Legal and human rights experts say the attempted murder case involving Malawi Congress Party (MCP) secretary general Richard Chimwendo Banda has plunged the country’s judicial system into turmoil, exposing deep procedural and institutional weaknesses.
The controversy follows Chimwendo Banda’s withdrawal yesterday of his bail application before the Criminal Division of the High Court, which was before Justice Mzonde Mvula. He cited the “absence of the State’s substantive criminal proceedings” against him as reason for not pursuing bail any more.
The withdrawal came shortly after High Court Civil Division Judge Kenyatta Nyirenda ordered Chimwendo Banda’s immediate release, pending the hearing and determination of his judicial review application challenging the State’s “acts and omissions” in detaining and continuing to hold him beyond the mandatory statutory remand period.
In a notice of withdrawal, Chimwendo Banda argued that the only matter before the High Court Criminal Division was his bail application, as there was no substantive criminal cause or proceedings against him.
It reads in part: “The applicant, wherefore, hereby withdraws [sic] his interlocutory application for bail filed in the absence of the respondent’s substantive criminal proceedings against him herein.”
His lawyer, George Kadzipatike, said in an interview yesterday that the bail application—whose ruling had been scheduled for January 20 2026—was the sole matter before the Criminal Division.
“The law is very clear. A litigant has the liberty to withdraw his case at any point before delivery of judgment. This means the matter remains with the Chief Resident Magistrate Court until the State commits it to the High Court,” he said.
Judiciary in disrepute?
Commenting on the matter, University of Malawi (Unima) law professor Garton Kamchedzera said the case shows that the State’s arresting and prosecuting authorities, together with some judicial officers, have opted for impunity by ignoring the Bail (Guidelines) Act.
He said the Act is firmly grounded on the presumption of release of an accused person unless the State rebuts that presumption with evidence based on justice, safety and public order.
“The courts, seemingly afraid of powerful politicians, have brought the judicial system into disrepute. Bail applications are supposed to be handled expeditiously, yet the Criminal Division was inordinately slow, at the expense of liberty and public confidence,” said Kamchedzera.
“It is professionally and ethically incomprehensible why the High Court would take this long to decide on a bail application, which should ordinarily be straightforward.”
Private practice lawyer Benedicto Kondowe agreed, saying the case exposes institutional inefficiencies, particularly delays in ruling on matters affecting personal liberty.
“Where liberty is at stake, timeliness is not optional, but a constitutional obligation. Delayed rulings risk prolonging unlawful detention and forcing applicants to pursue parallel remedies, such as judicial review, to vindicate basic rights,” he said.
Kondowe added that the Civil Division’s intervention did not undermine the Criminal Division, but instead reinforced statutory remand limits and constitutional safeguards.
“This is constitutional self-regulation and judicial accountability, not institutional conflict,” he said.
Human Rights Defenders Coalition (HRDC) chairperson Michael Kaiyatsa said the developments suggest the criminal justice system failed to correct an unlawful situation on its own.
“It shows a lack of coordination and urgency in protecting basic rights. When courts do not act quickly and clearly in detention cases, public trust in the justice system suffers,” he said.
However, University of Cape Town law professor Danwood Chirwa took a sharply different view, faulting the Civil Division’s handling of the matter.
He argued that judicial review is a civil remedy meant for administrative action, while criminal investigations and detention do not fall within that category.
“Judicial review is not the appropriate procedure for challenging criminal detention. The release order does not constitute precedent because it is not a judgment,” said Chirwa.
He described the order as “patently incorrect at law” and alleged that it amounts to serious judicial misconduct that warrants investigation.
What happens to the bail ruling?
Kamchedzera said following the withdrawal, there is no bail application for the Criminal Division to continue exercising jurisdiction over the matter.
“It is an example of judicial mess,” he said.
Kondowe agreed, saying the Criminal Division’s options are now procedurally limited.
“The proper course is to mark the matter as withdrawn or strike it out, as there is no longer a live controversy. Any ruling on bail would be purely academic in light of the judicial review order that has already resolved the issue of liberty,” he said.
Judiciary spokesperson Ruth Mputeni said she needed more time before commenting.
MLS watching from a distance
Malawi Law Society (MLS) president Davis Njobvu said it remains open to parties in legal proceedings to file applications and seek remedies available under the law.
“It may not be appropriate at this stage for the MLS to pass judgment on perceived wrongs before the parties themselves take further legal steps,” he said.
He added that court orders must be respected and complied with unless and until they are set aside or nullified by another court order.
