Abstract

GUMBOH, Esther. Correct but wrong: A critical analysis of recent jurisprudence on the proper test for release pending appeal applications in Malawi. Afr. hum. rights law j. [online]. 2017, vol.17, n.2, pp.436-459. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2017/v17n2a5.

In Kumuwa v Republic, the High Court of Malawi held that the Constitution did not distinguish between release before and after conviction. Relying on section 42 of the Constitution, which provides for the right to be released from detention with or without bail unless the interests of justice require otherwise, the Court reasoned that there was one test for release: the interests of justice. This position was rejected by the same Court in Uche v Republic. The Malawi Supreme Court of Appeal in Kumwembe v Republic upheld the correctness of Uche, and reiterated that the Constitution had not changed the traditional test of exceptional circumstances for release pending appeal. This article argues that Kumuwa rightly identified the test as the interests of justice, but erred in finding that the constitutional premise was the right in section 42. Consequently, Uche and Kumwembe miss the point when they discard the test advanced in Kumuwa solely on this faulty constitutional premise. The article aims to discuss the Court's reasoning and evaluate it in light of the law and jurisprudence on the proper test for granting release pending appeal.

Keywords : Malawi; Uche v Republic; Kumuwa v Republic; bail; release pending appeal; interests of justice.

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