The State was extremely sloppy in the case of Ntcheu man who viciously assaulted a minor—lawyer Khumbo Bonzoe Soko

The ghastly scene that appalled the public

* The State never conducted proper investigations and committed amateurish mistakes

* One is tempted to believe that they took it for granted that they had it in the bag—Soko

* This boy has been let down yet again by adults that just couldn’t stand up for him—Pulimuheya

* A whole village watched his torture like a movie and not a single one of them stood up to the bully

* The whole state sat by and produced a mediocre case

* Some say the charges were wrong, others say the case was presented weakly — the truth is that justice isn’t for the poor in this country

By Duncan Mlanjira

The acquittal verdict of Vincent Dzimadzi, who was seen in a video clip that went viral in which he viciously assaulted a child last year, has shocked and dismayed the public — prompting lawyer Khumbo Bonzoe Soko to suggest that the “state was extremely sloppy” in its presentation of the case.

Ntcheu Senior Resident Magistrate’s Court acquitted Dzimadzi for the charge of committing an “act intended to cause grievous harm” when he was seen assaulting the minor in October last year up to the point of lifting him in the air and then throwing him on the ground, leaving the boy in agony.

Reports indicate that the child’s mother testified in court that he received the punishment after been accused of stealing K400 and some undisclosed belongings from Dzimadzi’s vehicle.

However, Ntcheu Senior Resident Magistrate Joshua Nkhono rejected the use of the video clip as evidence, saying prosecutors had failed to explain how the video was recorded and under what circumstances.

He added that even if the video evidence had been allowed, the State would have failed to prove that the said grievous wounding occurred on the victim.

Nkhono observed that it was surprising that after been beaten using a rod, the child showed no signs of any trauma on his body a day after the alleged incident and thus ruled that the State has failed to prove that Dzimadzi intended to grievously harm the child.

The clip that shocked the public showed Dzimadzi tying the 14-year-old and assaulted him in various ways including picking him up and smashing him to the ground while other people in Gochi Village in Ntcheu watched without intervening as another captured the incident on video.

In his reaction, Director of Public Prosecution Steven Kayuni told the media that the State has analyzed the ruling and that it will be filing an appeal in the High Court because he believes that protection of children should be given utmost attention.

Also in support of the minor, Memory Chisenga — advocacy, media and public relations officer for Eye of the Child — described the ruling as shocking, saying in Malawi it is very difficult to find justice in cases of child abuse.

“As far as we are concerned, there was physical abuse and that matter must be treated as such,” she told the media. “We all saw the child being thrown down and being beaten up.

“We are joking a lot when it comes to child protection, we are giving these cases to a magistrate who might not look at these cases as a priority,” Chisenga said.

Meanwhile, lawyer Soko said the State never conducted proper investigations and “committed amateurish mistakes”.

“One is tempted to believe that they took it for granted that they had it in the bag. Luckily for criminal suspects, their trials are not conducted in the High Court of Facebook — but in real courts, which apply well settled legal principles for determining the guilt of an accused person.

“And in doing this, the Court, correctly so, must take the role of a dispassionate and disinterested arbiter. It can’t be seen to be helping the State prosecute an accused.

“If you followed the Chauvin trial, into the murder of George Floyd, you will notice that the state there never took anything for granted — they didn’t assume that because the jurors would have seen the video of the execution of Floyd, then that was it.

“They spent months conducting a painstaking and thorough investigation which answered all the questions that could have raised reasonable doubt.

“They got ahead of the theories that Floyd had died of Covid or drugs in his system. They called experts to explain why this was improbable. They even had an expert on breathing to testify.

“And for the prosecution team? They assembled a phalanx of lawyers with glittering resumes as long at the German autobahn. My point is, they never left anything to chance — they never assumed anything.

“Now in this case. The boy child was not even given a proper examination. This was unforgivable. The government has got a battery of solid medical experts at KCH who could have seen that child and given him a thorough examination. Scans, X-rays and all. This resource was never utilized.

“The law of evidence on admissibility of video evidence is rather settled. So the one who took the video was a material witness. He should have been called to testify or his absence properly accounted for.

“And then charging is everything. A charge should speak to the evidence in the docket. Not the other way round. Ultimately, the responsibility of getting justice for victims of crime is not for the Court, but for the State — it’s investigators and prosecutors.

“If courts started getting swayed by the opinion of folk on social media, then what we will have will no longer be justice according to law, but mob justice delivered from the elevated bench of courtrooms. And that will be dangerous for all of us.”

In response, Arthur Mmanga applauded Soko for the explanation, saying “so many people are crucifying the Magistrate” thinking he delivered a biased judgement.

To which lawyer Soko replied saying he observes this trend “all the time in court. I actually believe that if courts were strict, we would have even fewer convictions.”

Blessious Ainani was also of the opinion that “the prosecution team goofed big time — the magistrate made the ruling based on the evidence presented before the court” while another commentator concurred saying “the court deals with the evidence at hand — not what ought to be”.

“Now the question is, is there any other form of recourse for the boy at this point? That’s what we should be discussing and not crucifying the magistrate — the magistrate applied his skill to the core.”

Brian Mchenga wondered “why some people are rushing accusing the court of being bias, partial and even describing it as corrupt — oblivious of the fact that ours is an adversary system where courts play a referee role”.

“We must always endeavor to achieve justice according to law and not public opinion”, while Macfarlen Mseteka said “this case had something to do with the integrity from the State and this should be lesson that emotions do not make us win a case, rather the ability to prove our cases”.

“You don’t need big results when you have at hand something of lesser result. Appropriate charge and big charge are two different things — we must strive to formulate charge sheets which are relevant and quote appropriate sections which can be married with the evidence we have at hand and prove elements of the offence, and let the court determine from what we have delivered.

“We should not be relying on courts to fix our mistakes by lessening offences. If we fail as the State, it is us the State who let down our country — not only by wasting resources but also by making sure that the blind justice  is no longer for everyone. If we fail, we fail the people we need to protect.”

Luis Ungapembe accused police prosecutors of being “so used to winning cases with less effort and shabby evidence” with Ken Anguye Kwaswele agreeing that the “police prosecutors need to up their game”.

“Law is a jealous mistress which requires long and constant courtship. Firstly they failed to get a proper medical examination for the poor boy; nevertheless they charged Dzimadzi with Section 235 of the Penal Code.”

Of the video evidence, Anguye Kwaswele opined that the prosecutors just indicated that they got it from a wellwisher, which was not enough as the State should have gone for a lesser charge of common assault.

Emmanuel Katema said the state prosecution often times takes things for granted especially when left to police prosecution, saying some 10 years ago when his house was broken into, the police prosecution messed up their work and he had to push it hard himself for the suspect to be convicted.

“I was the prime witness and the magistrate even condemed the way the police prosecutor handled the matter and said if it was not for my witness statement and evidence, the suspect would have been acquitted.”

Harris M. Harris said the state “was not proving grievous harm — rather it was proving acts intended to cause grievous harm. You don’t need a strong medical report to prove acts intended to cause grievous harm.

“In fact, even without a medical report the case of acts intended to cause grievous harm can be proven — one only needs to prove if the action was intended at causing grievous harm.

“So blaming the acquittal on medical examination is totally misleading in this case. Secondly, the judgement states that even if the state brought the video, it wasn’t still enough to prove the case because, according to the court, suffering bruises or falling unconscious is not enough to prove ‘grievous harm’.

“It is like the court was dwelling much on the charge of causing grievous harm (which the State did not bring) instead of acts intended to cause grievous harm where you don’t even need to get injuries.

“Unfortunately, most commentators justfying the acquittal are giving reasons that are not stated in the judgement. How I wish people dwell on the reasons highlited on the judgement.”

James Chavula indicated that the police prosecutors “need to be investigated and get sanctioned for dropping the ball in the path of a familiar foe. It appears they cash in on that sloppiness as long as it benefits someone with some change to share”.

To which Edgar Kapiza Bayani said: “Someone who works in social welfare just confused in me that they are actually facing a cartel of prosecutors who will deliberately put up a poor show in courts after pocketing something. She says it’s a frustration that many social workers are facing.”

Wezi Kasambala has a different opinion, telling Soko that while his legal explanation sounds well it “does not preclude the court from dispensing reason”.

“If indeed it were a matter of it being a bungled up prosecution etc, the courts had a moral obligation to be the last line of defense ‘as it were’ seeing as the other mechanisms had failed.

“It is an indictment of our legal system to suggest that the court exercising reason would mean we somehow dispense with justice, when in fact the only difference here is that justice is serving the perpetrator of a violent and inhumane act.

“That is precisely why even in high profile cases, the nature of the offense can ultimately determine the degree of punishment by a judge — following conviction (in accordance with their discretion and reason).

“If unilateral reasoning can apply in such cases, why would it be beyond the purview of our magistrates’ or court here? Surely the courts are also there to facilitate a semblance of how we should conduct ourselves in society.

“In other words, where a technicality proves to exonerate an otherwise guilty individual then reason must be applied, in the interest of one preventing such acts from ever being committed again by the accused and of keeping our society free and safe of such cruel behaviour.

“At the end of the day, are we saying if I were to go on some depraved rampage snd launch a dangerous weapon at you that merely grazes your ear, then I can get off scot-free? What of acceptable behaviour?”

Thandie wa Pulimuheya summed it up by saying: “This boy has been let down yet again by adults that just couldn’t stand up for him. A whole village watched his torture like a movie and not a single one of them stood up to the bully.

“The whole state sat by and produced a mediocre case. Some say the charges were wrong, others say the case was presented weakly — the truth is that justice isn’t for the poor in this country.

“Many are facing these kinds of injustices, dare I say in the opposite; locked up when they did no wrong or freed when a blatant crime has been committed or better never even out on trial.

“But if they are very poor, their offences aren’t in the public eye — so no one cares. The rise of mob justice isn’t coincidental — faith has to be restored.”