Blantyre Senior Resident Magistrate (SRM) Peter Kandulu has discontinued a case in which Peoples Party Publicity and Administrative Secretary Ken Msonda was being accused of inciting people to ‘kill homosexuals’.
Kandulu’s determination follows the State’s application, through Director of Public Prosecution (DPP) Mary Kachale, to discontinue the case in pursuant to Section 77(1) of the Criminal Procedure and Evidence Code (CP&EC).
Reads Kandulu’s determination: “Pursuant to Section 77 (2) of the Criminal Procedure and Evidence Code (‘CP&EC’), I hereby notify you that the State has entered a discontinuance in this matter.
“Pursuant to Section 77 of the CP & EC, the discontinuance discharges you Kenneth Msonda from the requirement to present yourself before this court on the 22nd of January, 2016 as indicated in the Summons/Charge Sheet issued on the 8th January, 2016.”
Section 77 (1) empowers the DPP to enter a notice of discontinuance of a case to the presiding officer and Section 77 (2) gives the presiding officer powers to discontinue.
On January 2 2016, Msonda is said to have implied to members of the general public that it was desirable for them to contravene Section 9 of the Penal Code by unlawfully killing people of the homosexual orientation.
This forced two leading activists on minority rights, Gift Trapence and Timothy Mtambo to ask the Magistrate court to summon Msonda to answer a charge of inciting another to contravene the law.
Trapence and Mtambo exhibited to the court the Facebook post and a transcript of a radio interview with Joy Radio in which Msonda repeatedly said homosexuals had no rights in Malawi and they deserve to be killed.
But in an interview today, Judiciary Spokesperson Mlenga Mvula said the DPP wrote the SRM informing him that she had taken over the case.
Minutes after taking over the case, Mvula said DPP Kachale applied for the discontinuance of the case.
“In her notice of takeover, Kachale indicated that she was doing that in exercise of powers vested in the DPP under section 99 of the constitution to take over the criminal proceedings that were instituted under section 83 (1) (a) and Section 83 (6) of the CP&EC,” said Mvula.
Reacting to the determination, Lawyer Khumbo Soko who represented Trapence and Mtambo said he was yet to be served with the determination.
However, he described the decision to discontinue the case as astonishing. He said as lawyers, they will wait to hear from their clients on the way forward.
On his part, Msonda said he was also not aware of the development, adding, he was busy praying in preparation for the case tomorrow.
Said Msonda: “As for me, everything is as normal as it was. I continue to prepare myself for the court unless I receive a written communication regarding the discontinuance.”