By Falles Kamanga
BLANTYRE-(MaraviPost)-When the State arrests any person, whether a politician, a CEO, or an ordinary citizen, the Constitution provides a 48-hour rule. This rule requires that an arrested person must be brought before a court as soon as reasonably possible, and within 48 hours, to be formally charged.
The phrase “reasonably possible” exists to deal with practical realities. For example, if someone is arrested late on a Thursday night and the 48 hours expire on Saturday, it may be difficult to comply because courts do not sit on weekends. However, this does not remove the State’s duty to formally charge the suspect.
The law is clear: investigate, arrest, charge and prosecute not arrest → investigate → charge → prosecute.
Arresting first and investigating later is not how the justice system is meant to work.
WHAT HAPPENED IN RCB’S CASE
Richard Chimwendo Banda (RCB) was arrested on 12 December 2025. He appeared before the Lilongwe Magistrate Court on 14 December 2025, but he was not formally charged. Instead, the State told the court that he was suspected of attempted murder – an offence outside the Magistrate Court’s jurisdiction. On that basis, the court committed the matter to the High Court and granted the State’s application to remand him for 90 days.
Crucially, no formal charge was ever laid against RCB.
THE BAIL APPLICATION (16 December 2025 or thereabout)
Around 16 December 2025, RCB applied for bail. One of the key grounds of his bail application was that he had already been in custody for over a week without being charged.
The State opposed the bail application, arguing that investigations were still ongoing. The High Court judge hearing the bail matter openly reprimanded the State for arresting a person before completing investigations.
The judge indicated that a ruling would be delivered within a few days and that it would be sent by email, as the period between 25 December 2025 and 5 January 2026 was a government-declared two-week holiday.
However, that bail ruling was never delivered.
JUDICIAL REVIEW IS A DIFFERENT LEGAL PROCESS
While the bail ruling remained pending, RCB’s lawyers filed an application for judicial review. This application did not ask for bail. Instead, it challenged the legality of detaining a person for over a month without any formal charge.
These are two completely different legal processes:
Bail deals with whether a charged or suspected person should be released pending trial.
Judicial review examines whether the State acted lawfully in the first place.
One does not cancel the other.
Therefore, the fact that a bail ruling was pending does not prevent a person on remand from applying for judicial review. The court was right to treat the judicial review on its own legal merits.
THE COURT’S DECISION
The court agreed that holding someone on remand for such a long period without charge raises serious constitutional concerns. As a result, the court ordered RCB’s release pending the determination of the judicial review.
This release is not bail. Bail only applies where a person has been formally charged. Here, the court intervened because the detention itself was being questioned.
FINAL POINT
Some people, including lawyers, professors, and members of the public, have criticised the judge for releasing RCB while another judge had not yet ruled on bail. This criticism is misplaced.
The two matters are legally distinct. The law does not operate on emotion or public anger. It operates on facts, procedure, and legality.
At its core, this case is not about personalities or politics. It is about a fundamental principle: the State cannot detain a person indefinitely without charge.
If we allow that to happen to one person today, it can happen to anyone tomorrow.
