The Democratic Progressive Party and top government officials arrested on Monday for the roles they played in events surrounding the death of former Malawi president, Bingu wa Mutharika, and the subsequent transfer of power were on Thursday released on bail by the Lilongwe High Court.
The 10, who include Peter Mutharika, younger brother to the deceased, Economic Planning Minister Goodall Gondwe, the interdicted head of the public service Bright Msaka and his deputy Necton Mhura, were also ordered to stop commenting on the charges publicly, effectively curtailing their freedom of expression while on bail.
Ministry of Justice spokesperson Apoche Itimu said the State would not appeal against the bail ruling but would proceed to prepare for the case.
Judge Ivy Kamanga ruled that each suspect should also pay a bond of K250 000 (about $694) in cash, present two sureties each with a K7 million (about $19 444) non-cash bond, and for those resident in the Central Region to report to the National Police Headquarters fortnightly on a Friday for the first three months.
Those resident in the Southern, Eastern and Northern regions, the Judge said, should report to their respective regional police headquarters.
Kamanga also ruled that all the accused should surrender their travel documents to police until the conclusion of the case.
“We are satisfied with the ruling so far and it seems that even our clients are satisfied although we have not discussed the bail conditions yet,” Kalekeni Kaphale, one of the leading lawyers for the 11, said in an interview after the ruling.
Others in the case are former ministers Patricia Kaliati (Information and Civic Education), Symon Vuwa Kaunda (Sports and Youth Development), Jean Kalilani (Health) and Henry Mussa (Local Government and Rural Development), as well as former deputy ministers Kondwani Nankhumwa (Foreign Affairs and International Cooperation) and Nicholas Dausi (Office of the President and Cabinet).
State challenge on bail
The State had earlier challenged the application for bail, arguing among several grounds that the accused, with their influential positions in society, have the capacity to influence ongoing investigations. The other point was that given the nature of the charges, releasing the suspects would enable them to commit more criminal acts.
The prosecutors, led by the Director of Public Prosecution (DPP) Bruno Kalemba, also cited the violent demonstrations across the country by supporters of the accused as another ground, adding that since the case has aroused public interest, keeping the defendants in custody would be in the best interest of the public and justice.
The State further said if bail were to be granted, tough conditions should be placed, including putting the 11 under house arrest while limiting the number of visitors to each one of them.
Defence arguments on bail
But the defence lawyers argued that bail is a constitutional right and can be granted even in treason cases. The team argued that already some individuals, charged with the same offence, were walking freely after being given bail.
Defence lawyer Samuel Tembenu also faulted the State for being selective in the granting of bail after observing that one of the accused, former guard commander Duncan Mwapasa, is currently on police bail.
“As long as the person is not convicted, he or she remains innocent,” said Tembenu.
In her ruling, Kamanga observed that the State failed to prove that the violent acts were directly influenced by the 11 accused.
She also observed that the State failed to prove some of the assertions made in their objection to the bail, like that the accused would influence investigations or that they are likely to commit further criminal acts due to the nature of the charges and their influential positions.
Kamanga also said the charges are, so far, mere allegations and could not be a basis for denying the accused bail.
“A person who is arrested has the right to be released on bail unless otherwise stated and the applicants have applied to be released on bail. Therefore, the burden to prove otherwise does not lie with the applicant but with the State,” she said.
During the ruling Kamanga, however, advised political parties to respect courts premises and desist from turning the courts into demonstration grounds to chant abusive songs.
“I witnessed some of the violent acts myself… I heard for myself the songs by the people. The conduct of the men and women were acts likely to cause breach of peace. I wonder whether the courts are no longer a protected area by law,” she said.
Just minutes after Kamanga issued that warning, hundreds of people who gathered outside the court instantly broke into uncontrollable chants upon hearing that the bail application was successful.
And although the accused took almost two hours to get out of the court as they finalised several formalities, DPP supporters kept vigil through song and dance until one by one the accused appeared on the court door, starting with Msaka who waved to the crowd.
Msaka was followed by Peter Mutharika and the crowd was instantly sent into a frenzy before the DPP interim President was whisked away in a Land Rover registration number BICA 1, apparently belonging to former First Lady Callista Mutharika.
The accused were charged on Wednesday with treason and several other charges which include inciting mutiny, disobedience to statutory duty and giving false evidence to the Commission of Inquiry.
Treason in the country attracts a death penalty.