MISCELLANEOUS
CRIMINAL APPLICATION 61 OF 2003
IN
THE MATTER OF SECTION 42 (2) (e) OF THE CONSTITUTION OF THE
AND
IN THE MATTER OF SECTION 18 OF THE CRIMINAL
PROCEDURE AND EVIDENCE CODE
IN THE MATTER OF CHARLES KHASU AND IN THE MATTER OF LOUIS KHASU
CORAM: D F
MWAUNGULU (JUDGE)
MwakhwawaChayekha, legal practitioner, for the applicant
Kamwambi, Chief State Advocate,
for the State
Chisi,
official interpreter
Mwaungulu,
J.
This is an application under section 42
(2) (e) of the Constitution. The state, violating section 42 (2) (b) of the
Constitution, after forty-eight hours, neither, after arresting and detaining
the applicant, charged the applicant nor brought him before a court of law to
be told the reasons for his further detention. There is divergence between the
state and the applicants about how the applicants were at the police. The State
suggests the police arrested the applicant when the applicants arrived at the
[police to report that they killed somebody stealing maize in the applicant’s maize.
The applicants contend that they surrendered themselves to the police when they
learnt that the police were looking for them in relation to the death of the
deceased. The applicant’s version of events is that, their guards, who they
employed because people stole maize from the garden, shouted to them that there
were eight people stealing from their garden. When they went there one of them
was attacked. It appears one among their number attacked the deceased. They
went to the police to report about the theft and attack. They subsequently took
the deceased to the hospital. The prosecution story is that the applicants,
belonging to a neighbourhood watch group, ambushed
the deceased and assaulted him to death. Since, their arrest, on
From the state’s affidavit, the Attorney General has no answer or
explanation the applicants’ allegation that state machinery never brought the
applicants to a court of law in the 48 hours section 42 (2) (e) of the
Constitution prescribes. The applicants served the Attorney General with this
application on 16th April, 2003affidavit. In between that then and
now, the police have neither charged the applicants nor brought them before a
court of law. Later of course I will consider whether bail should be granted in
the circumstances of this case. For now I should hasten to say that on the
Attorney General’s failure to bring the applicants before a court of law within
forty-eight hours, I should release the applicants precisely for the reasons
explained at length in Re Leveleve
Miscellaneous Civil Application No. 195 of 2002 (unreported).
The state has had the application since,
I suppose,
Section 42
(2) (b) of the Constitution reads:
“Every person arrested for, or accused of an
alleged omission of an offence shall, in addition to the rights which he or she
has a detained person, have the right … as soon as it is reasonably possible,
but not later than 48 hours expires outside ordinary court hours or on a day
which is not a court day, the first court day after such expiry, to be brought
before an independent and impartial court of law and to be charged or to be
informed of the reason for his or her further detention, failing which he or
she must be released.”
The section
creates an inseparable right between the time and the state organs duty it. Forty-eight
hours is as integral to the right as the state organ’s obligations under the
sections. The right is for the State to treat the citizen as the section
requires in the time specified. A
fortiori a state organ violates the citizen’s right and fails its duty if
it brings the citizen to a court of law and charges or informs the citizen
reasons for the citizen’s further detention after the forty-eight hours.
Barring any limitation of the right by law, there can be no defense to
violation of this right.
The law, as it is now, has not limited
or abrogated the right. On the contrary, the Criminal Procedure and Evidence
Code, in stressing the importance of the citizen’s right and the state’s duty
under the Constitution, requires the state to
discharge that duty in other respects within twenty-four hours of arrest. The
Constitution obliges our legislature to pass laws that expand and better
reflect Part IV provisions. The Criminal Procedure and Evidence Code provision
must be understood that way. The
constitutional requirement that limitation must be by law means that no
institution can by any process or power other than by law limit or abrogate
rights the Constitution creates under Part IV. A state organ carrying out
executive functions cannot unilaterally and arbitrarily overrun Part IV
Provisions. No judicial pronouncements in this Court or in the Supreme Court
abridge this specific right at common or customary law.
Conceptually and practically, the
easiest right for state organs to implement is obeyed, more often, in breach.
The obligations for state organs are very practical and reasonable. In other
jurisdictions,
Secondly, the Constitution requires, if
the state cannot charge the citizen within forty-eight hours, the state to
bring the citizen to a court of law, within the forty-eight hours, to be told
the reasons for the citizen’s further detention. Unlike at English law, the
state is not obliged to release the citizen if it cannot charge the citizen.
The state, under the section, can and should justify further detention because
the court should release the citizen unless the interest of justice require
otherwise. The section does not use the expression “in the public interest.”
For it is indeed in the public interest that offenders should be brought to
book. It is also in the public interest however that the innocent are not
detained and, if detained, detained for unnecessarily long time, only to serve
the public interest in prosecuting crime. There is a potential of conflict
between the public interest and the citizen’s rights to liberty. The Constitution,
therefore, uses the more germane expression “the interest of justice.” The
court must balance the interests of justice. The court must balance the public
interest viz-a-viz the rights of a citizen from what
is just in the circumstances.
If the public interest is predominant, the court may not have to release
the prisoner. This may be the case where, to the court, the evidence is
overwhelming and a trial, if expedited, the court may
convict the citizen and pass a sentence resulting in longer loss of freedom.
Conversely, the citizen’s rights may be predominant like where to the court the
evidence appears to raise just a possibility of a conviction. There, unless the
court may assure an expedited or speedy trial, the balance of justice may
require the court to release the citizen. In balancing the interests of
justice, the court must consider many things including the public interest and
the citizen’s rights.
In many cases the prosecution must charge at the earliest. Where this is
not possible, that further enquiries are in the process, that the defendant may
interfere with witnesses, that the evidence shows a sure conviction and
likelihood of a longer sentence involving loss of freedom, the nature of the
offence or the circumstances in which the offence was committed, the
applicant’s previous conduct when released on bail, the likelihood that the
defendant would commit further crimes, the likelihood that the trial may occur
soon, the pace of the investigation, the applicant’s cooperation in the investigation,
the likelihood that the applicant shall appear for trial, the public interest
in bringing offenders to justice and a citizen’s right to a quick and speedy
trial, are matters, not exhaustive though, courts regard in balancing the
interest of justice, deciding whether to release the citizen unconditionally or
on bail or deciding whether to attach conditions to a release on bail.
The power of the court to remand the prisoner and the right of the
citizen to be released under section 42 (2) (b) of the Constitution are not
contradictory. They serve one purpose. Both facilitate the public right or
interest to trial of the citizen for the crime the state suggests was committed
and committed by the defendant. The appropriate choice to facilitate the trial,
in my judgment, depends on deciding which of the two best serves the interest
of justice subject of course to the overriding rights of the citizen to liberty
and presumption of innocence. There will be cases where the choice, bearing
what was said in the preceding paragraph, is easy to make. On the one hand,
remanding the prisoner will be just to the citizen and the public interest
right to have the citizen tried. There will be cases, however, where that
choice is, on balance, not easy to make. In those circumstances, in my
judgment, the court should take the citizen’s rights seriously. Where the
prospect of trial are as good as or better when the citizen is released on bail
than when he is remanded in custody, justice and good public policy demand that
the option upholding the citizen’s right to liberty and presumption of
innocence should be preferred. To insist that a person be remanded to
facilitate trial where the trial is possible when the citizen is at liberty
would, in my judgment, be inhuman and degrading treatment under our law and a
disregard of a citizen’s right to liberty and to be presumed innocent unless
proven guilty.
The right under section 42 (2) (b) of the Constitution should be seen as
more than a right. Like most rights, it is an ideal. In my judgment it is also
a standard, a measure of the efficiency of our criminal justice system. For
separation of powers and removal of arbitrariness in the criminal process, the
forty-eight hour right ensures prompt judicial control and check on executive
actions affecting citizen’s rights. To the citizen, the forty-eight hour right
affords the citizen a prompt opportunity to assert and sample rights the
Constitution creates for the citizen and test the reasonableness of the state’s
deprival of those rights. The framers set forty-eight hours as the efficiency
standard for our criminal justice system to bring the citizen under judicial
surveillance. In my judgment there are no operational problems.
If there are operational problems, they point to the inefficiency of the
criminal justice system and a compromise of the standard and efficiency level
the section creates. I see no difficulties in state organs implementing the
forty-eight hour right. This Court will take judicial notice that no police
station in the Republic is forty-eight hours away from a court of law. Even if
arrested on the furthest part in the north, Chitipa,
formerly Fort Hill, in forty-eight hours, the state would bring the prisoner to
the southern end, Nsanje, formerly Port Herald. It matters less that the matter
is one that only the High Court can try. There are four branches of the High
Court, one in each judicial region. More importantly, section 42 (2) (b) of the
Constitution requires the state organs bring the citizen to an impartial and
independent court of law. Magistrate courts are such courts. Under the Criminal
Procedure and Evidence Code, they have jurisdiction over preliminary inquiries
in matters that should be tried in the High Court unless the Director of Public
Prosecution issues a certificate under the Code that the matter is a proper and
fit one to be tried in the High Court. Compliance with the forty-eight hour
rule can be done at the minimum of cost to the state system.
State organs cannot, however, avoid constitutional duties and
responsibilities under the section because of administrative or financial
difficulties. The weight a democratic constitution attaches to the citizen’s
rights should, in my judgment, be matched with prioritising
and desire to attain efficiency levels that uphold and promote rights. Any other approach results in violation of rights. Our
Constitution prescribes onerous remedies for violation of rights under section
46.
In this matter, the state violated the citizen’s right to be brought to
a court of law within forty-eight hours. It is now fourteen days since the
state violated the citizen’s right. In my judgment this right cannot be atoned
by bringing the citizen any time later. After the forty-eight hours there is a
continuous breach of the right. The way the right is framed, a law, statutory
or otherwise, cannot provide for extension without obliterating the right
itself. The state, has had this notice for over seven
days. On proper habeas corpus procedure, the state, under rule 54.7 of the
Civil Procedure Rules, was under a duty to make an appropriate return to this
court to justify the citizen’s loss of freedom. The court’s power on such
return, as demonstrated by R v. Board of
Control, ex p Rutty, [1956] 1 All E.R. 769, are ample and a court can
release on an order certiorari where the grounds are suspect. The state, on the applicant’s deposition, has
violated the citizen’s right for fourteen days. In those fourteen days, the very
simple things the Constitution requires would have been done. Apart from that,
there was sufficient time for the state in the seven days, more than the
forty-eight hours prescribed in the Constitution, to terminate this continuous
violation. Even in the time before the hearing of the summons, the state would
have taken the applicant to a court of law and charged him or explain the
applicant’s further detention. For just the neglect to bring the applicants to
a court of law in forty-eight hours, the effective remedy, in my judgment
cannot be further detention, but release of the prisoner on bail.
On whether the applicants should be released on bail in a capital
offence both legal practitioners, Mr. Mwakhwawa and Mr Kamwambi, agree, correctly, in my judgment that the
evidence is crucial, a view expressed recently in Re Ligomba Miscellaneous Criminal Application No. 33 of 2003
(unreported) and Re Pherani
Miscellaneous Criminal Application No. 50 of 2003 and buttressed in section
4 (a) (ii) of the Bail Guidelines Act, 2000. In Re Ligomba this Court said:
“The general rule in my judgment must be, at least in
relation to capital offences, that a court would not grant bail unless there
are exceptional circumstances where the evidence before the court is such that
renders the conviction of the offender likely.
For obviously if there is a conviction the punishment being capital and
compulsory, the nature of the offence and the possible sentence are reasons why
it would not be in the interest of justice to release the defendant on bail
unless there are exceptional circumstances.
The rule so stated allows the court considering bail in a capital
offence to be influenced not only by the nature of the offence and the possible
sentence but the quality of evidence before the court. It avoids refusal of bail on the mere
suggestion in the charge that the offence and the sentence are capital.”
At this stage the court is not looking
at the evidence in terms of whether it is sufficient to warrant a
conviction. That should properly be left
to trial. The evidence is examined only
to answer the question whether a conviction is possible. In this case there is
evidence to go to the jury that makes a conviction possible. There is also
evidence to go to the jury on self defense or defense to property. I think this
is a matter where, notwithstanding the offence is capital, I should exercise my
discretion to release the applicants on bail.
Made in Chambers this 24th Day of April 2003.