THE WARRANT OF ARREST HAS BEEN ILLEGALY CANCELLED AND THERE IS A RESTORATION REMEDY THAT THE ACB CAN PURSUE.

WhatsApp Video 2020-08-10 at 09.37.15

By LordDenning QB

LordDenning QB-Legal expert and analyst

I have read, and applied understanding to, the CANCELLATION OF WARRANT OF ARREST as an Order created by a Magistrate sitting at Zomba effecting the release, from custody, of Dr. Thom Mpinganjira of whose arrest yesterday was made by the ACB at the effect of Warrant of Arrest issued by a Magistrate sitting at Blantyre.

The Magistrate sitting at Zomba, in whose ‘authority’ the said cancellation has been created, laid down three grounds for the creation of such a cancellation.

The first ground is that he has been made to do so: UPON HEARING Counsel for the Applicant for an Order for Cancellation of Warrant of Arrest and forthwith release of the Applicant.

The second ground is that he has been compelled to do so: UPON READING the Sworn Statement of DR. PETER MPINGANJIRA filed in support of the application.

The thirds ground is that he has been convinced to grant this Order: UPON CONSIDERING Sections 18 and 42 of the Constitution of the Republic of Malawi and Section 96 of the Criminal Procedure and Evidence Code.

I have no reason to waste time on the 1st and 2nd grounds because their validity and application relies on the basis of the law, which is placed as the third ground. I shall, therefore, dwell on the third ground and discuss the cited law in order to ascertain the validity (or lack thereof) of this Cancellation Order.

The said Section 18 of the Constitution (which is the shortest section throughout the entire Constitution document) has the following wording in its entirety: “Every person has the right to personal liberty.” That’s all it says.

Section 44(1) of the Constitution contemplates that rights such as the right to personal liberty can be limited under the prescription of the law. The doctrine of law enforcement prescribes, under numerous provisions of the laws of Malawi, prescribe for an arrest of those who are reasonably suspected to have offended the law. One can quickly agree with me, therefore, that the power and meaning of section 18 on its own does not create any benefit towards Dr. Mpinganjira whose liberty was restricted through a lawful arrest on account of his being suspected to have broken the law.

I, now, turn to the said Section 42 of the Constitution of the Republic of Malawi. This section has subsections (1) and (2) in which subsection (1) has six (6) paragraphs running from (a) to (f), and subjection (2) containing seven (7) paragraphs running from (a) to (g). I have traversed through these paragraphs in their entirety and, in light of the Honorable Magistrate’s cause, the relevant parts of the said Section 42 of the Constitution could be paragraphs (e) and (f) falling under subsection (1) and nothing else.

I, hereby reproduce these sections in full:
Section 42(1): Every person who is detained, including every sentenced prisoner, shall have the right—

(e) to challenge the lawfulness of his or her detention in person or through a legal practitioner before a court of law; and

(f) to be released if such detention is unlawful.

What the Magistrate was trying to tell us in his firs paragraph (read as first ground) is, perhaps, to inform that Dr. Mpinganjira was, as provided by Section 42(1)(e), represented by a legal practitioner. Is there any meaning in that towards his decision to grant the Order? Ask me! If paragraph (f) is anything that the learned Magistrate relied, did he demonstrate that the arrest was unlawful? Ask me!

Perhaps let us take a look at the said Section 96 of the Criminal Procedure and Evidence Code which he passionately cited in his third ground. The only part that comes close to the issue which he was transacting upon is subsection (3) of the said section 96 of the Criminal Procedure Evidence Code which has the following text:

According to Section 96(3)

“Every such warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.”

Clearly Section 96(3), which the learned Magistrate purported to utilize as a gun with which to shoot the Warrant of Arrest down appears to shoot his own foot. The Section unambiguously contradicts what the Zomba-based Magistrate has done. The Warrant of Arrest was issued by a Magistrate (Court) in Blantyre and here he is, a magistrate (Court) in Zomba attempting to cancel an active Warrant which did he not issue. This is clear violation of the very Section 96 of the Criminal Procedure and Evidence Code which he sought to rely.

In case it was lost on this Magistrate, the reason why the law requires that a Warrant of Arrest can be competently cancelled by the very Court which issued it is simply that the grounds for which that Warrant was issued are only available with the Court which issued the Warrant.

By approaching another Court, therefore, such a gesture would entail an appeal. It is a well-settled court procedure, which the learned Magistrate should appreciate, that a Magistrate Court cannot act as an appellate (Appeal) Court against a decision made by another Magistrate Court. The law is very clear on this point. For the avoidance of doubt, the law establishes that an appeal against a Court decision lies on a Court of higher jurisdiction than the one that issued contended decision. Was this lost on the learned Magistrate.

Without allowing myself to fall into the speculations that the Magistrate who has issued this Cancellation Order is the same Magistrate who dealt with the George Chaponda issue, let me direct my worries as to why the said Order was sought and given Ex Parte instead of Inter Parte?

The wisdom was shared by Lord Hewart CJ in the famous case of R v Sussex Justices, ex parte McCarthy in which he said “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The transaction of this learned Magistrate in this case runs foul with this wisdom.

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BEFORE I CONCLUDE, LET ME BORROW A SUMMARY FROM A LEARNED COLLEAGUE Abison Chitukula:

1. No reasonable court would entertain such an application for cancellation of warrant of arrest and immediate release from custody ex-parte (without hearing the other side/without notice;

2. A warrant of arrest that has already been executed cannot be cancelled. The warrant has served its purpose. Its effect has lapsed;

3. A court cannot cancel a warrant of arrest issued by another court. The law is quite specific on this.

4. Why a court would sign an Order at 12 midnight when the other side (ACB) has not been heard is simply outlandish and stupid.
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Having said that, it is in my undoubted belief that once this issue is taken to the High Court, the Warrant of Arrest can be restored immediately without any hesitations. This, therefore, goes to urge the ACB to visit the High Court and seek the restoration of the Warrant of Arrest which it obtained and has been ‘illegally’ cancelled. This visit, of cause, depends on whether the ACB was really honest with this arrest in the first place and whether the pursuit to prosecute the suspect has not been compromised now or ab initio.

Yamikani Kachingwe

Yamikani Nicholas Kachingwe is a Malawian with great interest in current affairs, news and storytelling. Over the years, he has established himself as a a great source of news, a private investigator of issues and whistle blower using various social media platforms.