Judge faults State for wrong charges

High Court of Malawi Judge Redson Kapindu has faulted the State for a poor choice of charges in a domestic violence case that has resulted in “a sad chapter” of acquittal.

Delivering the ruling in the case against former police officer Berlington Kamwagha for causing grievous harm to his wife and malicious damage to property, the judge on March 25 2024 overturned a decision of the Lilongwe Senior Resident Magistrate’s Court which in March 2021 convicted and sentenced Kamwagha.

Kapindu said Kamwagha’s appeal against his conviction on both counts was successful and quashed the sentences imposed.

He said: “The respective sentences of six years imprisonment with hard labour on the first count of causing grievous harm and two years imprisonment with hard labour on the second count of malicious damage are hereby set aside.”

Describing his judgement as a sad conclusion, Kapindu said the court saw the matter as a typical case of gender-based violence under the law, which would have increased the convict’s criminal severity if correct charges were placed.

He said the offences Kamwagha should have been charged with fall under the assaults chapter of the Penal Code unlike the chapter for offences endangering life or health.

Kamwagha, a former senior superintendent with the Malawi Police Service, was convicted after his wife Chisomo Masamba Kamwagha sued him for domestic dispute which escalated into a physical altercation.

On malicious damage to property in which Kamwagha was convicted for shattering his wife’s phone, Kapindu agreed with lawyers for both parties that in the absence of the gadget for examination, it was difficult to prove the charge.

He also noted that the magistrate’s court had failed to have the phone brought forth for assessment in order to decipher the nature of the damage and be able to draw an accurate conclusion.

Kamwagha was sentenced on March 23 2021 with the two sentences originally set to run concurrently. His wife, to whom he was married since March 22 2014, said during the first trial that she worked as principal administrative officer in the Department of National Public Events.

She told the lower court that her husband assaulted her on August 27 2017 after she returned home around 3am from an entertainment joint in the city.

Kamwagha on the other hand told the court that his actions on the material day were an act of self defence against his aggressive wife as well as a result of suppressed anger that had accumulated over time due to her alleged infidelity.