Malawi cell death: Court acquits 3 cops, murder charge reduced to manslaughter for others

The High Court in Mzuzu has acquitted three of the six Police Officers from Mzuzu Police Station who were alleged to have had a hand in the death of Edison Msiska who died in police custody on January 29 this year, because of lack of objective evidence.

Msiska, a former Natural Resources College student, died on January 29 following his arrest after he was found with property suspected to have been stolen.

But the court  has amended the charge for the remaining three Cops from murder contrary to section 209 of the Penal Code to manslaughter contrary to section 208 of the Penal Code, saying there is no evidence that that there was “malice aforethought” which is the main reason for murder.

“There is evidence that on several occasions the Police did take Msiska to the Police Dispensary for treatment. If they wanted him dead they could not have done this,” Justice Dingiswayo Madise said in his 13 page judgment.

Lawyer Ghambi: His three clients acquitted

Police arrested the six officers on April 18 2012  namely, Inspector Gertrude Munkhondia, Constable George Kamphe, Constable Victor Msoloma, , Constable Lucius Mpakeni, Constable Bertha Chavula and , Constable Joel Kapunda, were arrested and were charged with murder following police investigations into Msiska’s death.

But the Court has acquitted Inspector Gertrude Munkhondia, Constable Bertha Chavula and Constable Joel Kapunda.

The acquittal

Madise noted that there is no dispute that the deceased was being recorded a statement when the “whole house” (the six Police officers) were present.

“But I not sure whether the decision to prosecute the whole house was a wise thing to do,” he said.

Madise refused to bulge to this wholesale argument saying the court refuses to believe that the whole house was involved in the beatings.

“On Inspector Gertrude Munkhondia, there has been no mention of her as being involved in the assault. According to evidence presented before Court she is alleged to have stopped the others from assaulting Msiska because the boss was around and because Chavula wanted to record a statement,” Madise noted.

The Judge said Constable Bertha Chavula was mentioned as the Recording Officer.

“When the deceased brother Ulemu Msiska testified he implicated Chavula who was writing a statement. How she was able to write a statement and at the same time assault Msiska leaves more questions than answers. Perhaps Ulemu Msiska knows better,” he said.

Madise also said there is no evidence at all implication Joel Kapunda saying he had just re-arrested Msiska and that he has not been mentioned that he had taken part in the beating.

“In these premises I find no case to answer in respect of Munkhondia, Chavula and Kapunda. By the powers vested in me I now acquit… each in their own right of the charges of murder. They are released and their bail falls away,” he said.

The acquittal follows the Cop’s submission to the Court at the end of the prosecution case, through Mzuzu based lead defense lawyer Christon Ghambi that the prosecution evidence against them had not proved all the elements of murder for them to have a case to answer.

The Cops also discredited the evidence of prosecution witness number five Joseph Silumbu and the deceased brother Ulemu Msiska saying it does not prove that any of the accused assaulted the deceased.

Manslaughter charges

The Judge then invoked section 254 (1) and 151 (1) (2) of the Criminal Procedure and Evidence Code and found Constable George Kamphe, Constable Victor Msoloma and Constable Lucius Mpakeni with a case to answer on a charge of manslaughter.

“The evidence presented seems to suggest that there are issues the three must give a reply on. They will be entitled to make a defense and call witness if they so desire noting their constitutional right to remain silent,” he said.

Madise then called upon the three one by one to take plea and they all denied manslaughter charges.

However, one of the three defense lawyers Mzuzu based George Kadzipatike then asked the court for a 60 day adjournment to give the defense time to prepare its case.

The state represented by Waliko Nkosi did not object to 60 day application but added that they will not call further witnesses meaning the Court will use the evidenced the state has already tendered.

Reaction

Speaking in an interview after the judgment another defense lawyer Christon Ghambi of CHRAM Associates said the fact that the state will not call other witnesses makes a better case for his clients.

One of the deceased relatives, Alexander Msiska, who was present in court welcomed the court’s verdict saying the women Cops and one male did not indeed take part in the beatings.

“I am happy that justice if finally taking its course,” Alexander said.

 

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