The Lilongwe Chief Resident Magistrate’s Court has reserved until 2pm on Thursday its ruling on whether warrants of arrest issued against former Human Rights Defenders Coalition (HRDC) leaders Timothy Mtambo, Gift Trapence and Reverend MacDonald Sembereka should be permanently set aside.
Chief Resident Magistrate Austin Banda reserved his decision after the State cross-examined Trapence, one of the applicants challenging the warrants.
The three activists, represented by lawyer Khwima Nchizi, argue that the warrants were improperly issued because the criminal matter from which they arose was discontinued by the State in October 2020.
They contend that once the case was withdrawn, the associated bail conditions lapsed and could not subsequently form the basis for warrants of arrest.
The matter stems from allegations made in March 2020 that the trio planned to march to State House during demonstrations ahead of the June 2020 presidential election re-run. The prosecution was later discontinued.
Opening submissions for the applicants, Nchizi told the court that the central issue was whether any matter was still pending before the court when the warrants of arrest were obtained.
“This application is simple,” he said. “We are asking the court to resolve a factual question. Was there, as a matter of fact, a matter still alive before this court that would have necessitated the arrest of the applicants?”
He argued that the answer was no because the proceedings ceased to exist on October 1, 2020, when the State withdrew the case and the court endorsed the discontinuance.
“Our response to that question is in the negative,” Nchizi submitted.
“The matter ceased to exist on 1 October 2020 when the State withdrew it and the court endorsed that course. Where a matter has ceased to exist, the bail conditions fall away.”
He therefore asked the court to vacate the warrants on the basis that they were founded on proceedings that no longer existed.
During cross-examination by Masauko Chankakala, Director of Prosecutions for the Malawi Police Service, Trapence confirmed that he had signed the affidavit supporting the application.
Asked whether he had proof that the matter had been discontinued, Trapence said the court file would confirm the withdrawal and maintained that prosecutor Zangazanga had handled the case presided by Magistrate Chipao.
When questioned about compliance with bail conditions, Trapence told the court that the applicants had reported to police while the case remained active. He later stated that reporting ceased once the matter had been discontinued.
Asked whether Mtambo and Sembereka also reported to police, Trapence said they had reported together at National Police Headquarters.
The State opposed the application and relied on an affidavit sworn by Assistant Commissioner of Police and Deputy Director of the Criminal Investigation Department, Master Khoma.
Chankakala submitted that the applicants had failed to produce evidence demonstrating either compliance with their bail conditions or that the case had been formally withdrawn.
“The applicant has failed to produce evidence that he indeed reported for bail,” he said.
He argued that, under normal circumstances, the applicants should have produced documentary proof of compliance with their bail obligations and said Trapence had failed to adequately explain the disappearance of records he claimed were missing.
The State further argued that warrants of arrest remain in force until they are executed or cancelled by the court that issued them.
“It is the position of the State that the application has no legs to stand on,” Chankakala submitted, urging the court to dismiss it.
In reply, Nchizi argued that the State was seeking to curtail his clients’ liberty without first establishing a proper factual basis for doing so.
“I stand here as counsel and as a citizen of this country wondering whether my tax is being put to good use by the State,” he said.
He stressed that the matter before the court concerned the constitutional right to liberty, arguing that it was the State, not the applicants, that bore the burden of justifying any limitation of that right through warrants of arrest.
Nchizi rejected the State’s contention that the applicants had failed to provide evidence, arguing that sworn affidavits constituted evidence and could not simply be disregarded because particular documents had not been attached.
He also questioned what he described as the State’s apparent failure to consult the court record before seeking the warrants.
“Things should be done properly and not with ill intentions,” Nchizi said. “If the State did not see the court record, what intentions did it have?”
Describing the court as “a court of record”, he questioned the basis upon which the State concluded that there was still a matter before the court.
“My point is that if the State did not have access to the records, what was the basis upon which it made that decision?” he asked.
Nchizi said the prosecution was effectively demanding proof that the applicants had been complying with bail conditions and proof that the case had been discontinued while, at the same time, appearing not to have verified the contents of the court file.
“If the State did not see the file, what was the basis for believing there was still a matter before the court?” he said.
He further argued that even if the court record were unavailable, the court was required to consider where the balance of justice lay and whether the warrants had been obtained on the basis of accurate facts.
“Were the warrants of arrest issued on 7 October on the basis of proper facts and on the existence of a case that required the applicants to continue reporting as part of their bail conditions?” he asked.
Nchizi maintained that if the proceedings had ceased to exist on 1 October 2020, there could have been no legal basis for the continued operation of the bail conditions or the subsequent issuance of warrants of arrest.
“If that case ceased to exist on 1 October 2020, then one wonders why we are before this court in the first place,” he said. “We can do better as a country. The State can do better.”
After hearing submissions from both sides, Magistrate Banda said he would deliver his ruling at 2pm on Thursday.
“I reserve my ruling until tomorrow at 2pm,” the magistrate said.
The ruling is expected to determine whether the warrants of arrest remain in force or are permanently set aside.
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