Counsel Mkandawire with the two brothers
The Nyungwe Second Grade Magistrate’s Court has acquitted two brothers charged with burglary and theft after finding that the prosecution had failed to link them to the alleged offences.
The accused persons, Enock Mzembe aged 20 and Kenson Mzembe aged 18, were jointly charged with burglary and theft and they sought legal aid since they could not afford to hire a private lawyer.
Through the ongoing Nationwide Pro Bono Legal Services Scheme that Malawi Legal Aid Bureau is carrying out with the Malawi Law Society, the case was taken up by Counsel Hadrod Zeru Mkandawire.
One of the items alleged to have been stolen, a mobile phone, was said to have been recovered from a person who claimed to have purchased it from Enock Mzembe. Enock Mzembe, however, told the Court that he had bought the phone from his brother, Kenson Mzembe, who in turn claimed to have purchased it from a stranger at a trading centre within their area. During the trial, the defence further noted that the State tendered into evidence a mobile phone that was different from the one allegedly recovered.
Upon review of the disclosures provided by the State, the counsel noted that there was no evidence directly connecting the two accused persons to the commission of the alleged crimes.
During trial, the State relied on circumstantial evidence which, according to the defence, was insufficient to establish the guilt of the accused persons. It was submitted that the prosecution’s case was based on speculation and suspicion, which do not constitute evidence sufficient to sustain a criminal conviction.
In his judgment, Second Magistrate Backfield Kalowekamo agreed with the submissions made by the defence and consequently dismissed the case and acquitted both accused persons.
Before their acquittal, the two accused persons had been admitted to bail pending trial after a successful application by the defence. However, their parents were unable to raise the bail bond cash of K100,000 imposed by the Court due to their poor financial circumstances. As a result, the accused persons remained in custody for a period of one month until their release.
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