Republic v Chunga (14 of 2004) ((14 of 2004)) [2005] MWHC 76 (11 August 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

MISC. CRIMINAL NO 14 OF 2004

WONDE CHUNGA

V

THE REPUBLIC




CORAM : JUDGE I.C. KAMANGA (MRS)


Lungu; for the Applicant

Santhe; for the State

L.N. Msiska; Court Interpreter





R U L I N G


This matter comes before this court, moving the court, in its original unlimited jurisdiction and under Section 42(2)(e) of the Republic of Malawi Constitution and Section 118(3) of the Criminal Procedure and Evidence Code for the court to review its earlier decision and release the applicant on bail.


The background to the application is in the following manner: on 19th August 2004, the applicant sought bail pursuant to Section 42 of the Constitution and Section 118 of the Criminal Procedure and Evidence Code. He had been in custody since 20th February 2002 as a murder suspect. Upon hearing from both the applicant and the state, the court observed that the applicant had been in custody for a period of 2 years which in the circumstances constituted an exceptional circumstance. The court also noted that it was unclear as to when the applicant would be brought to court for trial despite his being committed to the High Court on 23rd July 2004. So the court ordered that the applicant should be brought to trial during the next homicide assizes. In the event of any failure so to deal with the applicant, it was ordered that he should be released on bail with the following conditions.


  1. Applicant to pay into court K5000.00 cash


  1. Applicant to produce two sureties who shall each pay into court K2000.00 cash


  1. Applicant to surrender all travel documents into court.


  1. Applicant to report at Nkhotakota police every Monday and Friday before 12.00 except when coming to court.


  1. Applicant should not leave Nkhotakota or Malawi without the written authority of Nkhotakota Police, when traveling out of Nkhotakota and Police Headquarters in Lilongwe – Area 30 if traveling out of the country.


What has brought this application is the fact that the bail has not been effected as the “next homicide assizes” have not yet come into being. Counsel for the applicant now contends that it is unclear as to when or whether there shall be any homicide assizes in the foreseeable future. He contends that the uncertainty necessitates that his client be granted bail. The State objects the application. The State advocates that homicide assizes will resume in two weeks time and the uncertainty now falls away. The State further advocates that the earlier order that the court made is open ended that the State brings the applicant in the next assize so the State is complying with the said order.


I am in agreement with both counsels that there is uncertainty on the next homicide assizes as well as the fact that the earlier order is open ended that the State brings the applicant in the next assize. The uncertainty comes into being in that much as the matter was committed to the High Court, it is still unclear as to when the applicant will actually be tried. There is need for the State to act with certainty and define when the applicant shall be brought to court for trial. It is for that purpose that for avoidance of doubt, the “next homicide assizes” is now being defined in the following term – “the State should bring the applicant for trial and actually prosecute him in the homicide assize that is set down for hearing in the period of August to October 2005.” Should the State fail to prosecute the applicant in the stated period, the conditions for bail as set down in the order of 27th August 2004 shall come into effect. The examination of sureties to wit shall be done by the Registrar.



Made in Chambers this 11th of August 2005.





I.C. Kamanga(Mrs)

J U D G E