IN THE HIGH
COURT OF MALAWI
CASE NO. 214 OF 2002
the First Grade Magistrate Court sitting at Dedza being criminal case
no. 63 of 2002.
CORAM: HON. CHINANGWA, J
for the State,
(Mrs) Court Interpreter
ORDER IN CONFIRMATION
The convict Sautso Mpoto appeared before the
First Grade Magistrate court in Dedza on a charge of Rape contrary to
of the penal code. He pleaded guilty, facts were
narrated and a conviction entered. He was sentenced to nine years
with hard labour.
is the nature of the plea of guilty which raises doubt. The plea is
reproduced herein for purposes of examination:
understand and admit it but I have reasons.
admit I had unlawful carnal knowledge of Martha Bajda without her
consent. She was my girlfriend.
Thereafter the prosecutor narrated the facts.
admitted to the elements which constitute Rape contrary to section
133 of the penal code. He raised a defence to
the effect that victim
was his girlfriend. Such defence negated the admission. Court ought
not to have entered a plea of guilty.
A plea of not guilty was most
appropriate followed by a full trial. That would have enabled the
convict an opportunity to explain
the girlfriend issue in his
defence. Court would have had an advantage of analyzing the whole
evidence. It would have been upon
its discretion to accept the
defence or reject it.
is my view that failure to give convict an opportunity to enter
defence resulted to injustice. The gravity of the injustice
that it cannot be cured by sections 3 and 5 Criminal Procedure &
Evidence Code. In the circumstances the conviction
is quashed and
the sentence of nine years I.H.L. set aside. I order a retrial under
the provisions of section 362(1) as read with
Criminal Procedure & Evidence Code. He should be tried by
another magistrate. In the event a conviction
is sustained the
period spent in prison should be taken into account. Order
in Chambers on this 31st
day of July, 2002 at Lilongwe.
J U D G E