The High Court in Mzuzu has jailed a former soldier at Moyale Barracks of the Malawi Defence Force (MDF) to nine years imprisonment with hard labour for disemboweling a 43-year-old man at Jombo Trading Centre on Christmas Day in 2012.
In 2014, the First Grade Magistrate Court in Mzuzu ordered ex-Corporal Davie Nganga of Matwika Village, Traditional Authority Nkanda in Mulanje Districtto pay MK1.2 million as compensation to the victim Innocent Chandiwira.
The sentence has been back dated to 24th January, 2014, Nganga’s conviction date. Therefore, it means Nganga will serve five years or less due to remission.
Nganga’s imprisonment follows a successful appeal by the state which faulted the lower court’s handling of the case on three grounds.
State Counsel Dziko Malunda said the lower court erred in law and principle in imposing a non-custodial sentence when the offence committed called for maximum sentence of life imprisonment.
“In imposing a pecuniary punishment on the convict without adding a custodial sentence, the lower court disregarded the nature and seriousness of the offence… how the convict committed it and the manner of committing it,” Malunda argued.
Therefore, the sentence imposed by the lower court was manifestly inadequate, wrong in law and in principle
Nganga attacked Chandiwira because he had failed to pay for the booze he had taken at JCO Bottle store in the area.Police said Nganga used a broken bottle for disemboweling Chandiwira.
Chandiwira’s entrails were later sutured back at Mzuzu Central Hospital. Ironically, Nganga was not the proprietor of the drinking joint but just wanted to showcase his fighting antics, witnesses told the Court during the trial.
The lower Court’s order raised eye brows in the legal fraternity because the Court had hinted in the course of the two-year trial that Nganga’s offence deserved a custodial sentence because of its nature.
At that time allegations of palm oiling surfaced but were never proved.
Magistrate Cuthbert Phiri substituted the nine years imprisonment with hard labour sentence with the compensation after taking into consideration the convict’s mitigating factors and the victim’s circumstances.
“Firstly, the convict will work for the state and it is the state that will benefit. On top of that the government has always had a problem in feeding its prisoners because of lack of money. The so called ‘cashgate’ has just exacerbated the situation,” Phiri said then.
Mzuzu High Court Judge Dorothy Degabriele, who heard the appeal in her chambers, last week, agreed with the State that a blanket imposition on non-custodial sentences for first offenders would be viewed as a weakness in the criminal justice system.
She said such impositions by the Courts would inevitably give licence to would be offenders to commit serious crimes.
“The court ordered compensation as if it was hearing a civil matter and not a criminal matter. Because of the seriousness of the offence, such compensation should have been ordered but in addition to a punishment for the serious offence.
“In my view, this sentence was manifestly inadequate and it indeed occasioned a miscarriage of Justice,” Degabriele said.
She further noted that the sentence by the lower court might send negative signals to society in that Courts were not taking serious steps in protecting citizens from dangerous people who abuse power bestowed on them by the State to protect other citizens.
“I find that a non-custodial sentence was inappropriate in every aspect of the case. Bearing in mind that compensation was paid … I therefore quash the sentence imposed by the lower court and substitute the same,” Degabriele said.Follow and Subscribe Nyasa TV :