THE Director of Public Prosecutions (DPP) has now gone in pursuit for justice for slain Kabulonga Boys Secondary School pupil Ryan Phiri.
Just as Lois McMaster Bujold pointed out that the dead cannot cry out for justice, it is the duty of the living to do so for them.
The DPP, Lillian Siyunyi is now challenging the acquittal of Elvis Nsokolo who was mentioned by state witnesses as Ryan’s assailant, before the Court of Appeal.
According to a notice of intention to appeal, Siyunyi who is in charge of the National Prosecutions Authority (NPA) argues that justice Sharon Newa misapplied the law when she admitted hearsay evidence from Ryan’s parents in relation to the circumstances that led their son’s death as narrated by the deceased but freed his suspected “murderer”.
“Take notice that the Director of Public Prosecutions appeals to the Court of Appeal against the judgment of the High Court sitting in its original jurisdiction (honorable justice Sharon Kaunda Newa) Holden at Lusaka on July 20, 2021,” read the notice. “Whereby the High Court acquitted the respondent or murder contrary to section 200 of the penal code chapter 87 of the laws of Zambia, the appeal is against the acquittal of Nsokolo in the court below on grounds that the learned trial judge erred at law when she misapplied the law on Res Gestae and acquitted the respondent.”
The DPP further indicated that she will avail the court with more grounds of appeal.
In this matter, Nsokolo a former head boy at Twin Palm Secondary School was jointly charged with three juveniles aged between 16 and 18 for the alleged murder of Ryan Phiri on December 4, 2020 during a fight.
Justice Newa freed Nsokolo and the three juveniles due to lack of evidence.
She said the death of Ryan which resulted from lawlessness exhibited by the pupils from both schools, is a caution light for all school authorities to be more watchful in handling pupils’ misconduct.
In her judgment justice Newa found that when Ryan’s parents reached at the hospital (UTH) evidence on record shows that he was unconscious and the time he woke up he had told them what transpired and he explained that Nsokolo was part of the mob of Twin Palm pupils that assaulted him.
She said the time Ryan was conscious is the only time he could have explained what happened and although time had passed since he was attacked, the time he gained consciousness was spontaneous because it was the only opportunity he had to tell them about his assailants.
“There was no evidence on record to show that at the time, Ryan had the time to reflect and there was a possibility that he concocted the story or he had distorted it. There is nothing to show that while Ryan said that Nsokolo was part of the mob that assaulted him there is nothing to show what the latter particularly did in assaulting the deceased,” judge Newa said.
During trial, Ryan’s mother, Sharon Syambizi, told justice justice Newa that before breathing his last, her son informed her that he was attacked by Elvis Nsokolo and other pupils from Twin Palm Secondary School.
She said Ryan told her that he was beaten by a mob of Twin Palm Secondary School pupils with golf sticks and that he could only recognise Elvis, the head boy.
However, judge Newa said in order for Nsokolo to be guilty of murder it must be proved beyond reasonable doubt that he and other pupils from Twin Palm had formed a common intent to assault Ryan who was from Kabulonga Boys and that his death was a probable consequence of execution of that intent.
“While there is no evidence to show when the deceased was firstly assaulted, the evidence shows that he was bleeding from the ears and his head as testified by state witnesses there is no evidence to show that the initial bleeding caused the death of the deceased. The evidence shows thereafter that the deceased was assaulted by a group of five pupils who used golf sticks,” judge Newa said. “There is nothing that establishes that after a fight broke out Nsokolo participated in the assaulting of Ryan as evidence shows that the pupils scampered.”
She said the testimony by state witnesses shows that while Ryan informed his parents that he was assaulted by a mob of pupils who included Nsokolo he did not explain to what extent the role Nsokolo played in the assault as the latter disassociated himself from the group that was involved in the wrestle.
“The burden is on the state to prove that Nsokolo participated in the fight but there is no such evidence. There is nothing to show that Ryan’s parents fabricated a story against Nsokolo when they testified about what their son had told them before he died,” judge Newa said. “While the witnesses testified that Nsokolo was present there is no evidence to establish that he did in fact participate in the fight given the fact that the pupils had scampered when the fight broke out… he disassociated himself from the fight.”
She said according to the testimony of the well-wisher who rescued Ryan from his attackers, five pupils assaulted Ryan with golf sticks, Nsokolo was only brought at the scene because there was an altercation between him and Vincent Ngoma from Kabulonga Boys and not that he actually participated in the killing of Ryan.