THE Court of Appeal has nullified the proceedings and judgment of murder trial of three people -- Shija Ndigila, Kizipe Sokoni and Galus Antonia -- who were sentenced to death by hanging for killing three members of a family on witchcraft beliefs.
Justices Kipenka Mussa, Richard Mziray
and Gerald Ndika ordered fresh hearing of the case after noting
irregularities in the earlier trial, notably, failure by the High Court
to direct assessors on a vital point of law relating to the witchcraft
belief when summing up the evidence.
“… As it is now settled that failure to
direct the assessors on a vital point of law nullifies the entire
proceedings, we are constraint to take the option by the invocation of
our revisional jurisdiction under section 4 (2) of the Appellate
Jurisdiction Act,” they said.
The justices added: “We further order
that there should be a new trial before another Judge and a new set of
assessors. In the meantime, the appellants (Shija Ndigila, Kizipe Sokoni
and Galus Antonia) should remain in custody to await resumption of
their trial.”
They noted that evidence derived from
one of the prosecution witnesses and from three statements of defence
witnesses to the effect that the primary motive behind the killings of
Jailos Silvano, Adelina Mlela and Luciano Chole, who are deceased
persons, was a belief in witchcraft.
The justices further argued that, in
summing up, the High Court Judge directed the assessors that it was
evident that source of the murder was rooted in witchcraft beliefs and
that the deceased were associated with the disappearance of a child that
was later found dead in a pond.
“But the judge did not go so far as to
put to the assessors the law governing the situation where the killing
results from a belief in witchcraft. We are fully aware that in certain
situations, such belief could reduce the crime of murder to
manslaughter,” they noted.
According to the justices, the
appellants did not quite raise the defence of provocation resulting from
a belief in witchcraft but the trial judge was ‘certainly enjoined’ to
direct the assessors that such defence “avails and explains” to them the
circumstances under which ‘it so avails.’
Yet, they said, that was not done. It
was the prosecution’s case that the appellants were alleged to have
committed the offences on April 17, 2011 at Miombo Village within Nkasi
District. On the fateful day, the appellants paid a visit to the house
of Jailos Silvano and took him away on prefix that they were sent by the
village chairperson to his office.
As they departed, the wife of Silvano
followed behind and as she had suspected, it did not take long before
the appellants initiated an attack by hurling stones on the body of her
husband. In response, the wife rushed to the house of Adelina Mlela and
Luciano Chole, who were her husband’s parents.
Thereafter, the trio went back to the
scene where the appellants were still roughing up Silvano. Somehow, the
mother and father rescued their son from there and took him to their
residence. Undaunted, the appellants followed in pursuit.
Upon reaching the house and found the
doors closed, the appellants kept on pounding the entrance door with
clubs. In response, Chole moved out of the house, followed by Mlela and
Silvano’s wife. Whilst outdoors, Chole blew a whistle.
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