Two of the suspects in the murder case of polytechnic student, Robert Chasowa have cried foul over the delay by Chief Justice to certify a constitutional review on their application to be discharged from the case.
Chief Justice, Anastasia Msosa was expected to certify constitutional proceedings on the application by Geoffrey ‘Doff’ Bottoman and Peter Petros who, through their lawyer Ambokile Salimu, applied to the High Court in 2013 to be discharged from the criminal proceedings on ground that the delay by the State in prosecuting them is unconstitutional.
Bottoman and Petros were arrested on July 17th, 2012 and charged of Chasowa’s murder before were released in October 2012.
Bottoman and Petros want to be discharged from the criminal proceedings, arguing that the State has failed to provide evidence to incriminate them in the murder case, which has failed to go for trial despite government once instituting a Commission of Inquiry that implicated several ruling Democratic Progressive Party (DPP)
The application for an order to be discharged , which Nyasa Times has sourced, was expected to go for constitutional review following the State’s protest that the two could not be let free based on Section
302A of the Criminal Procedure and Evidence Code, which doesn’t allow accused person charged with an offence whose maximum sentence exceeds three years.
The State argued that it was failing to commence trial as the case is “very complicated and resource consuming” such that it is yet to finalize investigating the matter- three years after Chasowa’s death.
According to lawyer, Salimu, there was a need for the Constitutional review to decide on the interpretation and application of the provisions of the Constitution as Section 302A of the Criminal Procedure and Evidence Code was inconsistent with Section 42 (2) (f) (i) of the Constitution which entitles every person arrested or
accused of alleged offence to a fair trial within a reasonable time after having been charged.
“In terms of Section 5 of the Constitution, Section 302A of the Criminal Procedure and Evidence Code is invalid to the extent of such inconsistency. The Constitution provides for fair trail, but if we are to go by the raised Section, then it means an accused person can stay for life without being tried, which based on the provisions of the Constitution, is unjust,” argued Salimu.
According to Section 5 of the Constitution any act of Government or any law that is inconsistent with the provisions of the Constitution shall, to the extent of the inconsistency, be invalid.
In October, 2013 Justice Kenyatta Nyirenda who has been handling the case forwarded the matter to the Chief Justice, Anastasia Msosa for certification of the proceedings as Constitutional.
However, Msosa sent back the file to the Justice Kenyatta without giving any reasons.
The Chief Justice did not indicate whether she has certified the constitutional proceedings or not as required to by Section 9 (3) of the Courts Act.
Meanwhile, the file is stuck in the office of the Registrar of the High Court, Chigona who refused to comment on the issue when contacted by Nyasa Times while the two accused continue to pray for justice prevail
in the murder case which remains to be unsolved mystery.
“Failure to prosecute the accused person within reasonable time must attract consequences, including discharge. My clients are being denied their right to be discharged this why we are seeking Constitutional
review to ensure justice prevails,” added Salimu.
Chasowa, who studied engineering, was found dead at the college campus in Blantyre on September 24, 2011 after being murdered by regime agents during the DPP-led government.
Findings from the Commission of Inquiry on his death named Democratic Progressive Party (DPP) Director of Special Events Noel Masangwi and Director of Youths Lewis Ngalande as some of prime suspects in the death of the student.
Police said he had jumped to his death from a five-story building and produced bogus suicide not as evidence.
Supreme court of Appeal judge Andrew Nyirenda,who chaired the commission, said:”The ultimate findings of the commission is that Robert Chasowa was murdered.”
He said the findings were based on entire testimony of witnesses, which he said “in some instances were lucid and unmistaken.”
Nyirenda said a post-mortem examination report enabled the commission, which included a pathologist, “to determine, with a degree of certainty, the cause and circumstances of Robert Chasowa’s death.”Follow and Subscribe Nyasa TV :