Magistrate made an error in law to convict, jail Kamlepo and Makande -appeal
Acting Chief Magistrate for Zomba, Nyakwawa Usiwa Usiwa made a material error in law in metting out immediate custodial sentences when secretary general for United Democratic Front (UDF) Hophmally Makande and Malawi Democratic Party (MDP) president Kamlepo Kalua, lawyers for the convicts have argued in the appeal.
According to an affidavit sworn by lawyer Bob Chimkango filed at Zomba registry of the High Court, Magistrate Usiwa Usiwa who convicted and sentenced Makande and Kamlepo for proposing violence and uttering seditious words at the launch of UDF campaign ahead of the May 19 elections in Mangochi on March 21 erred to have opted for custodial sentence when the two were first offenders.
“The learned magistrate should have considered other forms of punishment,” reads the affidavit by lawyer Chimkango.
In the affidavit, the legal practitioner noted that the two had been properly convicted but that they were sentenced to 20 months jail terms without account bein
g taken for the mandatory statutory provisions on how the court should have dealt with first offenders.
The lawyer in his affidavit in support of the appeal ground stated that he believe that the convictions and sentences “are ill conceived and occasion the failure of justice and ought to be quashed and set aside respectively.”
In his appeal grounds for conviction, the lawyer argues that the learned Acting Chief Resident Magistrate erred in not according the appellants a fair trial.
Magistrate Usiwa Usiwa also erred in holding that the right to freedom of unhindered speech was not compromised by prosecuting the two appellants, according to the appeal.
In the appeal ground against sentence, the documents the Magistrate erred in imposing a custodial sentence when he convicted the Kamlepo for an offence under section 51 of the Penal Code.
“The learned Acting Chief Resident Magistrate’s sentences were wrong in principle and/or manifestly excessive and ought to be set aside,” read the appeal grounds.
Chimkango who is being assisted by another lawyer Meyer Chisanga in the appeal filed 11 grounds for appeal against conviction and other six grounds against sentence.
They also appeal that the Magistrate erred in not analyzing and completely disregarding the evidence of the defence and for putting weight on the judgment of a fellow magistrate court, which formed a basis for the convictions.
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