BY SAM ALFAN.
The High Court in Malawi has ordered retrial of a 21 year old man accused of rape after the presiding magistrate was accused of bias.
Nzomba District Justice Zione Ntaba ordered that the rape trial being heard by the magistrate, and of which the office scene had ostensibly formed part, should start again under a different presiding officer.
The judge noted that the trial magistrate allowed the playing of sordid sexual scene in his chambers, in a case where Yusuf Willy is facing charges.
“This court orders that the trial in this matter recommence before a different magistrate assigned by Chief Resident Magistrate. The said trial to recommence by the first week of January 2023,” Judge ordered.
The judge declared that proceedings before the lower court had procedural irregularities including blatant bias especially when one examines how the case progressed for case to answer.
“Accordingly, In upholding the constitutional freedom and rights as guaranteed and recognizing fundamental principles of criminal law espoused in section 3 and 5 of the criminal procedure and evidence code, it is evident that this matter should not proceed before the said magistrate,” ruled Judge Ntaba.
Judge Ntaba held that there was none-judicial factors that influenced the conduct of the trial magistrate. “This court cannot find as a fact those that those facts are attributed to corruption, familial relationships or friendship but what it finds is that there was some bias elements noted in his conduct.”
The judge said that the court was at pains to understand the conduct of the Magistrate in the case noting that Malawi criminal justice system has safeguards in the criminal Procedure and Evidence Code in terms of how defence is mounted including the introduction of evidence especially scientific or medical.
The court added that there was no need for the Magistrate to come to the aid of the accused in defence and in any case, a demonstrated was uncalled for, gross but more so inappropriate.
Ntaba also ordered the government through Director of Public Prosecutions to assist the victim and her family with the resources to ensure her attendance at court and further that counseling services to be provided until when the identified doctor deems.
The judge referred to the Judicial Service Commission to deal with the issues of gender bias including the Magistrate conduct in the case.
The Judge said it was critical that the judiciary through the commission or the Chief Justice’s office review the practice direction on the sexual offences and through training committee develop programmes for training of the country’s judicial officers to avoid such situation in future dealing with gender stereotypes, evidence in sexual offences, safeguarding and re-victimization.
Judge Ntaba noted that it is trite in law that judicial decision as well as judges must be impartial and devoid or not influenced by stereotypes or other bias.
This is after the High Court received a complaint against the conduct of the First Grade Magistrate who was conducting the said proceedings.
The complaint was raised through Justice Chipao when the parent went physically into her office raise issue.
