A missing case file has left Misheck Chigona of Kanjelengo Village, T/A Zulu, Mchinji District, behind bars despite a Malawi Supreme Court of Appeal (MSCA) order quashing his conviction and directing a retrial.
Chigona’s plight mirrors that of many others whose path to justice is blocked by lost records and administrative inertia. He was arrested in September 2008, convicted in August 2014 for the murder of a child, sentenced to death and held at Zomba Maximum Prison.
His sentence was commuted during the 2022 Independence Day celebrations by then‑President Lazarus Chakwera, and he applied for leave to appeal out of time that same year.
Three years later, on June 10 2025, the MSCA quashed both his conviction and sentence and ordered he be retried by the High Court.
In MSCA Criminal Appeal No. 06 of 2024, a panel of Supreme Court judges comprising Justices of Appeal Lovemore Chikopa, Healey Potani, John Katsala, Frank Kapanda, Mankhambira Mkandawire, Sylvester Kalembera, Dingiswayo Madise, Rowland Mbvundula and Dorothy Nyakaunda Kamanga ordered Chigona’s retrial.
Part of the judgment reads: “Upon considering the documents filed by the appellant in support of the appeal and examining the case file, this court notes that appeals to this court come by way of rehearing.
“Considering that this court does not have the record of the proceedings from the court below, it is unable to hear the appeal or the appellant’s application to admit new evidence on appeal. Accordingly, the proceedings before the High Court are set aside and we order that a retrial be conducted before another judge in the court below within 90 days from today.”
However, the State failed to commence the retrial proceedings within the 90 days.
Chigona’s lawyer Chipiliro Lulanga said in an interview that following the State’s failure to commence the retrial, he filed a bail application seeking his release pending retrial.
He said he also filed an application for an outright discharge described as a habeas corpus application on the basis that Chigona was being held without lawful cause.
Lulanga said Justice Mzonde Mvula heard the matter, but to date, no judgment has been delivered.
“In an attempt to get Chigona some reprieve in the face of the judge’s delay in rendering a ruling, I filed a bail application pending the ruling on Chigona’s application for discharge on February 4 2026. The Judge has not attended to that ruling,” he said.
Lulanga said a follow up with the registrar’s office revealed the file containing the case is missing and he was advised to start the process all over again.
“There was no tangible explanation as to why the file went missing. I would describe the missing file as mysterious and we are worried about it. We remain anxious about when the judgment may come and we feel Chigona is being kept in prison without proper justification as the higher court ordered a retrial which to date has not taken place,” added Lulanga.
The prolonged delay in delivering justice to Chigona has inflicted both physical and psychological pain on his mother, Patricia Zandonda.
Zandonda, who is in her early 60s, told Nation On Sunday the circumstances leading to her son’s arrest remain unclear.
She said she was relieved when she learned about the retrial.
She said the delay in retrying her son has placed additional strain on her as she is forced to spend about K50 000 per trip to visit Chigona at Maula Prison from Guillime in Mchinji District.
“I am battling high blood pressure and I am really weak. Whenever I visit my son, I become emotional; tears run down my cheeks because I know my son is innocent. I am only looking forward to the day justice will be served for my so, and only God knows when that will be,” said Zandonda as tears streamed down her cheeks.
Director of criminal litigation in the Office of the Director of Public Prosecutions Dzikondianthu Malunda confirmed his office is aware of the case.
He, however, said the State is awaiting action from the Judiciary which is responsible for setting a date for the retrial.
“We have always been ready to proceed with the case, but we are on the receiving end. Once the dates have been set, we will certainly be ready,” said Malunda.
Judiciary spokesperson Ruth Mputeni promised to respond when asked about the missing file and possible date for the case but had not done so by the time of publication.
The Registrar of the High Court and Supreme Court of Appeal Innocent Nebi did not respond to our questionnaire on Chigona’s case.
Beyond Chigona’s case, 197 homicide cases are on the books at Blantyre Prison with a significant number of inmates still incarcerated despite court rulings ordering their release.
For example, Dyson Wilson Mashapi from Magi Village in Traditional Authority Bvumbwe, Thyolo was arrested in March 2018.
Through court camps, he was granted bail on June 25 2020 but remains in prison after failing to provide two reliable sureties.
Five years later, Mashapi is still behind the walls of prison because in addition to the sureties, he could not raise the K50 000 cash bond he was ordered to pay.
Human rights lawyer Alexious Kamangila said Chigona’s case and others show the disparity and injustice surrounding the country’s criminal justice system.
“A lot of unacceptable things are acceptable in Malawi. At the heart of these unacceptable things is the deprivation of the right to access justice. Sections 41 and 46 of the Constitution are clear on this, and the case of Awali Matemba v Republic addresses these issues. Furthermore, Section 42 of the Constitution clearly deals with this situation. But Malawi hates the Rule of Law, and we do everything possible to avoid it,” said Kamangila.
Malawi Human Rights Commission (MHRC) director of civil and political rights Peter Chisi described the situation as more prevalent in the country’s justice system with many enduring it in silence.
He said the situation portrays a bad picture for the Judiciary, calling for a change.
“There is need for the Judiciary to address this matter once and for all. There are many people that face similar situations and have to alternative recourse to have their matters concluded,” he said.
