Lusaka magistrate Alice Walusiku has acquitted Southern Province PF publicity secretary Trymore Mwenda of indecent assault charges laid on him by his 19-year-daughter, Jane.
This is a matter in which Mwenda, 41, of Avondale had been dragged to court with his wife Racheal Kafula for indecent assault.
It was alleged that Mwenda, whilst acting together with his wife unlawfully and indecently assaulted his daughter Jane Mwenda between January 1, 2017 and January 31, 2018.
In the second count the duo whilst acting together between January 1, 2006 and December 31, 2013 unlawfully and indecently did assault their daughter.
When the matter came up for ruling on case to answer, Monday, Magistrate Walusiku acquitted Mwenda saying the complainant’s testimony was self contradictory and could not be relied on since it was not supported by independent evidence.
“PW1 (Jane) alleged that when she was nine years, accused number two (Mwenda’s wife) used to awaken her in the night and called in the matrimonial bedroom where she would watch accused number one and two have sex. Further that she would be asked to touch and kiss the breast for accused number two. Evidence by PW4 (Mwenda’s sister) and PW6 revealed that PW1 used to sleep in the same bedroom with PW4, the question I ask myself is ‘why didn’t PW4 observe that PW1 was being awakened in the night to go and do what she said?’ The answer is, PW4 did not know because nothing was happening,” she said.
“Evidence has shown that PW4 was not aware and when she was told years later, she was surprised and did not believe PW1. Further PW1 told the court that she told this ordeal to her friend Miyoba who was alarmed, and is still with her at the University in Zambia. She told Miyoba when she was in grade eight at a secondary school. This Miyoba was never called to collaborate the evidence of PW1. PW1’s evidence has not been supported.”
Magistrate Walusiku also said it was strange that the complainant waited 10 years before deciding to report what her father used to do to her.
She added that the complainant had not been reliable in her evidence and was inconsistent.
“In the case before me, there was no any complaint of any kind. The report came after 10 years. The report came on the day when PW1 was chased from home by accused number one. There are no special compelling grounds to convict the accused looking at the inconsistencies. PW1 has has not being reliable in her evidence, in fact there was no collaboration in this case because the act of indecency was not reported by PW1. PW1 failed to report to her own mother ill things which are alleged to have happened for reasons known to herself and the inference being that she had a bad motive for doing such,” she said.
“The evidence of PW1 is self contradictory and not supported by independent evidence and hence cannot be relied on. For instance she failed to tell the court why she was beaten by accused one on her way to school and said that she had forgotten the reason why. However she told the court in cross examination that she was beaten because she had joined debate club and her grades were getting lower which made accused number one annoyed. In her evidence on the same, she changed and said she was beaten because accused number one wanted to touch her breasts in the bathroom but she refused. There is no constistency and when one does not believe in what they are saying, inconsistency is the result.”
She acquitted the accused person saying she was satisfied that the evidence given fell short of establishing the prima facie case against the accused persons.
“I’m therefore well satisfied that the evidence given at the moment falls short of establishing the prima facie case against the accused persons. I acquit the accused persons of indecent assault. The state will have 14 days in which to appeal to the High Court if they are not happy with my decision,” magistrate Walusiku ruled.
On May 2, 2018, Mwenda’s daughter Jane, currently in University, had narrated before magistrate Alice Walusiku that her father had started abusing her when she was only nine years old.
She had told the court that her father would ask her to help him masturbate.
Jane had further narrated that her father would ask her step mother to tell Jane to go to their bedroom where he would abuse her.
“He forced himself on me and tried to put his penis in my vagina. He ejaculated near my vagina and told me I can’t get pregnant because I didn’t start my periods. I then went to the bathroom to… ” she had said amidst sobs.
She explained that she had told her biological mother about what she was going through.
Jane had narrated that she didn’t report the matter to the police because her father had threatened her.
She said her father had chased her out of his house after she suspected that he was also sexually abusing her 11-year-old sister.
“When I confronted him, he told me to pack my belongings and go. He said if I wanted I should go to the police or ZNBC because nothing was going to happen,” she said.
The 19 year old had further told the court that each time she asked her father why he kept abusing her, his response was that her mother also went through the same.
And Mwenda’s sister testified that her brother’s wife was aware of the abuse.
She testified that after Jane had narrated to her about what had been happening, she confronted her sister in law to explain why she had allowed her husband to continue sexually molesting the children under her custody.
Mwenda’s sister narrated that her sister in law’s response had been that “she did not know that the issue had continued.”
She disclosed that as she was talking to her sister in law, she was also recording the conversation and that the recording was available.
Mwenda’s sister narrated that when she asked her sister in law if it was some kind of a ritual, Mwenda’s wife responded that ‘Mwenda’s friends had been telling him lies’.