Court reviews bail conditions for Malawi’s deputy president, facing financial charges

29 August 2023 · Carmel Rickard

Malawi’s deputy president, Saulos Chilima, is facing charges in the financial crimes division of the high court. He was granted bail on the day of his arrest in November 2022, when the magistrate set conditions that Chilima has observed since then. This month, however, the high court had to consider an application for certain bail conditions to be changed. During his judgment on the issue, high court judge Redson Kapindu had to deal with some strange moments from argument during the hearing on bail. Like Chilima’s counsel quoting the case of United States v Donald Trump, dealing with the former US president’s release on bail without any conditions. It sounded on point, but since no-one could find a copy of the judgment text, the Malawian court could put no weight on it.

Read judgment

It’s not every day that a court has the country’s vice president before it as a litigant in a corruption crime case, asking for bail conditions to be changed. As you might expect, there were some surreal moments. But as you might also expect, knowing Malawi’s Judge Redson Kapindu, the sensible conclusion was a model of thoughtfulness. While the judge acknowledged the particular circumstances of the litigant and how this impacted on the application, there’s no hint of obsequiousness nor a sense that the court is bending the rules for the deputy president.

The charges against Saulos Chilima are brought by Malawi’s anti-corruption bureau (ACB), an official government department. He was released from detention on the day of his arrest, on several conditions set by the chief resident magistrate.

Among these conditions was a stipulation that he must report to the ACB offices once every three months and that he had to surrender his passport to the court. Though he has so far complied with these conditions, Chilima now wants them scrapped.

Public record

He argued that, given his office, there’s no practical purpose served by requiring him to report to the ACB office at three-monthly intervals. The reporting requirement is supposed to assure the prosecuting authorities that he is available for trial, he said. But his vice-presidential schedule is well publicised, and ‘most of his movements are a matter of public record’. At any time, he claimed, ‘almost every Malawian, including officers of the ACB, will know where he is.’

As for his passport, in terms of government protocol, no senior government official leaves the country without ‘taking leave of the … president’ who has ‘overall superintendence’ of Malawi’s security agencies. When the president grants leave, this typically details where the official is going and for how long.

In addition, any trip outside Malawi, private or official, is ‘coordinated and planned’ by the government. It is thus not reasonable for the prosecution to fear that he would ‘flee the jurisdiction by simply skipping the borders.’

Keeping tabs

The state vigorously opposed the idea of dropping these two conditions, with an affidavit from the ACB’s main investigations officer, Isaac Nkhoma. He denied that because of Chilima’s status, the ACB always knows his movements and whereabouts. It was therefore appropriate for the reporting requirement to remain.

The ACB was busy with many cases and it would be very difficult, perhaps impossible, to assign officers just to keep tabs on Chilima.

And on the passport issue, the ACB said neither it nor the courts were part of government protocols related to the practice when officials left the country, and so it wouldn’t be ‘safe’ to rely on those protocols as a way of keeping tabs on Chilima.

Donald Trump

In oral argument, counsel for Chilima said it was possible to release someone pending trial without any conditions at all, and that this was such a case. Counsel also quoted the case of United States v Donald Trump, in which the former US president was released without conditions. If that could happen in the US, argued counsel, why should it be any different in Malawi for a ‘sitting vice president of the republic’?

But the judge pointed out that despite ‘earnest efforts’ to find a copy of this decision, neither the court, nor the parties, could source it and so the court was ‘unable to place any weight’ on this decision.

In his decision, the judge began by observing the unusual nature of the situation: a sitting vice-president juggling his affairs between official functions and dealing with criminal legal processes in which he was personally implicated.

But the most important consideration in deciding on bail was whether the accused person would stand trial. This was also the main consideration in an application to vary bail conditions. Had Chilima done enough to satisfy the court of this?

Vanish

The judge said that Chilima had pointed to the guarding and protection provided by state security agencies, arguing that these were strong assurance that he wouldn’t simply vanish from the country. He had also asked what a visit to the ACB, once in three months, could achieve compared with the ‘machinery of the state security agencies that are with and around him all the time’.

This was a reasonable question, said the judge. So was the argument about his passport being held by the court.

In addition, the court did not get ‘the slightest suggestion’ from the state that Chilima was likely to ‘influence, intimidate or otherwise interfere with state witnesses’. So the central question for the court was whether Chilima was likely to evade his trial if he wasn’t required to report every three months or hand over his passport.

Competence

On the question of reporting: as Chilima’s counsel had argued, if the only way the ACB could establish the whereabouts of the vice president, was if he showed up at their office once every three months, then ‘the country should be really worried about the competence of the ACB’, said Kapindu.

The judge said he agreed that the three-monthly reporting requirement was unnecessary and set it aside. Instead, he ordered Chilima to ensure that his office supplied the ACB with fortnightly updates of where he was staying in Malawi. Actually, said the judge, this would mean the ACB had better information as to his whereabouts than under the previous arrangement.

Argument in court about the second question, related to Chilima’s passport, had produced an extraordinary comment from the ACB’s legal team, said Kapindu. When counsel for Chilima said that their client was always surrounded by police security, meaning that he couldn’t simply ‘disappear’, counsel for the ACB replied that the bureau ‘doesn’t trust the Malawi police service’, and declined to withdraw that comment.

But as the ACB put up no reason for its lack of faith in the police, the court was ‘unable to join … [its] journey of mistrust’, commented Kapindu.

Sacred oath

He therefore set aside the condition requiring Chilima to deposit his passport with the court. Instead, the court ordered that the passport should be kept in the custody of the president, someone well-suited for this role, since he had taken a sacred oath to preserve and defend the constitution. The implications of this oath included that he would ensure the legal processes of the courts were honoured.

In addition, Chilima was ordered to inform the ACB and the court at least 72 hours before travelling outside Malawi, and to supply other information such as his return date.

The effect of these changes was to relax Chilima’s bail conditions, since the court was satisfied that he posed a very low flight risk, if any, ‘given the state protection machinery that surrounds him’ almost all the time. But, said Kapindu, the court had also maintained a few cautious conditions since it did not have the ‘foresight’ of a ‘clairvoyant’.

Carmel Rickard

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