IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

MISC.
CIVIL CASE NO. 15 OF 2006

BETWEEN:

HAROLD
MAYA ………………………………………1^ST
APPLICANT

LEO
MAKULUNI ……………………………………..2^ND
APPLICANT

ELIZA
CHAIMA ………………………………………3^RD
APPLICANT

RHODA
TCHADO ……………………………………4^TH
APPLICANT

AND

THE
ATTORNEY GENERAL ……………………….RESPONDENT

CORAM: HON.
CHINANGWA, J

Makono :
Counsel for the Plaintiff

Mwanguluwe :
Counsel for the Defendant

Kaferaanthu :
Court Interpreter

RULING

The four
applicants: Harold Maya, Leo Makuluni, Eliza Chaima and Rhoda Tchado
through counsel Makono of Makolego & Company brought
this
application against the respondent. The government institution
involved is the Ministry of Health.

The applicants are
praying to this court for the following declarations:

1. 
   A
   declaration that the prosecution has no serious intention or at all
   to have the applicants recharged in connection with theft
   charges
   which they were discharged.

   
   

2. 
   Declarations
   that since the applicants have no criminal case to answer there is
   no reason suspension orders should stand against
   them.

   
   

3. 
   An order
   that they be reinstated to their employment with immediate effect.

   
   

Counsel Makono has
sworn an affidavit and filed skeletal arguments in support of the
application.

The substance of
the facts which have given rise to this application are that the 4
applicants are civil servants. They are stationed
at the District
Health Office at Salima. On 24^th
July, 2004 they were interdicted without pay on an allegation of
theft of stores to the tune of K159,380.

The interdiction
orders are marked RCM1-4 as proof thereof. Further to the
interdiction the applicants appeared before the First
Grade
Magistrate court at Salima. On 22^nd
December, 2004 the applicants were discharged under section 81(a) of
the Criminal Procedure & Evidence Code. The cause of
the
withdraw is said be that the principal witness denied being a state
witness. There is a letter marked ex RCM5 written by the
trial court
to the District Health Officer dated 7^th
January, 2005 confirming this fact.

On 19^th
January, 2005 counsel Makono wrote to the Secretary for Health
requesting that office to lift the interdiction orders and reinstate

the applicants following the discharge by court. The letter is ex
RCM7. A reminder to the same dated 18^th
March, 2005 marked ex RCM6. On both occasions the Secretary did not
respond.

It is deponed in
paragraph 7 of counsel Makono’s affidavit that a request was made
to the Director of Public Prosecutions (DPP)
to invoke his power to
withdraw the case against the applicants. The office of the DPP did
not respond. It is observed that there
is no document to prove that
such request was made.

Counsel Makono
concedes that a discharge under section 81(a) Criminal Procedure &
Evidence Code is not synonymous to an acquittal.
Prosecution can
recharge and prosecute on same facts.

He argues that
even if this is the position, a period of 2 years without recharging
the applicants shows the state to have acted
unreasonably, unfairly
and unlawfully. It is tantamount to punishing the applicants as if
they are convicts. Such is contrary
to the criminal law principle
that an accused person is presumed innocent until proven guilty.

Counsel Makono has
further contended that the state has violated applicants’ human
dignity under section 19 of the Constitution.
The state has also
breached sections 29 and 31 of the Constitution because applicants
are unlawfully being denied their rights
to engage in economic
activity. The conduct of the state translates to constructive
dismissal in terms of section 60 of the Employment
Act.

Counsel Makono
prayed to this court that the applicants be reinstated and payment of
salaries be resumed. Alternatively the state
should resume paying
salaries. Payment of salaries would reduce the hardship they are
experiencing at the moment. Whenever the
state is ready to commence
proceedings it would do so.

Counsel Mwanguluwe
appeared on behalf of counsel Kachule. He adopted the sworn
affidavit of counsel Kachule. In the affidavit
counsel Kachule
deponed that he has taken over conduct of the case. According to
counsel Kachule recharging of the applicants
would be within 21. His
affidavit is dated 26^th
September, 2006. He opposed the reinstatement of the applicants.

Counsel Mwanguluwe
submitted that the state opposes the reinstatement until the outcome
of the proceedings. He also submitted that
the applicants cannot be
paid their salaries because it is against the MPSR. He did not cite
the provisions or provide a certified
copy of same.

The starting point
for me is to reaffirm that the state is mandated to prosecute any
person who is accused of committing a crime.
It is the office of the
Director of Public Prosecutions which is vested with such mandate
under section 99(2) of the Constitution.
This is buttressed by
section 76(1) of the Criminal Prosecutions & Evidence Code. The
latter section provides:-

“76(1) The
Chief Public Prosecutor shall in accordance with, and subject to,
section 58 of the Constitution, have vested in him the
right and be
entrusted with the duty of prosecuting all crimes and offences
against the laws of Malawi.”

The title of Chief
Public Prosecutor is the old designation during the Malawi Congress
Party reign. It is presently called the
Director of Public
Prosecutions. Also section 58 of the old Constitution is now section
99 in the new Constitution. Section 99(2)
of the Constitution and
section 76(1) of the Criminal Procedure & Evidence Code spell
out the mandate of the state in criminal
matters. Further to this
point the DPP may delegate such mandate under sections 78 and 79 of
the Criminal Procedure & Evidence
Code. There is no provision
both in the Constitution and the Criminal Procedure & Evidence
Code when prosecution of criminal
case is statute barred. It would
appear that the mandate impliedly gives discretion who to prosecute
and when to prosecute. On
close examination of the Constitution it
is observed that this is not the actual position because section
42(2)(f)(i) gives guidance:-

“42(2) Every
person arrested for, or accused of, the alleged commission of an
offence shall, in addition to the rights which he or
she has as a
detained person, have the right.

(f) as an
accused person, to a fair trial, which shall include the right.

(i) to public
trial before an independent and impartial court of law within a
reasonable time after having been charged;”

The Constitution
provides that an accused person is entitled to trial within a
reasonable time. It is observed that reasonable
time is not defined.
Thus it would vary from case to case. In the instant application
the state withdrew its case on 22^nd
December, 2004 under section 81(a) of the Criminal Procedure &
Evidence Code. The trial court discharged the applicants.
A
discharge under the said provision does not bar the state to later on
prosecute on same facts. Which means the state is entitled
to
prosecute the applicants. It is observed that since 22^nd
December 2004 the state has done nothing. The submission by the state
that it is waiting for the trial court to give it a date
is
unconvincing. It is designed to buy time. For the state did not
show any written correspondence to prove its assertion. The
state’s
relaxed attitude is against the spirit of section 42(2)(f)(i) of the
Constitution. That prosecution be conducted within
a reasonable
time. In the circumstances it is my finding that a period of nearly
2 years is not reasonable time and unacceptable.

The next point is
on the innocence of the applicants. It is a principle in criminal
law that a person is presumed innocent until
proven guilty by a court
of law. Therefore up to this point in time the applicants are
presumed innocent. Yet the interdiction
orders are denying the
applicants the right to gainful economic activity as provided under
section 29 of the Constitution. They
cannot be employed elsewhere.

The question is
whether the applicants should continue languishing while waiting for
the state to prosecute them at its pleasure.
Unless the state
advances legitimate reasons, which so far it has failed to do, the
applicants being innocent are entitled to
be reinstated.

In conclusion the
state is ordered to reinstate the applicants and resume payment of
their salaries. Should the state recharge and
commence prosecution,
it is ordered that it shall not affect the order of salaries. The
order is being made so that the unsubstantiated
existence of the MPSR
which bars payment of salaries is not abused to persecute the
applicants. Order accordingly.

PRONOUNCED
in Chambers this 11^th
day of December 2006 at Lilongwe District Registry.

R.R.
CHINANGWA

JUDGE