𝗖𝗼𝘂𝗿𝘁 𝗡𝗲𝘄𝘀: 𝗠𝗮𝗹𝗮𝘄𝗶 𝗦𝘂𝗽𝗿𝗲𝗺𝗲 𝗖𝗼𝘂𝗿𝘁 𝗦𝗲𝘁𝘀 𝗔𝘀𝗶𝗱𝗲 𝗖𝗼𝗻𝘃𝗶𝗰𝘁𝗶𝗼𝗻𝘀, 𝗢𝗿𝗱𝗲𝗿𝘀 𝘁𝗵𝗲 𝗜𝗺𝗺𝗲𝗱𝗶𝗮𝘁𝗲 𝗥𝗲𝗹𝗲𝗮𝘀𝗲 𝗼𝗳 𝘁𝗵𝗲 𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝗻𝘁𝘀

𝗠𝗦𝗖𝗔 𝗖𝗿𝗶𝗺𝗶𝗻𝗮𝗹 𝗔𝗽𝗽𝗲𝗮𝗹 𝗡𝗼. 𝟬𝟭 𝗼𝗳 𝟮𝟬𝟮𝟰

𝗗𝗼𝘂𝗴𝗹𝗮𝘀 𝗠𝘄𝗮𝗹𝗲 𝗮𝗻𝗱 𝗢𝘁𝗵𝗲𝗿𝘀 𝗩. 𝗧𝗵𝗲 𝗥𝗲𝗽𝘂𝗯𝗹𝗶𝗰

𝗢𝗿𝗶𝗴𝗶𝗻𝗮𝗹 𝗖𝗮𝘀𝗲: 𝗛𝗶𝗴𝗵 𝗖𝗼𝘂𝗿𝘁, 𝗖𝗿𝗶𝗺𝗶𝗻𝗮𝗹 𝗖𝗮𝘀𝗲 𝗡𝗼. 𝟵𝟬 𝗼𝗳 𝟮𝟬𝟭𝟴

𝗕𝗮𝗰𝗸𝗴𝗿𝗼𝘂𝗻𝗱

Douglas Mwale (1st appellant), Sofia Jere (2nd appellant), Pontino Folosani (3rd appellant), and Alick Kambani (4th accused) were initially tried and convicted by the High Court (Justice Esme J. Chombo) on charges arising from the suspected murder of Prescott Pepuzani, a man with albinism, in August 2015 in Mchinji District.

The charges included:

1. Murder - contrary to Section 209 of the Penal Code.

2. Conspiracy to harm a person with a disability - contrary to Section 224B of the Penal Code.

3. Selling of human tissue - contrary to Section 224A(c)(ii).

4. Possession of human tissue - contrary to Section 224A(b)(ii).

The High Court convicted the 1st, 2nd, and 3rd accused of murder and conspiracy, but acquitted them on the charges of selling and possessing human tissue as the same were not proved to the requisite standard of proof beyond reasonable doubt. The 4th accused was acquitted of all charges after successfully raising an alibi.

𝗞𝗲𝘆 𝗛𝗶𝗴𝗵 𝗖𝗼𝘂𝗿𝘁 𝗙𝗶𝗻𝗱𝗶𝗻𝗴𝘀 (𝟰 𝗝𝘂𝗻𝗲 𝟮𝟬𝟭𝟵)

1. The prosecution relied significantly on retracted confession statements, forensic evidence, and circumstantial evidence including discovery of a severed human limb identified as that of the deceased, found in the 1st accused’s garden.

2. The court found the confession statements materially true and corroborated by other testimonies, despite allegations of coercion.

3. The 2nd accused admitted to luring the deceased to the home of the 1st accused, where he was allegedly killed.

4. The 3rd accused admitted to helping with the killing and attempting to sell a body part in Zambia.

5. The court concluded there was sufficient evidence of malice aforethought and conspiracy.

6. However, the evidence did not meet the threshold for conviction on charges of possession and sale of human tissue.

𝗦𝘂𝗽𝗿𝗲𝗺𝗲 𝗖𝗼𝘂𝗿𝘁 𝗼𝗳 𝗔𝗽𝗽𝗲𝗮𝗹 𝗝𝘂𝗱𝗴𝗺𝗲𝗻𝘁 (𝟮𝟯 𝗝𝘂𝗹𝘆 𝟮𝟬𝟮𝟱)

Upon review, the Malawi Supreme Court of Appeal set aside the convictions and ordered the immediate release of the appellants. The Court cited the following reasons:

1. Unconstitutionality of the conspiracy charge: The Court held that the conspiracy charge was based on retrospective criminalisation, which is unconstitutional.

2. Insufficient evidence for murder: The Court found no cogent evidence to sustain the murder conviction. The reliance on retracted confessions and absence of a full body raised reasonable doubt.

“ACCORDINGLY, the sentences imposed are hereby set aside and the appellants shall be released from custody forthwith unless they are being held for other lawful reasons.

WE FURTHER observe that there was an error on how the sentence was meted out in that it was an omnibus sentence contrary to the provisions of section 17 of the Criminal Procedure and Evidence Code.”

Delivered on 23 July 2025 by the Honourable the Deputy Chief Justice Lovemore Chikopa, SC, Justices of Appeal Frank Kapanda, SC, Healey Potani SC, John Katsala, SC, Charles Mkandawire, SC, Sylvester Kalembera, SC, Dingiswayo Madise, SC, Rowland Mbvundula, SC, and Dorothy nyaKaunda Kamanga, SC.