By: Baston Mfune
A High Court Judge has ruled that it is illegal for spouses to pry into each other’s cell phones without permission.
Mzuzu High Court judge Dindiswayo Madisi said evidence obtained through prying into a cell phone should not stand in court as it would have been illegally obtained.
Judge Madisi made the landmark ruling as he sentenced Fortunate Mkandawire (36) of Zolozolo, Mzuzu for stabbing her husband to death while their eight-year-old daughter watched, because he refused to show her a “suspicious” text message that he had received on his cell phone.
Fortunate fatally stabbed Petros Mwenelupembe (55) in February last year, in a dispute over the text message which her husband had received on his cell phone.
Judge Madisi convicted Fortunate of culpable homicide and sentenced her to 10 years in jail. He suspended two years for five years on condition that she does not commit a similar crime within the time period.
The judge said snooping into someone’s phone contravenes Section 57(d) of the Constitution, which guarantees every person the right not to have the privacy of their communications infringed upon.
“There is no law which provides that a husband or wife has a right to infringe on the privacy of the other’s communications. Whatever message which the deceased received was not intended for Fortunate, otherwise Mwenelupembe would have conveyed the message to her. She (Fortunate) could simply not respect her husband’s right to privacy,” said Judge Madisi
It was, however, not mentioned in court the reason why Fortunate demanded to read the message.
“Fortunate’s insistence that Mwenelupembe should divulge a communication made to him on his phone was in itself an infringement upon his right to privacy of communication,” said the judge.
Judge Madisi said Mwenelupembe was lawfully entitled to refuse to divulge the message he had received on his phone to his wife.
“In a way, by insisting that Mwenelupembe discloses the message, Fortunate was the cause or torched the altercation which ended up with disastrous consequences. It is the court’s view that society should learn to respect privacy of communications. Many a time, the cell phone has been a cause of matrimonial quarrels and domestic disputes because couples do not respect each other’s right to communications made or received,” said the judge.
Judge Madisi said the courts continues to be inundated with cases involving spouses invading the private communications of the other.
“This practice should be deprecated as it amounts to investigating or eavesdropping on one another. Usually, spouses who do this will be aiming to find evidence of wrongful conduct by the other.
Eavesdropping on another’s cell phone is evidence of lack of trust in that other person. The courts are flooded with cases where couples or spouses seek to prove wrongful conduct by the other using evidence in the form of messages retrieved from another spouse’s phone,” he said.
The court heard that on February 26, 2015 shortly after 7pm, the couple was in their bedroom when Mwenelupembe received a message on his mobile phone.
Fortunate demanded to read the message, but her husband refused. He also declined to divulge the contents of the message.
She got angry resulting in a dispute. The court heard that a fight ensued and Mwenelupembe indiscriminately assaulted his wife.
Fortunate rushed to the kitchen and returned armed with three kitchen knives, which she used to stab her husband.
The court heard that Mwenelupembe died on the same day after succumbing to the sustained injuries.
A neighbour, who heard Mwenelupembe screaming, reported the matter to the police leading to Fortunate’s arrest.
Post mortem results showed that the cause of death was due to post-hemorrhagic shock, lacerations, bruises, abrasions, stab and cuts consistent with a use of a sharp instrument by force.