Namiwa wins freedom as High Court questions arrests ‘as a gag’

Human rights activist Sylvester Namiwa has been granted bail by High Court in Lilongwe, nearly a month after his arrest over statements which authorities allege amounted to treason and publication of false news. Justice Mzonde Mvula granted Namiwa bail on Friday, August 21, citing his constitutional right to liberty and presumption of innocence. The court also ordered prosecutors to disclose their evidence within seven days, saying this was necessary to ensure people are not simply arrested “as a gag”. Namiwa, Executive Director of Centre for Democracy and Economic Development Initiatives (CDEDI), was arrested on July 30, 2026, following an interview with Luntha Television two days earlier. He faces two charges arising from statements attributed to him, an alleged act of treason contrary to Section 38(1) of the Penal Code and publication of false news likely to cause fear and alarm under Section 60(1), read with Section 34. The allegations have not been proved and Namiwa remains presumed innocent. State did not oppose bail The Republic did not oppose Namiwa’s application for bail. Deputy Director of Litigation Brenda Kapenda told the court that the State had gathered all the evidence it required and was prepared to disclose it to the defence. Prosecutors instead proposed a K2 million cash bond, two reliable sureties, surrender of travel documents, fortnightly reporting to Area 30 Police Headquarters and restrictions against making similar statements. Justice Mvula imposed tougher financial conditions but found no reason to keep Namiwa in custody while he awaits trial. “There is no doubt in my mind that this applicant has a constitutional right under Section 42(2)(e) of the Constitution of the Republic of Malawi to be released from custody, with or without bail,” Mvula said. The judge also acknowledged Namiwa’s work as a human rights activist. “He understands the right better as a human rights advocate. He champions causes for others,” the ruling reads. State’s version leaves out context At the centre of the first charge is a statement which the State presented to High Court as Namiwa saying that “in the next two months Vice President of the Republic of Malawi (Dr Jane Ansah) will become President of the Republic of Malawi.” Prosecutors argued that there was no legally recognised process through which Ansah could ascend to the presidency within those two months. But that version leaves out an important part of what Namiwa was arguing. Namiwa’s remarks were conditional. He argued that if DPP and the current administration did not change the way they were governing within two months, they would effectively be campaigning for Vice President Jane Ansah and could help make her president when Malawi goes to the polls in 2030. He was not simply predicting that Ansah would take over as president within two months. He was making a political argument about what could happen at the next election if DPP continued on its current path. The distinction could be important when the case goes to trial because the State’s version recorded in the ruling links the two month period directly to Ansah becoming president. Namiwa made the remarks against a backdrop in which Ansah, despite being Vice President, has increasingly appeared sidelined within the DPP administration. His argument was that the treatment of Ansah, combined with public dissatisfaction with the administration, could strengthen her politically and help propel her towards the presidency in 2030. Whether Namiwa’s actual words amount to the offences alleged by the State will now have to be determined at trial. Namiwa does not have to prove his innocence Justice Mvula made clear that Namiwa does not have to prove his innocence or the accuracy of what he said. “There will be no need for applicant to prove his innocence, let alone accuracy of what he states,” the ruling says. “The onus rests on the Republic to prove that applicant by wilful and an unlawful act, committed the alleged offences.” The court said prosecutors would have to establish the necessary criminal act and intent beyond reasonable doubt. Namiwa’s lawyers argued that the 48 year old activist is married with three children, conducts business and has strong social and economic ties to Malawi. They argued that these factors made him unlikely to abscond. The court also noted that Namiwa was willing to surrender his passport and report to police if required. The second charge arises from another statement attributed to Namiwa during an interview with Luntha Television and later circulated on social media. According to the ruling, Namiwa allegedly said that “some five powerful people in the ruling DPP Government think they have a licence to kill” and alleged that dangerous people were being taken from Dzaleka Refugee Camp and prisons to kill people. The State alleges the remarks amount to publication of false news likely to cause fear and alarm. The allegation has not been proved and will have to be tested at trial. Court warns against arrests ‘as a gag’ The ruling also contains a pointed warning about the use of arrests after prosecutors confirmed that investigations into Namiwa had been concluded. Justice Mvula ordered the Republic to provide its evidence to Namiwa’s lawyers within seven days so that the case can proceed to trial. The judge said this would ensure “that persons are not merely arrested as a gag, but forms a commencement of a sober, unbiased criminal legal process.” The court also directed that if prosecutors bring fresh charges against Namiwa arising from the matter, he should be summoned on 24 hours’ notice instead of being arrested simply to return him to custody. The observation is particularly significant in Namiwa’s case. He is one of Malawi’s most outspoken civil society activists and has frequently criticised government. Justice Mvula said Malawi’s law operates on the presumption that an accused person should ordinarily be granted bail, particularly where the alleged offence is bailable. The main consideration is whether the accused will be available to stand trial. The Republic bears the burden of showing why releasing an accused person would not be in the interests of justice. The court considered whether Namiwa was likely to abscond, interfere with witnesses or evidence, endanger other people, commit another offence or disturb public order. It found that appropriate bail conditions could address those concerns. “With right conditions attached, he is offered better opportunity to challenge the impending charges, than to be remanded in custody,” Mvula said. “So far, we find no reason why the High Court of Malawi, sitting in Lilongwe, must not exercise judicial discretion favourably, allowing Sylvester Namiwa to bail.” K5 million bail Namiwa must pay a K5 million cash bond and produce two reliable sureties related to him by blood. Each surety must enter into a K10 million non cash bond and prove their relationship to Namiwa using national identification. He must report to National Police Headquarters every Monday at 8am until the trial is concluded or the court orders otherwise. Namiwa must continue living at his Area 38, Kapiri residence and provide his National Identity Card details to Head of Criminal Investigations Department. He has also been prohibited from commenting directly or indirectly, either personally or through CDEDI, on the subject matter of the case for the duration of the trial. The court further prohibited him from holding press conferences on court premises or publishing information that “touches or insinuates derogation” of the indictment and related matters. Namiwa must surrender his passport to the court, although he can apply for its temporary release by giving 48 hours’ notice. His sureties must be examined within five days of the order. Arrested on July 30, Trial starts in September Namiwa was arrested on July 30 after being summoned to National Police Headquarters in Lilongwe. He was initially taken to Lingadzi Police Station before being transferred to Area 3 Police. He appeared before Chief Resident Magistrate’s Court on August 2 and was subsequently committed to High Court. Justice Mvula noted that the applicable criminal procedure could allow pretrial custody for up to 90 days, but said this did not mean an accused person should automatically remain behind bars for that period. Each bail application, the court said, must be considered on its own circumstances. The case has been set down for plea and directions on Tuesday, September 8, 2026, at 9am. The State has seven days from the ruling to disclose its evidence to Namiwa’s lawyers. With Namiwa now granted bail and investigations declared complete, attention turns to whether prosecutors can prove the serious allegations that have kept the human rights activist in custody since July 30.