Lest We Forget: Tembo and Others v Director of Public Prosecutions

Supreme Court of Appeal
Criminal Law – General

Case No: MSCA Criminal Appeal No. 11 of 2004
Judgment Number:1
Case No: MSCA Criminal Appeal No. 11 of 2004
Judgment Number: 1
Media Neutral Citation:[1995] MWSC 1
Judgment Date: Mon, 09/11/1995


Media Neutral Citation:[1995] MWSC 1
Judgment Date: Mon, 09/11/1995


IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

M. S. C. A. CRIMINAL APPEAL NO. 16 OF 1995

(Being Ciminal Case No. 1 of 1995)

BETWEEN

JOHN ZENUS UNGAPAKE TEMBO………………………………...1ST APPELLANT

MACDONALD MOSES KALEMBA………………………………...2ND APPELLANT

LESTER AUGUSTINO LIKAOMBA………………………………...3RD APPELLANT

- and -

THE DIRECTOR OF PUBLIC PROSECUTIONS……………………….RESPONDENT

BEFORE: THE HONOURABLE MR JUSTICE UNYOLO, J.A.
THE HONOURABLE MR JUSTICE KALAILE, J.A.
THE HONOURABLE MR JUSTICE VILLIERA, J.A.

Stanbrook, QC/George Kaliwo/Gustav Kaliwo/
Munlo SC, Counsel for the Appellants
I N K Nyasulu, DPP/Mwenelupembe, Counsel for the Respondent
Nkhoma, Official Interpreter
Jere/Chigaru, Recording Officers



JUDGEMENT

Unyolo,J.A.

This is an appeal against the decision of Mkandawire, J., given on 31st May 1995, in which the learned Judge dismissed the appellants' application for bail.

After hearing Counsel on both sides in argument and after considering the matter conscientiously, we unanimously found that this was a proper case in which bail ought to have been granted to the appellants. We accordingly allowed the appeal and granted the appellants bail on the terms indicated hereafter. We pronounced this decision orally in open Court and reserved our reasoned judgments, having agreed that each Judge would write his own judgment.

The history of the matter' is as follows. The three appellants were arrested by the Police on 4th January 1995 and taken into custody in connection with the deaths of three Cabinet Ministers and a Member of Parliament 'in Mwanza in-1983. Two days later, on 6th January, the appellants were brought before the Chief Resident Magistrate's Court at Zomba and committed for trial at the High Court on charges of murder and conspiracy to murder. The appellants applied for bail, but the learned Magistrate turned down the application, saying that he had no jurisdiction to grant bail. in a case of this nature.

The appellants then made another application for bail before the High Court. The matter came before Mwaungulu, Acting J. (as he then was) , and by his order dated 6th March 1995, the. learned Judge refused to grant the appellants bail, saying that the appellants had not proved any exceptional circumstances to enable him release them on bail. Having refused to grant bail, the learned Judge, however, proceeded to make an order that the Director of Public Prosecutions (DPP) should file formal charges and have the case ready for hearing on 24th April 1995. He then tied the said order to the application for bail and directed that if the case was not ready for hearing on the date indicated, 24th April 1995, the appellants should be released on bail.

Somehow, the case did not commence on the appointed date. indeed, by that date, even the statements which the prosecution were required to furnish to the appellants under the provisions of section 293 of the Criminal Procedure and Evidence Code had not been furnished. The appellants, Counsel then moved the Court to release the appellants on bail. At that point in time, the case had been assigned to Mkandawire, J. After hearing Counsel, the learned Judge dismissed the application, saying that the prosecution were not wholly to blame for the failure of the case to start and that at any rate, the appellants were still unable to show exceptional circumstances as to entitle them to bail.

Subsequently, another application was brought before the learned Judge. In that application, the defence requested, among other things, that the charges be severed 'in order to make the case less complex; other reasons were also proffered. The application was successful on this point and the learned Judge ordered that the murder offences be tried separately from the conspiracy to murder offences. Following on the order, the prosecution elected to proceed on the conspiracy to murder counts against the appellants. Observably, hearing of the case has since started on the said conspiracy to murder counts, leaving the murder counts held over.

There then followed another 'application for bail., again before Mkandawire, J. The prosecution again opposed the application. In his ruling of 31st May 1995, the learned Judge observed that the appellants were relying on the very matters they had raised previously when they sought bail before Mwaungulu, Acting J. The learned Judge said that he could notrevisit those matters, since he was not sitting as an appellate court. He said that he could only confine himself to fresh matters or circumstances. He was of the view that no new matters had been raised, saying that the fact that the charges had been severed did not constitute a fresh matter and could not be the basis of a fresh application for bail. lie also observed that the case was making some progress. For these reasons, the learned Judge dismissed the application. It is against that decision that the appellants appealed to this Court.

Firstly, Counsel for the appellants attacked the decision on the ground that the learned Judge erred in failing to give effect to the constitutional right to bail contained in section 42 of the Malawi Constitution. It was also contended that the learned Judge erred in refusing bail despite the fact that the prosecution had failed to adduce facts that could justify the appellants being deprived of the said constitutional right. The thrust of the arguments on this aspect was that section 42 of the Constitution provides the right to bail for everyone and for any offence, subject only to "the interests of justice". Counsel submitted that rights are rights and that where the State wishes to deprive a citizen of such rights, it must prove why the citizen should be so deprived.

In reply, the learned DPP agreed that section 42 of the Constitution does indeed create a right to bail. He, however, said that this is not a new right at all; it has always been there. The learned DPP also agreed that the onus is on the prosecution, in any case, whether involving a capital offence or not, to show why an accused should not be granted bail by the court. The learned DPP, however, said that it is important to note that the Constitution has not made the right absolute, but subject to the "'interests of justice". He said that once the State has shown, on a balance of probability, that the interests of Justice justify the continued detention of an accused, the burden then shifts to the accused to show that he/she is entitled to bail by showing "exceptional circumstances". He submitted that in the present case, the appellants failed to show such exceptional circumstances before the lower Court and that they had failed to do so even at the time the appeal came up for hearing, so that their continued detention could not be impugned in thecircumstances.

Pausing here, I wish to state that I would agree that, generally, speaking, the right to bail existed in our laws even before the present Constitution came into force. Such a right existed by virtue of section 118 of the Criminal Procedure and Evidence Code. With regard to the High Court, subsection (3) thereof provides:

"The High Court may, either of its own motion or upon application, direct that any person be released on bail or that the amount of, or any condition attached to, any bail required by a subordinate court or police officer be refused or varied."

It is, however, to be observed that despite this provision, it appears that in the past everybody thought that bail was not available to accused persons charged with capital offences. Without question, accused persons answering charges for such offences were always locked up. As I understand it, it was only late last year when a judicial pronouncement was made to the effect that the High Court here has jurisdiction to grant bail even in cases involving capital offences: per Mwaungulu, Acting J., in Christos Demitrious Yiannakis -v- Rep., Misc. Criminal Application No. 9 of 1994 (unreported). observably, the accused in that case was charged with the offence of murder and Counsel for the State had argued vociferously that bail was not available for capital offences. The argument was, however, rejected and subsequently the accused person was granted-bail by Mbalame, J. While on this point, it is also to be noted that bail was again granted in yet another murder case involving a certain Mrs Davis in Balaka. The courts have clearly taken quite a new perception in matters of bail lately as a result of the provisions of section 42(i)(e) of the new Malawi Constitution.

Happily, the Malawi Supreme Court of Appeal has confirmed that the High Court does indeed have power to Cant bail even in capital offences. The Supreme Court has also confirmed that the onus is on the State to show cause why bail should not be granted or, what is the same thing, why it would not be in "the interests of justice" not to release an accused person on bail: see Mc William Lunguzi -v- Rep., M.S.C.A Criminal Appeal No. 1 of 1995 (unreported).

“This raises an important question, namely, what is meant by the phrase "the interests of justice"? Actually, the way section 42(i)(e) of the Constitution puts it, is that every person who is detained has the right to be released from detention, with or without bail "unless the interests of justice require otherwise".

The case of S -v- Smith and Another, (1969) (4) SA 175 (N) a South African
case, is useful. At page 177, E-F, Harcourt, J. said:

"The general principles 'governing the grant of bail are that, in exercising the statutory discretion conferred upon it, the court must be governed by the foundational principle, which is to uphold the interests of justice; the court will always grant bail where possible, and will lean in favour of, and not against,. the liberty of the subject, provided that it is clear that the interests of justice will not be prejudiced thereby-"

And in a Canadian case, namely, Rex -v- Monvoisin (1911), Manitoba Reports, Vol.
20, at page 570, it was observed:

"The interests of justice require that there be no doubt that the accused shall be present to take his -trial upon the charge in respect of which he has been committed-"

In S -v- Essack, (1965) (2) SAR. 161, another South African case,
Miller, J. said at page 162:

"It seems to me, speaking generally, that before it can be said that there is any likelihood of justice being frustrated through an accused person resorting to the known devices to evade his trial, there should be some evidence or some indication which touches the applicant or accused person in regard to such likelihood."

And earlier on the same page, the learned Judge had this to say:

"In dealing with an application of this nature (i.e. an application for bail), it is necessary to strike a balance as far as can be done between protecting the liberty of the individual and safeguarding and ensuring the proper administration of Justice...If there are indications that the proper administration of justice and the safeguarding thereof may be defeated or frustrated if he is allowed out on bail, the court will be fully justified in refusing to allow him bail."

What emerges from the foregoing cases, so it appears to me, is that where a person has been charged with an offence, the wheels of justice are set in motion and the accused person is expected to be prosecuted for the offence and the law requires that the accused shall be available to stand his/her trial until the case is completed.

To put it simply, what section 42(l) (e) of the Constitution is saying, is that every person who is detained has the right to be released from detention, with or without bail, unless such person, if so released, is likely to frustrate or prejudice the course of justice by failing to stand his/her trial, e.g. by fleeing the country. From the various cases 'that I have been able to come across, this appears to be the paramount consideration, but the interests of justice would also be frustrated where there is a reasonable likelihood that if the accused person was released on bail, he/she would tamper with witnesses or interfere with police investigations: see S -v- Acheson(1991) (194) (2), SA 805 a Namibian case. There are several other considerations as well which I may have occasion to refer to later in this judgment. Perhaps I should point out here before I pass on that section 42(i)(e) is not just about bail as such, but that it encompasses the wider remedy available by habeus corpus at common law.

Referring to the present case, the prosecution seem to have relied heavily on the seriousness of the charge brought against the appellants. With respect, it is correct that the seriousness of the charge brought against an accused person is one of the factors to be considered by the court. Fear is a natural instinct in human beings, so that generally speaking, the more serious the offence, a capital offence for example, and the sentence it may call for upon 'conviction, the greater the likelihood that the Accused person would be disposed to abscond. All the same, the court has to consider all the circumstances of the particular case. And, as was observed in the Essack case above-mentioned, there should, in each case, be some evidence or some indication which touches the particular accused person that he/she is likely to abscond. On my part, I didn't think that it was so shown in the present case. Indeed, I would say that the matters raised by the appellants in their lengthy affidavits sworn to in support of the bail application show that the likelihood of them absconding, if released on bail, is quite remote.

Next, it was contended, on behalf of the appellants, that the learned Judge in the Court below erred in holding that severance of the indictment could not be the basis for a subsequent application for bail. Just to recapitulate, I have shown on this aspect that the appellants were originally indicted on murder counts and conspiracy to murder counts. I have then shown that following a preliminary objection, the Court below ordered that the charges should be severed and that the prosecution then elected to proceed on the conspiracy to murder charges, leaving out the murder charges. In the decision appealed against, the learned Judge held that such severance could not be the basis for a subsequent application for bail. It appears that what bothered the learned Judge, basically, was that it was the appellants themselves who had sought severance of the charges and that the appellants could not then turn around and complain that such severance would -result in delay in disposing of the case. With respect, I am unable to join in -the view taken by the learned Judge. Section 310 (2) of the Criminal Procedure and Evidence Code confers on the High Court additional power to grant bail, where the Court makes an order either for the postponement of a trial or for a separate trial or an order for severance. The section does show clearly that this particular power is in addition to, and not in derogation of, any other power of the Court for the same or similar purposes, It appears to me that the section was put in in recognition of the fact that severance of counts almost always does create a new situation than that which obtained hitherto. For example, in the present, case, I have shown that following the order for severance, the prosecution have proceeded to prosecute the appellants for the offence of conspirancy to murder, which is a lesser offence than the capital offence of murder previously preferred. Significantly, conspiracy to murder is a non-capital offence, punishable by a maximum sentence . of 14 years imprisonment. To my mind, the Court has to proceed with this case on the basis of the new situation herein; to deal with the case on the basis of the murder charges would be wrong, as those charges are no longer before the Court in the present case. Indeed, I think that it is a fair comment to say that the prosecution must have good reasons for leaving out the murder charges. It is also to be noted that the offence of conspiracy to murder is bailable even by a subordinate court: see section 118(1) of the Criminal Procedure and Evidence Code. Actually, there is a well-known case in the Chief Resident Magistrate's Court at Zomba (a case which is now commonly referred to as the Bishops case") where that Court granted bail in a case involving a charge of conspiracy to murder, as in the present case. I mention all this just to highlight the point I am trying to make on this aspect; otherwise basically each case is to be decided on its own facts.

In short, I am unable to join with the learned Judge in the Court below in his finding that severance cannot be the basis of an application for bail; it can be.

The lower Court's decision was also attacked on the ground that the learned Judge failed to consider the issue of sufficiency of evidence. It was submitted that statements under section 293 of the Criminal Procedure and Evidence Code had been served by the time the application for bail was brought before the lower Court. It was said that although this was so, the lower Court did not look at the said statements, as the learned Judge erroneously thought that these had already been considered and dealt with in an earlier application before Mwaungulu, Acting J. which, however, was not the case. It was submitted that had the learned Judge looked at the said statements, he would have seen that they did not disclose a prima facie case, or any case, against the appellants.

Pausing here, I would agree that the strength or weakness of the evidence against an accused person is a factor to be considered in bail applications: see R v- John Maginniss. While I would also agree that section 293 statements are intended to give the substance of the evidence of the witnesses to be called at the trial, it must be appreciated that such statements basically give only the summary of the intended evidence. From the Maginnis case and a number of other cases that I have read, it appears to me that the kind of evidence that is envisaged on this aspect is evidence in the legal sense; that is to say, evidence on oath such as viva voce evidence given at a preliminary inquiry or evidence by affidavit or depositions: see R -v- Barthelemy (1852) 1 E & BL 8, The Sate -vPurcell (1926) IR 207, and the Monoisin case I mentioned earlier in this judgment. As I have earlier indicated, statements furnished under the provisions of section 293 are merely a summary of what was recorded from a prospective witness in the case, not under oath, for example, at a police station. With respect, the Court should be slow to act on such material for purposes of determining bail applications. This, in my view, is sufficient to dispose of the appellants' contention on this aspect.

There were other matters that exercised my mind in the present case. I have discussed above some of the considerations to be taken into account by the Court as to whether bail should be granted or not. Another consideration which I didn't discuss is how prejudicial it might be for the accused person in a particular case to be kept in custody by being refused bail, regard being had to all the circumstances of the case. Some of the matters to be considered on this aspect include the duration that an accused person has already spent in custody if any, and the duration that he will have to continue to be in custody before his trial is completed: see the Acheson case.

Referring to the instant case, the Court, was told that originally the State intended to call some 153 witnesses. The Court also learnt that of these witnesses, less than a third had testified, leaving over a hundred other witnesses still to testify. Further, the Court learnt that actually more witnesses than the number originally envisaged would be called. It was, therefore, clear that this was going to be a long trial. Observably, by the time we were hearing the present appeal, the appellants had already been in custody for about nine months. All in all, it was evident that if not released on bail, the appellants were going to be in custody for a long time.

For the foregoing reasons and after giving the matter much thought, I concurred with my brother Judges that this was a proper case in which bail ought to have been granted to the appellants, and as I have earlier indicated, this Court allowed the appeal and granted the appellants bail, on the following conditions:

1st Appellant

1. K500,000 bond, not cash;

2. To furnish two sureties each in the sum of K10,000, not cash, to be examined by the Registrar;

3. To surrender his passport to the Commissioner of Police, Southern Region;

4. To report daily at a police station, time and police officer, to be designated by the Inspector General of Police;

5. Not to leave for places other than office and home without the authority of the designated police officer.
2nd Appellant

1. K10,000 bond, not cash;

2. To furnish two sureties each in the sum of K2,000 to be examined by the Registrar;

3. other conditions as for the 1st Appellant.

3rd Appellant

1. K30,000 bond, not cash;

2. Other conditions as for the 2nd Appellant.

There is one Other matter which Counsel touched on in arguing this appeal and I think that it is only proper that I comment on it, albeit briefly. It relates to the guidelines that were laid down by this Court, per the Honourable the Chief Justice, in the Lunguzi case, above-mentioned as regards the principles which courts should always bear in mind in considering applications for bail. Counsel expressed some concern about the approach adopted by the court in that case.

The Court stated in the Lunguzi case that while it was true that the High Court could, in its discretion, grant bail in any case, the Court was of the view that the discretion should be exercised with extreme caution and care in the most serious offences. The Court went on to observe that murder, apart from treason, is the most heinous offence known to the law as is exemplified by the death penalty the offence attracts and that the law of this country has always been that it is rare, indeed unusual, that a person charged with 4n offence of the highest magnitude, like murder, should be granted bail., Finally, the Court observed that the general practice in most Commonwealth countries is that the discretion to release -an accused person charged with a capital offence is exercised only on proof of "exceptional circumstances".

Counsel for the appellants submitted that the approach adopted by the Court on this aspect tantamounts to saying that in capital offences the right to bail as enshrined in the Constitution is abrogated because of the seriousness of the charge. Counsel said that this can't be right, as implicit in such a view is that a citizen should have doubts about his rights.

My own view is that in dealing with applications for bail, the court should not be unduly restrictive. The law gives the court a real discretion in the matter. While the seriousness of the charge is a factor to be considered by the court, all the facts of the particular case should be examined and it is only where the court is satisfied that -the interests of justice require otherwise that an accused person should be refused bail. In other words, it would be wrong for the court to refuse to grant bail simply because an accused is charged with murder, if there was no doubt that he would stand his trial and would not interfere with witnesses or police investigations or commit another offence and there was no risk to his safety if released on bail. It is also to be noted on this point that bail must not be withheld merely as a punishment to the accused person. Decided cases abound with statements to this effect.

With regard to the other statement that the law of this country has always been that it is rare and unusual that a person charged with murder should be admitted to bail, I would say that this was simply what the courts perceived to be the law and then a practice developed whereby, as I have earlier indicated, persons charged with capital offences were indiscriminately locked up. I have shown that it was only recently, so far as I am aware, that a' 'Judicial pronouncement was made, quite correctly, declaring that bail was available even in capital offences.

It is also true, as stated in the Lunguzi case, that the courts in this country have required proof of "exceptional circumstances" in order to grant bail in serious offences (I am not referring to capital offences here). Observably, it was the accused person who was required to show such "exceptional circumstances". But these are not magic words. As was correctly observed by Mwaungulu, Ag. J. in the Yiannakis case, what is really meant by "proof of exceptional circumstances" is that in relation to serious offences such as capital offences, in exercising its discretion whether or not to grant bail, the court should weigh the total facts carefully and, to put it in the learned Judge's own words, "with the utmost of circumspection". I have already said that, generally speaking, the temptation to abscond is quite strong in the case of an accused person who is charged with a capital offence. But having said this, the fundamental question still is whether the accused person is likely to stand his trial. If the answer to the question is in the affirmative and there is no likelihood that he will commit another offence or interfere with witnesses and there is no risk to his own safety, then bail should be'. granted despite the gravity of the offence.

Before I pass on to the next point, let me emphasize that the expression "exceptional circumstances" is not a term of art and in this regard the fact that an accused is a sickly person or that heis a respectable member of his community or the fact that he has a possible strong defence to the charge laid against him could, in my view, constitute "exceptional circumstances" within the meaning just discussed, so as to entitle the court to grant bail'; it all depends on the facts of the particular case.

The other concern expressed by Counsel for the appellants
was that the guidelines in the Lunguzi case appeared to require that an applicant for bail should produce evidence which must be available for cross-examination. The Court went on to caution that the discrition to grant bail should not be exercised on affidavit evidence. With respect, I am unable to share fully in this view. As was observed by Counsel for the appellants, applications for bail are almost always granted upon affidavit evidence. This is also the case in our local jurisdiction; even in applications for orders of habous corpus courts require the applicants to support their applications by affidavits. However, reading the judgement as a whole, it appears that what really bothered the Court on this aspect was the view which seemed to have come up in some High Court judgements, to the. effect that in order for the Court to properly decide on issue of bail, it was imperative for the prosecution to produce evidence either on affidavit or in the form of depositions to show the strength of their, case. The Court, rightly in my view, held that this requirement, 'if pushed too, far could assume the role of semi-trials and would impose an undue burden on the prosecution at that stage. it is to be noted that 'the Court, however, appreciated and acknowledged that generally where depositions were available which show a possible defence, the Court would be entitled to take the evidence from such depositions into a court in considering the application for bail alongside whatever other facts obtained in the particular case.

These are the few observations I wanted to make; otherwise I agree with the other things articulated in the said guidelines.

As already indicated, the substantive appeal was successful and that the appellants were granted bail on a unanimous decision of the Court.

Finally, there was a prayer for costs. The principles governing the award of costs in criminal proceedings are not quite well-developed in criminal proceedings in this jurisdiction as they are in civil proceedings. In the absence of full argument by Counsel on the subject, I think that the proper thing to do is to make no order. Indeed, it must be appreciated that hearing of the main case is still continuing. I would, therefore, make no order as to costs of the appeal.

Kalaile, J.A.

My Lords, the three appellants have *been in custody well over a period of nine months as they were arrested on 6th January 1995. They applied for bail before Mkandawire J. and on 31st May 1995 their application was unsuccessful. They thereafter applied before Villiera, J.A.. sitting as a single Judge of this Court and his Lordship granted leave to appeal to this Court against the Order made by Mkandawire J. The appellants' counsel filed seven grounds of appeal for and on behalf of the three appellants. Before I examine the grounds of appeal, I wish to deal with an issue raised by the learned Director of Public Prosecutions (herein-after referred to as the DPP) even if he did not file any cross appeal.

It was argued by the DPP that the Supreme Court of Appeal was not-competent to entertain an appeal where bail was denied by the High Court. This very point was exhaustively dealt with by Mwaungulu J. in Tembo & Others. v, Rep Criminal Application No.1 of 1995. This Court cannot express any views on this point since the learned DPP filed a separate appeal in DPR v, Te,mbo & Others, Misc. Criminal Appeal No.3 of 1995. That point shall be dealt with by the full Supreme Court when this particular appeal is before the said Supreme Court.

I now turn to the seven grounds of appeal which Mr Stanbrook later ended by compressing into three. The first and seventh grounds were argued together and these were that:

(1) in failing to give effect to the constitutional right to bail contained in Section 42 of the Constitution of Malawi; and (7) wrongly refused bail despite the fact that no grounds were tendered on the part of the DPP that could Justify Mr Tembo, or Mr Likaomba or Mr Kalemba being deprived of their constitutional right to bail respectively.

Starting with the first ground, Mr Stanbrook argued the point that the grant of bail under s.42 is qualified by the words "unless the interests of justice otherwise requires" and section 42 draws no distinct 'ion between capital and non capital offences. He surprised me by arguing that at common law, bail could be granted for capital offences. Yet in Rex -v- Hawken (1944) 2 DLR Farris C.J. S.C. granted bail in a murder trial and there are a number of other authorities where bail was so granted in common law jurisdictions. The correct approach is that bail is granted sparingly, where the charge is a capital offence since the accused is likely to jump his bail.

It was also argued by Mr Stanbrook that in Malawi under the present constitutional provisions, it is not for the accused person to establish before the court that he has exceptional circumstances. Mr Stanbrook dealt with the 'exceptional circumstances, syndrome later when addressing this Court on the issue of severance under grounds numbers 5 and 6 as well as the guidelines stated by the learned Chief Justice in Lunguzi v. Rep. M.S.C.A. Criminal Appeal No.1 of 1995. He argued that the choice by the DPP to pursue the conspiracy charge after severance of the murder charges is an exceptional circumstance to warrant granting bail to the three accused persons. In one breath Mr Stanbrook states that the doctrine of exceptional circumstances has no place under the 1994 Constitution and in another he calls in aid the doctrine of exceptional circumstances in connection with the severance of charges under the fifth ground of appeal.

In dealing with the subject of exceptional circumstances, Mwaungulu J. put the position thus in Yiannakis V Rep. Crim. App. No.37,of 1994

"Let me just mention as I conclude that when I say that bail in capital offences should be granted in special circumstances I am not limiting the exercise of the discretion. Article 42(1) (e) clearly creates a right to bail ' subject to one qualification: as justice requires. Justice requires the examination and balancing of all the circumstances in a particular case. Essentially it is the balance between the inviolable right of a citizen to liberty as long as he has not been proven guilty and the necessity to preserve law and order by prosecuting those who offend. It follows, therefore, that by insisting for proof of exceptional circumstances the courts take the view that in relation to capital offences, given the gravity of the sentence, the discretion to grant bail should be exercised with the utmost circumspection. It is not intended to create a whole plethora of decisions of what circumstances constitute special or exceptional circumstances. In one case one circumstance may not be as dominant."

The expression "special" or "exceptional" circumstances was also considered by the Malawi Supreme Court of Appeal in the case of Devoy v Rep. (1971-72) ALR Mal. .223 at 236 in connection with convictions grounded on the uncorroborated evidence of an accomplice. Skinner C.J. in delivering the sole judgment of that court was of the opinion that: -

"It was said by the East African Court of Appeal in Canisio s/o Walwa -v- R. an appeal from the decision of the then High Court of Tanganyika that any reference by that court to "special" or "exceptional circumstances" which appeared in the judgment in that case should again be treated as indicative of no more than the rule of prudence to which he had earlier referred. In other words "exceptional circumstances" as used in Wanjerwa's case was no more than another mode of expressing the warning as to the dangers of convicting on the uncorroborated evidence of an accomplice."

Now, in the context of a bail application, "exceptional circumstances" in applications where the applicant is charged with a capital offence is another mode of stating that if the accused is likely to suffer serious penalties such as the death penalty or life imprisonment, the likelihood of such person jumping his bail is higher than if he was charged with a lesser offence such as conspiracy to murder.

To that extent, this is a rule of prudence in that justice requires the examination and balancing of all the circumstances in a particular case and in arriving at a conclusion which takes into account the pros and cons of the particular circumstances of a case.

On my part, I share the same viewpoint as that expressed by the learned DPP by holding that the provisions of 9.42 of the Constitution do not change the position at common law. In Lunguzi V. Rep Misc. Crim. App. No.1 of 1995, the Chief Justice put the position aptly in the following terms -

"There are two points which must be made about the effect of s.42(2)(e) of the Constitution. In our view the-right to bail which s-42(2)(e) now enshrines does not create an absolute right to bail. The section still reserves the discretion to the courts and it makes the position absolutely clear that the courts can refuse bail if they are satisfied that the interest of justice so requires. The second point we would like to make is that s.42(2)(e), does not create a new right. The right to bail has always been known to our law and all that s.42 (2) (e) does is to give it constitutional force."

And the position at common law is clearly expressed by Ronson J.
in Rex V. Monvoisin thus:

"Archbold's Criminal Pleading and Evidence page 111, after stating that the proper test of whether bail should be granted or refused is whether it is probable that the party will appear to take his trial, says that the test should be applied by reference to the following considerations:

(1) The nature of the accusation.

(2) The nature of the evidence in support of the accusation.

(3) The severity of the punishment which the conviction will entail; and

(4) Whether the sureties are independent or indemnified by the accused."

In S, V. Acheson Mahomed J. listed ten instances against the four listed by Ronson J. as ancillary circumstances which should be considered so as to determine whether the accused will not jump his bail. What Ronson J. and Mahomed J. stated in common is not in any way inconsistent with the provisions of s.42 of the Constitution.

What then is the significance of the words "unless the interests of Justice require otherwise?" In the case of Rex v,Monvoisin , Ronson J. states as follows in the last paragraph of his judgment:

"The interests of justice require that there be no doubt that the accused shall be present to take his trial upon the charge in respect of which he has been committed. There have been no delays on the part of the Crown and I cannot see any circumstance in this case to justify the exercise of discretion in favour of this application. It is therefore refused."

Under the provisions of s.42 of the Constitution I too would take a similar stand if the prosecution is not guilty of unwarranted delays, and, as Hanna J. put it in State V. Purcell:

"According to the theory of the law an accused is committed into custody for trial in a serious case because there is a probability that he might not otherwise be available, and not because there is a presumption against him of guilt: In re Robinson."

This very principle was expressed thus by Farris C.J. S.C. in Rex V. Hawken at page 119:

"This brings me to the next phase, as to whether or not a Judge should exercise his discretion and grant bail to a person accused of murder. The question of bail is sometimes misunderstood. When a man is accused he is nevertheless still presumed to be innocent, and the object of keeping him in custody prior to trial is not on the theory that he is guilty but on the necessity of having him available for trial. It is proper that bail should be granted when the Judge is satisfied that the bail will ensure the accused appearing for his trial."

That, to my mind, is the cardinal principle which a trial judge should bear in mind in an application for bail. In my opinion, this principle does not abrogate any provision of the Constitution. Indeed, this is what the expression "unless the interests of justice otherwise requires" is all about.

Instead of dealing with grounds 2, 3 and 4 specifically, Mr Stanbrook took us on a tour of the guidelines which the Chief Justice gave in the Lunguzi case. So far as these deal with murder cases, they are obiter dicta. But where the guidelines touch on the issue of sufficiency of evidence and the provisions of s.293 of the Criminal Procedure and Evidence Code, then they have a bearing on grounds 5 and 6 and I feel obliged to comment on Mr Stanbrook's submissions.

As far as I can see it, the Lunguzi case is authority on the proper burden and standard of proof in bail applications. That, really, is the ratio decidendi of that case. On the subject of sufficiency of evidence in bail applications, I take the stand that after the depositions were submitted before Mkandawire J., he should have considered the granting of bail on the basis of whatever evidence was before him and should have applied the principles enunciated by Ronson J. and Mohamed J. in the cases cited in this judgment earlier on.

In his ruling dated 24th April 1995, Mkandawire J. stated, inter alia, that -

"Now that the 21 clear day requirement has not been complied with, what is the position? In his ruling of 6th March, 1995, Mwaungulu J. found that there were no exceptional circumstances to enable the court exercise its discretion in favour of granting the accused persons bail. The learned Judge said it quite clearly that the accused persons had failed to prove exceptional circumstances. Now, does the Director of Public Prosecution's failure to comply with section 293 of the Criminal Procedure and Evidence Code constitute an exceptional circumstance? I do not think so. Having found that there were no exceptional circumstances, had the Judge wanted he could have dismissed the bail application outright without going any further. But in order to ensure that the case was brought to court without delay, the learned Judge went further and fixed a date. It is noted that the DPP has done everything that was there to be done except that there is a shortfall of 4 days. If the DPP had done nothing, I think that the accused would have been entitled to insist that they be released on bail."

The last two sentences of the citation were questioned by Mr Stanbrook. He does not agree that by 24th April 1994 the DPP had done everything that was there to be done in that Mwaungulu J. states at page 13 of his Order delivered on 6th March 1995 that -

"It is contended by the DPP that the applicants could not contend that the evidence of the State is weak before the applicants were served with the statements under s.293 of the Criminal Procedure and Evidence Code. On an application for bail the State should furnish the Court with evidence on which the case is based. In not disclosing the strong evidence to the Court the DPP has left the Court with no matterial on which to properlyexercise the discretion. As I said before, the applicantsare not also very free from blame, in as much as they also have not disclosed their side of the case."

What Mr Stanbrook also disagreed with was the statement that

"If the DPP had done nothing, I think that the accused would have been entitled to insist that they be released on bail."

Counsel asked the rhetoric question, how do you raise the exceptional circumstances in the absence of a prima facie case being established by the prosecution? Clearly it cannot be done.

Furthermore, argued Mr Stanbrook, after the severance of the capital offences from the charge sheet, the trial Judge was entitled to consider the bail application afresh in view of the presence of the s-293 statements coupled with the severance. These factors were never before Mwaungulu J. when he considered the subject matter of bail.

A, word or two on the issue of s.293 statements and the sufficiency of evidence in bail applications. I believe the correct position to be as stated by Hanna J. in the State. Y. Purcell where it was observed that :-

"As to the third ground, viz:- the strength, on the depositions, of the case against the accused, - it is inadvisable to discuss the evidence in detail, or to do more than express my opinion that there is evidence of a prima facie case to go to the jury for consideration, and of such a character that, if they believe the witness, and the case for the State is not answered or displaced, it would warrant a conviction."

On this very point, I once more revert to the case of Rex -v- Nawken where Farris C.J. S.C. noted that :-

In any case it is the view of this court that it is not only the right but the duty of the Judge before whom an application for bail is made for a person committed for murder to examine the evidence taken on the preliminary hearing, and if the evidence does not justify a committal, or the evidence is so weak that there is little chance of a conviction, and when the other circumstances are such (particularly under present day circumstances) that there will be no chance of the accused failing to appear at his trial if bail is granted, then bail should be granted."

The depositions which Hanna J. made reference to in the Purcel case are prescribed for by the provisions of s.265 of the Criminal Procedure and Evidence Code which reads -

“(1) When the accused charged with such an offence comes before a subordinate court, on summons or warrant or otherwise, the court shall, in his presence, take down in writing, or cause to be so taken down, the statement on oath of witnesses, who shall be swora or affirmed in accordance with the Oaths, Affirmations and Declarations Act.

(2) Statements of witnesses so taken down in writing are termed depositions.

(3) The accused may put questions to each witness produced against him and the answer of the witness thereto shall form part of such witness's depositions.

(4) If the accused does not employ counsel, the court shall, at the close of the examination of each witness for the prosecution, ask the accused whether he wishes to put any question to that witness.

(5) The deposition of each witness shall be read over to such witness and shall be signed by him and by the magistrate."

Now, in my considered opinion, this type of evidence would not result in establishing the guilt of an accused beyond reasonable doubt. It is the kind of testimony which attains proof on a balance of probabilities and would suffice to establish a mere prima facie case against the accused. This is what I believe to be the position of sufficiency of evidence in bail applications. Mr Stanbrook also argued, correctly in my view, that affidavit evidence has from time immemorial, been the traditional mode of furnishing evidence in bail applications and this is further provided for by Order 79 r.9 rr.1 Rules of the Supreme Court 1995 Edition which states at page 1350 that

"This rule provides for applications to the High Court for bail in criminal proceedings according to the circumstances, namely:

(a) where the defendant is in custody; or

(b) where the defendant has been admitted to bail by an inferior court, i.e. a magistrate's court or a coroner.

The application must be made to a Judge in Chambers and must be supported by an affidavit."

In Linguzi V. Rep. M.S. C.A. Crim. App. No. 1 of 1995, use of affidavit evidence in bail applications was firmly deplored. In my considered view, use of affidavit evidence per se is perfectly proper as long as the correct burden and standard of proof are applied.

Next Mr Stanbrook took up the subject of change of circumstances under grounds 2 and 4. These grounds read as follows -

"(2) in wrongly confining himself, in his consideration of bail, to circumstances which have occurrqd since the last application;

(4) in failing to deal with the application as a fresh application within the Court's powers under s.118 and S.310(2)(c) of the Criminal Procedure and Evidence Code.”

It was submitted by Mr Stanbrook that Mkandawire J. should have implemented the bail terms imposed by Mwaungulu J. since the service of process on Dr Banda was defective and resulted in a three week adjournment. And at this point In time, more than 50 "section 293 statements" were later served by the DPP on the defence. Lastly the defence had to resort to s-37 of the Constitution in order to elicit certain information from the prosecution. Part of Mr Stanbrook's submissions have already been covered in this judgment earlier on when I was examining the first ground of appeal in that part where I have cited judgments of both Mwaungulu and Mkandawire JJ

Section 293 of the Criminal Procedure and Evidence Code provides that -

"In every summary procedure case the prosecution shall, not less than twenty one clear days before the date fixed for the trial of the case, furnish to the accused or his counsel, if any, and to the Registrar of the High Court a list of the persons whom it is intended to call as witnesses for the prosecution at the trial and a statement of the substance of the evidence of each witness which it is intended to adduce at the trial."

It is perfectly clear that the contents of 11s.293 statements" (as Mr Stanbrook chose to term them) cannot be equated to the evidence of a witness given in examination-in-chief and later subjected to cross-examination by counsel.

Section 37 of the Constitution prescribes that -

"Subject to any Act of Parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government insofar as such information is required for the exercise of his right."

In dealing with the s.293 statements, the DPP submitted that, with regard to the conspiracy charge, the evidence proffered by the prosecution is mainly circumstantial evidence which must be examined as a whole and not in isolation. As a result of the severance, the Mwanza case would end up with three distinct trials and there was an appeal against the Order made by Mwaungulu J. Furthermore, there was a fresh bail application by the appellants on 24th May 1995 and during the same month of May, the appellants filed a host of preliminary objections so that the cumulative effect of these applications added to the nine months delay in these proceedings.,

Mr Stanbrook raised the issues of autrefois acquit and autrefois convict regarding the murder charges which the DPP decided to put on hold until the conspiracy charges were disposed of. The DPP quite properly observed that this Court should not concern itself with the possibility of bringing up the murder charges as the Court is not expected to speculate on the outcome of the murder trial.

The first point which convinced me that this is a proper case in which to exercise my discretion in favour of the accused in granting bail is the rather inordinate delay in presenting the depositions to the court below. When Mwaungulu J. made his Order on 6th March 1995, he indicated that the DPP had left the court with no material on which to properly exercise it's discretion. Mr Stanbrook also argued that by July 1995 all of the requisite documents were not ready so that even if Mkandawire J. was minded to consider the issue of bail, he would not be in a position to do so. The blame for these delays falls squarely on the shoulders of the State. The bail applications and the preliminary objections raised by the defence played an insignificant role in further delaying the proceedings in the court below.

The second point which strongly exercised my mind in deciding to grant bail in these proceedings is that he accused are not charged with murder but with the offence of conspiracy to Murder which attracts a maximum prison term of 14 years imprisonment. Ms C.T. Kadzamira has been granted bail by the Chief Resident Magistrate and I believe that certain individuals have also been granted bail in the Zomba Magistrate Court on a similar charge of conspiracy to murder. Of course, although the charges are identical, 'individual circumstances must be carefully and critically examined since the grant or refusal of bail is a judicial act and not an executive or ministerial act.

The conditions' upon which bail has been granted in the present case are fairly stringent so as to ensure that all of the accused attend their trials. Those conditions are not intended to be punitive in any way but as is stated in Archbold Criminal Pleading, Evidence and Practice, 36th Edition at para 202 on page 71

"Bail is not to be withheld merely as a punishment. The requirements as to bail are merely to secure the attendance of the defendant at the trial R, v. Rose 67 L.J. Q.B. 289."

Lastly, My Lords, on a different note, certain occurrences which happened in the course of this trial in the High Court call for comment so far as they affect the press. In Rex V. Hawken Farris C.J. S.C. observed that the freedom of the press is a sacred right under our form of democracy but that freedom does not extend to a licence to permit newspapers to publish articles which will result prejudicially to a fair trial, and in effect result in a trial by newspapers. I

it is a contempt of court to publish comment on pending proceedings which prejudges the merits of the, case or which imputes guilt to, or asserts the innocence of a particular accused. Indeed, when a trial has taken place and the case is over, the Judge is given over to criticism for the public and the press then have the undoubted right to criticize in a fair and candid spirit all the incidents of the trial and the judgment, and in the same spirit, to dissect the public conduct of all concerned in the trial, including the judges themselves. So that newspapers, in a case such as the present one, are confined solely to publishing a reasonable and fair report of the proceedings which are public property, but, they must do so without comment on any interlocutory orders that may be made in the proceedings.

This principle was expressed in vivid terms in R. V. Clarks, Ex parte Crippen in the following fashion

"We are determined to do nothing to substitute in this country trial by newspaper for trial by Jury; and those who attempt to introduce that system in this country, even in its first beginnings, must be prepared to suffer for it. Probably the proper punishment and it is one which this court may yet have to award prove insufficient will be imprisonment in cases of this kind. There is no question about that, because we cannot shut our eyes to the fact that newspapers are owned by wealthy people, and it may even happen that they will take the chances of the fine and pay it cheerfully and will not feel that they have then paid too much for the advertisement. Therefore it may well be that if this process is not stopped, if this is not a sufficient warning, the court may have to resort to a more peremptory method - that is imprisonment of the guilty person. We do not do so in this case. We have been told that the assistant editor, who is the person responsible for this act of contempt of court, sees how wrong he was, acknowledges his fault, and regrets it and apologises to the Court. When one does repent of a wrong we will not punish him as though he still persisted in his wrongdoing.... Notwithstanding that, this remains a very grave offence against the administration of justice. In the hope that what has been said in this Court will be the means of stopping it and enforcing our opinion, as we must do, the order of the Court is that the assistant editor, do pay to the Court the sum of E200, and also the costs of bringing this matter before the Court, and that he be imprisoned until that sum is paid.”

I take it that this warning will be heeded by those to whom it may concern. In the case before us, I make no order as to costs.

Villiera, J.,A.

This is an appeal against the High Court refusal to grant bail The appellants' trial is in progress. They were originally committed for trial with others on numerous counts of murder, conspiracy to murder, being accessories to the fact Of murder and destroying evidence. In view of the multiplicity of charges and the number of accused persons involved, an application for severance of the indictment was made and the High Court duly ordered that the murder charges be tried separately from those involving conspiracy to murder. The Director of Public Prosecutions decided to proceed first with the charges relating to conspiracy to murder and the appellants are accordingly being tried on those charges.

Seven grounds of appeal were filed as under -

(1) that the learned Judge erred in failing to give effect to the constitutional right to bail contained in Article 42 of the Malawi Constitution.

(2) that the learned Judge wrongly confined himself, in his consideration of bail, to circumstances which had occurred since the last application.

(3) that the learned Judge erred in that he did not find that the Appellants who are being tried on offences of conspiracy to murder and conspiracy to defeat justice are entitled as a matter of right under section 118 of the Criminal Procedure and Evidence Code.

(4) that the learned Judge erred in failing to deal with the application as a fresh application within the court's power under sections 118 and 310(2)(c) of the Criminal Procedure and Evidence Code.

(5) that the learned Judge erred in wrongly holding that severance of the indictment could not be a basis for a subsequent application for bail.

(6) that the learned judge erred in failing to consider the issue of sufficiency of evidence and in particular the fresh evidence arising out of the fact that section 293 statements had been served since the previous application and particularly since it did not disclose a prima facie or any case against Mr Tembo or Mr Likaomba or Mr Kalemba.

(7) that the learned Judge wrongly refused bail despite the fact that no grounds were tendered on the part of the DPP that could justify Mr Tembo or Mr Likaomba or Mr Kalemba being deprived of their constitutional right to bail respectively.

A quick perusal of the grounds of appeal indicates that they are interrelated. It is not possible to deal with one ground in isolation because inevitably, what one-has to say in one ground impinges on what has been complained of in another or more grounds. Neither Mr Stanbrook nor Mr George Kaliwo, for the appellants, was able to argue the grounds of appeal separately', but each was obliged to do so in an omnibus fashion. Mr Stanbrook led the appeal and was ably assisted by Mr George Kaliwo who, for the most part, adopted the submissions put forward by Mr Stanbrook. It was Mr Stanbrook's submission that section 42 (2) (e) of the Malawi Constitution confers a right to bail on all accused persons without any distinction as to the nature of the offence and that bail could only be refused if the interests of justice so required. Mr Stanbrook submitted further that as the appellants were being tried on charges of conspiracy to murder and conspiracy to defeat justice, which charges are far less serious than murder, the learned Judge should have treated the bail application as an entirely new and fresh application. This should have necessitated a fresh review of all the circumstances* including matters which were considered in the original application.

The learned Director of Public Prosecutions, if I understood Mm correctly, agreed that section 42 (2) (e) does confer a right to bail on accused persons irrespective of the nature of the offence. He contended, however, that the, ' right was not absolute and bail could be refused in appropriate cases if its granting would not be in the interests of justice. The DPP submitted that, courts should be slow in granting bail in all serious offences, including murder, rape and robbery, because in those cases accused persons on bail would be unlikely to surrender and take their trial. The DPP then considered the various grounds of appeal and finally submitted that there was no substance in any of them and that accordingly the entire appeal should be dismissed.

I am indebted to Counsel on both sides for their lucid presentations. Copies of judgments of the various authoritiescited, which were supplied to the Court were of immeasurable assistance In considering this appeal, it will be helpful I 'believe, if I start by quoting what Mwaungulu, J. said in the original bail application with regard to the effect of article 42(2)(e) of the Malawi Constitution. He said, and I quote:

"At this stage it may be of some use to consider the effect of article 42 (2) (e) of the Constitution of 1994. The provision does not relate to bail as' such. It has a bearing on remanding of prisoners whether in custody or on bail. This provision was not part of the 1966 Constitution. It has, as I have just stated, tremendously affected the law onbail that it should attract special comment."

The learned Judge then quoted the article in full and continued:

"Read together with article 42(2)(b) of the Constitution, an applicant is entitled as a matter of right to be released unless the interests, of justice require otherwise."

I would respectfully concur with those observations. The law on bail has indeed been affected by the new provisions in the Constitution. There was no general right to bail at common law. Judges granted or withheld bail based on their judicial discretion. An applicant could not demand to be released on bail as a matter of right. This common law position was adumbrated in the case of Witham vs Dutton (1698) , Comb 111, where the Court said, and I quote:

"This Court may bail for high treason, but it is a special favour and not done without the consent of the Attorney General and they may likewise bail for murder but it is seldom done and never without a special reason."

It was restated in the Scottish case of M'Glinchey vs H M Advocate (1921),
58 SLR 470 where the then Lord Justice General was commenting on the effect of a statute on bail passed at the beginning of the eighteenth century. He said, and I quote again:

"In one form or another, bail was, or at any rate from very remote antiquity, a part of our criminal law. Prior to the Statute of 1701 the-practice of exacting sureties from persons accused of even the gravest capital offences for their apperance to answer the charge was known and observed. But the advantages of' this practice were not available to accused persons as a matter of right. On the contrary, bail was allowed or refused according to the discretion of the Court."

The learned Lord Justice General then considered the effect of the Statute of 1701 and concluded in the following words, and I quote again:

"It is perhaps 'right to make in conclusion the self evident observation that when an accused person asks for bail or appeals for bail, then bail he must get unless a sufficient ground is brought forward requiring the court to exercise its discretion by refusing it. A good deal was said about the presumption of-innocence. I prefer not to treat the matter as a question of presumption. The accused person has a right to ask for bail; he has the right to have his application considered and unless the court has before it some good reason why bail should not be granted, bail ought to be allowed."

Section 118 of the Criminal Procedure and Evidence Code merely restates the common law position and gives the police and the courts power to grant bail at their discretion in certain cases. An accused had no general right to bail before the 1994 Constitution came into force. He now does have that right subject only to the interests of justice. There is no distinction between capital offences and others. All are bailable as a matter of right and all that is required is that the state or the prosecution should prove on a balance of probabilities why an accused should not be released on bail. It is no longer necessary, in my respectful view, that an accused should prove exceptional circumstances to be entitled to bail. This phrase "exceptional circumstances" has at any rate caused many problems. No one knows for sure what it means and yet we are stuck with it. Judges demand that exceptional circumstances be proved in capital offences before bail can be granted. No one has yet ventured to give an example of what exceptional circumstances may be. This is obviously difficult because each application must be treated on its own merit. What appears to be an exceptional circumstance in one case may not necessarily be so in another. Now that an accused has a right to bail, he needs do no more than claim his right. If an accused has exceptional circumstances which he voluntarily raises in support of his application, then that would be quite in order and the court would be entitled to consider them together with other material. It must be reiterated, however, that the overriding requirement in considering whether to grant or refuse bail is the interest of justice and not exceptional circumstances.

This now brings me to a consideration of the nature of the interest which a court must bear in mind in deciding whether to grant or refuse bail. It is, I believe, generally agreed that the burden is on the prosecution to prove on a balance of probabilities. that it will not be in the interest of justice for an applicant to be released on bail. It was always acknowledged even at common law that it would not be in the interest of justice to grant bail to an accused who would likely not answer to his bail or would likely flee the jurisdiction. It would likewise not be in the interest of justice to release on bail an accused who would likely commit further offences while on bail or would interfere with prosecution witnesses. These are the three main considerations, but there are others. However, the paramount consideration for a court in deciding whether to remand an accused or to release him on bail still remains that he should appear for trial. This was made quite clear by Farriss, C.J., S. S., in Rex vs Hawken (1944) , 2 DLR, at page 116, when he said, and I quote:

"The question of bail is sometimes misunderstood. When a man is accused he is nevertheless still presumed to be innocent and the object of keeping him in custody prior to trial is not on the theory that he is guilty but on the necessity of having him available for trial. It is proper that bail should be granted when the Judge is satisfied that the bail will ensure the accused appearing at his trial."

The same sentiments were expressed by Coleridge, J. in the earlier case of Re Robinson (1854) , 23 LJ .OB at page 289. The United Kingdom Bail Act of 1976 which for the first time conferred the right to bail on citizens of the United Kingdom makes exceptions to this right on more or less the same considerations. These exceptions are obtained in Schedule 1 and Part I of the Act, and section 2 of the Schedule is headed "Exceptions to the right to bail". The section is worded as follows, and I quote:

"2. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person."

It is clear, therefore, that the right to bail which has been conferred by the Constitution in Malawi and by statute in the United Kingdom is subject to the same restrictions which applied at common law.

Let me now consider how a court is to decide whether an applicant who applies for bail will appear to take his trial. This issue was exhaustively dealt with in the Re Robinson case mentioned earlier. Coleridge, J. said, and I quote:

"The test, in my opinion, of whether a party ought to be bailed is whether it is probable the party will appear to take his trial. I know that I have been thought to go further than other members of the Court of Queen's Bench; but I do not think there is any real difference between them and myself for though I lay down that test I think that it ought to be limited by three following considerations. When you want to know whether a party is likely to take his trial, you cannot go into the question of his character or of his behaviour at a particular time, but must be governed by answers to three general questions. The first is what is the nature of the crime. Is it grave or trifling? Here the prisoner's crime which is that of concealing his effects, is of the heaviest character. The second question is, what is the probability of a conviction? What is the nature of the evidence to be offered by the prosecution? Here it is very strong. Though the circumstances admit of the observations made by counsel against their conclusiveness, yet the prisoner does not suggest them himself, nor does he deny his guilt. The third question is, is the man liable to severe punishment?

Now, our laws know hardly any secondary punishment so heavy as affixed to this offence."

These tests have been enlarged upon by various Judges over the years culminating in the South African case of State vs Acheson (1991), 2 SA, at page 805, in which, Mahomed, A.J. conducted another comprehensive review of the authorities and added a number of tests of his own. It is clear that the more the serious a case is, the more careful the courts should be in considering bail. This is not to suggest that bail should be refused in all serious cases, because 'again the paramount consideration should be whether an accused will surrender bail to stand his trial. A court will be assisted in its task by considering evidence where it is available. At this stage, a court does not consider the conclusiveness of the evidence against the accused to warrant a conviction. An approach such as that would attract the criticism voiced elsewhere of mini trials 'in applications for bail. The purpose of examining the evidence at this stage is merely to assist the court in properly considering the question of bail and no more. Judges have always been careful to distinguish the purpose of examining the evidence in the course of hearing applications for bail. In Rex vs Barthelemy (1852) , 1 E & BL at page 8, Lord Campbell, C.J. said, and I quote:

"We have carefully looked over the depositions in this case and we are of opinion that we should not be justified in interfering. It appears that the prisoners are committed on an inquisition, good on the face of it, finding them guilty of wilful murder and on looking at the depositions, it appears that there was a murder committed in a duel and we think that there is evidence that the prisoners were parties to the murder. we give no opinion as to whether that evidence is conclusive but we think that the evidence is . Sufficient to authorise the sending of them to trial"

Again, in Rex vs Monvoisin (1911) , 3 Man L. R., at page 68, Robson, J. said, and I quote:

"It is unnecessary and would be improper now to enter into a detailed discussion of the evidence. Perusal of depositions shows that a defence of the nature mentioned will not be inappropriate when the charge is before the proper tribunal."

And finally, in the case of State vs Purcell (1926) I. R., at page 207, Hanna, J. said, and I quote:

"As to the third ground viz: - the strength of the case against the accused on the depositions, it is inadvisable to discuss the evidence in detail or do more than express my opinion that there is evidence of a prima facie case to go to the jury for consideration and of such a character that if they believe the witnesses and the case for the State is not answered or displaced, it would warrant a conviction."

The same is true of affidavit evidence. It should readily be receivable in bail applications so long as its purpose is not to prove the guilt of the accused but merely to assist the court decide the bail issue. I can see no deference between affidavit evidence in a bail application and that in preliminary matters in civil proceedings. It must be noted also that affidavit evidence is not in any way inferior to other types of evidence. It is a well known fact that these Courts have made important decisions relying on affidavit evidence.

I mentioned the United Kingdom Bail Act of 1976 earlier in this judgment. So far as I am aware, this piece of legislation is not applicable to Malawi. The case of R vs Nottingham Justices ex-parte Davies (1980), 2 All E.R., at page 775 must be understood with this fact in mind. The case decided no more than that where bail has been refused, a subsequent application by the same accused should not be entertained unless there was new material which either was not available during the earlier application or was inadvertently not brought up. This is as it should be. A second or subsequent application for bail is not an appeal and a court should not be obliged to consider matters that have already been decided upon. on a second or subsequent application for bail, a court should, however, not completely ignore the earlier decision, for how else will it satisfy itself whether matters, being argued before it are indeed new material? There is another aspect to this. New material may not in itself entitle an accused to bail. But is there nothing to be said about the cumulative effect of the old material and the new one? Surely, an accused should, in fairness, be allowed to take advantage of any cumulative effect in his favour in appropriate cases.

I shall now turn to the appeal at hand. The learned Judge in the High Court had before him a second application for bail. It was a fresh application and was to be considered in its entirety on its own merit. The learned Judge was expected to acknowledge the fact that the new Constitution had given the right of bail to the appellants and that he could only refuse it if the interests of justice so required. There was obviously new material before him and he was expected to consider whether in the new altered circumstances the interests of justice still demanded that the appellants continue to be remanded in custody. The second application was made after severance of the charges
had been ordered. The appellants were no longer being tried of the more serious offence of murder. The prosecution had decided to start with the offence of conspiracy to murder, leaving the murder charges for later. It is true that the murder charges are on file, but it is observed that they will be tried, if at all, by a differently constituted court. The learned Judge did not have to worry about proof of exceptional circumstances, although of course he was bound to consider the interests of justice. On this basis alone, the learned Judge should seriously have considered the granting of bail. The need for special circumstances was gone. The appellants are being tried for offences which are bailable even by subordinate courts. Some of the accused persons in the case have been granted bail for similar offences by the subordinate courts or by the High Court. I have in mind the cases of Mr Mc William Lunguzi and Miss Kadzamira. At any rate, the learned Judge failed to consider the fact that the appellants were entitled, to bail as a matter of right. What is more worrisome, however, is the fact that the learned Judge failed to give any reasons why the appellants should not be released on bail. It should have been obvious that severance would cause serious problems of delay. Charges would have to be tried one after another and already the conspiracy trial is proving to be lengthy. This is not altogether surprising, since there are numerous accused persons with several defence counsel and a list of even more numerous witnesses. Section 310 of our Criminal Procedure and Evidence Code makes provision for consideration by the High Court of bail to an accused person when separate trials have been ordered. It must have been obvious to the legislators that severance would cause delays and that it would be oppressive to an accused if he wereto be kept in custody during the various separate trials. The learned Judge should have made specific findings on the effects of the section in view of the severance of charges ordered. Instead, he declared that severance could not be the basis of abail application. It had to be in the circumstances of that application. Again, there was new material in the form of the section 293 statements when the second bail application was made. The value of these statements is not that they are evidence against the appellants, but merely the substance of what the prosecution claim their witnesses will say at the trial. Such statements do give an idea of what the prosecution's case is likely to be and should be of assistance in determining the question of bail. Here the learned Judge stated that most of the matters before him had already been dealt with at the previous bail hearing. It is difficult to see how this could have been the case, since Mwaungulu, J. did not have the advantage of perusing those statements.

For these reasons, I am satisfied that the learned Judge erred in not considering objectively the material that was before him. This is a case in which bail ought readily to have been granted, especially regard being had to the evidence in support of the applications. 'Accordingly, I concurred with my colleagues in granting bail to the appellants on the conditions imposed.

DELIVERED in open Court this 11th day of September 1995, at Blantyre.


Sgd L. E. UNYOLO, JA


Sgd J. B. KALAILE, JA


Sgd J. B. VILLIERA, JA

Entitled to the Throne, or Not? Group Village Headman Kakopa and Others v Chilozi and Another

Supreme Court of Appeal

Case No: (MSC Civil No. 40 of 2000)
Judgment Number: 2
Media Neutral Citation: [2001] MWSC 2
Judgment Date: Wed, 07/11/2001




IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

MSCA CIVIL APPEAL NO. 40 OF 2000
(Being High Court, Lilongwe District Registry
Civil Cause No. 733 of 1998)


BETWEEN:

GROUP VILLAGE HEADMAN KAKOPA..............1ST APPELLANT

- and -

TSAKULANI JONISI KASAMBWE.......................2ND APPELLANT

- and -

GROUP VILLAGE HEADMAN THUMBA
(On their own Behalf and
on Behalf of Others)..........................................3RD APPELLANTS

- and -

LOTANI NJERESA CHILOZI...........................1ST RESPONDENT

- and -

THE ATTORNEY GENERAL...........................2ND RESPONDENT

BEFORE: THE HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE KALAILE, JA
THE HONOURABLE JUSTICE MRS MSOSA, JA
Makono, Counsel for the Appellants
Counsel for the Respondents, Absent
Mbekwani (Mrs), Court Interpreter


J U D G M E N T


Kalaile, JA

This appeal arises from proceedings brought by way of Originating Summons against the respondents who are Lotani Njeresa Chilozi and the Attorney General. The appellants are Kakopa, Tsakulani Jonisi Kasambwe and Group Village Headman Thumba.

The Originating Summons were couched in the following terms:

(a) a declaration or order that Lotani Njeresa Chilozi, enthroned Traditional Authority Kabudula on 19th September, 1998, is not entitled to the throne and therefore be dethroned;

(b) a declaration or order that the manner in which the Minister of Local Government and District Administration and the District Commissioner for Lilongwe handled the matter of installing Lotani Njeresa Chilozi was unprocedural, irregular and therefore contrary to section 200 of the Constitution of Malawi and section 4 of the Chiefs Act;

(c) a declaration or order that the ceremony of installing Lotani Njeresa Chilozi held on 19th September, 1998 is null and void;

(d) an order of mandumus requiring the President, if necessary, to appoint persons to inquire into the removal from office of T/A Kabudula, Lotani Njeresa Chilozi in accordance with section 11(2) of the Chiefs Act;


(e) an order by the Court for further and other reliefs as it shall deem necessary and fair in the circumstances; and

(f) an order for costs to the appellants.

The trial Court declined to grant any of the reliefs sought after perusing the affidavit evidence given by both parties and upon hearing their written submissions in Chamber. The appellants thereafter filed the following grounds of appeal before this Court. The amended Notice of Appeal stated that:

(a) The learned Judge erred in law in holding that, in appointing Lotani Njeresa Chilozi, the President never breached the provisions of section 200 of the Constitution in the circumstances where he (the Judge) wrongly refused to accept the appellants’ evidence supporting their claim that in the first place the appointment of late Dickson Chilozi to the office of T/A Kabudula was not in accordance with customary law of the area of T/A Kabudula.


(b) The learned Judge erred in law in misinterpreting section 4(2) of the Chiefs Act to mean that majority support for Lotani Njeresa Chilozi to the entitlement to the throne of T/A Kabudula was determined by the majority vote of Group Village Headmen.

(c) The learned Judge misdirected himself in holding that there are two parallel customs governing succession to Kabudula Chieftaincy in the absence of independent expert evidence in local Chewa customs in Kabudula area and therefore his finding for the respondents that the President had a discretion to appoint any nominees from either of the two customs was without proper basis.

(d) The learned Judge misdirected himself in disregarding the appellants’ evidence to the effect that matters of chieftaincy in Kabudula area cannot be determined by a vote.

We are now going to deal with the appeal by taking each of the grounds of appeal in turn. This approach may not follow how Counsel presented his skeleton arguments. Mr Makono, who represented the appellants in this appeal, argued the first ground by stating that the late Dickson Chilozi was not appointed Traditional Authority Kabudula in accordance with customary law. It was his argument that the appointment was in breach of section 200 of the Constitution. That section states:

“Except in so far as they are inconsistent with this Constitution, all Acts of Parliament, common law and customary law in force on the appointed day shall continue to have force of law as if they had been made in accordance with and in pursuance of this Constitution:

Provided that any laws correctly in force may be amended or repealed by an Act of Parliament or be declared unconstitutional by a competent court.”

According to Counsel, the Court below ignored the long succession history of the Kabudula Chieftaincy which commenced with Kabudula Mbalame. Counsel went on to state that the succession line from the Kakopa family (to which Kabudula Mbalame belonged) was derailed by the Malawi Congress Party Government which in 1979 rejected a nephew from the Kakopa family because the said nephew belonged to the Jehovah’s Witness sect. This is how the late Dickson Chilozi became Traditional Authority Kabudula, since he was a secretary of the local Malawi Congress Party branch. The late Dickson Chilozi took over the Chieftaincy from the late Kabudula Safari.

Mr Manyungwa, who appeared for the respondents, replied by arguing that the appointment of the first respondent to the Kabudula Chieftaincy was legally conducted and in compliance

with section 200 of the Constitution as read with section 4 of the Chiefs Act. Section 4 of the Chiefs Act provides that:

“4-(1) The President may by writing under his hand appoint to the office of Paramount Chief or Chief such person as he shall recognize as being entitled to such office.

(2) No person shall be recognized under this section unless the President is satisfied that such person -

(a) is entitled to hold the office under customary law; and

(b) has the support of the majority of the people in the area of jurisdiction of the office in question.”

It was Mr Manyungwa’s contention that the appointment of the first respondent was conducted in compliance with the local Chewa tradition and the appellants did not tender any evidence to prove that the appointment of the first respondent was not in accordance with the local Chewa tradition.

It is the respondents’ case that when the late Kabudula Dickson died, it became necessary to appoint a successor under Chewa custom; an heir to a chieftaincy can either be a brother or a nephew of the deceased chief. The deceased Chief, the Court was informed, had no nephew who was old enough to inherit the Chieftaincy. The only successors, therefore, could only come from his brothers. The first respondent was such a brother.

Local tradition further required that women from the deceased’s family should nominate a successor. The third defence witness (who was a woman) testified in the Court below that she was among the women who deliberated and nominated the first respondent to the Chieftaincy. She stated that the appointment and nomination was not influenced by any outsider, and, at no point did they consider the name of the second appellant.

As required by tradition, the first respondent’s name was given to a “nkhoswe”, namely, Traditional Authority Chitukula, who took the name to the District Commissioner for Lilongwe. This, therefore, demonstrates that the first respondent was appointed in accordance with customary law as required by section 4(2)(a) of the Chiefs Act. Furthermore, the provisions of section 4(2)(b), which state that the appointed chief must have the support of the majority of the people in the area of jurisdiction of the office in question, were also satisfied, in that, as the Court below observed, the Kabudula area has seventeen Group Village Headmen. Fourteen of these Group Village Headmen endorsed the nomination of the first respondent and only three out of the seventeen endorsed the name of the second appellant. It is clear, therefore, that the statutory requirements of section 4(2)(b) of the Chiefs Act were complied with in the appointment of the first respondent as Traditional Authority Kabudula.

The appellants’ contention that the late Dickson Chilozi was made Traditional Authority by virtue of his position as secretary of the local Malawi Congress Party branch, is to us, irrelevant. The appellants should have challenged the late Dickson Chilozi’s appointment when he was alive by invoking the provisions of section 11(2) of the Chiefs Act, instead of waiting until the provisions of section 4(2)(a) and (b) had been complied with.

Section 11(2) of the Chiefs Act stipulates:

“Where the President deems it expedient to cause an inquiry to be made into a question of the removal of any person from the office of Paramount Chief, Chief or Sub-Chief, he may by writing under his hand suspend such person from the performance of the functions of his office.”

Furthermore, section 12 of the Chiefs Act provides that:

“The President may appoint persons to inquire into any question relating to the appointment to or removal from the office of Paramount Chief, Chief or Sub-Chief of any person and to report and make recommendations thereon to the President.”

As the trial Court observed, the powers provided for in sections 11 and 12 of the Chiefs act are discretionary. We further observe that, the appellants should have taken the initiative, immediately after the present Constitution was adopted, to influence the office of the President to remove late Dickson Chilozi who was installed Chief Kabudula in 1979. By waiting until after Dickson Chilozi died, and, further waiting until the first respondent was installed on 19th September 1998 in compliance with customary law as well as the provisions of section 4 of the Chiefs Act, we are unable to consider the appellants’ prayer to remove the first respondent from the Chieftaincy.

This disposes of grounds 1(a) and 1(b) of the grounds of appeal.

The next ground of appeal is 1(c), which is that the learned trial Judge misdirected himself in holding that there are two parallel customs governing succession to the Kabudula Chieftaincy in the absence of independent expert evidence in the local Chewa customs in Kabudula area, and, therefore, his finding for the respondents that the President had a discretion to appoint any nominee from either of the two customs, was without proper basis.

Upon reading the judgment of the trial Court, we are unable to agree with this finding by the Court below. Our opinion is that the custom advanced by the appellants would apply if the wrongly appointed chief is to be removed timely. But where the so-called illegally appointed chief is allowed to reign for almost twenty years and a new chief is appointed according to the local customary law, this Court will be unwilling to assist the appellants. The appellants are deemed to have acquiesced to the situation. As we observed earlier on, such an application to remove the wrongly appointed chief should have been made as soon as the opportunity to do so arose.

The final ground of appeal was that the learned Judge misdirected himself in disregarding the appellants’ evidence, to the effect that matters of chieftaincy in Kabudula area cannot be determined by a vote. This ground of appeal cannot succeed, because all what the trial Judge was stating was that the provisions of section 4(2)(b) of the Chiefs Act were complied with, especially since the local customary law on the appointment of a chief was also strictly adhered to.

This appeal fails in its entirety with costs to the respondents.

DELIVERED in Open Court this 11th day of July 2001, at Blantyre.





Sgd ................................................
R A BANDA, CJ


Sgd ................................................
J B KALAILE, JA


Sgd ................................................
A S E MSOSA, JA

Lest We Forget: Banda v Chakalamba

Supreme Court of Appeal

Case No:
(Msca Civil Appeal No. 2 of 2001)
Judgment Number:
4
Media Neutral Citation:
[2001] MWSC 4
Judgment Date:
Mon, 09/24/2001

Attachment Size
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IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

MSCA CIVIL APPEAL NO. 2 OF 2001
(Being High Court Civil Cause No. 3546 of 2000)


BETWEEN:

MARTIN BANDA.........................................................APPELLANT

- and -

FELIX CHIKALAMBA..............................................RESPONDENT


BEFORE: THE HONOURABLE MR JUSTICE UNYOLO, JA
THE HONOURABLE MR JUSTICE KALAILE, JA
THE HONOURABLE MR JUSTICE TAMBALA, JA
Mtambo (Dr), Counsel for the Appellant
Mzumara, Counsel for the Respondent
Mbekwani (Mrs), Official Interpreter/Recorder


J U D G M E N T

Unyolo, JA

This is an appeal from a ruling of the High Court dismissing the appellant’s action against the respondent for breach of contract.

This is a short case, really, but the facts are long and we think it is necessary that we recount them in detail. The appellant is a South African national and is a member of a horse racing club. The respondent made frequent visits to South Africa in 1998 and on one of the visits, he convinced the appellant and his club that he, the respondent, had charms which would enable them to win in a horse racing competition. It was thereby agreed that the respondent would provide the charms in exchange for money. The respondent and his club gave the appellant a total of R98,000.00 for this purpose. In another development, at around the same time, the respondent got the appellant’s motor vehicle, a Mercedes Benz, under the pretext that he would spray medicine to it. It is, however, not clear from the facts what effect the medicine would have, either on the appellant or on the motor vehicle. Whatever the effect was, the respondent disappeared with the motor vehicle, and it has not been returned to the appellant to-date. And when the horses went for the racing, they did not win the competition.

After failing to get back the money and the car, the appellant lodged a complaint against the respondent to the Police, whereupon the Police charged the respondent before the First Grade Magistrate’s Court at Limbe with the offence of obtaining money by false pretences, contrary to section 319 of the Penal Code. The particulars of the offence averred that the respondent obtained the said sum of R98,000.00 from the appellant by falsely representing that he, the respondent, would supply African medicine to enable the appellant and his club to win the horse race in South Africa, knowing fully that the representation was false.

The respondent denied the charge, whereupon the Court proceeded to hear evidence from both sides. The Court then adjourned the case to 2nd August 2000 for judgment. On that day, just before the Court began to read the judgment, the Public Prosecutor informed the Court that the appellant had approached him, saying that he wanted to withdraw the case against the respondent because the parties had reached an agreement to settle the matter. The Public Prosecutor then invited the appellant to confirm this.

The learned Magistrate responded by saying that since she had already written her judgment, she was inclined to read the same and hear the appellant afterwards. She read the judgment in which she convicted the respondent as charged. She heard the respondent in mitigation and then adjourned the matter for fifteen minutes for sentence. When the Court resumed, the learned Magistrate sentenced the respondent to 3 years imprisonment with hard labour. The learned Magistrate then called upon the appellant to say what he wanted to say. In response, the appellant told the Court that it had been agreed between him and the respondent that he should withdraw the case and that the respondent would pay back the R98,000.00 and return the Mercedes Benz. The appellant said that his colleagues in South Africa would be more interested in recovering the money and the car from the respondent than in having the respondent sent to prison. The respondent confirmed the agreement and intimated that he would pay the sum of K400,000.00 on 8th August 2000 and the balance by monthly instalments, and he pledged to surrender his personal car to the Court in the meantime.

Upon hearing this, the learned Magistrate made an order staying execution of the 3 years’ prison sentence she had imposed on the respondent. She ordered that the respondent’s car be kept at Limbe Police Station and then adjourned the matter to 8th August 2000. The case resumed on that day, when the respondent told the Court that he was unable to pay the K400,000.00. He also failed to bring the car. The Court then adjourned the case again to 14th August 2000. On that day, the respondent brought a cheque for K320,000.00 payable on 28th August 2000. The case was again adjourned to the following day.

To cut a long story short, the cheque was later dishonoured by the bank, the respondent having stopped payment of the same. The money remains unpaid to this day. The respondent did not bring the car he had pledged either. He sold it to someone. It is also to be noted that the respondent has been free since he was convicted and sentenced on 2nd August 2000.

It was against this background that the appellant consulted lawyers and instructed them to institute civil proceedings against the respondent. An action was then commenced by Originating Summons in which the appellant claimed from the respondent the sum of R98,000.00 or its equivalent of K10,642,800.00, being money paid by the appellant to the respondent for a consideration that had wholly failed and also on the basis of the agreement made and recorded by the First Grade Magistrate’s Court. He further claimed the sum of K3,898,125.00, on the same basis, being the value of the Mercedes Benz.

After considering the evidence and the submissions made by Counsel thereon, the learned Judge observed that the decisive question in the case was whether in the execution of the agreement, whereby the respondent received the R98,000.00 from the appellant, under the pretext that he would make the horses win in the race, the respondent would exercise the power of witchcraft. Since the Witchcraft Act does not define the term “witchcraft”, the learned Judge resorted to the Oxford Advanced Learner’s Dictionary for a definition. The learned Judge observed that from this dictionary “witchcraft” means the use of magic powers, and “wizard” means magician. He went on to observe that what the evidence disclosed was that the respondent held himself out to the appellant to be a wizard and that he would exercise the power of witchcraft in making the horses to win the race; so too in spraying the medicine to the Mercedes Benz. The learned Judge observed that this was in contravention of section 6 of the Witchcraft Act which prohibits a person from representing himself or herself to be a wizard or witch or having or exercising the power of witchcraft. The learned Judge held that in the circumstances, the agreement between the appellant and the respondent was illegal and unenforceable, and he dismissed the action accordingly. This appeal is against that decision.

Counsel for the appellant contended that the learned Judge erred in finding that the respondent held himself out to be a wizard or magician. Counsel submitted that in fact going by the definition from the Oxford Advanced Learner’s Dictionary it is not every use of magic powers which amounts to witchcraft, but rather the use of magic powers to do evil or bad things. He observed that some magicians are benevolent, and those are not wizards. Further, Counsel referred the Court to the mischief rule of statutory interpretation and observed that looking at the Witchcraft Act as a whole, it is clear that it was the bad practices of witch-hunting and the administration of mwabvi or poison that Parliament intended to outlaw and not “benevolent magic”.

In reply, Counsel for the respondent submitted that what the respondent did was caught by the provisions of section 6 of the Witchcraft Act. Counsel argued that even if it was admitted that witchcraft involves the use of evil or magic powers, what happened here was still caught by the provisions of the said section 6. In this context, Counsel observed that the word “evil” is defined in the Oxford Advanced Learner’s Dictionary as “bad in a positive sense” or “morally depraved”. He submitted that from this perspective, there can be no doubt that what the respondent did was evil. Counsel submitted further that what the respondent must have been saying to the appellant was that he had supernatural powers to make the particular horses to win the race. He submitted that the message the respondent communicated to the appellant was that he had magic power to make the horses run and win the competition. He submitted that even on this score, what the respondent did was caught by the provisions of the said section 6 of the Witchcraft Act.

Counsel for the respondent further contended that what the respondent did was also caught by the provisions of section 9 of the Witchcraft Act which prohibits a person from using or assisting in using any lot or charms with a view to the commission of any unlawful act.

Finally, Counsel for the respondent submitted that although it was not clear as to why the respondent was to spray medicine to the Mercedes Benz, it could be assumed that the exercise was connected to the horse race. Counsel submitted that even that transaction was equally tainted with illegality. He submitted that on these facts, the learned Judge was right in holding that both transactions relating to the payment of the R98,000.00 and the passing of the Mercedes Benz by the appellant to the respondent were illegal and unenforceable.

As we have indicated, the main question for our determination is whether the learned Judge was wrong in finding that the respondent represented himself to be a wizard and that in the exercise of the agreement he had made with the appellant, he was going to exercise the power of witchcraft or magic.

Going by stories that make the rounds commonly in Malawi, witches or wizards are supposedly persons who engage in supernatural practices like surreptiously killing people using all manner of weird means such as sending a lightning on a clear day to strike at and kill a victim miles and miles away. Such persons are also renowned for going out at night, literally naked, and fly, for example, in a flat basket, to graveyards to dance and feast on human corpses. Such practices, among so many, would be perceived to be witchcraft.

The learned Judge, in the present case, based his decision on the interpretation of section 6 of the Witchcraft Act. The section provides as follows:

“Any person who by statements or actions represents himself to be a wizard or witch or having or exercising the power of witchcraft, shall be liable to a fine of 50 and to imprisonment for 10 years.”

As was observed by the Court below, the Witchcraft Act itself does not define the word “witchcraft”, nor does it define the word “wizard” or the word “witch”. We have indicated that the learned Judge resorted to a definition of the word “witchcraft” that is given in the Oxford Advanced Learner’s Dictionary. In arguing this appeal before us, Counsel also referred the Court to definitions from dictionaries.

The Oxford Advanced Learner’s Dictionary defines the word witchcraft as “the use of magic powers (especially evil ones) or sorcery. The word sorcery is defined as the “art or practice of magic, especially with evil spirits”. The word wizard is defined as “male witch or magician”. And the word magic is defined as “the

power of apparently using supernatural forces to change the form of things or influence events”.

When these definitions are applied to the facts of the present case, the impression that is made is that the respondent implied to the appellant that he, the respondent, had the power to use supernatural forces, magic powers, that is, to influence events; in this case, to influence the result in the horse race competition.

We have considered the argument relating to the mischief rule of statutory interpretation where Counsel for the appellant contended that looking at the Witchcraft Act, what the Legislature must have intended to outlaw when passing the Act were the bad practices of witch-hunting and the administration of mwabvi or poison and not “benevolent magic” as in the present case. Our short answer to this contention is that we do not believe that to defraud or trick someone of his R98,000.00 can be described as benevolent. In our view, such an act is evil and depraved. It is also noted from the evidence which was given in the criminal proceedings that the respondent intimated to the appellant on several occasions that he was working in consultation with spirits in getting the horses to win the race. Further, we are unable to agree with Counsel for the appellant that the Witchcraft Act is limited to the practices of witch-hunting and the administration of mwabvi or poison. Those matters are specifically dealt with under sections 3 to 5 of the Act. But as we have seen, there are also sections 6 and 9 which deal with other matters.

All in all, we hold the view that the learned Judge was right in finding, as he did, that the respondent represented himself to be a wizard and that in the execution of the agreement he made with the appellant he was going to exercise the power of magic or witchcraft.

The matter does not, however, end there. An examination of the amended Originating Summons filed by the appellant in the Court below, shows that the appellant’s action was based on the agreement made before the 1st Grade Magistrate and recorded by the Magistrate after she had convicted the respondent of obtaining by false pretences and sentenced him to serve a term of 3 years imprisonment with hard labour. The agreement made between the appellant and the respondent was essentially that the criminal proceedings against the respondent should be discontinued upon the undertaking by the respondent to pay back to the appellant the sum of R98,000.00 or its equivalent in the local currency and to return the appellant’s Mercedes Benz. The respondent further agreed to pay K320,000.00 immediately, surrender his car to the Magistrate’s Court and pay K400,000.00 on 8th August 2000 and settle the balance through some monthly instalments.

The 1st Grade Magistrate stayed execution of the judgment and sentence because of the agreement concluded by the appellant and the respondent. Unfortunately, the respondent breached the agreement soon after it was made. He failed to surrender his car to the Court and did not pay the K400,000.00 on 8th August 2000.

We take the view that the 1st Grade Magistrate had no power to stay execution of the judgment and sentence. Having concluded the trial, delivered the judgment and passed the sentence, the learned Magistrate, as a general rule, became functus officio. The Magistrate should have given way to the law to take its course. Exceptionally, however, a Magistrate who has convicted and sentenced an accused person can release such accused on bail upon application by the accused and showing exceptional circumstances.

We take the further view that it is in the interest of justice, as well as that of the public, that when an accused person is found guilty of having committed a crime and sentenced, the law should take its course and that the judgment and sentence should be executed. Therefore, any agreement made between a person accused of having committed a crime and a complainant which would result in interfering with the law from taking its due course would, in our view, be illegal on the grounds of public policy. Any contract which tends to prevent or impede the due course of justice is illegal and unenforceable: see CHITTY ON CONTRACTS General Principles, 27th Edn Par 16-033. We come to the conclusion that the contract which was made at the 1st Grade Magistrate’s Court by the appellant and the respondent was illegal and unenforceable; it was contrary to public policy.

In the circumstances, we set aside the Order made by the 1st Grade Magistrate staying the judgment and sentence which she imposed on the respondent. We direct that the respondent must be committed to prison to serve the sentence of 3 years imprisonment with hard labour, to take effect from the date of this judgment. Accordingly, we order that the 1st Grade Magistrate’s Court at Limbe must issue the necessary Warrant of Commitment in this matter. While waiting for the said warrant, the respondent is to be committed into custody forthwith. The Registrar of this Court is directed to issue the necessary Remand Warrant and to communicate the gist of our Order to the 1st Grade Magistrate’s Court at Limbe so that the Magistrate can issue the requisite Warrant of Commitment without delay.

In terms of section 148(1) of the Criminal Procedure and Evidence Code, we order that the sum of R98,000.00 must be paid by the respondent to the appellant. We further order that the respondent must return to the appellant the Mercedes Benz which was obtained from the appellant. In the event that the motor vehicle is not restored to the appellant, then the respondent is ordered to pay to the appellant the sum of K3,898,125.00, being the value of the appellant’s Mercedes Benz. In the event that the respondent shall, for any reason, fail to comply with these restitution orders, we order that money and property, both real and personal, belonging to the respondent shall be seized and sold to realise a total sum of K14,540,925.00 which shall be paid to the appellant.

To this extent, the appeal succeeds, with costs.



DELIVERED in open Court this 24th day of September 2001, at Blantyre.




Sgd ..............................................
L E UNYOLO, JA



Sgd ..............................................
J B KALAILE, JA



Sgd ..............................................
D G TAMBALA, JA

Lest We Forget: Sulaimana & Another v Attorney General (3273 of 2002)

Sulaimana & Another v Attorney General (3273 of 2002)
Case No: 3273 of 2002
Judgment Number: 51
Media Neutral Citation: [2004] MWHC 51
Judgment Date:Thursday, 08/26/2004


IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 3273 OF 2002

BETWEEN:
SUDI SULAIMANA....................................1ST PLAINTIFF
COLVIN KAUMILA...................................2ND PLAINTIFF

-
and -

THE ATTORNEY GENERAL...................................DEFENDANT

CORAM: CHIMASULA PHIRI J.
Nkhata }
F. Mzumara } of Counsel for the plaintiff.
Attorney General absent/unrepresented.
Nsomba – court clerk.

JUDGMENT

Chimasula Phiri J.

By originating summons issued on 9th October 2002, the plaintiffs commenced this action claiming for the following orders: -

a. That their arrests in March 2001 on allegations of treason and their resultant 1 (one) year incarceration in jail was a breach of their constitutional right to liberty and also tantamount to false imprisonment.

b. That the prosecution which they underwent in the High Court was malicious.

c. That arrest, imprisonment and prosecution was tantamount to defamation.

d. Damages be awarded to the plaintiff's for breach of their constitutional rights, false imprisonment, malicious prosecution and defamation as stated in a., b., and c., above.

e.
The plaintiff's be awarded costs.

There is an affidavit in support sworn by Sudi Adaki Sulaimana on 9th October 2002. The originating summons was served on the Attorney General on 15th October 2002. On 23rd October 2002, the Attorney General acknowledged receipt of the summons and indicated that the defendant intended to contest the proceedings. The acknowledgement form was returned to the High Court on 24th October 2002. The matter was scheduled for hearing on 18th November 2002. On 11th November 2002, Mr Geoffrey Nkhata swore an Affidavit in Opposition which was filed in court on 13th November 2002. I have no doubt that the Attorney woke up from slumber after being served with notice of hearing on 8th November 2002. On 18th November 2002, the matter was adjourned to a date to be fixed by the Registrar because the Attorney General was absent. The new date fixed by the Registrar was 26th November 2002. Service of the Notice of Adjournment was done by fax on 20th November 2002. On the appointed date of hearing, nobody appeared and the judge adjourned the matter. A fresh notice of adjournment was taken out on 16th December 2002 appointing 10th February 2003 as new date for hearing. This was served by fax again on 17th December 2002. A repeat service by fax was done on 5th February 2003 for hearing on 19th February 2003. On 19th February 2003, the Attorney General raised a preliminary objection in relation to the mode of commencement of this action by originating summons as opposed to a writ. The court declined to strike off the action and instead ordered that the action be proceeded with as if it had begun by writ. Summons for directions were issued on 26th June 2003 returnable on 17th July 2003. This was served on the defendant on 4th July 2003. On 17th July 2003, the defendant did not attend court but nevertheless the plaintiffs went ahead to obtain the usual order. On 26th August 2003, the plaintiffs served a list of documents on the defendant. The defendant took no action. On 23rd September 2003 the plaintiffs took out a summons to strike off the Affidavit in Opposition on the ground, that defendant had not complied with the order for directions. This summons was heard on 2nd October 2003. Despite the defendant's absence the Assistant Registrar exercised his discretion and ordered that unless the defendant within 7 days served a list of documents, the plaintiffs would thereafter be at liberty to move the court for judgment. On 7th October 2003 the defendant served a List of Documents, basically showing that the defendant had only 2 documents namely a letter of demand from the plaintiffs lawyers dated 27th March 2002 and a letter from the defendant to the plaintiffs lawyers dated 25th May 2002. As can be seen this was a mere sham process intended to prevent the plaintiffs from obtaining judgment. The plaintiffs filed a Bundle of pleadings on 16th October 2003 and served it on the defendant. On 3rd November 2003, the plaintiffs caused a Notice of Hearing to be issued appointing 15th and 16th December 2003 as dates for hearing. The Attorney General was duly served. The matter could not be heard because there was no court bundle. Consequently, the plaintiffs issued a court bundle on 8th June 2004 and served the Attorney General on 23rd June 2004. The matter was scheduled for hearing on 28th and 29th June 2004 – vide – Notice of Hearing issued on 20th April 2004. This Notice of hearing was served on the Attorney General on 19th May 2004. The Attorney General was given 1 month and 10 days to make preparations in readiness for the trial. On 28th June 2004, the Attorney General was absent and never sent any message to explain his absence. In terms of Order 35 rule 1(2) of the Rules of the Supreme Court which provides that if, when trial of an action is called, one party does not appear, the judge may proceed, with the trial of the action or any counter claim in the absence of that party. If, however, the plaintiff appears but the defendant does not appear at the trial the plaintiff may prove his claim as far as the burden of proof lies on him. The court ordered the trial to be proceeded in the absence of the defendant. The two plaintiffs testified.

THE PLEADINGS

On the part of the plaintiffs there is the originating summons and Affidavit in support. The Affidavit of Sudi Adaki Sulaimana states as follows:-

2. THAT I was arrested by the police at Zomba Gymkhana Club on 19th March 2001, on allegation that I wanted to overthrow the lawfully constituted Government of Malawi.

3. THAT I was taken to the Regional Police Headquarters at Chichiri in Blantyre where my explanation that the allegations as stated in paragraph 2 hereof was not heeded by the police.


4. THAT I was taken to Chichiri Prison without bail until the 23rd day of September 2001 when trial against myself and three others commenced.

5. THAT on the 24th day of September the trial the State has already paraded 15 witnesses and the DPP has almost finished cross-examining me when the presiding Judge recused himself.

6. THAT in March this year the DPP discontinued the proceedings mainly on the ground that there was no evidence to constitute treason a fact when he only realised after dragging me and the three (3) others through criminal proceedings for 24 days. I attach hereto a Notice of Discontinuance filed with the court by the DPP and mark it exhibit SAM.

7. THAT after discontinuance I was released and let free along with the three co-accused persons after one year of incarceration in jail on allegations that the State ought to have known a long way back that they were not substantiated.

8. THAT I repeat the following paragraphs and state that there was no reason or justifiable cause of arresting and incarcerating me and dragging me through criminal damages for:-

a. Breach of my constitutional right to liberty to be assessed.

b.
Damages for false imprisonment to be assessed.

c.
Damages for malicious prosecution to be assessed.

d.
Damages for defamation as I was viewed by members of the public.

9. THAT at the time of my arrest, I had already made arrangements to go back to the United Kingdom and I was to leave in 2 days' time but my trip was foiled by the arrest and imprisonment.

10 THAT in the United Kingdom I was studying for a Masters Degree in Economics and I was also involved in gainful employment at a salary of 350 pounds per week and due to my arrest and imprisonment I lost both my scholarship and the job for which I am claiming damages for: -

a.
Interfering with my education.

b.
Loss of income at the rate of 350 pounds per week from the date of arrest to the date that I will be gainfully employed again.

11 THAT I attach hereto a letter of my confirmation of appointment in the United Kingdom and Mark it as exhibit SAM 2.

12 THAT due to my arrest my Landlord in the United Kingdom was forced to terminate my tenancy and this led to my loss of property as indicated in the documents attached hereto and marked exhibit SAM 3-5.

On the part of the defendant, there is an Affidavit in Opposition sworn by Mr Nkhata which provides as follows: -

2. I have read the applicant's originating summons and the affidavit of Sudi Sulaimana (hereinafter referred to as the applicant) in support thereof.

3. That the applicant's arrest on 19th March 2001 on charges of treason and his subsequent incarceration was not a breach of his constitutional right to liberty neither was it false imprisonment in so far as the respondent complied with section 42 2 (b) of the Constitution.

4. The applicant's prosecution was based on reasonable suspicion that he had committed an act of treason and thus cannot amount to malicious prosecution.

5. The arrest imprisonment and prosecution of the applicant was not tantamount to defamation in so far as a person intending to commit a criminal act does not get defamed by being charged and prosecuted if that is in fact true.

6.
In any case, the proceedings herein have been irregularly commenced by originating summons instead of a writ of summons and accordingly the court is moved to strike out the originating summons in terms of Order 7 Rule 7 (5).

7. The contents of this affidavit are from my personal knowledge or belief except where stated otherwise.



The issues to be determined by the court –

1. Whether or not the prosecution of the plaintiffs by the State amounts to malicious prosecution.

2.
Whether or not if the claim for the malicious prosecution turns out to be successful, the plaintiffs herein are also entitled to damages for false imprisonment.

3. Whether or not if the claim for the malicious prosecution turns out to be successful, the plaintiffs herein are also entitled to damages for defamation.

4. What are the other heads of damages available to the plaintiffs if their claim for malicious prosecution turns out to be successful; and

5. Generally, whether or not the plaintiff's incarceration amounted to false imprisonment, at any point in time.

THE EVIDENCE

The first witness to testify was Sudi Adaki Sulaimana who adopted his written statement. He also tendered in court documentary evidence in support of his claim for loss of property, employment, and malicious prosecution marked as exhibits P1 to P5. There was no cross-examination. His unchallenged evidence is as follows: -

He was arrested on the 19th March 2001, at around 10 o'clock in the morning, a day before his departure to Manchester, the United Kingdom, where I lived with my three children David, Naomi and Sudi junior.

He was picked up from Zomba in the presence of relatives and many family friends. The police searched his premises and found nothing. He was then taken to Limbe police station in a white land rover where he was detained for 3 days without food or water in a relatively small, heavily congested and smelling cell with hardcore criminals. He was then charged with treason. During the interrogations he was informed that he was being accused of plotting to overthrow the Government of the Republic of Malawi. The police said that they only heard it from a businessman called Chimenya, an allegation that the police failed to substantiate. On the 3rd day, he was then transferred to Chichiri prison after more 36 hours of continuous and torturous investigations.

At Chichiri prison he was detained in a small cell of 4 meters by 7 meters with about 150 inmates originally intended to accommodate about 50 inmates. The cell was poorly ventilated.

In the summer the inside temperatures were unbearably hot and during winter it was freezing cold. At night he slept on the bare floor with a noisy night from unruly inmates, with each inmate occupying approximately one and half foot of floor space. It was torture of the highest degree. Inside the cell there were no provisions for keeping their belongings. As a result they had to use plastic shopping bags toed to ropes hanging from the roof. With a population of 150 inmates there were about 1000 plastic bags hanging half way between the roof and the floor. The total outlook was completely madness, awful and reduced them simply to a bunch of psychotic-like patients.

During the day they had to use folded shirts and trousers as chairs. Lockup time was nearly after mid-day at 3.30 p.m. and unlock up time was 7.00 am that meant he was shut up for almost 17 tormenting and horrible hours on each passing day. He received food once a day. The food was grossly unpalatable and unappetizing made of half cooked beans and porridge-nsima. Once after every several days they were subjected to a security search that amounted to waking up during early hours of the morning and being paraded and searched almost naked.

Then there was the most humiliating, degrading and dehumanising act: responding to the call of nature in the full view of everybody. It was nothing but animalism.

During visitors hours they were made to talk to their relatives and friends through a double meshed wire with a 2-metre space in between. Each visitor was allowed almost 15 minutes of talk time and because of the many people talking at the same time one had to speak at high tone in order to be heard. And this was ridiculous and absolutely dehumanising.

The scale of the psychological pain became unbearable with the fact that his three children were stranded in the United Kingdom. In June 2001 he pleaded with the UK embassy in Malawi to intervene. After seven months of being stranded in the UK the authorities there dispatched the children back to Malawi in October 2001. What was more painful in all this is the fact that the children were academically reduced from being UK high school students to rural primary school pupils in Zomba because he could not afford the school fees at private institutions.

Adding salt to injury his UK employers terminated his contract after 6 months absence without leave, losing in the process a total of about 1,400 pounds per annum.

Worse still during the period he was in custody on 5th May 2002 his landlord in UK disposed of his entire property from the house due to his failure to renew his tenancy agreement. In the process he lost the entire household items.

He applied for bail twice on 21st July and 26th November 2001 but the DPP strongly objected to the bail application while fully aware that the evidence before him did not warrant him to take such a stand. His actions were therefore personal and unprofessional and intended purely to inflict citizens.

The State then brought them to the High Court for trial being paraded before TV cameras and the highly keen media reporters. The trial commenced on the 22nd September 2001 after eight months in custody. They were branded criminals and political thugs by the State. They emphasized that these were men who were only greedy and showing disrespect to a legally established authority. The DPP castigated them further by saying they were pure criminals and nowhere near being politicians. He emphasized this by loudly announcing the theft charges of uniforms. This was highly humiliating and defaming.

During the course of trial things took a dramatic turn when the State arrested Brown Mpinganjira the NDA leader and equally charged him with treason. The motive for this arrest was not clear since they had never shared common interests or discussed anything to the effect of treason. The cooked up connection did not work when the High Court granted bail to the NDA leader and eventually the whole plot collapsed in the face of unconvincing evidence. The DPP was intending to use them perhaps to incriminate the NDA leader. However, they stood to the truth and refused any move to create false evidence. If they had conceded to any pressure to tamper with the evidence available their innocence too would have been in question. The evidence that the DPP tendered against them was kindergarten.

During the course of the trial, however, on the 12th November 2001 after six weeks of continuous and exhausting court attendance events at the court took a dramatic turn when the presiding judge excused himself from the case blaming the State for accusing him of incompetence. At that point they were then shovelled back to prison. This is was the most heart breaking moment of his life.

Despite the discontinuation of the trial all the psychological and economic damage had already been done. Even after release the society still held a negative attitude towards him. Most of his friends hardly associate with him because they do not want to be seen in his company. All hisbusiness contacts and agreements were technically affected and he was and is cut off from the business community completely. His sponsors in the UK also cut off all scholarship and social welfare agreements citing his arrest, detention and prosecution as not being in their interest. His career, academic advancement and his children's education opportunities were immediately suspended. This was the end of the road for a family that was putting all the resources and energies available together for survival and improvement.

The second witness was Colvin Usi Kaumila of care of Box 448, Blantyre. He adopted his witness statement which states as follows:

He was arrested on the 16th March 2001 at his house at Kameza roundabout in Blantyre. During the arrest the police officers without a search warrant violently searched his house breaking many household items as a result. They also arrested his wife. They kicked everyone out of the house including the kids and locked the house up until the next day. That was total harassment of his family most of whom were below the age of ten who could not look after themselves properly. His wife was forced to dig around the house on areas they said were suspicious but never found anything.

He was detained at Blantyre police station in a congested small cell without water or toilet. He was kept in this cell for seven days without food. He was then transferred to Chichiri prison on the 23rd March 2001 after nearly 36 torturing hours of interrogation by police officers. He was then told that a businessman called Chimenya informed them that he was one of them who wanted to overthrow the legitimate and lawfully constituted Government of the Republic of Malawi.

At Chichiri prison he was detained together with TB infested inmates in a critically congested cell. Food was provided once a day, which was poorly cooked and prepared. There was no privacy inside the prison and as such bathing and responding to the call of nature was done in the presence of everyone.

In the course of his detention the investigation officers, in trying to convince his wife to give false incriminating evidence against himself, persistently harassed her. The DPP also used to pick his wife for lunch in an attempt to convince her to give unfounded evidence.

After several weeks in custody, they had applied for bail at least twice but the DPP objected strongly to the bail application on both occasions and were continuously remanded in custody.

On the 22nd September 2001, after eight months in custody, he was taken to the High Court of Malawi for trial. The trial attracted national interest and was highly covered both in the print and electronic media. It was a period of total humiliation.

During the trial the DPP paraded over 15 witnesses all of whom gave evidence that amounted to nothing but assassination of character for a total of six undivided weeks. The accused persons shunting between the court and the prison in an open van with a lot of heavily armed men as they were the most dangerous criminals in the country. As trial progressed the presiding judge abandoned the case on 12th November 2001 saying that he felt uncomfortable to proceed because the State had accused him of wrong doing and at that point he was also an accused person. The DPP without remorse ordered their continued stay in custody.

The DPP came around and on the 5th March 2002 issued a certificate of discontinuance. In his statement the DPP stated that he did not see any material in the witnesses statements. He further said that the testimony of the key witness did not reveal intent to commit crime. This correct assessment of the evidence available was professional but came rather too late. To avoid infringing the constitutional rights of innocent citizens it was right and proper that the DPP would have assessed the evidence before him in his office rather than testing it in an open court. It was grossly unconstitutional to take an entire one year period to assess the strength of evidence against an accused.

During the period he was in custody he lost my job with the M.I.B. security company. He was earning about K180,000 per annum. It was a painful and emotional period that would take many years to heal. The psychological effects caused have far reaching results.

He tendered in evidence a letter showing that he was engaged as Operations Manager with effect from 4th May 1998 at a salary of K144,000.00 per annum and housing allowance of K3,500.00 per month. Another letter showed that he was confirmed in his employment after probation at a salary of K180,000.00 per annum with effect from 31st May 1998. Finally there is exhibit P8 which provides as follows: -

M.I.B. Force Security Group
P. O. Box 2462
BLANTYRE.

Staff No. 002 30th April 2001

cc: Accountant

Dear Sir,
TERMINATION OF SERVICE

It is for the interest of the company to have your services terminated with effect from the date of this letter as you have been absenting from duties for about a month now without a just cause or any information to this office.

Please surrender all company uniforms/equipment issued to you to our stores. By copy of this letter the accountant is requested to take note for his action.

Yours faithfully,


F. C. Pearson
MANAGING DIRECTOR

This evidence too went unchallenged in the absence of the defendant.

THE LAW

Essential Elements of malicious prosecution

The essential elements which must be proved on a tort of malicious prosecution are best explained in Clerk and Lindsell on Torts 12th Edition, paragraph 1695 (at page 894) where it is provided as follows:

"In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly that it was without reasonable and probable cause; fourthly, that it was malicious".

Once the above quoted four elements have been proved by the plaintiff then the case has been proved.

PROSECUTION BY THE DEFENDANT

What is prosecution?

To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question, and to be liable for malicious prosecution a person must be actively instrumental in so setting the law in motion. Clerk and Lindsell on Tort, 12th Edition in paragraph 1697.

Further in the case of Danby –vs- Beardsley (1880)43 L.T. 603 Lopes J. described a prosecutor as a man actively instrumental in putting the law in force."

It has also been decided that it is sufficient for one to be called a prosecutor if he signs the charge and express to the police his willingness to attend the court and give evidence against the accused. Malz –vs- Rosen (1996) 1 WLR 1008 and Mohammed Amin -vs- Bannerjee (1957) A. C. 322.


FAVOURABLE TERMINATION OF PROSECUTION

For one to be successful on a claim for malicious prosecution, he must prove what "Winfield and Jolowicz on Tort" at page 514 describe a legal end as follows:

"The plaintiff must show that the prosecution ended in his favour but so long as it did so it is of no moment how this came about, whether by a verdict or acquittal, or by discontinuance of the prosecution, by leave of the court or by quashing of the indictment for a defect in it or because the proceedings were 'coram no judize or by 'non suit' " - Watkins versus see (1839) 5 M&W 720 and Jones versus Gwynn (1712) 10 Mod 148.




LACK OF REASONABLE AND PROBABLE CAUSE

In the case of Herniman vs Smith (1938) A. C. 305, the House of Lords approved the definition of reasonable and probable cause by Howkins J. in Hicks vs Faulkner (1837)3 Bing N.C. 950 as follows:

"An honest belief in the guilt of the accused is based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."

Another helpful and illustrative definition of reasonable and probable cause is provided by the House of Lords in the case of Glinski vs Mc Iver (1962) ALL ER 696. The Lords at pages 666 to 667 stated:

"This makes it necessary to consider just what is meant by reasonable and probable cause. It means that there must be cause (that is, sufficient grounds) for thinking that the plaintiff was probably guilty of the crime imputed."

Perhaps the best language in which to leave the question to jury is that adopted by Cave J. in Abrath vs North Eastern Rly Co(1883) 11 QBD 247 at 443 "... did the defendants honestly believe in the case which they laid before the magistrates?"

MERE SUSPICION

Mere suspicion is not a justification to commence a prosecution, Clerk and Lindsell on Torts at page 906 paragraph 1715 describes the position of the law as follows: -

"it is not justifiable to commence a prosecution on mere suspicion, Meering v. Graham White Aviation Company 1919 122 L.T. at 56.

For example, it is not a reasonable ground for a charge of forgery that the forged document resembles the handwriting of the party accused, nor is possession of stolen goods a long time after their abstraction a reasonable ground for a charge of larceny. It has been held that the evidence of he plaintiff's bad character has no bearing on the issue of reasonable and notable cause-Clerk and Lindsell on Torts, 12th Ed, p906.

The above position of the law on reasonable and probable cause can be summarized as follows: it is the duty of the plaintiff to prove the absence of the reasonable and probable cause for the institution of the proceedings against him. Such absence may be established in one of the two ways:

a. the plaintiff may show that the prosecutor had no honest belief in the probable guilt of the plaintiff; and

c. he may show that despite the prosecutor's honest belief in the plaintiff's guilt, the facts which the defendant honestly believed would not lead a man of ordinary prudence and caution to that conclusion

MALICE

The proper description of malice is provided by Clerk and Lindsell on Torts 12th Ed. Paragraph 1725 page 911. It provides as follows:

"The term malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives; Mitchell vs Jenkins (1883) 5 B& Ad.588. The proper motive for prosecution is of course, a desire to secure the ends of justice. If a plaintiff satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and proper cause."

In the case of Stevens vs Midland Countries Rly (1854) 10 Ex 352 Alderson B at p356 indicated that where a prosecution for larceny had been instituted "in order to deter others from committing similar depredations' this was declared to be 'not a motive of such a direct character as to afford a legitimate foundation for a criminal prosecution.'

Malawian courts have endorsed the above principles of law and have also stated that to succeed on a claim for malicious prosecution, the plaintiff must show that there was no reasonable prospect of success with the proposed prosecution, and the prosecution has been instigated by the defendant who had acted with malice-Mwafulirwa v Southern Bottlers Limited (1991) 14 MLR 316; Mvula v Norse International Limited (1992) 15 MLR 332.

DAMAGES FOR MALICIOUS PROSECUTION

The leading case on the quantum of damages for malicious prosecution is Savill v Roberts (1698) 12 Mod 208. In the case, Holt C.J. in discussing the question of damages stated that:

"First, damages to his fame if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property where he is put to charges and expenses."

The first head of damages is payable because the allegations might involve damage to the fair fame of the person accused which cannot be afterwards repaired by the failure of the proceedings.

The second head of damages is recoverable for being put in danger of losing one's life, limb or liberty. If there has been an arrest and imprisonment up to the hearing of the cause, damages in respect thereof should also be included and will be the same as would be recoverable in action for false imprisonment. Mc Gregor on Damages 15 Ed. Paragraph 1629.

Regarding the last head of pecuniary loss, the plaintiff is entitled to recover all losses or charges incurred because of malicious prosecution. In the cases of Savile vs Roberts as well as the case of Berry vs British Transport Commission 1962 1Q.B. 306 it was decided that all plaintiffs' expenses in defending himself against the prosecution are recoverable. Again, in Child's vs Lewis 1924 40 T.L.R. 870 an action for false imprisonment, it was admitted that had the action been for malicious prosecution, the loss of the plaintiff' directors fees by reason of his forced resignation would have been recoverable.

Where malicious prosecution did not lead to imprisonment, loss of liberty could clearly not be contemplated as a head of damages, but damage to the plaintiff's reputation as well as the suffered indignity, humiliation and disgrace justified an award for damages. The court's discretion should be employed. Loss of wages during false imprisonment are recoverable as general damages – Bulla vs Agricultural Development and Marketing Corporation (1993) 16 (1) MLR 32.

1. The guidelines of how damages are worked out in false imprisonment cases are few: generally it is not a pecuniary loss but a loss of dignity and the like and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be the injury to liberty, that is the loss of time considered primarily from the non-pecuniary view point and the injury to feelings, that is the dignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will be included in the general damages which are usually awarded in these cases; no breakdown appears in the cases – MacGregory on Damages 14th Ed paragraph 1357.

2.
Damages for false imprisonment are at large and a matter of impression not addition. Damages are not necessarily a pecuniary loss but a loss of dignity and the like and a matter for the court. Previous awards are at the most of little assurance. Munthali v. Attorney General (1993) 16(2) MLR 646.

A DISCUSSION OF THE LAW AND THE FACTS

1) Whether or not the defendants herein were maliciously prosecuted

In order to determine the above issue, the four elements in respect of malicious prosecution shall be discussed vis-`a-vis the available facts as pleaded:-

1.1
Prosecution by the defendant

It is very clear that the criminal prosecution was set in motion by the State through the office of the Director of Public Prosecution. Further it was the Director of Public Prosecution who was actively instrumental in putting the law in force. The said criminal proceedings were conducted in the High Court of Malawi. In the premises, it is very conclusive that there was a prosecution and the same was at the instance of the defendant herein.

1.2
Favourable termination of prosecution

There is no doubt that the criminal proceedings against the defendants were brought to a legal end in favour of the plaintiffs. This is so because the Director of Public Prosecution withdrew the case under section 77 of the Criminal Procedure and Evidence Code. Further, in report of discontinuance by the Director of Public Prosecution, he clearly stated that in his view the case was not credible for prosecution and as such he would not continue with the case. This is a clear testimony that the whole case was in favour of the plaintiffs.

1.3
Lack of reasonable and probable cause

From the facts of the case it is clear that no reasonable and prudent prosecutor could have preferred the charges that were preferred by the Director of Public Prosecution. In all earnest, there was hardly any reasonable and probable cause for instituting the proceedings which were instituted by the DPP.

1.4
Malice

Malice on the part of the prosecutor means no more than lack of proper motive for the instigation of the prosecution. The DPP in the present case displayed clear malice by commencing proceedings against the plaintiffs when it was clear that the charges against the plaintiffs were unfounded. Every reasonable and sober prosecutor should have made this deduction without much ado.

FALSE IMPRISONMENT AND DEFAMATION

False imprisonment is the infliction of bodily restraint, which is not expressly or impliedly authorised by law. It consists of the complete deprivation of liberty for any time, however, short without lawful cause – W.A. Mzunga v. Blantyre Print and Publishing Company, civil cause no 577 of 1995 (unreported). This is the common law position. In Malawi, however, the Constitution has taken a step further by making freedom of movement a constitutional right. Section 39(1) of the Constitution provides that every person has the right of movement and residence within the borders of Malawi.

It is the plaintiffs' contention that their incarceration and arrest were all unlawful and wrongful, hence they were falsely imprisoned by the defendants' agents.

The plaintiffs also contend that their prosecution on the baseless treason charges and subsequent incarceration disparaged their names in the estimation of right thinking members of the society. It is the plaintiffs' submission that the acts of the defendant's agents have resulted to their respective reputations. In fact on head of damaging for a successful claim in malicious prosecution is damages in defamation.

FINDINGS

On the evidence available, I find the defendant liable on all the claims made by the plaintiffs and judgment is hereby entered against the defendant.

Damages

Having given the matter anxious thought and considering of giving the defendant a second chance I would defer making any awards of damages. Instead I direct that the Registrar should appoint a dates for assessment of damages including special damages for 1st plaintiff. The 2nd plaintiff is only entitled to general damages.

The defendant is condemned to pay costs of and incidental to these proceedings.

PRONOUNCED in open court at Blantyre this 26th day of August, 2004.




Chimasula Phiri
JUDGE

Lest We Forget: Republic versus Bakili Muluzi & another (1 of 2009)

R v Bakili Muluzi & another (1 of 2009)


High Court: General Division

Case No:(1 of 2009)
Judgment Number: 18
Media Neutral Citation: [2009] MWHC 18
Judgment Date: Wed, 07/08/2009




JUDICIARY


IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CRIMINAL CASE 1 OF 2009

THE REPUBLIC

VERSUS

DR. ELSON BAKILI MULUZI
LYNESS VIOLET WHISKY


CORAM: THE HONOURABLE JUSTICE E. B. TWEA
M/S Nampota, Mwala, Nyamilandu of Counsel for the State
M/S Chokhotho, Jai Banda, of Counsel for the Accused
Edith Malani Miss, - Official Interpreter



R U L I N G

Twea, J

This is a summons for further bail pursuant to Section 12B of the Corrupt Practices Act, brought by the Anti Corruption Bureau. It is supported by affidavits of Mr Christopher Ernest Kaminjolo of the Bureau.

Section 12B of the Corrupt Practices Act, (CPA) states that:

“12B. If any person against whom investigations or proceedings for an offence under part IV are pending is preparing or about to leave Malawi, whether temporarily or permanently, the Director or any officer authorized by him in that behalf may apply to any court for an order requiring such person to furnish bail in any sum, or, if he has already been admitted to bail, in such greater sum and on such additional condition as the case may require with or without sureties; and in any such application the court may make such order as it deems fit”.

When this case was called on 25th June, last, the lawyers for the 1st accused person, Dr Bakili Muluzi,were not prepared and had not, by then, responded to the affidavits filed by the Anti Corruption Bureau, herein after referred to as the Bureau. They sought and were granted an adjournment. Following the adjournment, this court noted that the bail bond sought to be enlarged was not exhibited to the affidavit of the Bureau. The Court directed the Registrar to inform the Bureau to file a supplimentary affidavit deponing to the terms of the bail sought to be enlarged or reused and the defence to equally respond. When the case was called again. on 30th June, last, the supplementary affidavit had been filed. Further, the bail bond in issue was exhibited. However, there was no specific response by the defence.

I examined the record to ascertain what happened and what orders were issued in respect of bail.

The record indicates that on 24th February last, the Bureau appeared before the Chief Resident Magistrate Court in Blantyre and applied for warrants of arrest against the accused persons: Dr Bakili Muluzi and Lyness violet Whisky. The Court, when issuing the warrants of arrest stipulated, among other things, as follows:-

“…A warrant of arrest is issued against Dr Muluzi. The same shall be effected/execution during day time as defined under the Criminal Procedure and Evidence Code. Further, once arrested Dr Muluzi shall be formerly charged and cautioned. Further and importantly, Dr Muluzi shall be held by the ACB for no longer than three hours from the time of arrest during which time he may be charged and cautioned. Upon being formerly charged and cautioned Dr Muluzi shall be released on bail by the ACB on condition that he surrenders his travel documents, namely, Passport to the ACB.

Dr Muluzi is to appear before this court together with the ACB on a date to be obtained by the ACB from this court but to be no later than two weeks from today’s date for the ACB to inform Dr Muluzi of how it intends to proceed in this matter failing which this court will discharge him. ….The endorsement on the warrants must be strictly adhered to by the ACB and must be clearly spelt out on the WOA to be submitted before this court for issuance herein”.

The warrant of arrest for Dr Muluzi was endorsed for bail as ordered by the court. It was duly issued, on the same day.

The parties appeared again before the Chief Resident Magistrate on 26th February, last for committal. The court endorsed that the accused persons had been released on the bail. However, it added a further condition: that they shall not, by themselves or third parties interfere with any of the State witnesses. A bail bond was issued on the same date, together with the endorsement under Section 97 of the Criminal Procedure and Evidence Code.

I noted that the “bail bond” did not comply with Section 119 of the Criminal Procedure and Evidence Code in respect of the bond. Section 119 reads:

“119. Before any person is released on bail under Section 118, a bond for such sum as the police officer or court, as the case may be, thinks sufficient shall be executed by such a person and, where sureties are ordered, by one or more sufficient sureties conditioned that such a person shall attend at the time and place mentioned in the bond, and shall continue to so attend until otherwise directed by the police officer or court, and containing such other conditions as the police officer or court may think fit”.

It is important to note that the sum fixed in the bond is what the accused person forfeits or is called upon to render or the State may recover by warrant of attachment in case of a breach, in accordance with Section 125 of Criminal Procedure and Evidence Code. In this respect therefore the “bail bond” was defective and therefore irregular.

The current application is for enlargement of the bond. As I said earlier, there was no sum stipulated at all. In effect the accused person was conditionally released. In this respect therefore, it is for this court to consider what amount of bail would be sufficient in the circumstances: having regard to Sections 118(2) and Section 121(1), of the Criminal Procedure and Evidence Code, that bail should not be excessive. In order to do so, this court cannot proceed under Section 12B of CPA. In my view the proper procedure would be to proceed under Section 362 of the Criminal Procedure and Evidence Code; exercise the courts powers to review. I am sure that had the defect in the “bail bond” been brought to the attention of my Brother Judge seized of the trial, he would have, likewise, reviewed the order.
I have taken into account the views espoused by both parties in their affidavits and, to the extent relevant, what was submitted in their arguments. To begin with a person who is prepared to give bail may be released on bail. In the present case, it has been demonstrated that the 1st accused person and his co – accused had given bail when the warrants of arrest were issued against them and they were released on “bail”. In fact in respect of the 1st accused, it is on record that the charges now before this court have been there, in the essence, since the year 2004. It is also on record that the 1st accused person is on bail on other charges before this Court, yet to be prosecuted. It is further on record that he had travelled abroad and came back and surrendered to the custody of the proper authorities on his bail. This has not been denied by the State. The record further has it that the State was aware and did not object to the 1st accused person travelling abroad for medication.

The State however, submitted that it was concerned with “rumours” that the 1st accused person intended to abscond once he leaves the country. The State submitted that the “rumours” were being investigated. Issues were raised about air tickets bookings and so forth. In my view the issues were mere speculation and opinion and, of course, counter speculation and opinion by the defence. There was nothing substantial that came up.

While it may be legitimate for rumours to move an investigation, I do not think that it is open to the court to make decisions or orders based on rumours. The court should only act when the investigations establish the substance of the rumour. A person should not be at risk of being deprived of his liberty on account of rumours. I would therefore place no weight on the rumours.

The State has applied that the 1st accused bail bond should be in the sum of K1, 7billion. In essence, the State is applying for the total sum of the monetary value of the charges alleged against him. As I said earlier, court should not lose sight of the essence of bail, that it should be fixed with due regard to the circumstances and should not be excessive: Sections 118(2) and 121(1). It was argued by the State that the sum should not be an issue, because it is non – cash bond. The defence differed with the State on this point. I equally differ. The sum fixed must be such that an accused person and/or his sureties will be able to pay into court, in cash or kind or to raise. It is a requirement that the court should examines the sureties as to whether they are, in this respect, sufficient or not. Should they be found wanting, the accused person will be remanded in custody. In this respect therefore, Section 12B of CPA, if applied, would work out exactly in the same way as Section 122 of the Criminal Procedure and Evidence Code. It is my view that K1.7 billion is exceedingly excessive in any circumstances in this Country. It would, in effect, amount to denial of bail. The essence of a bail bond is to ensure that the accused person will be available to take his trial. The court should not be influenced by what the State will recover at the end of the trial when fixing the cognisance. Ordinarily an accused person who honours his bail is entitled to a refund of any monies or property deposited into court or to be discharged from the obligation to pay the cognisance. I therefore decline to equate bail bond to restitution or recovery of the proceeds of crime.

Be this as it may, the discretion lies with this court. I have examined the circumstances of this case, as aforesaid. I find no objective basis for alleging that the 1st accused person will abscond. I therefore order that he executes a bail bond in the sum of 50 million kwacha not cash with two sufficient sureties in the sum of 10 million Kwacha each, not being cash. I reinstate the conditions ordered by the Chief Resident Magistrate Court, and further, order that he may not leave the jurisdiction of Malawi without the order of this Court and that he must surrender his passport back to the Director of ACB within 10 days of his return to this jurisdiction.

The 1st accused person shall be admitted to custody should he fail to execute the bond within 7 days of this order.


Pronounced in Chambers this 8th day of July 2009 at Blantyre.






E. B. Twea
JUDGE

Statement by civil society at the SADC Gender Ministers Meeting

GL Commentary

Written by Emma Kaliya, on behalf of members of the SADC Gender Protocol Alliance



Maputo, 14 February: On behalf of my colleagues in the Southern African Gender Protocol Alliance, I feel very privileged and honoured to stand before you today and deliver this speech. The gender sector in our region is unique in the extent to which it has opened the door to civil society participation. Together with our Governments, we campaigned for a SADC Protocol on Gender and Development with 28 targets to be achieved by 2015. With two years to go until this deadline, also the deadline for the Millennium Development Goals, we have changed our slogan from "yes we can" to "yes we must"!

We wish to thank SADC and UNWOMEN for enabling us to make our voice heard at this strategic gathering. We want to assure our governments that we are your firm partners and allies in taking forward the gender agenda in our countries. You have been elected to deliver a better life to all our citizens - especially for women. We are the hands, feet, eyes and ears, hearts and heads, that can help deliver these visionary goals. We are not your competitors but rather an implementing arm of our Governments.

The immediate focus of our attention is the CSW, that will spotlight this year on Violence Against Women and Girls. Emerging findings from prevalence studies on GBV in five SADC countries show that between one quarter and two thirds of women in these countries experience some form of gender violence over their lifetime. The highest form of such violence - emotional violence - barely features in police statistics. Yet it daily undermines women's agency and self-worth; costing our countries billions of dollars that could otherwise go into economic development.

Today, Valentine's Day, citizens around the world are joining hands in the One Billion Rising Campaign to say "No" to gender violence. We wish to commend the draft SADC position paper to the CSW. It is a bold statement from our region that women's rights are human rights; that we must tackle the root causes of gender violence - patriarchal norms and harmful traditional practices that result in gross human rights violations being perpetrated with impunity.

We note with particular concern the impunity with which women's rights are violated in situations of conflict such as the Eastern DRC. How can our region stand aside when this area is being termed the rape capital of Africa? We urge our Ministers to denounce rape as a weapon of war in the strongest possible terms and help to liberate women trapped in this conflict.

While the MDG's have highlighted the basic needs of the poor, women and children, the post 2015 agenda needs to take a rights-based approach that recognises that rights are indivisible. This means that all marginalised groups -the poor, rural dwellers, the disabled, sex workers, and sexual minorities among others -must be acknowledged and accorded their rights. "Rights cannot be given by one hand and taken away by the other hand" and there is need to avoid equating rights to morality.

Women have a right to security of person; to bodily integrity; to make decisions and choices over our lives and bodies, including the right to safe abortions.

While many of our countries have developed strong laws and policies, implementation is weak, and resources scanty. Let us not just look good on paper - let us walk the talk and it cannot be business as usual anymore but be it business unusual. We applaud the draft SADC position paper to the CSW for its insistence on dedicated resources for ending gender violence, and for calling on all SADC countries to measure the extent, effect, response and prevention of GBV to benchmark progress.

We meet in Maputo today in the aftermath of furious floods that have also just hit Mauritius. Climate change is no longer a theory. We are witnessing its devastating consequences on all our citizens, especially women and children. We commend the draft SADC position paper for making the link between climate and gender justice.

We take this opportunity to remind Our Ministers of their commitment on 18 November 2011, in the SADC Engendered Position Paper on Climate Change for CoP17, to develop an addendum to the SADC Protocol on Gender and Development to address issues related to Sustainable Development. Now that the SADC Gender Protocol is in force, we urge our ministers to seize this opportunity to place issues of gender and climate change squarely on the agenda through an addendum.

Since its adoption in 2008, the SADC Gender Protocol has demonstrated its relevance by being a living instrument, known, used and employed by its citizens. In March this year, country networks of the Alliance will be organising SADC Gender Protocol@Work summits in 13 countries. These will culminate in a regional summit in Johannesburg from 22-24 April. We call on our Ministers to support these efforts to accelerate the pace of change in the critical count down to 2015. "This is the SADC that Women Want"
Yes we can, and yes, we must! The Time is Now.

Delivered by Emma Kaliya on behalf of members of the SADC Gender Protocol Alliance.

Serena Polana Hotel, Maputo, Mozambique.

World Bank Unveils New Country Assistance Strategy to Support Malawi’s Economic Growth and Transformation

Will Malawians really benefit from this World Bank Programme?

WASHINGTON, 29 January, 2013 - The World Bank Group has released its new Country Assistance Strategy (CAS) to support Malawi’s effort to diversify the economy and make it more competitive and resilient to shocks. The four-year CAS, which was discussed by the Bank Board of Executive Directors today, will cover the 2013 to 2017 financial years, and proposes an indicative envelop of US$ 695 million.

The CAS is aligned with the Second Malawi Growth and Development Strategy (MGDS II, 2011–2016) adopted in April 2012. It takes account of the new government’s priorities of economic diversification, reducing vulnerability and improving infrastructure, to achieve sustained growth as outlined in its Economic Recovery Plan (ERP).

“Through this new Country Assistance Strategy, the World Bank Group is committed to continue to help Malawi accelerate progress towards poverty reduction and successful economic transformation. The total Bank commitment to Malawi currently stands at close to US$1 billion and will work closely with the Government and other stakeholders in ensuring strong development results are achieved through this new partnership” says Sandra Bloemenkamp, Country Manager for Malawi and Team Leader for the CAS.

The new CAS has three thematic areas to support the government of Malawi achieve the goals of its development strategy. The first theme promotes sustainable, diversified, and inclusive growth as a way of accelerating progress in reducing poverty. This will be done by helping the country achieve and maintain macroeconomic stability, invest in key infrastructure, improve the business environment, to promote competitiveness and support regional integration.

“Economic transformation and diversification will be key in reducing the country’s vulnerability to shocks. In order to make our growth more inclusive we need to expand our sources of growth as well as increase our productivity and the participation of our people in this process,” says Honourable Ken Lipenga, Malawi’s Minister of Finance. “This CAS is therefore very responsive and supportive of our country’s needs and programs to improve the lives of Malawians,” Lipenga adds.

The second theme is on enhancing human capital and reducing vulnerabilities. This is designed to accelerate progress towards the Millennium Development Goals and enhancing Malawi’s human resources. It will support delivery of social services such as education, water and sanitation, HIV/AIDS, and nutrition. It will also support efforts in climate change mitigation and adaptation, and natural resource and environmental management.

Mainstreaming governance for enhanced development effectiveness is the third theme. This theme comprises a cross-cutting effort to help government strengthen its systems, while also engaging citizens play their oversight role more effectively.

World Bank Group support will cover both investment lending and technical assistance and analytical work. The new CAS brings the Bank’s support and commitment to Malawi to about US$3billion since Malawi became a member of the Bank after independence. The new CAS will continue to support some already existing projects such as the Malawi Social Action Fund, Agriculture and Irrigation programs, investments in key infrastructure sectors such as Energy, Mining, and Water, Natural Resources Management, Education, HIV/Aids and Nutrition, and in Higher Education and Skills. Special attention will also be given to improve the public finance management systems, and improved public sector management and statistics.

The CAS acknowledges the considerable risks to successful attainment of the results targeted in the proposed program. These stem from the political environment for sustained commitment to the reform agenda, external and internal macroeconomic risks, weather-related shocks, risks from the lack of diversity of the economy, and risks arising from inadequate public sector management capacity and fiduciary and governance issues. “Effectively managing these risks will be important for Malawi to ensure optimum results from the World Bank Group support during the implementation of this new CAS” says Ms. Bloemenkamp.

Only time will tell!!!

Joyce Banda Back to Her True Self

The sheep has gotten out of President Joyce Banda, as expected.
And, as naturally as it was artificial, she is Joyce Banda again.
What, you may ask, does this mean?
It means that Joyce Banda- the individual, and not the president- is back to her roots. These routes, experience shows, are stubbornness, utter ignorance, and verbal diarrhoea.
How?
It is so simple to respond.
President Joyce Banda has abandoned the innocence which characterised her escapades as Vice-President of the Republic of Malawi. During that time, Malawians with ordinary thoughts, ordinary hopes, ordinary brains, and ordinary fears remember- in their ordinary way- the Joyce Banda of that time: Humble, resolute, understanding, empathetic, and, we would say, loving.
No more.
As it turns out, President Joyce Banda was out to cheat the nation- even hoodwinking it into believing that here, on this very soil, was a woman born to deliver (both the goods, and the nation) from whatever it be.
It was never to be.
The Joyce Banda who leads Malawi is not the Joyce Banda we ever knew. She has changed. She has become addicted to money. To power. To anger. To stubbornness.To political bickering. To insults. To cheating. To castigating. To bad-mouthing. To name-calling.
And everything shameful.
That is what Joyce Banda has turned out to be.
A woman who doesn't represent the aspirations of the Malawian people anymore.
Her masters are the development partners she worships with both hands and feet.
All of a sudden, the president's family has become mega-rich.
They have, with the blessings of the president and her involvement, taken over the supply of food stuffs in public institutions.
They, lost in their dance of shame, have taken over the transport sector.
They, without any sense of reflection, have become the untouchables of Malawi. What with development partners who, just nine months ago, were against former President, the slain (according to Pride Magazine, current edition) President Bingu wa Mutharika, becoming her spokespersons?
Fuel prices have become as unpredictable as the Southerly winds.
Commodity prices go up the way they want.
The ordinary citizen's voice is no longer heard.
The poor salaries civil servants are subjected to no longer concern those in power.
President Joyce Banda is lost in her own world. Realising that the 2014 Presidential Elections are around the corner, she has gone on overdrive, fundraising for a campaign that, in the end, may not be there for her.
Three days hardly pass without hearing that Joyce Banda is addressing this, or that meeting. The president, it seems, has lost her sense of shame. At any particular time, she is ready to grace any occasion, including the flying of kites by children of between three years and 15.
Now, that is a shame. The shame of our time.
In fact, president Joyce Banda has adopted derogatory language these days. And her speeches cannot be gathered ,as we do with pebbles of sand, into one cup because they are so disintegrated they make no sense- except, perhaps, to herself and her zealots.
And this is not the Joyce Banda we all knew.
Let me put you into the picture of an innocent Joyce Banda we had, and one we will never have.
I remember, clearly, that in April 2003, I found myself interviewing Joyce Banda on the second floor of Sunbird Mount Soche Hotel. The interview took one hour. I was recording everything.
When we were threw with the interview, Joyce Banda told me: "Okay, I have changed my mind. Don't write anything from the interview. My United Democratic Front party seniors may be on my neck. THey will think I am talking something that contravenes the party on some issues."
Well,the issue in question was gender equality. And Joyce Banda was still not comfortable to talk about it, lest it offended her party masters then.
That, to say the truth, tells you of a Joyce Banda who was so sensitive to her sorroundings. Joyce Banda who cared. Joyce Banda who stood for the aspirations of Malawians women.
Shy. Reserved. Guarded. Caring. Loving. That was Joyce Banda for you.
No more.
As president, Joyce Banda has become greedy. Selfish. Mrs-Know-It-All. And everything associated with big-headedness.
That is why, due to this big-headedness, civil servants have threatened to go on strike this Monday.
Civil Servants Trade Union President, Eliah Kamphinda Banda, has made it clear that all civil servants will down their tools because their salaries can no longer keep up with the slippy cost of living.
What does President Joyce Banda do? She keeps quiet.
She doesn't care any more.
She is lost in her own world.
A lonely world.