Malawi cell death: Court to rule on case to answer Wednesday
The High Court in Mzuzu will on Wednesday rule whether the 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 a case to answer or not.
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 died on January 29 following his arrest after he was found with property suspected to have been stolen.
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.
If the Court found the Cops with a case to answer then full prosecution trial continues and they will now enter defense as required by section 254 (1) of the Criminal Procedure and Evidence Code.
But if found with no case to answer, the Court will acquit them outright meaning the state would have failed to prove its case beyond reasonable doubt.
The State prosecution team 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.
Early this month, the Cops through Mzuzu based lawyer Christon Ghambi filed for a no case to answer contending that most of the state’s eight witnesses testimony did not link them the offense of murder.
“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 Ghambi of CHRAM Associates.
But the Directorate of Public Prosecutions (DPP) in its submission for a case to answer dated 25th October 2012, a copy Nyasa Times obtained, argued that it is clear that the deceased died as a result of an assault.
“The question that remains to be answered is that who assaulted the deceased, an assault that led to his death. It is in evidence that at the time deceased was brought to the Police station, he was not assaulted.
“The deceased’s change in health status was first noticed on the second day of his stay in the cell when he had difficulty walking and could not eat. The condition further worsened after he was beaten again together with his brother,” the DPP noted.
The DPP also noted that during the assault all the accused persons where in the office where the beating were taking place.
“The six accused person’s presence in the room makes them all principle offenders going by section 21 of the Penal Code,” said the DPP.
The DPP said the fact that the deceased may have been sick or beaten by other officers other than the six accused persons does not change the fact that the death of deceased was accelerated by the assault on the 28th January 2012.
A post-mortem by pathologist Charles Dzamalala and tendered in court, revealed that Msiska died of assault.
