IN THE HIGH COURT OF MALAWI
MZUZU
DISTRICT REGISTRY
MISCELLANEOUS
CRIMINAL CASE NO 136 OF 2000
VERSUS
THE
REPUBLIC
Coram: L.P. Chikopa, J.
L. B.T.
Ndovi of Counsel for the Applicant
J.
Manyungwa Deputy Chief State Advocate for the Respondent
Bondo
(Mr.) Clerk
On November 10, 2000 we heard an
application by the applicant. It was supported by an affidavit sworn on his
behalf by his legal counsel Mr. Ndovi. He requested for an order (and I quote)
that:
“a. The
applicant be granted bail and that he be set at liberty on the conditions as the court deems fit and
(sic) alternatively be released without
any conditions at all.
b. The
applicant be brought before the court within 48 hours or as the court may deem fit to be charged
or dealt with thereat.”
Like I said hereinbefore the
application was supported by an affidavit sworn by his counsel. Many things
were deponed therein. There might be the need to comment on some of them
hereinafter. At this stage however let me reproduce the prayer contained
therein.
“WHEREFORE
your applicant prays to this Honourable Court to grant him bail pending trial
if any and/or without bail conditions as set out by the court or to be released
outright so he can restore his fundamental right to liberty, obtain adequate
and effective treatment and may be
continue his remand out of prison and the return of his K53000.00 in the police
custody and be brought before court
to be charged if there is any offence committed against the
Malawi state.”
The application’s heading says it
is an application “for bail
under section 42(2)(e) of the constitution and/or outright release in terms of
section 42(1)(c) and (f) of the constitution and section 118(5) of the Criminal
Procedure and Evidence Code.”
Section 42(1)(c) and (f)
provides:
“Every
person who is detained, including every sentenced prisoner, shall have the right:
(c) to
consult confidentially with a legal practitioner of his or her choice, to be
informed of this right promptly and, where the interests of justice so require,
to be provided with the services of a legal practitioner by the state;
(f) to be
released if such detention is unlawful.
Section 42(2)(e) provides:
Every
person arrested for, or accused of, the alleged commission of an offence shall,
in addition to the rights which she or he has as a detained person, have the
right;
(e) to be
released from detention, with or without bail unless the interests of justice
require otherwise.”
Section 118(5) of the Criminal
Procedure and Evidence Code provides:
“No application for a direction that any person in
custody pending proceedings in a subordinate court be released on bail shall be
entertained by the High Court unless such subordinate court has first refused
to direct such release.”
Mr. Manyungwa, Deputy Chief State
Advocate, represented the State which opposes the application. He never swore
an affidavit. He was content to inform the court that this was not a trial and
that the absence of an affidavit in opposition is not fatal to the state’s position
herein. He cited MISCELLANEOUS APPLICATION NUMBER 9 OF 1994 D YIANNAKIS VS
REPUBLIC decided by Mwaungulu J. He also gave an excuse for his
failure to swear and file an affidavit with the court but perhaps that is not
our problem. It does not, in my humble
opinion, change the law relating to the need, in appropriate cases, to swear
and file affidavits any one bit. He did however argue against this application
mainly on matters relating to the law. It is thus the State that brought in the
Transfer of Offenders Act which is Act number 25 of 1991 and the Mutual
Assistance in Criminal Matters Act which is Act number 24 of 1991.
We were informed that the
applicant is wanted in Tanzania because, it is alleged, he committed two
violent crimes. There is one for theft of two motor vehicles. Then another for
robbery. We were further informed that there is cooperation
between the Malawi Police and the Tanzanian Police in matters touching on law
enforcement. And it was because of such cooperation that Malawi Police received
through INTERPOL a communication from their Tanzanian counterparts dated
July 24, 2000 requesting for effectively the apprehension and eventual removal
of the applicant herein to Tanzania to answer the charges alleged above. The applicant was accordingly
arrested and has been in custody from July 13, 2000 to date pending such
removal. All this was done and continues to be done under the aegis of the Assistance
in Criminal Matters Act and Transfer of Offenders Act hereinabove
mentioned.
At this stage perhaps it is time
we looked at the issues raised by the parties herein. Starting with the
applicant. What exactly is it that he wants from this court? And what really is the State saying?
As I understand his application,
even allowing for some imperfections of the English language, it is for an
order that he be granted bail or set at liberty on such conditions as the court
might deem fit. In the alternative he asks to be released unconditionally. The
(b) part of relief sought is that he be brought before court within 48 hours or
as the court may deem fit to be charged or be dealt with thereat. The prayer in the affidavit raises much the
same issues. That is apart from giving, in my opinion, the reason why the
applicant should be released (firstly so that he should attend a doctor and
secondly so that he must have his right
to liberty restored).
It also raises the small matter
of K53000.00. He alleges it was taken from him by the police. He seeks a return
thereof.
Let us consider the question of
bail. Firstly I should say at the outset that I do not subscribe to the view
that a detainee of whatever hue has under the constitution the right to bail. I
am yet to come across a constitutional provision to that effect. What I
consider to be the correct position is that a detainee has the right to
liberty. Bail refers to the
condition(s) on which one regains his/her liberty. That is clear from section
42(2) (e). It says a detainee has the right inter alia to be
released from detention with or without bail. One cannot in my opinion apply
for bail. It is an anomaly. You apply for your liberty to be restored. In
simple language to be released from detention. It will then be up to the court
to release you with or without bail. Again in simple language with or without
conditions.
One might argue that section 118
of the Criminal Procedure and Evidence Code does grant some right to bail. It
does not. It only gives the courts and the police in appropriate cases the
discretion to release detainees on bail. Again the operative word in my opinion
is ‘release’. The section grants a discretionary power to release on
conditions.
In the instant application, which
could clearly have benefited from more careful drafting, it is the considered
opinion of this court that it is less than correct to talk of an application
for bail. Certainly not under section 42(2)(e) of the constitution. As I
understand it the section only spells out what rights a detainee has. One of
them is to be released from detention unless the interests of justice require
otherwise. When the detainee comes to court he/she is only restating the right
and asking the state to show cause on a balance of probabilities why his/her
liberty should not be restored to him. It is then up to the court to set the
applicant at liberty on such
conditions as it deems fit. The correct thing to do herein, in the
opinion of this court, was to use the very words that section 42 (2)(e) itself
uses. The applicant should have sought to assert his right to liberty and
invited the state to show cause why he should not be released from detention.
It would then have been up to this court to restore such right with or without
bail.
The applicant must also have
misconstrued the purport of section 118(5) of the Criminal Procedure and
Evidence Code. As I understand the section it allows for detainees whose
applications for release have been turned down by subordinate courts to bring such applications before the High
Court. Provided that (a) a prior
application must have been refused by the subordinate court and (b) that the
applicant must be in custody ‘pending proceedings in a subordinate court’. With
the greatest respect I cannot say otherwise than that there are no proceedings
pending against the applicant herein in a subordinate court. The applicant
knows that he is in custody pending removal to Tanzania. In fact the whole
reason these proceedings were taken out was to contest such removal. I fail to
see how section 118(5) aforesaid can be of any use to the matter at hand much
less to the applicant.
Part (b) of the order sought by
the applicant was to the effect that the applicant be brought before court
within 48 hours. That sounds to me to be a habeas corpus
application. It does not appear in the application’s heading. But more than
that this court is aware that the applicant did appear before the First Grade
Magistrate court at Mzuzu on September 8, 2000. That court denied him bail.
He was remanded in custody. He
then came here trying to overturn the
court below’s order. He cannot now come
to this court and claim an order of habeas corpus.
The applicant also sought to rely
on section 42(1)(c) and (f) of the constitution. Initially I was at a loss as
to exactly where to place that section in the scheme of things herein. It was
not until I read the heading to the application that I came to the
conclusion that the section was meant
to be in support of the application for an unconditional release. And it was at that conclusion that I was
surprised at what paragraph (c) was meant to achieve in this application. It
deals with the detainee’s right to legal counsel and the necessity in an
appropriate case for the state to provide such counsel. Surely that right is not in issue in this
matter.
Paragraph (f) on the other hand
deals with detainee’s right to be released from detention if such detention is
unlawful. In this court’s view the legality or otherwise of the applicant’s
detention is the only issue for determination herein. We proceed to examine how each party proceeded to argue their
viewpoints.
The applicant alleges that his
detention is unlawful because he has never committed any offence in Malawi. The
Malawi police therefore had no business arresting him. They have no business
having him in custody.
The state on the other hand,
while admitting that the applicant has not committed any offence in Malawi,
still insist that his arrest and continued detention is lawful. They say they
have received a request from the Tanzanian police in terms of the Transfer
of Offenders Act and Mutual Assistance in Criminal Matters Act
for the arrest and removal of the applicant. They arrested the applicant. His
continued detention is in order to facilitate his removal to Tanzania.
The applicant took the matter a
step further. The gist thereof was that the Acts being relied upon by the state
to justify the arrest and continued detention of the applicant are 1991 Acts
whereas the constitution is a 1995 document. It was further argued that the
constitution having guaranteed the applicant liberty the two Acts cannot take
it away. To the extent that they purported to do so the two Acts must be taken
to be unconstitutional and therefore null and void. It was also contended on behalf of the applicant that the removal
of the applicant to Tanzania must be done following proper procedures and that
the only procedure known to the law in Malawi is through extradition.
With the greatest respect I doubt
if the applicant’s counsel is correct. I am sure counsel appreciates that the
right to liberty is capable of limitation or restriction. Section 44(2) is
clear on that score. It actually lays down such restrictions or limitations.
They are those that are prescribed by law, which are reasonable, recognised by
international human rights standards and are necessary in an open and
democratic society. Much the same is provided for in section 12(v) of the same
constitution. Where such limitation or restriction is in the form of
legislation I doubt whether the mere fact that the legislation is earlier in
time than the constitution means that its provisions are automatically null and
void. There are many laws in Malawi which were passed before the 1995
constitution. They are not bad law simply because they are older than the
constitution. They must actually be shown to be in conflict with the
constitution for section 5 of the constitution to become operative. It is for
that reason that I disagree with counsel Ndovi’s position that we must
disregard the Transfer of Offenders Act and the Mutual Assistance in
Criminal Matters Act simply because they are 1991 Acts and we are
talking about rights conferred by a 1995 constitution. For this court to accept
counsel Ndovi’s position he should have done more than make reference to the
age of the two Acts in comparison to the constitution’s.
In my view whether or not the
applicant’s detention is lawful depends on whether the state’s infringement of the applicant’s right to liberty is
that which can be justified under section 44(2) aforesaid. And in doing so it
is my further opinion that the matter of the legality or otherwise of such
detention ought to be looked at in two stages. There is the detention per
se which the applicant says is illegal because he has committed no
offence against the Malawi state. Then there is his detention pending removal
to Tanzania. The applicant says since
he cannot be removed to Tanzania in the absence of an extradition treaty
between the two countries his detention pending any such “extradition” must be
illegal as well.
Like I said at the beginning the
state never swore an affidavit.
The State relied on the case of YIANNAKIS
VS REPUBLIC in which the court said these applications are not a
trial. Failure to swear an affidavit
is not necessarily fatal to a party’s case. I should imagine that was another
way of saying that certain procedures can be dispensed with during the hearing
of a miscellaneous application. Quite honestly I really have no problem with
such a position. In an appropriate case that is. In the instant case the state
told us that the applicant was arrested courtesy of a documented request by the
Tanzanian police routed through INTERPOL Harare. During the hearing of
this application the state said it had in court this document. It actually read
from it. It was from this document that the state got the gist of the request
and the fact that it went through INTERPOL Harare. It was from a reading
of that document that the state said the document was dated July 27, 2000.
Might not one ask why the State never saw the good sense to show this document
to the court or the applicant? That document in so far we were told is the
request by the Tanzanians. It is the
very basis of the applicant’s arrest and intended eventual removal to Tanzania.
It was never shown to us. Without going so far as to suggest the unsavoury how
does the court conclude that what the state read out is what the document said?
Indeed conclude that such a document does exist? I remind myself at this stage
of what the court said in the YIANNAKIS
case about affidavits. But this a different case altogether. We are talking about the liberty of an
individual not only in his home country but abroad as well. The Courts must be
the first to guard it jealously. It is in my opinion dangerous to allow anybody
to stand up and conduct themselves vis a vis the applicant in the
manner in which the Malawi Police did without requiring that person to make
an attempt at showing proof of the
request. That is a system that would be more than open to abuse. Rogue elements(and
we can not pretend there are none) in our law enforcement agencies would seize
on it to victimise innocents. The courts should be slow to encourage such a
procedure.
Looked at from a different angle
doubt can be cast as to whether the applicant was indeed arrested on the
request of the Tanzanian police. The state said that the request was in a
document dated July 27, 2000. We do not know when it was received by the Malawi
police either in Lilongwe or in Mzuzu. We are told by the applicant that he was
arrested on July 13, 2000. That was not disputed by the state. The question is
‘if it is indeed true that the applicant was arrested on the request of the
Tanzanian police contained in a document dated July 27, 2000 how come he was
arrested on July 13, 2000 on the basis of the same request? Could it be that
the police were being economical with the truth in their instructions to State
Counsel?
Let us talk about the Acts
themselves. Starting with the Transfer of Offenders Act. Much as
I would agree that it does allow in certain circumstances the transfer of detainees between
commonwealth countries I doubt whether one can apply it herein. Offender by definition cannot equal any
detainee. Offender with reference to that Act is defined in section 2. It specifically refers to a person who has
been convicted and sentenced which the applicant is not. Any doubts as to what
offender means is cleared in spectacular fashion by the preamble to the Act. I
quote it in full:
“An Act
to provide for the transfer to prisons in their countries of origin of persons convicted within Malawi and to
provide for a like transfer of persons
convicted outside Malawi, and to provide for matters connected therewith or incidental thereto”.
Clearly the Act cannot apply to
the applicant. He is not convicted and sentenced. His country of origin is not
in so far as the affidavit is concerned Tanzania.
We were also referred to the Mutual
Assistance in Criminal Matters Act. Specifically to sections 22 and 23
thereof. The state said that under those sections one country in the
commonwealth can request another commonwealth country to trace, arrest and
remove a suspected felon to the requesting country. Copies of the Acts were made available to us by the state. We had
occasion to look at those provisions. They do not in my opinion seem to cover
the situation now before us. Section 22 covers the situation where the
requesting country asks Malawi to facilitate the attendance of a person
resident in Malawi in the requesting country for purposes of giving evidence in
that other country. It is trite knowledge herein that the applicant is not
wanted to give evidence but to stand trial.
Section 23 aforesaid refers to
the transfer of prisoners between commonwealth states. Subsections 1 to 4 are
largely procedural. I found subsection 5 to be quite interesting though. It
defined ‘prisoner’ as;
“A person
who is being held in custody pending trial for, or sentence for, or is under
imprisonment for, an offence, or is subject to any limitation on his personal
liberty pursuant to any law.”
The all-important question in my
view is whether the applicant is a prisoner in terms of subsection 5 above
mentioned. Clearly the applicant is not being held in custody pending trial. Or
pending sentence. Neither is he under
imprisonment for an offence. He is being held in custody pending removal to
Tanzania. One cannot deny however that he is under some limitation on his
personal liberty. The next question therefore becomes ‘is the limitation on his
personal liberty pursuant to any law?’ According to the state the limitation on
the applicant’s personal liberty is based on the Transfer of Offenders Act
and the Mutual Assistance in Criminal Matters Act. I have already said
that the Transfer of Offenders Act does not apply to the applicant
herein. That Act therefore cannot be within ‘any law’ as envisaged in the
said Act. Similarly I do not think that
‘any law’ as used section 23(5) was intended to include the Mutual
Assistance in Criminal Matters Act. When the legislature talked of ‘any
law’ it meant in my opinion any law other than the Mutual Assistance in
Criminal Matters Act itself. In other words the person sought to be removed
to the requesting state had to be already in custody on the basis of the
operation of some other law at the time the request is made. Such was not the
case herein. The applicant went into custody specifically so that the Mutual
Assistance in Criminal Matters Act should be applied on him. The applicant
cannot therefore in my opinion be called ‘prisoner’ as defined in the said Act.
The Act cannot, does not apply to
him. But there is an even better reason
why I think the said Act should not apply to the applicant herein. I believe
that the reason the section says the limitation on one’s personal liberty
should be pursuant to any law is to ensure that such limitation is lawful. A
limitation cannot in my opinion be pursuant to any law if it is unlawful. In
the instant case we know by now that the applicant was arrested on July 13,
2000, way before any request was made indeed received. We also know that the
applicant has not by the state’s own admission committed any offence against
the Malawi state. The natural conclusion is that the initial arrest of the
applicant could not have been because of the request from Tanzania. He had not committed any offence. It means that the applicant was arrested for
no lawful reason. That, in turn, can only mean that the arrest was unlawful.
Bringing that reasoning into section 23(5), it means the initial limitation on
the applicant’s personal liberty could not have been pursuant to any law. It
was unlawful. He cannot in my view be a person “subject to any limitation on
his personal liberty pursuant to any law.” The section, indeed the Act,
cannot apply to him.
By way of conclusion this court
is of the opinion that whichever way you want to look at it the applicant
cannot be in lawful custody. His arrest was unlawful. He had not committed any
offence. The request had not yet been had from Tanzania. His removal to Tanzania cannot be lawful
either. The two Acts relied upon by the state much as they are lawful do not
apply in the instant case. To remove the applicant to Tanzania using those Acts
would be unlawful. To remove in any other way other than by extradition would
be equally unlawful. His continued detention cannot in those circumstances be
lawful. You cannot, in this court’s considered opinion, keep the
applicant in custody pending the doing of an illegal act(namely the removal to
Tanzania). The applicant’s continued detention therefore, in so far as it is
for the purpose of facilitating the removal of the applicant to Tanzania is
unlawful.
Let us now come to matter of the
K53000.00. The applicant says it should be returned to him. The state disputes
that allegation saying that the matter was investigated internally and found to
be untrue i.e. the arresting officer never took the K53000.00. The merits or
demerits of the allegation aside I am a bit disturbed with the manner the
applicant went about the matter of the money. To begin with the issue is not
raised in the application itself. It does not even appear on the heading.
Neither is mention made of it in the applicant’s specification of the nature of the order he sought from this
court. It is only mentioned in the prayer in the affidavit sworn by his
counsel. Purely on a question of principle I doubt whether that is correct. It
is as if the applicant is commencing proceedings in the matter of the K53000.00
through the agency of the affidavit only. That cannot be correct.
But more than that the matter of
the money is clearly not a small one. It is, to the obvious knowledge of the
applicant, a hotly contested matter. This court does not want to believe that
counsel for the applicant thought that this matter could be resolved just by
him filing an affidavit in which he alleges that police officer Divala took the
applicant’s money. It should have been obvious to him that this was a matter in
which there would be the need to specifically prove certain facts. Where viva
voce evidence would be called for. This is different from a situation
where the state accepts to have the money but allege some basis, factual or
legal, to back their initial and continued detention of the money. The better
thing to do is for the applicant to institute separate proceedings in respect
thereof.
At the end of a rather tedious
day it is obvious that the applicant is in unlawful custody. The state has
failed to show lawful cause why the applicant was put into custody in the first
place and why he should continue being there. He should be released
unconditionally unless there is any other lawful reason why he should not.
The applicant’s request for the
return of the K53000.00 is not granted.
In passing but no less
importantly let it be said that even if the state had lawful authority to
remove the applicant it is clear to this court that the state can not then
arrest the applicant fold their hands and
keep the applicant in custody for time on end. The state must act in
such a way that once the decision is made to arrest a person pending removal to
the requesting country there should be the minimum of delay in effecting such
removal. If we allowed the state to arrest and hold on to the detainees at
leisure on the pretext that they are waiting for their counterparts to do the
needful we would in effect be reintroducing detention without trial through the
back door. That would be unwelcome.
This court should also emphasise
that whereas it recognises the fact that it is the prerogative of counsel to
make forceful argument before it in advancing their client’s causes such
prerogative must never be taken as a cheap and thin disguise under which
counsel should conduct themselves in court in a manner not befitting their
status as officers of the court. Like was said during the arguments herein,
this court specifically, will not tolerate any such kind of behaviour and will
not hesitate, in appropriate circumstances, to take measures, including
citation of counsel for contempt, to ensure that the sanctity, integrity and
decorum of the courtroom is maintained.
Made in chambers this 17th day of
November 2000 at Mzuzu.
L P
CHIKOPA