KASAMA HIGH COURT GRANTS CHILANGWA BAIL
THE Kasama High Court, sitting in Lusaka, has granted bail pending trial to Kawambwa PF member of parliament Nickson Chilangwa.
Chilangwa has been in custody at Kawambwa correctional facility since July 17, 2023.
In June this year, the Kawambwa Magistrates’ Court issued a bench warrant against Chilangwa after he eight times failed to present himself before court in a criminal matter.
This is in a matter where Chilangwa and six others are facing a charge of arson and malicious damage to property, and they are all on police bond.
When Chilangwa appeared in court on July 17, the magistrate was not satisfied with the accused’s reason for failure to attend court on the scheduled date.
The magistrate therefore revoked Chilangwa’s police bond, hence his incarceration of slightly over two months.
But Chilangwa through his lawyers from Andrew & Partners challenged the subordinate court’s decision in the Kasama High Court.
In his affidavit, Chilangwa argued that the offence he was charged with was bailable.
He explained that he could not appear before the lower court on the scheduled day because he was also appearing in the Lusaka High Court in another matter.
Chilangwa submitted that in view of his explanation, the decision to revoke his police bond was done in bad faith as he had a reasonable explanation for his absence before court.
He further said he was of fixed abode and was willing to abide by any conditions that may be imposed on him.
Chilangwa said the Criminal Procedure Code allows the High Court to grant bail to any person charged with a criminal offence pending trial and determination of such offence.
He further said in the subordinate court he stands charged with a bailable offence for which he was on police bond.
But the state filed an affidavit in opposition on September 15, 2023, arguing that Chilangwa breached bond conditions when he failed to appear before court on the scheduled date of hearing.
The state said thereafter, Chilangwa went into hiding and could not be located.
The state said the High Court should not grant Chilangwa bail because his liberty would be a danger to the administration of criminal justice.
The state further said Chilangwa missed a total of eight sittings in the subordinate court; hence a bench warrant was only issued against him after he failed to appear on June 26.
The state said after the issuance of the bench warrant, Chilangwa went into hiding and the police failed to locate him until he surrendered himself to police in Kawambwa.
The state argued that due to the explained circumstances, if granted bail, Chilangwa was a flight risk despite being of fixed abode.
The state therefore beseeched the High Court to take judicial notice of the subordinate court record of proceedings to satisfy itself with why Chilangwa’s police bond was revoked.
But in response, Chilangwa’s lawyers argued that their client had demonstrated that he was not a flight risk being an elected member of parliament.
The lawyers said his failure to attend court on the scheduled date was not deliberate as submitted in the affidavit.
They reiterated their prayer that Chilangwa be granted bail pending trial so that he could have an opportunity to prepare his defence.
And in his ruling dated September 25, 2023, judge Mathew Zulu said legally, every person is considered innocent until proven guilty.
‘’…Be that as it may, the Court should never lose sight that the presumption of the Law is that one is innocent until his guilty has been established in Court. The Court will therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice. It is my considered view that when adjudicating a bail application, the presumption of innocence operates in favour of an applicant even where there is a strong prima face case against him…,’’ said judge Zulu. ‘’…In view of the foregoing, I come to the conclusion that the circumstances of his case favour the granting of bail pending trial. The Respondent has not demonstrated that there is any congnisable indication that the Applicant will not turn up in Court to stand trial if released from custody. For the reasons I have given above, I exercise my discretion in favour of the Applicant and admit him to bail pending trial. The bail conditions are as follows:
i) Cash bail in the sum of K10,000.
ii) Two sureties of traceable abode in the like sum in their own recognisance.
iii) The Applicant to surrender his passport to the Senior Assistant Registrar at Lusaka for onward transmission and custody at Kasama High Court.
iv) The Senior Assistant Registrar at Lusaka to scrutinise the sureties.’’
v)
Chilangwa’s lawyers have since written to the officer-in-charge at Kawambwa Correctional Service to present him in Lusaka for completion of bail processing.
‘’Dear Sir,
RE: NICKSON CHILANGWA VS THE DIRECTOR OF PUBLIC PROSECUTIONS – HRA/02/2023
Reference is made to the captioned matter.
We act for Honourable Nickson Chilangwa (‘Our Client’) and therefore note our professional interest.
As you may be aware that our client has been remanded in your custody since the 17th day of July 2023 when his police bond was revoked by the Subordinate Court sitting at Kawambwa,’’ stade the lawyers in a cover letter dated September 25, 2023 and signed by Kampamba Kombe. ‘’Our Client has since been granted bail by the Kasama High Court sitting in Lusaka. We have enclosed a copy of the court’s Ruling which is self-explanatory. We therefore request that you present our client in Lusaka to complete the bail processing before the Senior Assistant Registrar sitting at the Lusaka High Court.’’