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Judge faults police on student’s death

Kwanele Ngwenya

High Court Judge Dingwisayo Madise has blamed the Malawi Police Service (MPS) for negligence for failing to take to hospital a suspect who was in their custody.

The suspect, a Lilongwe University of Agriculture and Natural Resources (Luanar) student Edison Msiska, complained of body pains before he died in police custody.

Madise made the observation before making a ruling when he presided over a case in which three police officers, George Kamphe, Victor Nsoloma and Lucius Mpakeni, appeared before the court on Tuesday over the alleged murder of Msiska.

The judge has since acquitted Mpakeni and Kamphe and has convicted Nsoloma who will get his judgment in 21 days.

“There is a clear case of negligence by the Malawi Police Service. If the deceased had been taken to the hospital earlier, he could not have died. He started complaining of body pains on January 26, 2012, a day after his arrest. He was kept in custody up to January 29, 2012,” said Madise.

He further said the senior officers on duty acted negligently because they were alerted on several occasions about the condition of the deceased.

On the other hand, the judge disagreed with pathologist Charles Dzamalala’s findings that the deceased had a dislocated neck.

“I wish to differ with his findings. A person with a broken neck cannot speak. The fact that he had injuries is not in dispute but to say that the neck was broken before he died leaves more questions than answers.

“If that was the case, the deceased could not have called his friend to help him take a bath and say his last words that ‘Vic’ was a bad man,” he added.

Before making his ruling, Madise said evidence points to one logical conclusion that it was ‘Vic’ who caused the unlawful death of the deceased because he mentioned him twice to two different people on two separate occasions.

“I, therefore, find that the state has proved the case against Nsoloma beyond reasonable doubt and I proceed to find him guilty of the charge of manslaughter and I hereby convict him.

“However, I fail to find sufficient evidence beyond reasonable doubt to implicate Kamphethe and Mpakeni and connect them to the crime. I know how much the pain the family of the deceased has gone through but to convict people in attempt to console the family and succumb to demands by the public that punishments are meted out regardless of the dictates of law and evidence will be a great injustice this court is not ready to commit.

“I, therefore, find the state has failed to prove the charge of manslaughter against the two accused persons and I acquit them,” he added.

One of the lawyers representing the accused persons, Christone Ghambi of Chram and Associates, said they will see the way forward because Nsoloma could also have been acquitted just like his counterparts.

Senior Assistant Chief State Advocate, Dzikondianthu Malundu, said they will make submissions to the court for the sentence in respect to the convict.

“We cannot say whether we are satisfied or not but will make consultations with the Director of Public Prosecutions (DPP) but as of now we cannot make any decision,” said Malunda.

Northern Region Police spokesperson Maurice Chapola said the police put the welfare of people first.

He said all suspects that fall sick in custody are always taken to hospital in good time but he was quick to point out that maybe the circumstances surrounding the deceased’s death could have been the reasons for what happened. But he said it is too early to blame the police.

The three accused persons were being represented by John and Tenson Law firm, Chram Associates and Jivason law firm.

Six police officers were arrested for the murder of Msiska and three of the officers were already acquitted.

Msiska was arrested in 2012 for allegedly being found in possession of stolen property.

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