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Heartbreak as alleged defiler is acquited

The girl whose case hangs in limbo
The girl whose case hangs in limbo

Peter Nansongole looked at his wife and three children in abject disbelief as he settled for an interview on a Friday afternoon. He shook his head and sighed.

“You want to hear about the double tragedy that befell us? My child was defiled, hospitalised for months, but the court that we looked up to for justice acquitted the culprit.”

The acquittal of George Ndelewa, the alleged defiler of 10-year-old girl (defiled on July 17 last year in Mulanje), has riled the family who say they are haunted by Mulanje first grade magistrate Soka Banda’s judgment.

“We gave the prosecution all the evidence. It was a straight-forward case. The anguish the defilement caused on my daughter is unbearable and abhorrent. How can courts let defilers scot-free like that?” questioned Nansongole.

The girl in her unsworn evidence, because she is a minor, told the court that one night while asleep, she heard a voice calling out her name and suddenly she was carried away into a bush. She recognised the voice as that of Ndelewa who is a neighbour and landlord. In the bush, the court heard, Ndelewa laid her down and defiled her. Because she was in great pains she bit the arm of her attacker.

After the sexual assault, she was ordered not to cry and while heading home, she heard her father calling out her name.

Nansongole, in his testimony, told the court that his child told him that a naked man had carried her to the bush and sexually assaulted her, and that she bit the arm of her attacker and recognised his voice. After saying that, she lost conscious.

The child was taken to Mulanje District Hospital before being referred to Queen Elizabeth Central Hospital in Blantyre where she spent four months.

Hamston Luwensha, a medical officer who examined the girl, told the court that the child was brought to the hospital around 2 am. He testified that he noted that the child’s dress was drenched in blood and that she had a cut wound on the cheek.

He examined the pelvic region and noted that there was fresh blood and blood clots on her pubic area and vulva.

“The child had two big tears on the vulva and her hymen was broken. The child was sutured. After five to six days, it was noted that the child was passing stool through her vulva and an examination under anaesthesia confirmed communication between vagina and anus,” Luwensha told the court.

Magistrate Banda said it was clear and had no doubts that the evidence tendered in court showed that the girl was defiled.

“A medical report is very clear that the child suffered grave injuries to her genitalia. She had bruises on her neck and a cut wound on her cheek. The sexual assault was of violent nature,” noted magistrate Banda.

The magistrate, however, faulted the investigation team for doing shoddy work.

“I find myself in a position where I feel the prosecution’s case was not dependent on thorough investigations, but conjecture drawn from emotional parents’ statements. It is worth noting that this case was somehow assigned to a constable. The inexperience of Constable [Charles] Chimala is all clear to see,” observed magistrate Banda

Constable Chimala was assigned to investigate the case. The matter was later handled by State advocate Primrose Chimwaza.

Constable Chimala arrested the accused after two days and confirmed bite marks on the accused’s arm.

But Ndelewa denied that he was bitten by the girl, saying a prostitute bit him at a bar while stopping a fight, a statement that was corroborated by a bar owner. Chimala called the prostitute for cross-examination, but her answers were not clear and she was dismissed, according to court records.

Magistrate Banda pointed out that the sensitive issue for determination in his judgement was the identity of the child’s attacker. The child pointed at Ndelewa whom she told the court she recognised during the night because she knows his voice.

The magistrate said he could not act upon the unsworn evidence of the girl unless there was some corroboration. The prosecution relied on the bite marks.

But magistrate Banda said the bite marks needed closer examination. The magistrate observed that Constable Chimala was only informed about the incident the following day after the defilement.

“It was also open to the State to have the defendant’s [Ndelewa] bite marks compared with a child’s dental formula. Experienced investigators would have pursued that line as well,” observed magistrate Banda.

“If that story is believed, it cannot be true that the defendant’s bite marks were inflicted by the child. The court is left to speculate as to the reason the prosecution did not record a statement as a possible witness for the State. Could it be it was because the story exonerates the accused? The State in my view has not proved its case to the requisite standards. I acquit the accused,” ordered Banda.

The pronouncement of the acquittal, today, tortures Nansongole and his family when they meet the alleged defiler.

“It is double tragedy. My business is gone because the little that I saved was used to save the life of the little girl,” he said while controlling himself from shedding tears of despair.

 

 

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2 Comments

  1. Its really a very stupid country which can make one very angry. A very very stupid country.

  2. GumbiGumbi: It is not the country, but a few heartless individuals like the defiler and the magestrate in context. There is need for the judiciary to arrange for refresher courses for its workforce.

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