MALAWI: THE RIGHT TO BAIL AND UNREASONABLE DELAY BEFORE TRIAL

Salc : Staff Writer

In Mkula et al vs the Republic SALC advanced arguments that the length of detention of the applicants was in breach of their constitutional right to a trial within a reasonable period of time. This case concerned four applicants who had been awaiting trial for a period of between 6 – 10 years.

In 2009 the Chief Justice ruled that the case did not contain issues of constitutional importance and as such the applicant should apply for bail. The matter having been refused certification by the Chief Justice, SALC decided that, prior to launching an application to either appeal or review this decision, it would seek an oral hearing with the Chief Justice to submit that the case did in fact contain issues of constitutional importance. This hearing was held in May 2010. To date the Chief Justice has not officially given a ruling on this matter. In these circumstances, the failure of the Chief Justice to give a ruling must be seen as indicative of a continuing refusal to certify the case as constitutional.

SALC chose not to appeal the decision of the Chief Justice. At present there is an ongoing judicial review (in which SALC has no involvement) of the Chief Justice’s refusal to certify another case. SALC is currently awaiting the outcome of this judicial review. If the High Court deems that the correct procedure is by way of judicial review then SALC will seek to review the decision of the Chief Justice to refuse to certify the case.

Given the length of time that this case had taken to proceed and the fact that all the applicants in the case continued to be incarcerated, SALC took the decision that bail should be sought for them. This hearing took place on 22 July 2010. Three of the applicants were released on bail with the judge accepting that an unreasonable delay provides grounds for the granting of bail. Unfortunately Alex Mkula who has been awaiting trial for 9 ½ years was refused bail on the basis that he had other cases to answer (namely one of armed robbery from 2001). The bail hearing was the first time that Mkula or his counsel was notified of these other charges. Despite this, the judge refused him bail.

The new armed robbery trial began on the 6th August (the defence argument having been prepared by SALC). Thus far all of the prosecution witnesses have denied that Mkula was involved in the robbery. At present, the trial is partly heard: the prosecution is still yet to close its case. SALC is currently drafting an application that proceedings on the armed robbery charge should be stayed due to the lack of a case to answer.