IN THE HIGH COURT OF MALAWI
MISC. CRIMINAL APPLICATION NO. 83 OF 2002
CORAM: HON. JUSTICE A.C. CHIPETA
Mulemba; of Counsel for the Applicant
Kamwambe, Chief State Advocate,
of Counsel for the Respondent
Kamanga; Official Indterpreter
Fatinesi Chekaya is the applicant in this matter. I heard her
motion for bail yesterday. From the affidavit in support it appears
she was arrested on 1st November, 2001 in respect of the deaths of three
children. The State has given an indication that it intends to prosecute
her for Manslaughter.
Very moving and eloquent arguments and submissions were made by Mr
Mulemba, of Counsel, on behalf of the applicant in this case. In
brief they were to the effect that subject to the interests of justice
requiring otherwise S. 42(2)(e) of the Constitution grants every accused
person, including the applicant herein, the right to be released on bail.
The primary consideration when the question whether or not to grant bail
to any applicant arises being whether or not it is likely that such person
would be available to attend his or her trial, it was submitted that the
State not having attempted to show the strength of their case, and not
having shown that the applicant might interfere with their witnesses or
their evidence, and that further not having shown that the applicant has
the means to travel out of Malawi, the interests of justice require that
she be granted bail. On point that the State intends to charge the
applicant with Manslaughter it was argued that believably in such case
no exceptional circumstances need be proved.
The State filed an affidavit in opposition to this application and at
the hearing proceeded to so object to bail. Mr Kamwambe, the Chief
State Advocate, argued that for ordinary cases the arguments advanced by
the applicant carried weight, but that for this heinous offence different
principles apply. Referring to the cases of Brave Nyirenda, Zgambo,
Gwazantini, and Tembo without detailing out their citations Mr Kamwambe
pointed out that there is an abundance of case authority to the effect
that for these types of offences courts ought to be slow to grant bail
and that the requirement is that courts only grant bail in such cases on
show of exceptional circumstances and this he said the applicant has not
done. The State indicated it was ready to commit the applicant for
trial any day from yesterday and prayed that the application herein should
not be granted.
I should first observe that with the Bail (Guidelines)Act, which Mr
Mulemba ably made reference to, now in place and with the wealth of case
authorities in place, the exercise of granting or withholding bail in criminal
cases has been made relatively easy for courts. I must say that for
my part I have always treated Manslaughter as a rather high ranking offence
in the category of serious offences. Much as indeed it is a lower
scale offence when compared with Murder I think compared with Robbery where
at the end of the crime there is still life going on, Manslaughter, which
relates to termination of life, should, in my view, rank higher.
Of course there are different types of Manslaughter, but all the same from
the punishment the legislature has attached to this offence i.e. life imprisonment,
I do not think it can rightly be downgraded to the level of common crime.
In the absence of any authority classifying Manslaughter below the group
of serious or heinous offences, I think I must continue to treat it as
belonging to that category.
Now if I am correct in so viewing this offence then I am bound by the
authorities that are abound from the Supreme Court on the subject.
These authorities in no uncertain terms project the position that for this
class of offences it is incumbent on he or she who seeks bail to show that
there are exceptional circumstances qualifying him or her for bail.
An indicator of this position of the Supreme Court is well illustrated
in the statement:-
“In our view it must be rare when the interests of justice can require
that a capital offender or persons accused of serious offences should be
released on bail.”
at p 6 of McWilliam Lunguzi -vs- Rep M.S.C.A. Criminal Appeal No. 1
of 1995 (unreported). I can therefore only grant bail in this case
if I am satisfied that the applicant has shown me the requisite exceptional
circumstances qualifying her for bail.
To be quite frank I think the applicant has not shown any such exceptional
circumstances in this case. True the State has not indicated what
evidence it has in the case and indeed they have not made any comment regarding
the likelihood or otherwise of the applicant interfering with their evidence
or their witnesses. True also they have not indicated whether the
applicant possesses any travel documents that might enable her to leave
the jurisdiction. Be this as it may, from what I know of the stand
of case law on exceptional circumstances, I do not find myself convinced
that this mere pointing out by the applicant of what she argues are shortfalls
in the State’s response to her application for bail as per the guidelines
amounts to exceptional circumstances. The applicant having fallen
short of what she is expected to demonstrate to obtain bail in a serious
offence I cannot grant bail on basis of sheer sympathy with her.
I must therefore refuse bail. Accordingly I dismiss her application.
Made in Chambers this 24th day of May, 2002 at Blantyre.