By LordDenning QB
INTRODUCTION
Following the arrest of the UTM Secretary General, Mrs. Patricia Kaliati, I have seen a few legal opinions on social media suggesting that any arrested person cannot be kept in detention beyond 48 hours. In particular, laws have been cited and annexed with an opinion that the police were supposed to bring her to court within 48 hours from the moment of her arrest and that with that time frame passing, the arrest and detention are unlawful. This is a misguiding opinion for the reasons that I am outlining in the discussion below:
THE LAW GOVERNING ARRESTS IN MALAWI
The Criminal Procedure and Evidence Code (CPEC) Act 36 of 1967 of the Laws of Malawi is the main law that deals with arrest and detention. It outlines ways in which the right to personal liberty can be limited through arrests and prescribes the process and timelines within which actions related to arrests must happen. Apart from the CPEC there are other laws which also deal with arrests and detention in Malawi and these include the Police Act; Penal Code Act; Bail Guidelines Act among others.
According to CPEC, the police can make arrest whenever there is a REASONABLE SUSCPICION that the person has committed an arrestable[sic] offence. That is why the arrested is called a SUSPECT at this stage.
When further consideration of the evidence which formed the reasonable suspicion indicates that the person did not in fact commit the alleged offence or that the evidence turns out not to support the charge against the offence cited, the police are obliged to release that person with caution.
When arrested as such, the person can be detained at police station for a maximum of 48 hours within which the person must be brought before court to institute proceedings. At this stage, the suspect, having been formally charged of the offence, takes a plea. In taking a plea, the suspect tells the court whether, having heard the charge(s) against them as put across by the prosecutors, they are guilty or not. When the suspect enters a plea of guilty, trial becomes unnecessary and the court proceeds with pronouncing the guilty verdict and subsequently sentence. But where the suspect pleads not guilty, the court sets out a date for trial.
At this point, the suspect changes identity and becomes known as the Defendant. At this point, the defendant may now apply for a court bail to be released while awaiting trial on a date that the court has set. The court may or may not grant the bail. If bail is not granted, the accused defendant remanded to prison (i.e. sent for further detention awaiting the trial). Refer to detention before trial in which when the matter is triable before a Subordinate Court, the accused may be detained up to 30 days within which the accused must either appear before court or be released on bail (at court). When the matter is before High Court, the accused may be kept in detention before trial for up to 60 days and for serious offences such as treason, for which Kaliati stands accused, the detention before trial may go for up to 90 days.
It must be mentioned at this point that the purpose of detaining an accused person is to ensure that they actually appear before the court when they have to. Thus detention before trial eliminates the risk of the accused escaping trial. For example, the police communicated that two of Kaliati’s accomplices are at large. Assuming they have not turned themselves over to police and they get caught, their efforts to apply for bail may be a waste of time because their chances of been granted the bail would be zero. They have already demonstrated that they are capable of escaping justice. As for Kaliati, she has reasonable chances of being granted bail (assuming the offences with which she is going to be formally charged with are ‘bailable’).
CAN THE POLICE RELEASE A SUSPECT BEFORE FIRST APPEARANCE IN COURT?
The answer is in the affirmative: YES. Section 35(3) of the CPEC requires the police to release arrested suspects if there is not enough evidence against them in light of the suspected offence. The discovery of this fact may be made after due inquiry of the arrested suspect. Where the police, upon detaining the suspect discover that there is sufficient evidence for the suspect to answer charges in court, but the offence is not so severe and there is an assurance that the suspect will actually avail himself/herself in court at the appointed time, then the police may choose to release the suspect on police bail (also called police bond) within the 48 hours’ time frame. Otherwise, beyond 48 hours, the police lose the authority to issue bail as it becomes the jurisdiction of the court to decide on whether or not to release the accused on bail upon the accused’s application for the bail. When the Court determines that there was not sufficient evidence to support reasonable suspicion in arresting the suspect and the suspect was kept in detention, the police may declare such arrest unlawful and/or arbitrary. The suspect may, in turn, sue the state (in civil proceedings) to enforce his/her constitutional right under the Bill of Rights.
WHY DID THE POLICE HAVE TO KEEP KALIATI WHILE PROCEEDING WITH INVESTIGATIONS BEFORE COURT APPEARANCE?
Remember we have said that all what is required to effect an arrest is REASONABLE SUSPICION. Thus as long as there is some convincing evidence to suspect that the accused has committed an offence (inchoate or complete), the arrest can be carried out.
But we all know that when it comes to trial, criminal matters have a higher threshold in terms of the quality of evidence that must be presented to sustain the charge: BEYOND REASONABLE DOUBT. Thus while evidence just enough to raise reasonable suspicion was sufficient to support a lawful arrest in terms of section 34(3)(d) of the Police Act, trial will require that evidence to be upgraded beyond reasonable doubt. This is why upon arresting a suspect on reasonable suspicions, the police might conduct further investigations to achieve evidence that is beyond reasonable doubt.
Further, it is rumoured that the conspiracy to commit felony as announced by the Police public statement, relates to treasonous offences. Treason offences, just like murder, rape and aggravated robbery, are capital offences and there is no police bail on capital offences
It is also slightly misguiding to complain that Kaliati is being kept in detention beyond 48 hours and without bringing her to court and therefore that she is being detained unlawfully. This misguiding part of this assertion lies on the fact that it fails to reconcile the law and the facts of this particular circumstance: Section 42 of the Constitution provides in the following manner:
“A person arrested and detained in custody and who is not cautioned and released, released on police bail, or released on insufficient evidence, must be brought to a court having jurisdiction as soon as is practicable but not later than 48 hours after arrest, unless 48 hours expires outside the court hours, failing which he must be released”.
According to factual circumstances communicated by the Police, Kaliati was arrested on Thursday, 24th October. This means that clock 48 hours would expire on Saturday, 26th October. However, the wording of section 42 of the Constitution cited above has a proviso that the 48-hour rule is applicable where the expiry of such 48 hours occurs within court hours. Ordinarily, Court does not sit on weekends, Sundays and holidays. Any hours within these days, therefore, cannot make part of Court hours. Thus counting Saturday as part of the 48 hours is an act of misguiding oneself. It is my view that the counting of the hours has stopped so that it continues from Monday. Thus the State has until Monday to bring Kaliati to Court in accordance with the Constitution and all relevant laws.
CONCLUSION
According to Police communication to the public, Kaliati has been arrested for a suspected offence of conspiracy to commit a felony. The Police claim to have evidence seriously implicating her on such offence. Formal charges against her are yet to be particularized after concluding further investigations that seek to reinforce the evidence to the satisfactory threshold of beyond reasonable doubt. The view that since she has not been formarly charged then she is being kept illegally is erroneous. Further, the opinion that failure by the State to bring Kaliati to Court by Friday means she is being kept illegally is entirely misguided and should treated with disapproval. That opinion represents a wrong position of the law.
