Malawi cell death: Cops file for no case to answer
Six Police Officers from Mzuzu Police Station, who are accused of having a hand in the death of Edson Msiska, who died in police custody on January 29 this year, have asked the Court to acquit them in accordance with section 254 of the Criminal Procedure and Evidence Code saying the state’s evidence against them has not proved all the elements of murder for them to have a case to answer.
The accused , Inspector Gertrude Munkhondia, , Constable George Kamphe, Constable Victor Msoloma, , Constable Lucius Mpakeni, Constable Bertha Chavula and , Constable Joel Kapunda, were arrested on April 18 2012 and were charged with murder following police investigations into Msiska’s death. They all pleaded not guilty.
Msiska, a former Natural Resources College student, died following his arrest after he was found with property suspected to have been stolen.
“It is trite law that in proving the case for the accused, the prosecution must not only prove that the offence was committed but also that it was the accused who committed it,” argued the accused Police officer s through Mzuzu based lead lawyer Christon Ghambi of CHRAM Associates.
They said the state’s evidence creates doubt and has many contradictions which they claim should be treated in their favor.
The other defense lawyers are George Kadzipatike of Jivason and Company and Victor Gondwe of John Tennyson and Associates.
Police arrested Msiska on January 25 2012 at Mzuzu Bus Depot on suspicion that he was found in possession of goods the police believed were stolen, an accusation the family dismissed.
Msiska died in police custody under mysterious circumstances on January 29 this year and at the close of the prosecution case on 21st August 2012 it emerged that all CID Officers implicated each in their caution statements.
In a 14 paged submission dated 12th September 2012 but filed to the Court and all parties on 1st October 2012, the Cops through Lawyer Christon Ghambi contend that most of the witnesses testimony does not link the accused to the offense of murder.
The much awaited trial, which commenced at Mzuzu High Court on August 7th 2012, is closely watched and is seen as a test case of how much ingrained impunity is there in the Malawi Police Service contrary to statutory limitations.
The State which comprises Senior State Advocate Josephine Gwaza from the Director of Public Prosecutions and Assistant Commissioner of Police Barbra Mchenga at the close of its case had paraded eight witnesses.
“The testimonies of all the eight witnesses are to the effect that they prove the health status or condition of Edison Msiska that led to his death rather than who caused it, hence we will not belabor the court analyzing such evidences,” Ghambi wrote.
The Cops said the Prosecution evidence reveals who at any point interacted with the deceased adding that the interaction was not something strange among the Police officers, who were doing their duty of investigating the alleged crime of theft.
Inconsistent testimonies
The Cops also contended that the evidence of prosecution witness number five Joseph Silumbu does not prove that any of the accused assaulted the deceased.
“He stated that upon arrival at the Police he found that the deceased had difficulties in walking and responding. He did not witness any beating of the deceased by the accused. He told the court that the deceased had told him that Victor Nsoloma is a bad guy.
“This kind of evidence does not prove that any of the accused assaulted the deceased,” they said.
The Cops also said another testimony which left a lot to be desired was that of deceased brother Ulemu Msiska, who is currently in jail for theft and Burglary.
“He contradicted with other witnesses and even himself in most of his statements.
For instance, he emphatically stated that Edison died on 28th January, 2012 while the other witnesses said he died on the 29th.
“Contradicting himself again he stated that he witnessed all the accused beating the deceased who died instantly. He appeared to be a person whose testimony could not be trusted,” they said.
A post-mortem by pathologist Charles Dzamalala and tendered in court, revealed that Msiska died of assault.
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