R v Chilima (Criminal Case 10 of 2023) [2023] MWHC 40 (1 August 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY FINANCIAL CRIMES DIVISION CRIMINAL CASE NO. 10 OF 2023

BETWEEN

REPUBLIC

VS

RT. HON. DR. SAULOS KLAUS CHILIMA

Coram

HONOURABLE JUSTICE R.E. KAPINDU Messrs Khunga, Chiwala, Saidi, Likwanya, Counsel for the State Messrs Kaphale, SC, Soko & Theu, Counsel for the Defendant Court Reporter: V. Mombera Clerks: F. Dzikanyanga & C. Saukila

Ruling

KAPINDU, J

1. The Vice President of the Republic of Malawi, Dr. Saulos Klaus Chilima, the Accused Person herein, is facing criminal charges before this Court. The charges are being preferred against him by the Anti -Corruption Bureau (ACB), a Government Department established under section 4 of the Corrupt Practices Act (CPA) (Cap. 7: 04 of the Laws of Malawi), one of whose functions under section 10 of the said Act is to prosecute any offence under the Act.

2. The Accused Person was arrested on 25 th November, 2022 on various allegations of corrupt practices, and was released on bail on the same day by the Chief Resident Magistrate’s Court (sitting at Lilongwe). Dissatisfied with some of the conditions that the said Court imposed on him when he was being released from deten tion, he has applied for variation of the same before this Court. He premises his application on section 118(3) of the Criminal procedure and Evidence Code (CP & EC) as read with section 42(2)(e) of the Constitution of the Republic of Malawi (the Constitution).

3. This is the Court’s Ruling on that application.

4. Dr. Chilima has raised a number of grounds in support of his application for the variation of his bail conditions.

5. He states that following his arrest, he was released on conditions which required, amongst other things, that he reports to the ACB offices once every three months and further that he surrenders his Passport to the Court. He states that he has complied with these conditions but now seeks that they be removed.

6. He argues, firstly, that g iven the high office which he holds, reporting at the offices of the ACB serves no practical purpose considering that the reporting requirement is meant to assure the prosecuting authorities of his availability for trial before the Court. He states that as the Vice President of the Republic, his schedule is well publicised and most of his movements are a matter of public record. At any given point in time, therefore, he states, almost every Malawian, including officers of the ACB will know where he is.

7. He proceeds to state that in respect of the condition that requires him to surrender his Passport, it is Government protocol that no senior Government official leaves the jurisdiction without taking leave of the State President, who ultimately has got overall superintendence over all of the Republic’s security agencies. He states that such leave of the President will typically detail the destination and the duration of the visit.

8. Furthermore, he states that any external visit that he makes, whether it be of a private or official nature, is coordinated and planned by the Government. As such, he argues, it is not practical, nor is the fear reasonable, that he would flee the jurisdiction by simply skipping the borders.

9. During argument, Mr. Kaphale SC, representing the Accused Person, was emphatic that even if the Accused Person were somehow to try to convince his State security that he needed to be left to the privacy of his self, the security machinery of the State would keep him under constant surveillance and that any strange movement that he would make would trigger security alarms from the security agencies.

10. Put differently, Kaphale SC argued that effectively, the Accused Person, as the number two citizen of the country, is already always under the custody of the State. In this regard, requiring him to report

his continued presence in Malawi once every three months to the ACB serves no useful or practical purpose.

11. Defence Counsel generally argued that bail conditions should not just be imposed just for their own sake but for their utility in securing the presence of an accused person at his trial.

12. The State vigorously opposed the application. The affidavit in opposition was sworn by Mr. Isaac Nkhoma, Principal Investigations Officer for the ACB who, according to the affidavit, is one of the investigators seized with this matter on behalf of the State.

13. Mr. Nkhoma, in his affidavit, agrees with the Accused Person’s assertion that the condition on reporting to the ACB is meant to ensure his availability for trial, but he firmly denies that owing to the status of the Accused P erson, the ACB always knows of his movements and whereabouts.

14. In view of this situation, the Mr. Nkhoma states that it is proper that the requirement that the Accused Person should be reporting to the ACB should remain.

15. Mr. Nkhoma avers that the ACB is handling many cases in the country such that it would be very difficult, if not impossible, for it to assign its officers just to concentrate on finding schedules or records of movements of the Accused Person herein as a way of assuring itself of his availability.

16. In any event, the State argues, relying on such information may not be proper for a prosecuting agency.

17. Mr. Nkhoma depones that the lower Court already considered the status of the Accused Person when setting the bail conditions and that

the interval for reporting, namely once every three months, attests to this.

18. On the issue of the existence of Government protocols when it comes to leaving the jurisdiction, the State takes the position that the ACB and indeed the courts are not part of such Government protocols, and that it would therefore not be safe to rely on them as a means of ascertaining the movements of the Accused Person. It was the State’s argument that it is only the requirement to collect his Passport from the ACB or from the Court t hat would alert the ACB or the Courts of his movements or whereabouts.

19. The State therefore argues that the bail conditions as imposed by the lower court are reasonable, fair and not oppressive..

20. The State invites the Court to observe that bail conditions , by their very nature, take away some liberty from an accused person, and that they are not to be varied merely because they inconvenience an accused person.

21. The State therefore prays that the Accused Person’s application be dismissed in its entirety for lack of merit.

22. The parties advanced a number of legal arguments in support of their respective positions.

23. Counsel for the Accused Person begun by referring to section 118 (3) of the Criminal Procedure and Evidence Code (CP & EC) which provides that:

“The High Court may, either of its own motion or upon application, direct that any person be released on bail or that the amount of, or any c ondition attached to,

any bail required by a subordinate court or police officer be reduced or varied.”

24. Counsel for the Accused Person argued that when granting an accused person bail, a court must principally be satisfied that it is in the interests of justice to do so, and that this has been interpreted by the courts to mean, as a paramount consideration, that there must be an assurance that the accused person will be available for his trial. In support of this proposition, Counsel cited the leading Supr eme Court of Appeal decision in Republic v Mvahe (MSCA Criminal Appeal 25 of 2005) [2005] MWSC 2 (15 November 2005).

25. Counsel for the Accused Person proceeded to contend, and correctly so, that release of an accused person from detention pending trial can be with or without conditions, and that the law sheds light on how a court can exercise its discretion as to the conditions that it may impose for r elease of an accused person on bail. They cited, in this regard, section 118 (2) of the CP & EC which provides that: “The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.”

26. Counsel found further support from Guideline 7, under Part II of the Schedule to the Bail Guidelines Act (BGA) (Cap. 8:05 of the Laws of Malawi), which provides that: “Any bail conditions given to the accused should not be unreasonable.”

27. Defence Counsel stated that what these authorities demonstrate is that the amount of bail should be fact sensitive, and that every accused person must be dealt with on the merits of his or her own circumstances.

28. They contended that while strict conditions may be appropriate for some people who are a flight risk, the same conditions would make bail excessive for people who present a negligibly low risk of running away.

29. In other words, it was Counsel’s submission that criminal justice protocols need not be applied in a one size fits all approac h. As an authority for this proposition, they cited the case of The State on the Application of Kezzie Msukwa and another v The Director of the Anti-Corruption Bureau Judicial Review Case No. 54 of 2021. They invited the Court to recall that in that case, the Court held that while it was legally permissible to handcuff suspects to prevent them from fleeing, this was not a protocol that was to be used indiscriminately, and that the arresting law enforcer has discretion to dispense with the usage of handcuffs in appropriate cases where there is very little risk of the suspect fleeing. Counsel argues that, by parity of reasoning, it will not be in every case where an accused has been arrested that he or she must be compelled to be reporting to the arresting and/or prosecuting agency or indeed to surrender his or her travel documents.

30. Counsel proceeded to argue that in fact, there may be cases when an accused person may be released on his own recognizance, and they urged that the present one is one such case.

31. Counsel invited the Court to take judicial notice that in the case of United States v Donald Trump and another, the former President of the United States of America, after his arraignment in a US Federal Court was released without conditions, both the Prosecution and the Judge deeming that he was not a flight risk. Counsel thus wondered why, in Malawi, we should think that a sitting Vice President of the Republic would flee his trial as to require him to surrender his Passport and to be reporting to the ACB. The Court must quickly point out that despite all its earnest efforts to find a copy of the decision in U nited States v Donald Trump and Another as cited by defence Counsel, the Court failed to find a copy of this decision, and unfortunately defence Counsel did not furnish the Court with a copy. The internet link provided did not direct the Court to the text of the decision either. In the result, the Court is unable to place any weight to this decision.

32. Counsel for the Accused Person contended that the gravamen of the Accused Person’s submission and prayer is that there must be a reasonable nexus between the conditions for bail and ensuring that the Accused Person attends his trial, and that anything else that exceeds what is reasonable for securing the attendance of the Accused Person for his trial makes the bail condition unreasonable and the bail excessive.

33. On their part, Counsel for the State invited the Court to note that in the case of Kettie Kamwangala v the Republic MSCA Miscellaneous Criminal Appeal No. 6 of 2013, it was stated that:

“beneath every criminal trial is the need for the accused person to attend trial on all set days, times and places. It is [a] cardinal point therefore that whatever conditions attach to an accused’s release from detention, they should specifically emphasize those that ensure that the accused finds it difficult, impossible or unattractive to miss court or escape the jurisdiction. In the alternative, those which make it attractive for the accused to attend court.”

34. State Counsel argued that it therefore follows that bail conditions, by their very nature, take away some liberty from an accused person. They cited the Court’s decision in the case of Republic v Dr Cassim Chilumpha and Yusuf Matumula, Criminal Case No. 13 of 2006, where Nyirenda, J, (as he then was), stated that any condition as to bail is obviously a restraint on liberty of an accused person. Counsel for the State thus contended that bail conditions should not be varied merely because they inconvenience an accused person.

35. State Counsel reiterated that the whole essence of imposing bail conditions is to ensure that the Accused Person will be available for all

the dates that the case may be set down for hearing. They stated that the interests of justice req uire that there should be no doubt that the Accused Person shall be present to take his trial upon the charge in respect of which he has been committed. They cited the case of John Zenus Ungapake Tembo and others v The Director of Public Prosecutions, MSCA Criminal Appeal No. 16 of 1995 in support of this contention.

36. It was the prosecution’s argument that removing the conditions in question will create a doubt as to the Accused Person’s availability to attend trial as the ACB will not be able to ascertain the movement and availability of the Accused Person. The proposed means of ascertaining his availability, they stated, are outside the control of both the ACB and the Court. In this respect, they argued that it was not in the interests of justice to vary the conditions.

37. Prosecution Counsel cited the South African case of Martin Lennard Korver v The State, Case number A 188/2021 as authority for the proposition that the key basis for a reconsideration of originally imposed bail conditions is a material change in circumstances.

38. Counsel argued that bail conditions may be varied if there has been a change in circumstances of the accused or the case itself from the time that the bail conditions were set.

39. It was contended that in Republic v Chilumpha (supra), where the accused was likewise a sitting Vice President, the court allowed the State’s application for variation of bail conditions after the State submitted that there was a change in the circumstances of the case. Counsel contended that in the Chilumpha case, the Court agreed with the defence’s submission that the application could only be considered where there are changes in circumstances.

40. State Counsel then proceeded to argue that in the present case, there is nothing that has changed to warrant a v ariation of the bail conditions. They submitted that this was so considering that the lower court granted bail to the Accused Person whilst he was already the Vice President of the Republic of Malawi. They stated that when setting the conditions, the Court below was fully aware of the status of the Accused Person and the court deemed it fit to attach such conditions to his bail. The conditions, they argued, are not punitive, inappropriate, or equal to a denial of bail.

41. Counsel contended that the accused has not provided any ground in support of this application except asserting that he is the Vice President of the Republic. Counsel proceeded to invite the Court to observe that in the case of Republic vs Francesca Masamba, Criminal Case No. 125 of 2020, Justice Mtalimanja dismissed an application on similar grounds made by the accused person when she asked for bail variation mainly because she is a sitting Member of Parliament who wanted to be accessing her Passport by way of agreeing with the State and not through an application to the court. The court further stated that bail conditions are not to be varied without a cogent basis.

42. All in all, the prosecution submitted that the conditions of bail herein are not cumbersome in any way because they are not preventing the Accused Person from exercising his right of movement or to do any job, and that they are neither oppressive nor unreasonable. On the contrary, the prosecution argues that the conditions are in the interests of justice and they thus invite the Court to dismiss the application for lack of merit.

43. The Court greatly appreciates the great industry in research, and indeed the illuminating arguments that Counsel advanced, both orally and in writing before the Court. These have been very helpful to the Court in coming up with the present decision.

44. The Court wishes to begin by observing that it is very rare that a sitting Vice State President, finds himself or herself juggling his or her affairs between discharging his or her official functions on the one hand, and answering to c riminal charges and attending to the attendant criminal legal processes in respect thereof, on the other. The Accused Person herein finds himself exactly in that rare circumstance.

45. In the present application, the Accused Person seeks relief in the form of relaxation or complete removal of bail conditions imposed upon him pending his trial and generally during the currency of the criminal court proceedings against him.