Nsabimana v S (Miscellaneous Criminal Review 5 of 2023) [2023] MWHC 42 (24 August 2023)

THE hGH ¢ OURT OF MALU] b>, 24 AUG 2023 IN THE HIGH COURT OF MALAWI ne LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION MISCELLANEOUS CRIMINAL REVIEW NO. 08 OF 2023 BETWEEN JOSEPHINSABIMANA cnnsnsnnenannnmnen APPLICANT “AND. THESTATE —— ssunnsnnonnnnnnnnnnnene RESPONDENT

Coram

— HON, JUSTICE VIOLET PALIKENA-CHIPAO Mr. Soko, Counsel forthe Applicant Ms. Jafali, Counsel for the Respondent Ms, Mkochi, Court Clerk Chipao, I

Ruling

1. The Applicant, Joseph Neabimana filed a notice of mation for review of the proceedings before the Chet Resident Magistrate Court and fran order of unconditional release. The motion was filed on the authority of section 261) ofthe Courts Act, section 360 ofthe ‘Criminal Procedure and Evidence Code (CP & EC) and section 42(1) and (f) of the Constitution of Malawi. The Court directed that the matter should come on the 4" of July. 2023 at 9:30 with notice tothe Respondent,

2. The Claimant served the Respondent with the notice of the motion on 2" June 2023. When the Court convened to hear the application, Counsel for the Respondent sought an adjournment arguing that they have not been able to prepare for a response as they arc seeking information from other institutions and that as such, they needed more time to ther enough information and prepare fora respons.

3. Counsel forthe Applicant strongly objected tothe aplication for adjourment arguing that no goed reasas had been advanced in support of the prayer for adjournment for such a Simple aplication which alleged thatthe Applicant was arrested and had not been brought befire a court of lw. It was argued thatthe State had 10 days within which o have formed

‘an opinion as to why they were keeping the Applicant in detention. Counsel argued that in exercising its discretion on whether to grant the adjournment or not, the Court must consider whether the adjournment would cause injustice to partes. For this, Counsel cited the case of Stella Chapinga Va Matechanga Motel & Enterprises v. National Bank Lid MSCA Civil Appeal No. 29 of 2018.

4. Counsel further argued that with the detention of the Applicant for 10 days, the scales of Justice do not even balance and that it would be a perpetuation of unconstitutional state of affairs to grant the adjournment. It was submitted that if the Court is to grant an adjournment, then the court should make an order the release of the Applicant whilst allowing the State time to respond tothe application for review. It was the view of Counsel for the Applicant that direction on the issue of jurisdiction would offer guidance as it is becoming common for the lower court to refuse to assume jurisdiction in applications ‘where a suspect has not been charged before the lower court.

5. Counsel argued that the main issue in the mater is the issue of refusal by the CRM to assume jurisdiction in the matter and thatthe release ofthe Applicant is an interim reli.

6, In response, Counsel for the Respondent argued that they cannot just respond without sufficient information as this is a matter of national interest. As such Counsel for the Respondent insisted that the matter be adjourned to a later date. According to Counsel for the Respondent, the main issue is the issue of unconditional release and not the issue of review. Counsel for the Respondent argued that the CRM was entitled to refuse to exercise jurisdiction on the matter and when asked whether that meant doing so without giving reasons, she said that she would leave the issue to the court. Considering the issue raised by Counsel for the Applicant that such refusals are becoming a common practice forthe lower cour, the Court directed the Respondent be allowed to respond to the application for review 50 as to address the court on the issue of jurisdiction of the lower court to enable this court make directions for future conduct in such matters. It was for this reason that an adjournment was allowed to give more time to the State on the issue of refusal by the lower court to assume jurisdiction.

7.. Before delivery of the ruling on application for unconditional release, the Court had notice Of proceedings in the Civil Division of the High Court under Judicial Review Cause No. 3 of 2023; The State v. Minister of Homeland Security and Chief Immigration Officer ex parte Joseph Nsabimana where the Applicant was secking judicial review. ‘The Applicant was invited through Counsel to address the Court on why he filed two matters in ‘wo different courts and whether the ruling in the present matter would not have affected the proceedings inthe other court

8. Inresponding to the query raised by the Court, Counsel for the Applicant indicated thatthe matter in Judicial Review Case No. 33 was narrow dealing only with the question deportation as the Applicant had a valid business permit and thatthe Applicant never asked for release in that matter as he was aware that he had already raised the issue of release in this court. Counsel argued that there would have been no conflict of decisions as this court was dealing with review of the decision of the magistrate refusing to assume jurisdiction ‘whereas the judicial review proceedings were dealing with the issue of deportation. Counsel argued that the two cases are different and could not be litigated in the same court. Having said that however, Counsel abandoned the application for unconditional release arguing

that it would be academic as the Applicant had already been deported on the same day the application was heard; that was on the 4 of July 2023.

9. Counsel for the Applicant however asked the court to proceed to deal with the application for review of the magistrate’s decision despite the fact thatthe Applicant had already been deported from Malawi. Counsel for the Applicant argued on the authority of the case of The State on the application of the Malawi Law Society and Prosecutor Levison ‘Mangan, the Chief Residem Magistrate and the Secretary to the President Judicial Review Cause No. 6 of 2023 that where the behaviour complained of is capable of repetition yet may evade review, the court can proceed to assume jurisdiction. This was particularly with reference to the application for review of the decision of the Chief Resident Magistrate refusing to assume jurisdiction and hear an application for ‘unconditional release without giving any reasons for the refusal. The State agreed thatthe court should proceed to determine the application for review so that the court offers guidance forthe future

10. have considered the case The State on the application of the Malawi Law Society and Prosecutor Levison Mangani, the Chief Resident Magistrate and the Secretary to the President Judicial Review Cause No. 6 of 2023 and the case of Kathumba and Others » President of Malawi and Others Constitutional case number 1 of 2020 (High Court) (unreported) ‘The position is clear. As a general rule, where the subject matter no longer ‘exists the case is moot or academic such thatthe ease cannot be determined by the Court. ‘To this general is an exception that where the impugned conduct is capable of repetition ‘yet evading review, the court will have the jurisdiction to determine the case.

11. Its important to recall that there were two applications subject of the present proceedings. ‘The first application is that of review of the decision of the CRM refusing to assume Jurisdiction without giving reasons for the refusal and the second isthe application for the release of the Applicant from custody, At the time of the application, the Applicant had been in custody beyond the prescribed 48 hours without having been brought to court to be told of reasons for his further detention or to be charged. The Applicant was however <deported from Malawi on the same day that application for his release was made but before the ruling was delivered. He is in fact outside Malawi following his deportation from Malawi. ‘The issue of unlawful detention which was the basis for the application for unconditional release no longer exists. Determining the application for unconditional release from detention therefore is moot as submited by the Applicant's Counsel.

12. The second application however is different. Much as the person behind the application is no longer in custody, the subject of the application isthe decision of the CRM refusing to assume jurisdiction in the matter without providing any reasons for the same. Counsel for the State agreed that the Court should proceed to determine the application for review although on a different basis namely that it would offer guidance in future. In view of the Applicant's argument that such conduct is capable of repetition the case should be considered to fall within the exception entitling the court power to proceed to determine the application for review.

13. The application by the Applicant is for review of the decision of the CRM refusing to assume jurisdiction to hear the application for unconditional release. It is stated by the ‘Applicant that on 28" June 2023 he filed an application for unconditional release but the

‘CRM refused to assume jurisdiction and directed thatthe matter should be filed in the High ‘Court without giving any reasons for such a decision. The application which was filed in the CRM court was exhibited to the present application as JN2. According to the notes on the application, the CRM directed Counsel to file the application in the High Court but did ‘not provide any reasons as to why she could not assume jurisdiction. I i this direction and the absence of reasons forthe same which has led to the present application,

14. The Applicant argued that since he filed an application, the CRM was not entitled to simply ‘eject it without giving reasons especially when the court has jurisdiction, He also argued that the pronouncement of this court would implicate on hundreds of other people who have been detained by State law enforcement agencies in areas where the High Court is not accessible by reason of physical distance.

15, The Applicant cited the case of Standard Bank Ltd v Tourism Investments Ltd and another MSCA Civil Appeal No. 17 of 2018 where the Supreme Court of Appeal ‘emphasised on the need for judicial officers to give reasons for their judgments or decisions. The Applicant also argued that ifthe reason for rejecting to assume jurisdiction was that the accused person had not yet been charged then this was erroncous citing the case of Joseph Mwwananwveka v Republic, Mise Bail Application No 37 of 2021 where the court stated as follows;

IF indeed the learned Chief Resident Magistrate had made such a decision on the alleged basis, this Court would be quick to point out that the decision was ‘wrong in law because under section 42(2)(e) of the Constitution, any and every detained person, is at liberty at any point afer his or her arrest to apply to a competent Court for release on bail even within the 48 hours period prescribed under section 42(2)(b) of the Constitution

16. Counsel for the Applicant argued there is a practice by subordinate courts to decline |jurisdiction where an accused person has not been charged. He said that the basis of this practice is not entirely clear but that it offends the rights ofa detained person under section 42 and implicates the right of a detained person to access the courts under sections 41 (2) and (3) and Section 46 (2) and (3) of the Constitution, considering also that access to the High Court is extremely limited as opposed to Magistrates Courts that are more accessible to the majority of Malawians

17. The State in their response argued thatthe matter before court isa financial crimes matter ‘and that according to section 6A (2) of the Courts Act, the subordinate court does not have Jurisdiction. The State argued that although the Magistrate Court did not furnish the ‘applicant with reasons as per requirement of the Constitution, the State would assume that court refused to assume jurisdiction because it believed that it did not have jurisdiction, ‘The State argued that Magistrate Court acted on its own volition by deciding that the application that was brought before it should have been brought before an appropriate court Which is the financial crimes division and hence transferred the matter. It was the State's view that Magistrate Court did not error when it directed that the matter be commenced in the Financial Crimes Court.

18. On the issue of giving reasons, the State cited section 43 ofthe Constitution. The Applicant in reply argued that section 43 of the Constitution cannot be the correct provision but that section 40(1) of the CP & EC might have some relevance. Counsel argued that although the provision appears to apply to decisions after atrial, it should, forthe reasons the Supreme Court gave in Bazuka Mhango v New Building Society Bank Ltd MSCA Civil

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