THE Court of Appeal has nullified the proceedings and judgment of murder trial of three people -- Shija Ndigila, Kizipe Sokoni and Galus Antonia -- who were sentenced to death by hanging for killing three members of a family on witchcraft beliefs.
Justices Kipenka Mussa, Richard Mziray and Gerald Ndika ordered fresh hearing of the case after noting irregularities in the earlier trial, notably, failure by the High Court to direct assessors on a vital point of law relating to the witchcraft belief when summing up the evidence.
"... As it is now settled that failure to direct the assessors on a vital point of law nullifies the entire proceedings, we are constraint to take the option by the invocation of our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act," they said.
The justices added: "We further order that there should be a new trial before another Judge and a new set of assessors. In the meantime, the appellants (Shija Ndigila, Kizipe Sokoni and Galus Antonia) should remain in custody to await resumption of their trial."
They noted that evidence derived from one of the prosecution witnesses and from three statements of defence witnesses to the effect that the primary motive behind the killings of Jailos Silvano, Adelina Mlela and Luciano Chole, who are deceased persons, was a belief in witchcraft.
The justices further argued that, in summing up, the High Court Judge directed the assessors that it was evident that source of the murder was rooted in witchcraft beliefs and that the deceased were associated with the disappearance of a child that was later found dead in a pond.
"But the judge did not go so far as to put to the assessors the law governing the situation where the killing results from a belief in witchcraft. We are fully aware that in certain situations, such belief could reduce the crime of murder to manslaughter," they noted.
According to the justices, the appellants did not quite raise the defence of provocation resulting from a belief in witchcraft but the trial judge was 'certainly enjoined' to direct the assessors that such defence "avails and explains" to them the circumstances under which 'it so avails.'
Yet, they said, that was not done. It was the prosecution's case that the appellants were alleged to have committed the offences on April 17, 2011 at Miombo Village within Nkasi District. On the fateful day, the appellants paid a visit to the house of Jailos Silvano and took him away on prefix that they were sent by the village chairperson to his office.
As they departed, the wife of Silvano followed behind and as she had suspected, it did not take long before the appellants initiated an attack by hurling stones on the body of her husband. In response, the wife rushed to the house of Adelina Mlela and Luciano Chole, who were her husband's parents.
Thereafter, the trio went back to the scene where the appellants were still roughing up Silvano. Somehow, the mother and father rescued their son from there and took him to their residence. Undaunted, the appellants followed in pursuit.
Upon reaching the house and found the doors closed, the appellants kept on pounding the entrance door with clubs. In response, Chole moved out of the house, followed by Mlela and Silvano's wife. Whilst outdoors, Chole blew a whistle.