Legal and human rights commentators have launched blistering attacks on Malawi’s justice system over the handling of the attempted murder case involving MCP Secretary General Richard Chimwendo Banda, warning that the saga has exposed deep institutional rot, procedural recklessness and a judiciary dangerously at odds with itself.
Chimwendo’s lawyer: Jivason
At the heart of the storm is what experts describe as a “judicial mess” that has left the public confused, the law strained and the credibility of the courts badly bruised.
The controversy escalated after Chimwendo Banda on Thursday withdrew his bail application before the High Court Criminal Division, which was being handled by Justice Mzonde Mvula. He cited the absence of any substantive criminal proceedings by the State as the reason for abandoning the bail process altogether.
The withdrawal came barely hours after High Court Civil Division Judge Kenyatta Nyirenda ordered Chimwendo Banda’s immediate and unconditional release, pending the determination of a judicial review application challenging the State’s continued detention of the politician beyond the mandatory statutory remand period.
In his notice of withdrawal, Chimwendo Banda made it clear that the Criminal Division had nothing substantive before it.
“The applicant hereby withdraws his interlocutory application for bail filed in the absence of the respondent’s substantive criminal proceedings against him,” reads part of the notice.
His lawyer, George Kadzipatike, said the position was straightforward.
“The law is very clear. A litigant can withdraw a matter at any point before judgment. Once withdrawn, the matter remains with the Chief Resident Magistrate Court until the State properly commits it to the High Court,” he said.
But legal experts say the entire episode should never have reached this point.
University of Malawi law professor Garton Kamchedzera was scathing, accusing arresting authorities, prosecutors and sections of the judiciary of acting with impunity and openly ignoring the Bail (Guidelines) Act.
“The Act is anchored on the presumption of release. An accused person must be released unless the State rebuts that presumption with evidence based on justice, safety and public order,” Kamchedzera said.
Instead, he said, the courts appeared paralysed.
“Courts, seemingly afraid of powerful politicians, have brought the judicial system into disrepute. Bail matters must be handled expeditiously. What happened here was inordinate delay at the expense of liberty and public confidence,” he said.
Kamchedzera said it was “professionally and ethically incomprehensible” that a High Court could take so long to rule on a bail application, describing the entire affair as a textbook example of judicial failure.
Private practice lawyer Benedicto Kondowe agreed, saying the case lays bare chronic institutional inefficiencies, especially delays in matters touching on personal liberty.
“When liberty is at stake, speed is not a favour; it is a constitutional duty. Delayed rulings risk unlawful detention and force litigants to seek parallel remedies like judicial review just to regain basic rights,” Kondowe said.
He dismissed claims of institutional conflict between the Civil and Criminal Divisions, saying the Civil Division’s intervention merely enforced constitutional safeguards and statutory remand limits.
“This is not judicial rivalry. It is constitutional self-correction,” he said.
Human Rights Defenders Coalition (HRDC) chairperson Michael Kaiyatsa went further, arguing that the criminal justice system failed to fix an unlawful situation on its own.
“This shows lack of coordination, urgency and seriousness in protecting basic rights. When courts hesitate in detention matters, public trust collapses,” Kaiyatsa said.
However, not all experts agree.
University of Cape Town law professor Danwood Chirwa strongly criticised the Civil Division’s handling of the matter, arguing that judicial review is a civil remedy meant to challenge administrative action, not criminal investigations or detention.
“Judicial review is not the proper procedure for challenging criminal detention. The release order is not a judgment and does not create precedent,” Chirwa said.
He went further, describing the order as “patently incorrect at law” and suggesting it amounts to serious judicial misconduct that warrants investigation.
With the bail application now withdrawn, Kamchedzera said the Criminal Division has no jurisdiction left to exercise.
“There is no bail application before the court. Any continuation would be purely academic. This is a judicial mess,” he said.
Kondowe agreed, saying the only proper option is for the Criminal Division to strike out or formally mark the matter as withdrawn.
“Any ruling on bail would be meaningless, because the issue of liberty has already been resolved by the judicial review order,” he said.
Judiciary spokesperson Ruth Mputeni said she needed more time before commenting on the matter.
Meanwhile, Malawi Law Society (MLS) president Davis Njobvu struck a cautious tone, saying parties remain free to pursue remedies provided by law.
“At this stage, it may not be appropriate for the Society to pass judgment before the parties take further legal steps,” Njobvu said.
He, however, underscored one principle that now sits at the centre of the national debate.
“Court orders must be respected and complied with unless and until they are set aside by another court order,” he said.
As legal opinions clash and public anxiety grows, one thing is clear: the Chimwendo Banda case has shaken confidence in Malawi’s justice system and forced an uncomfortable question into the open—who is really in control of the rule of law?
