IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
MISC. CRIMINAL NO 37/2005
ROSE BANDAWE NKWANGWANYA
CORAM : JUSTICE I.C. KAMANGA (MRS)
Lungu for the Applicant
Kapezi for the State
Mlenga; Court Interpreter.
J U D G M E N T
This is an application for bail. The applicant is a murder suspect. She seeks that she should be granted bail pending the hearing of the alleged offence for which she is currently in custody as she has been incarcerated for a period of 4 years without being brought before a court of competent jurisdiction. She also avers that the state has not informed her on when or whether she will be brought before a court of law and be dealt with according to law. It is her submission that these two omissions by the state to positively move in her interest constitute exceptional circumstances which necessitate that she be granted bail despite the seriousness of the charge that she will be answering. The application is made under Section 16(6)(a) of the Statute Law (Miscellaneous Provisions)Act.
It is the applicants submission that she is a second wife. The first wife was divorced sometime back. Now the former wife had been persistently visiting the husband at the laters matrimonial home and this annoyed the later. So at one time, she wanted to find out why the former wife was consistently visiting the husband considering the fact that their marriage had ended. This led to a fight. The former wife fainted and later died. The incident happened on 2nd November 2001. She has been in custody ever since. She has never been brought before a court of law. Upon inquiries with the police, she has been advised that they were through with their investigations and the case docket was already sent to the Director of Public Prosecutions for the laters decision. The Director is not taking any action.
Ms Kapezi responding on behalf of the Director of Public Prosecutions admitted that the applicant has indeed never been brought before a court of law in the four year period. She undertook to commit the applicant to the High Court for trial by end of March 2005.
We have various authorities that bail in serious offences of murder should not be readily granted unless there are exceptional circumstances that show the need for an applicant to be on bail pending hearing. In some cases, holding an applicant in custody for unjustified length of time has been found to be an exceptional circumstance; failure on part of the state to commit an individual to the High Court for trial, without reasonable reason has also been found to be an exceptional circumstance in other instances.
In the matter at hand, the state has failed to demonstrate cause for their failing to prosecute the matter. I would hold that being in custody for a period of 4 years for a mother who has children below 10 years is an exceptional circumstance. This applicant needs to know of her fate as quickly as possible. For it is not only her interest that is being affected with the undue incarceration. The fate of the children is also being affected. Children of tender age need the attention of their mothers at all times. The interest of justice requires that the applicant be brought before a court of law and be tried as a matter of urgency for she has been unnecessarily held in custody without trial.
I therefore order that the matter should be set down for hearing and actually be heard at the Homicide List Scheduled for August to September 2005.
Failure to wit, the applicant shall be released on bail with two sureties who shall be bonded in the following manner:-
applicant be reporting at the Lilongwe Police Station every last Friday of the month.
Applicant not to get out of Lilongwe without authority of the officer in charge of Lilongwe Police Station.
Sureties to be bonded on K5000.00 each not cash.
The examination of sureties shall be conducted by the Registrar.
For purposes of clarity, this bail will be effected on 1st October 2005 should prosecution fail to have the matter set down and heard in the stated list.
Made in Open Court this 8th day of August 2005.
J U D G E