Supreme Court of Appeal releases Chisale from police custody

By Duncan Mlanjira

The Supreme Court of Appeal sitting has ordered the unconditional release from police custody of murder and corruption suspect Norman Chisale — former director of security services for former State President, Peter Mutharika

In the judicial review cause number 37 of 2020 ruling between Chisale and Inspector General (IG), delivered by Honorable Justice Lovemore Chikopa SC on Friday, October 2, says the Court is in agreement with the ruling made on August 20 concerning the same parties that Chisale was in illegal detention/custody.

Justice Chikopa SC

The ruling says finds as a fact that the IG was by his own admission aware of not only that Chisale was in illegal custody but also of what the law required of him in order to retrieve the situation — that is to release him on bail.

The Court is of the view that the IG doe not do as the law required of him and that Chisale has since his arrest on July 28, 2020 not been charged with any offence before any court.

“Neither has he been committed for trial before the High Court in view of the fact that he was arrested on allegations of homicide,” said the ruling.

IG Kainja

Chikopa said having heard the case, it is obvious, just as it was during the hearing leading to the ruling of August 20, 2020, that the IG is not comfortable releasing Chisale by himself though it is obvious of him to do so.

The Court was of the opinion that the IG’s hands were tied up and he would rather have the courts make an order to that effect and his task is limited to the act of releasing the applicant.

“We will grant [the IG] his wish. An order is therefore hereby granted immediately releasing the applicant from detention/custody,” says the ruling.

Chisale with Mutharika in better times

“The question might arise whether such release should be conditional. We think not in so far as it relates to these proceedings.

“Having been released from illegal detention/custody we see no reason to attach any special conditions to such release. They would be superfluous anyway.”

The court observed that Chisale is already on bail granted to him by the High Court in Blantyre on July 7, 2020 and the Magistrates Court in Lilongwe.

“If there is any need for conditions we feel the ones imposed in those matters are sufficient,” Justice Chikopa said.

Late Issa Njaunju

In denying bail to Chisale to be released from custody at Maula Prison where he was being held since investigations are still underway in his alleged involvement in the murder of Issa Njaunju, it was largely because of Chisale’s military background and that he is a man of strong influence.

Chisale was arrested by the Police on July 28, 2020 on allegations that he had committed the offence of murder of Njaunju, who was the Anti-Corruption Bureau’s Director of Corporate Affairs.

The case, brought before Lilongwe High Court’s Lady Justice Ivy Kamanga, dismissed the bail application, saying interests of justice weighs against his release from custody because he is a man of influence, with associations and there is technology in issue.

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In those circumstances, the Court said it was wary and convinced that conditions that would curtail interfering with witnesses and tampering with evidence would be an exercise in futility.

In his argument against the bail application, one of the main investigators in the matter, Senior Superintendent John Justice Jailosi, had said the Police are still questioning Chisale on the murder case and the witnesses they are presently talking to in the ongoing investigations were Chisale’s subordinates and associates at the State House.

These police witnesses, according to Senior Superintendent Jailosi, are cooperating with investigators in the gathering of information and are vouching to Chisale’s operational mechanism.

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The Court held that previous investigations revealed that the witnesses had information on operations of personnel leading to Njaunju’s death as having been instituted at State House with full supervision of Chisale.

Upon this State House connection discovery, Chisale’s closeness to the President as head ofsecurity and a further close relationship with the Police leadership at the time, made it impossible for the investigators to complete the investigations.

“The Applicant is a very powerful person with military background, well-resourced financially and has an operational mechanism that would pause a danger to the witnesses,” Lady Justice Kamanga had ruled.

“The Applicant has capacity and technology to interfere as indicated by the persons who are witnesses in the murder of Njaunju. Some of the witnesses who are crucial were scared and fled Malawi.

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“These witnesses have been in touch with the Applicant and need to be secured before the Applicant is released on bail.”

Chisale’s bail application indicated that he cannot jump bail because he is a Malawian and that he lives in an institutional house in Mangochi where the former Head of State is now residing.

He also indicated he has his permanent residence in Area 3 in the City of Lilongwe.

In denying bail, the State indicated that they will also be interviewing the former Head of State on the matter as well as a number of crucial personnel that served the former Head of State at State House on Chisale’s operations and undertakings.

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It was also taken into consideration that there is also technical information for the case that is related to electronic gadgets that will form part of the evidence but the technicians are currently outside the country and the police need, at least 90 days to complete investigations and secure all witnesses under an advocacy protection mechanism.

“Hence, the interests of justice require that the Applicant should not be released on bail,” says the Lady Justice Kamanga’s ruling.

In her law analysis, Kamanga quotes Section 42(2)(e) of the Constitution that states that every person arrested for, or accused of, the alleged commission of an offence has the right to be released from detention, with or without bail unless the interests of justice require otherwise.

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“This, however, is not an absolute right. Every accused person is, however, by law presumed innocent until proven guilty. Courts are therefore ordinarily very slow at denying a person his right to bail.

“And the Malawi Supreme Court as well as the High Court have released persons suspected of murder from custody where it has been demonstrated that the interest of justice so requires.

“The courts have also recognized in some instances that the interests of justice favours that a suspect should be in incarceration. The paramount consideration that a court takes into account as to whether or not the accused person’s right should be curtailed or not is his availability to attend trial.”

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She went on to quote several judgements to do with against granting of bail and used one often cited — the Rex v Hawken [1944]2 DLR, where at 116,119-120 Chief Justice Fris observed that:

* The question of bail is sometimes misunderstood. When a man is accused he is nevertheless still presumed innocent and the object of keeping him in custody prior to trial is not on the theory that he is guilty but on the necessity of having him available for trial. It is proper that bail should be granted when the judge is satisfied that bail will ensure the accused appearing for his trial.

“It should be mentioned at this point that in as long as the person that is seeking the release on bail is a mere suspect or accused person, the burden to show that it would not be in the interest of justice to release such a person lies with the State,” she said.

“The Applicant in the matter at hand has cited various reasons for the court to exercise its discretion towards releasing him from custody despite the fact that the pre-trial custody time limit has not expired.

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“He has indicated that he has a permanent place of abode in Malawi. He has a family that needs him. He has no intention to leave the jurisdiction.

“The Maula prison where he is incarcerated is so congested that the likelihood of his contracting the Coronavirus are very high.”

With regard to the COVID-19 pandemic, the Court ruled that “this cannot form a basis for seeking that the Applicant be released from lawful custody”.

“If at all this were to be entertained, all persons in custody would be legible to be released on account of the COVID-19 pandemic regardless of their criminality.

“The Bail (Guidelines) provides that in applying the principles pertaining to releasing a suspect on bail, the state of health of the Applicant, as certified by a medical practitioner must be taken into account. The court herein has not been furnished with a report from a medical practitioner that the Applicant herein has a health risk and is likely to be so infected.

“When everything is considered in the matter at hand, interests of justice weighs against release of the Applicant on bail…The application is dismissed.”

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