Zomba Court finds Village Headman with no case to answer

Counsel Ching'anda with the accused (in a sweater) and relatives

The Senior Resident Magistrate Court in Zomba has acquitted Village Headman Mwapasa of charges related to engaging in sexual intercourse with a child, contravening Section 138(1) of the Penal Code.

It was alleged that the Village Headman, known as Raphael Zembani, had employed a 13-year-old girl to work as a maid at his house for a monthly salary of MK30,000 in February of this year. The teenager agreed to the arrangement and stayed in the accused's house.

Rumors circulated in the village, suggesting that the chief was married to the teenager. Upon learning of this rumor, a local Non-Governmental Organization (NGO) intervened, and in collaboration with the girl's parents, facilitated the chief's arrest.

Zembani was brought to Court, where his niece sought legal aid from the Legal Aid Bureau on the same day. Senior Legal Aid Advocate Hanleck Ching’anda, with assistance from Assistant Legal Aid Officer Naomi Kajombo, took up the case.

Five State witnesses were paraded to establish Zembani's case, and the matter was being considered to determine if the accused had a case to answer.

During her testimony, the victim informed the Court that she had engaged in sexual intercourse with the accused multiple times from February to August of this year while residing in his house. She stated that after each encounter, she received Fanta, bread, and MK5,000. She claimed to have reported this to her mother, who advised her to leave, but the accused prevented her from doing so.

In cross-examination, the victim admitted to not informing the police about receiving MK5000 after each encounter with the accused. She also confirmed that she never disclosed the sexual encounters to her mother.

One State witness, a nurse, testified that a medical examination revealed the victim was not a virgin, indicating that she had been penetrated before. However, in cross-examination, the nurse admitted she could not determine who had penetrated the victim.

In his submission, counsel argued that the victim's credibility was questionable, pointing out contradictions and questioning her failure to report crucial details to the police, making it unsafe to rely on her evidence. As counsel wondered how such information was missed in the reporting at police and miraculously remembered in Court, he contended that the State had failed to establish a prima facie case, and the accused should be acquitted.

In his ruling, Senior Resident Magistrate Yohane Munthali noted that even though the victim alleged that she was penetrated by the accused herein several times from February to August this year, and that the same was reported to her mother, it has not been established if this is indeed true as the victim confirmed in cross-examination not to have reported the matter to her mother.

Further, the Court noted the evidence on penetration was given by a nurse. It pronounced that a nurse is not an appropriate medical expert in light of section 180(2) of the Criminal Procedure and Evidence Code. The nurse’s evidence was disregarded, and the Court then held that in totality of the evidence before it, the State has failed to establish a prima falsie case that the accused had sexual intercourse with the victim. Zembani was, therefore, found with no case to answer and was acquitted accordingly.

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