The High Court in Zomba has ordered the Anti-Corruption Bureau (ACB) and Director of Public Prosecutions (DPP) to investigate the Malawi Police Service (MPS) and a police officer for abuse of office and corruption over a case bordering on wrongful arrest.
In the case in question, a police officer allegedly arrested and detained without trial Harrison Konala, 21, for refusing to pay a bribe.
In a release order dated January 18 2018, Justice Zione Ntaba bemoans the conduct of the police to have an innocent person arrested without reason.
The High Court has, therefore, ordered the ACB and DPP to investigate the conduct of the police and the police officer, who has only been identified as Zintambira of Masambanjati Polic Post in Thyolo.
Based on the court order, Konala is claiming K100 million for the wrongful arrest and trauma he suffered for about five months in detention.
The court records indicate that Konala operated a motorbike taxi in Thyolo and on July 12 2017, he carried two passengers—a male and a female—who he dropped off at Chipho near Mozambique border.
But on his way back, he met eight men who inquired about the two passengers, one of whom they accused of murder.
The court records further indicate that when Konala could not explain the whereabouts of his passengers, the eight men took away his motorbike.
“He accordingly lodged a complaint at Sandama Police Post, and the motorbike was later recovered. The police officer who recovered it demanded a bribe of K50 000, of which he paid K10 000. On his failure to pay the balance, he was arrested for the said murder by Masambaanjati Police,” the order reads in part.
According to the court, Konala spent three weeks at Masambanjaati Police cell. When he could still not pay the remaining K40 000 bribe, he was transferred to Thyolo Prison before being moved to Chichiri Prison and finally to Zomba Maximum Prison.
In her release order, Ntaba observed that there was no evidence connecting Konala to the murder and that the State had failed to prove the same; hence; his detention was without basis.
“Incidentally, the facts of the case raise further concerns in terms of two issues. Firstly, the fact that the applicant’s liberty was arbitrarily taken away by a police officer who is corrupt, but also abused his office. Furthermore, the State machinery perpetuated this said deprivation of liberty. The circumstances of this case are deeply regrettable and I do hope that there is a full investigation into how an innocent man, according to the evidence, has been in custody for over three  months for a crime which he did not perpetrate,” reads part of the ruling.
Ntaba also blamed the State for failing to act with speed on the case.
She said: “I should also state that the speed at which the State has moved on this file is appalling and inexcusable. The State Advocate Chambers houses State Advocates who are officers of the court who should be interested in ensuring that they promote and protect human rights.
“Upon reading the applicant’s affidavit, the allegations therein should have moved them not only to his plight, but also to the various gross violations contained therein. I must say that despite the human rights issues, the lack of Umunthu they have portrayed in this matter is something which I hope they can reflect on. It is my hope that this reflection on Umunthu and their human rights protection role they can apply to all cases that comes before them”.
In an interview, the office of the DPP acknowledged having received the court notification on the matter and said they are taking necessary steps to comply with the order.
According to senior State advocate Pirirani Masanjala, the matter is being handled by State Advocate chambers in Blantyre.
Commenting on the issue, one legal practitioner who spoke on condition of anonymity said the case in question is just a tip of the iceberg as many people have fallen victim to police misconduct.
“A person can only be arrested on reasonable suspicion that he has committed an arrestable offence. Once arrested, the suspect can only be kept in custody for not more than 48 hours within which they must be taken before a court of law,” explained the lawyer.
In his submission to the court, Konala, who is his family’s breadwinner, said apart from having his family starved due to his detention, his mother died of hypertension when a prison warder at Thyolo Police informed her that he had been taken to Chichiri Prison.
“I informed the officer that I would rather inform her myself in a manner that would not alarm her once I got to Chichiri Prison. About three days after I got to Chichiri Prison, I tried to call my mother, only for my wife to pick the call and inform me that my mother collapsed when she was told by an officer at Thyolo Prison that I had been transferred to Chichiri Prison. She was being buried on the day I talked with my wife. Although in deep grief, I was not allowed to attend my mother’s funeral,” reads part of Konala’s affidavit.
In a telephone interview yesterday, Konala confirmed that through his lawyer he has lodged a claim to the Attorney General of up to K100 million, saying his life is not the same after his five-months detention without trial.
In a separate interview, Centre for Human Rights and Rehabilitation (CHRR) executive director Timothy Mtambo said Konala is one of many Malawians suffering at the hands of police.
He said: “What kind of injustice is this? Those responsible for this injustice must face the law and indeed, Harrison and his family must be compensated unconditionally.”
Both the office of the Attorney General and the MPS asked for more time to respond to our questionnaire. They had not responded at the time we went to press.