Abstract
Correct but wrong: A critical analysis of recent jurisprudence on the proper test for release pending appeal applications in Malawi
Highlights
Malawian courts have always distinguished between release pending trial and release pending appeal
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
In Kumuwa v Republic,[2] the High Court of Malawi held that this approach to release an applicant pending appeal was fundamentally flawed as it did not take cognisance of the Constitution, section 42, which guarantees the right to be released from detention unless the interests of justice require otherwise
Summary
In Kumuwa v Republic, the High Court of Malawi held that the Constitution did not distinguish between release before and after conviction. 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.
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