High Court Judge Etness Chanza has freed Kenneth Kandulu and Kalijo Anthony who were convicted of Trafficking in persons by the First Grade Magistrate Court sitting at Mwanza.
Kandulu, a driver by profession was sentenced to 3 years imprisonment with hard labour while Antony, a transporter, was sentenced to 52 months imprisonment with hard labour.
The two were found guilty of trying to smuggle out of the country 10 people from Mangochi to South Africa, using Toyota Hiace Minibus registration number NE 9590.
Kandulu was requested to take them to Mwanza border where Anthony would process the transportation of the ten people to South Africa.
Acting from a tip, the police arrested them and they were consequently convicted and sentenced by the magistrate court.
They were arrested in December last year.
Through their lawyer Fostino Maere, the two appealed against both the conviction and sentence.
They argued that their task was just to facilitate the travel of the ten people, who intended to travel to South Africa at the invitation of their relations who were already in South Africa to seek employment.
“It was the contention of the Appellants that it was clear from the evidence before the lower court that the Appellants were not going to be responsible for the ten persons once in South Africa.
They said the people were going to be responsible for themselves, hence the issue of exploitation could not arise.
In her judgement, Justice Chanza noted that the intention of the offence of trafficking in persons as defined by Section 2 of the Trafficking in Persons Act was not proved by the evidence that was before the lower court.
“The lower court therefore erred in making a finding that the purpose for transporting the ten people that were onboard the minibus to South Africa was exploitation when in fact there was no evidence to that effect before it.
“Looking at the totality of the evidence that was before the lower court in this case in view of the key elements of the offence of trafficking in persons under Section 14 of the Trafficking in Persons Act, it is a finding of this Court that a conviction cannot be secured against the two Appellants herein.Thus, the appeal against conviction on the two grounds as advanced by the two Appellants must therefore succeed,” reads part of the ruling delivered on Tuesday
She the ordered that the minibus which was confiscated to the Malawi Government be released to the rightful owner.
