of being on
bail. So far this is the history of this
has deponed in his affidavit in particular paragraphs 6 and 8. That
the state has failed to take steps to prosecute
the applicant which
is infringement of applicants right to a fair trial. In this
regard this court should pronounce an order
dismissing the action
against him for want of prosecution. Section 42(2)(f) of the
Constitution has been cited regarding fair
trial. He also cited the
Universal Declaration of Human Rights (UDHR) and also article 14(3)
of the ICCPR regarding trial without
The state through
counsel Mrs Kachale strongly opposes the application. She prayed
that the state be given opportunity to prosecute
the applicant. She
argues in paragraph 2 of her affidavit that since applicant is on
bail he maintains a reasonable degree of
independence and liberty.
On paragraph 4 counsel contends that applicant compounded the delay
by reason of his abscondment whilst
on bail. Counsel also alluded to
various personnel problems experienced within the legal department of
the Malawi Defence Forces.
My starting point
is to repeat without hesitation the cardinal principle that a person
is presumed innocent until proven guilty
by a competent court of law.
Hence the applicant is presumed innocent. Again it is observed that
June, 2007 this court granted bail to applicant on stated conditions.
He is currently enjoying liberty as a result of being on
Counsel for the
applicant has argued that delay to prosecute him has infringed his
right to a fair trial under section 42(2)(f)
of the Constitution. It
is pertinent to reproduce it.
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 an accused
person, for a fair trial, which shall include the right
trial before an independent and impartial court of law within a
reasonable time after having been charged.
I also reproduce
article 14(3) of the International Covenant on Civil & Political
determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full
(c) To be
tried without undue delay;
10 of the Universal Declaration of Human Rights re-affirms the
principle of a fair and public hearing by an independent
impartial tribunal (court).
accuses the state for delaying to prosecute him without
justification. This court is being called upon to discharge
from further prosecution on the criminal charges against him.
Well, the state on
the other hand argues that the applicant contributed to the delay by
jumping bail. I do observe that applicant
was at large from August,
2004 to June, 2006. A period of almost 2 years. Not only that he
fraudulently obtained another passport.
These allegations have not
been disputed by applicant.
re-arrested on 13th
June, 2006. He was immediately incarcerated until 30th June, 2007
when he was again re-admitted to bail. The question is why
failed to prosecute him. The explanation that the legal department
experienced personal capacity hiccups is not convincing.
delay to prosecute applicant is inexcusable. It infringes on
applicants right to affair and speedy trial. To
blame the delay
on applicants jumping bail is tantamount to punishing him without
trial for jumping bail.
Having found that
the state is not justified for the inordinate delay to prosecute
applicant. Do I proceed to discharge the applicant
as prayed. It
would be unreasonable, in my view, to grant an absolute discharge in
disregard of the serious criminal offences
he is alleged to have
committed. The best course of action, had he been still in custody,
was to admit him to bail. That has
already been taken care of. He
is on bail.
The state is urged
in strong terms to expedite prosecuting applicant. Should there be a
change of circumstances applicant to be
at liberty to present
Chambers on this 20th
day of February, 2008 at Lilongwe.
U D G E