The Director of Public Prosecutions (DPP) Mary Kachale has discontinued a murder case involving five Malawi Police Service (MPS) officers who were arrested for allegedly causing the death of a Blantyre resident during the July 20 2011 nationwide anti-government demonstrations.
Lawyers for the five cops Ritz Attorneys confirmed on Thursday that Kachale on August 23 2019 issued a certificate to discontinue criminal case number 26 of 2016, which was being heard by High Court Judge Dorothy NyaKaunda Kamanga.
The law enforcers, who were stationed at Ndirande Police sub-Station, were arrested in 2012 and were facing murder charges contrary to Section 209 of the Penal Code, for allegedly killing Joseph Lengemani in Ndirande Township during the protests against the late Bingu wa Mutharika’s administration.
Spokesperson for Ritz Attorneys Gonjetso Dikiya said the discontinuation of the case implied that the State had stopped prosecuting the accused police officers identified as Paul Mussa, Kelvin Nyirenda, Benedicto Dzombe, Mahommed Kulusinje and Lemekezo Mikuti.
Dikiya explained that for six years (since their arrest) trial had failed to commence because of numerous adjournments occasioned at the instance of both the State and court.
“For us, we can truly say justice has been done. Our clients had been seeking justice to be heard and know their verdict, but that never happened. The long delay by the prosecution was causing so much injustice to them.
“They have been suffering since their arrest because, for instance, they were interdicted and put on half-pay, so the charges really interrupted their family lives. But, ultimately, it’s the same outcome we wanted and the case delay justifies that our clients should be set free,” he said.
While Dikiya could not reveal the way forward, saying they would wait for their clients’ instructions, he hinted that there were several options to follow such as bringing proceedings against the State for malicious prosecution and false imprisonment “but then that is entirely up to our clients to determine”.
According to court documents we have seen, the matter failed to proceed for plea and directions hearing on several times due to the absence of the State to file and serve a charge sheet for proof of committal proceedings.
The last time the case was scheduled for hearing was on October 17 2017, according to a notice of adjournment for plea and directions hearing dated May 9 2017 and signed by Judge Kamanga.
Before the DPP’s decision to close the case, Dikiya discontinuation because of the endless delays, but the court threw away their application. said they had applied for its
When asked what prompted the decision to discontinue the case, DPP Kachale said she was tending a sick relation; hence referred Weekend Nation to Ministry of Justice and Constitutional Affairs spokesperson Pilirani Masanjala who had not responded to our questionnaire until we went to press.
However, Kachale’s case discontinuation certificate, which we have seen, reads in part: “It is hereby certified in exercise of powers conferred by Section 77 of the CPEC that I enter discontinuous only against the said Paul Mussa, Mahommed Kulusinje, Benedicto Dzombe, Kelvin Nyirenda and Lemekezo Mikuti.”
But commenting on the matter, social and governance commentator Undule Mwakasungula described the trial delay as “unfortunate for justice delayed is justice denied”.
“The aim of legal redress is for a party that has suffered injury to get help, but when it is not forthcoming in a timely manner, it is effectively the same as having no redress at all.
“This principle is the basis for the right to a speedy trial and similar rights because it is unfair for the injured party to have to sustain the injury with little hope where resolution is not forthcoming,” he said.
However, he also said the accused’s rights needed to be considered for being kept waiting for seven years without being heard.
“It’s a violation of their rights. They needed to be heard, whether guilty or not,” said Mwakasungula who led the July 20 2011 nationwide protests while with the Centre for Human Rights and Rehabilitation (CHRR) whose current head is Timothy Mtambo.
During the protests, which were held during the Democratic Progressive Party’s first reign in 2011, 20 citizens were killed when police confronted the unarmed demonstrators using excessive force and opened fire at the protesters who took to the streets to demonstrate against shortages of fuel, foreign exchange and poor governance.
A commission of inquiry instituted by the late Mutharika faulted the police for the deaths and called for investigation and prosecution of those involved.