CHARLES MUSONDA writes
THE Lusaka Magistrates’ Court has overturned an earlier judgment in which a juvenile was convicted for allegedly defiling his older brother’s daughter aged four in 2018.
On September 25, 2019 Lusaka Magistrate Nthandose Sakala Chabala convicted the juvenile after being satisfied that the prosecution had proved its case beyond all reasonable doubt and found the offender guilty as charged.
After reviewing the judgment, the Lusaka High Court sent back the case to the Subordinate Court for retrial and the matter was reallocated to Judge Mwaka Mikalile, who sat as Principal Resident Magistrate in the proceedings.
In her judgment dated April 9, 2021, Ms. Justice Mikalile found that the girl’s mother Daisy Lengwe had a strained relationship with the juvenile, such that when he informed her husband Lewis Chanda that his younger brother had defiled the child, his immediate reaction according to Ms. Lengwe herself was that he knew that such an accusation would be made against the juvenile as his wife did not love him.
She said the situation had been exacerbated by the fact the other person Janet Malasha that was allegedly informed of sexual abuse by the girl refused to go to court to testify.
She said according to arresting officer Esnart Mwanza, when she interviewed the said Ms. Malasha, she denied having been told anything of that nature by the girl.
Ms. Justice Mikalile said it would clearly be unjust to accept Ms. Lengwe’s testimony as truth.
She said according to Ms. Lengwe, the alleged defilement occurred on October 28, 2018 and that was what the indictment stated.
However, she said there was unchallenged evidence on record that the juvenile offender moved out of the house on or about October 17, 2018 and that October 28, 2018 was actually the that his sister-in-law fished him out of church and had him apprehended.
“This here is already an indication that the juvenile offender may not have had the opportunity to commit the offence as he was away from home on the material day. After all, there is no evidence on record that he was anywhere near home on that day,” Ms. Justice Mikalile said.
She said the medical doctor’s evidence was that she examined the girl on November 9, 2018 and observed acute genital injury and her explanation was that acute entailed that the sexual interference occurred about 72 hours prior to the examination.
She said this meant that whoever interfered with the child did so by November 5 or 6, 2018.
“The undisputed evidence on record is that the juvenile offender was remanded in police custody on October 28, 2018 and was still there on November 26, 2018 when the arresting officer took over the matter as he had no one to sign his police bond for him.
“The inevitable conclusion from the foregoing is that the juvenile offender was in custody on 5th or 6th or indeed 8th November when the case was reported by PW1 (Ms. Lengwe) as shown by the medical report issued by the police on 8th. Thus the acute injury observed by the doctor on 9th could only have been inflicted by someone else who was not being held by the police.”