Sentenced to hang for a crime that he never committed

Richard Musya Mwanzia was wrongly accused of robbing and raping his neighbour. [Photo: File/Standard]

Richard Musya Mwanzia had eight years of his youth stolen by a flawed judicial system that subjected him to mental torture and anguish.

Mwanzia was accused by a neighbour of raping and violently robbing her in early 2005. He was arrested, tried and eventually sentenced to death. He was locked up at Kamiti Maximum Prison. From his dark cell, he thought of the world outside the high prison walls that believed he was guilty of terrible crimes. Yet he wasn’t. He had wrongly been convicted for a crime that he never committed.

Too poor to afford a lawyer to represent him, he was found guilty by a magistrate’s court in Kitui and was sentenced to hang for robbery. The rape charges were dropped when it was established that he had no capacity to have carnal knowledge of his accuser. Unbeknown to his accuser, Mwanzia was an intersex (a person displaying sexual characteristics of both male and female).

“The rape charges against him were dropped when they discovered that he was an intersexual,” says Janet Munywoki, the CEO of Legal Resources Foundation, an organisation that hired lawyers to represent him in court during his successful appeal.
“You really cannot explain just how unfair life can get,” Mwanzia, told The Standard this week.
Belita Musangi, Mwanzia’s neighbour in Mwambale, Kitui, was his accuser. “I am not sure I would ever find it in my heart to forgive her,” Mwanzia now says.
Musangi reported to the area chief’s office that she was robbed by a three-member gang on the night of September 12, 2005.

The three men that she could not immediately identify allegedly broke into her house and demanded cash. She gave them Sh16,971, according to the charge sheet. Eighteen months later, a magistrate found the unrepresented Mwanzia guilty of the charge and sentenced him to death.

He was incarcerated at the Kamiti Maximum Prison in March, 2007 alongside his co-accused and in-law, a Mr Kitonga, awaiting execution.
Kitonga died in prison before his appeal could be determined. He reportedly succumbed to injuries he sustained during a confrontation with prison warders in 2009.

COURT ERRED

“It was the hardest time for me when I learnt that Kitonga had died,” says Mwanzia. “He was my only hope and pillar behind bars.”
Mwanzia says having a lawyer to represent him during the appeal made all the difference. He was represented pro bono by lawyers from a local human rights organisation.
The complainant’s inability to identify her attackers turned out to be a ground for a successful appeal.

Mwanzia demonstrated to the court that he was well known to his accuser and neighbour, and that she would have had no difficulty identifying him immediately.
His lawyers argued in his appeal that the magistrate’s court erred in handing Mwanzia the death sentence, based on the insufficient evidence linking the accused to the robbery.
The High Court ruled in December, 2012 that Musangi had not proved beyond reasonable doubt that Mwanzia was among her attackers.

“Having assessed the available evidence, we are not satisfied that the circumstances prevailing at the time of the robbery were conducive to a good and positive identification of the appellant (Mwanzia),” read the ruling delivered by a three-judge bench consisting of Justices Hatari Waweru, Jessie Lesiit and George Dulu.
The prosecution had also not established that the accused was not at his home at the time he allegedly committed the offense, contrary to witness accounts of family members.

Mwanzia was exonerated and walked free to reunite with his family that he hadn’t seen for nearly six years.
His mother was the last person he had seen in the courtroom when he was sentenced to death. He returned home to find her waiting for him with open arms to welcome  him back.
While at Kamiti, Mwanzia had lodged a landmark case in which he sued the State for holding him in a male prison although he is intersexual.
Fellow inmates, he complained, sexually molested him after they discovered during the routine searches that he had female genitalia. He also argued that he had been the subject of ridicule which caused him untold psychological torment.

While he lost a case that had sought to constitutionally recognise intersex as a third gender, his wish to be held in a separate cell from other prisoners was granted. The judges ordered that Mwanzia be compensated with Sh500,000 by the State over the torture and humiliation that he suffered in prison. Sadly, years later the Government is yet to pay him.