Gomani (in red) with sister in-law and Counsel Ching'anda
The Principal Resident Magistrate Court in Zomba has found Chisomo Francisco Gomani, a teacher at Zobwe Primary School in Zomba, with no case to answer on allegations that he had sexual intercourse with a child.
Gomani was arrested by Chingale Police on 27th October 2023 on the suspicion that he had had sexual intercourse with a child who is a pupil at the school he was teaching.
Following the arrest, Temweka Chirwa, the accused’s sister-in-law, applied for Legal Aid on his behalf and was represented by Senior Legal Aid Advocate Hanleck Ching’anda with the assistance of Assistant Legal Aid Officer Tadala Ching’amba.
In Court, the accused denied the allegations against him and the matter went to trial. The State paraded three witnesses who included the girl’s mother, the girl, and a medical officer.
The victim’s mother told the Court that the accused married her sister. She alleged that on the evening of 27th October 2023, at around 9 PM, the wife of the accused knocked at her house and informed her that she had found her daughter, who is the victim, together with the accused in an unoccupied house within the compound. She further alleged that she was informed by the wife of the accused that when she found the two, the accused held her hand to allow the girl to flee from the alleged house. She added that together with the wife of the accused, they went to the said unoccupied house where they found a condom that was stained with blood.
The second witness, Catherine Maganizo, a medical officer, told the court that she examined the teenager and found that she had had multiple penetrations. She made this conclusion from the fact that the girl’s hymen was broken and she was able to insert three fingers into her vagina.
The girl, on her part, told the Court that she was at Gomani’s house on the evening of the material day having gone there with her friend to assist him in marking examination scripts. She however did not explain anything regarding any sexual encounter with the accused. This was despite efforts by two senior police prosecuting officers to solicit evidence from the victim. The victim testified on two separate days and all those days, she did not utter any word suggesting that she had sex with the accused.
On submissions on whether the accused should be found with a case to answer, Counsel from the Legal Aid Bureau argued that the evidence falls short of establishing an essential element of the alleged offence, that the accused had sexual intercourse with the victim. Counsel argued that evidence from the mother of the victim is hearsay and unreliable. This is more so that the victim herself did not tell the Court that she had had sexual intercourse with the accused.
He further argued that no condom was brought before the Court and this fails to substantiate her allegation that she found a used condom in the alleged unoccupied house. Counsel submitted that the prosecution has failed to establish a prima falsie case against the accused requiring him to enter his defense on the alleged offence. He therefore prayed that he should be acquitted.
In his ruling, the Principal Resident Magistrate His Worship Martin Chipofya, held that the State has indeed failed to present evidence establishing that the accused had sexual intercourse with the victim. He opined that the evidence on record is both inadequate and manifestly unreliable and that no reasonable tribunal would convict on it.
The Court therefore found Gomani with no case to answer on the charge of having sexual intercourse with a child contrary to section 138(1) of the Penal Code as amended by section 9 of the Penal Code Amendment Act 2023. He was accordingly acquitted.
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