.)
(805)
Selected Judgment No. 31 of 2015
IN THE SUPREME COURT OF ZAMBIA
Appeal No. 145/2015
HOLDEN AT NDOLA
(Criminal Jurisdiction)
BETWEEN:
APPELLANT
GIFT NKANZA
AND
RESPONDENT
THE PEOPLE
Coram:
Phiri, Muyovwe, and Malila, JJS
on the pt September, 2015 and 9th September,
2015
For the Appellant: Mr. K. Muzenga, Deputy Director Legal Aid
For the Respondent:
Mrs. M.e. Mwansa, Principal State Advocate
JUDGMENT
Muyovwe, JS, delivered the Judgment
of the Court.
Cases referred to:
1. Lt. General Wilford Joseph Funjika Vs The Attorney General
(2005) Z.R. 97
2. Dharmeshbhai Vasudevbhai and Others v. State of Gujarat and
Others Criminal Appeal No. 914 of 2009.
3. R vs. Edward Nsokolo 2 N.R.L.R. 85
1
(806)
Legislation referred to
1. The Penal Code, Chapter 87 of the Laws of Zambia
2. The International Covenant on Civil and Political Rights (ICCPR)
Other Materials referred to:
1. Fair Trial Standards,
Paper presented
by Prof. Michelo
Hansungule to the Southern Africa Chief Justices' Forum held
from 27th to 29th August, 2015 at Victoria Falls Town, Zimbabwe.
The appellant on his own plea of guilty and admission of facts
was found guilty and convicted by the High Court at Lusaka of the
offence of manslaughter contrary to Section 199 of the Penal Code,
Cap 87 of the Laws of Zambia. The trial court sentenced the
appellant to 20 years imprisonment with hard labour.
The particulars of the offence alleged that the appellant on
23rd March, 2014 at Lusaka unlawfully caused the death of Joseph
Mumbi (hereinafter referred to as "the deceased"). The facts were
that on the material day around 16:00 hours in Chibolya compound
in Lusaka, the appellant picked up a fight with two male persons.
In the process, the appellant picked up a wooden stick and hit the
deceased on the head and he fell unconscious to the ground. On the
25th March, 2014, the deceased's condition worsened and the
2
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matter was reported to the police, thereafter, the deceased was
taken to the clinic where he was referred to the University Teaching
Hospital.
The deceased was admitted but he passed away the next
day on the 26th March, 2014.
the deceased's
relatives.
The appellant was apprehended by
On 31st March 2014,
a postmortem
examination was conducted on the body of the deceased and the
•
pathologist found that the cause of death was brain hemorrhage
due to traumatic fracture of the skull due to traumatic head injury.
On behalf of the appellant, Mr. Muzenga the learned Deputy
Director of Legal Aid advanced one ground of appeal couched in the
followingterms:
1. The sentence of 20 years imprisonment imposed on the appellant
is too excessive since the appellant is a first offender who readily
pleaded guilty to the charge.
The learned Deputy Director filed heads of argument which he
relied on and briefly augmented orally.
In support of the lone ground, Mr. Muzenga in his filed heads
of argument submitted that the sentence of 20 years imprisonment
3
(808)
imposed on the appellant was excessive considering that he was a
first offender, was remorseful and pleaded guilty to the charge. He
submitted that the trial Judge in sentencing the appellant took into
account irrelevant factors which he found to be aggravating and yet
they were not part of the statement of facts. Counsel found it
imperative to refer us to the strong sentiments expressed by the
learned trial judge during sentence. We shall examine the learned
judge's comments in due course.
It was submitted that the sentiments by the learned judge
were not part of the statement of facts and Counsel wondered where
the learned Judge
got the facts which he used to justify the
imposition of the stiffer penalty.
Counsel argued that, the learned
judge fell into grave error when he relied on facts which were not
contained in the statement of facts.
It was Counsel's submission that the appellant was gIven a
stiffer punishment on account of residing in a township which is
perceived
to
harbor
criminals.
Counsel
argued
that
considerations were a serious misdirection as a community's
4
such
(809)
perceived criminality could not be attributed to an individual.
He
contended that the sentence of 20 years was manifestly excessive
under the circumstances and should come to us with a sense of
shock.
He urged us to uphold the appeal by setting aside the
sentence of 20 years and in its place impose an appropriate
sentence.
In his brief oral arguments,
Mr. Muzenga submitted that if
sentences will be premised on which compound an accused was
coming from, it will prejudice the poor who are likely to receive hefty
sentences. He urged us to direct trial courts not to consider factors
that would prejudice an accused during sentence.
Counsel pointed
out that the appellant was fighting with two males of equal strength
and, therefore, the learned trial Judge should have taken this factor
into account.
He submitted that the sentence of 20 years for a
person
admitted
who
circumstances
the
charge
was exceSSIve.
and
without
aggravating
According to Mr. Muzenga, a
sentence of 3 years would be adequate and reasonable under the
circumstances.
5
(810)
Mrs. Mwansa, the learned Principal State Advocate submitted
that as the appeal related to sentence only, she left it to the
discretion of the court.
We have considered the evidence on record and the arguments
by learned Counsel for the appellant.
We take cogmzance that the appellant engaged himself in a
fight against two people and in the process he picked up a stick and
hit the deceased on the head who died a few days later.
We are
alive to the fact that the appellant was a first offender who readily
admitted the charge.
We have addressed our minds to the strong
comments uttered by the learned trial judge during sentencing.
The following is an excerpt of the strong sentiments made by the
learned trial Judge found at Page 13 of the record of appeal:
" I have taken into account the fact that the convict is a first
offender who has readily pleaded guilty to the case. However, I find
the offence to be aggravating by the fact that the deceased appears
to have been innocent of the quarrel that had erupted between the
convict and the other two people. In other words the deceased had
not offered any provocation to the convict but rather he was trying
to maintain law and order by stopping the fight. The convict
therefore had no cause whatsoever to turn his anger on to the
deceased. I am not surprised that the convict is from Chibolya
township which is notorious for criminal activity.
I propose to get
rid of at least one such criminal today by sending him away for a
long time."
6
(811)
We have critically examined the above cited comments of the
learned trial Judge in light of the statement of facts produced by the
prosecution in the court below. It is necessary to reproduce part of
the facts before the lower court in order to have a perspective of
where the trial judge was coming from when he made the cited
comments above.
Paragraph 2 of the statement of facts found at
Page 8 of the record of appeal reads as follows:
"On 23rd March 2014, around 16hours in Chibolya compound in
Lusaka in the District and Province of Lusaka of the Republic of
Zambia, GIFT NKANZA the accused person herein, picked up a
quarrel with two male persons. A fight ensued and in the process
the accused person picked a wooden stick which he used to hit the
deceased on the head. The deceased namely, JOSEPH MUMBI, fell
down and became unconscious.
The accused person left the crime
scene. The deceased was taken to his mother's place in John Laing
Compound."
From the above paragraph, it is crystal clear that the learned
trial judge introduced his own facts which he took into account to
justify the imposition of the stiff penalty.
We must emphasize for
the guidance of lower courts that in sentencing an accused person,
a trial court should restrict itself to the statement of facts presented
by the prosecution. The court should not allow itself to stray
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(812)
outside the statement
of facts as doing so may prejudice the
accused and may result in an unfair trial. As the learned Deputy
Director submitted, consideration of the accused's home area as it
happened in this case, has the danger of depriving the poor, or
indeed any accused person for that matter, of a fair trial which is
guaranteed in our Constitution. In the case of Lt. General Wilford
Joseph
Funjika vs. The Attorney
Generall we held, inter alia,
that:
2. Article 18 of the Constitution provides for the accused's
individual rights to protection by law. It protects the fair trial of
a person charged with a criminal offence.
The provIsIon m our Constitution
Article 14 of the International
Covenant
is further
amplified by
on Civil and Political
Rights (ICCPR) which states that:
All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial
tribunal established by law...
Clearly, the right to a fair trial is paramount as it safe guards
individuals from unlawful or arbitrary deprivation of their human
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rights and freedoms and it ensures effective functioning of the
administration of justice.
It is, therefore, important to guard
against any factors that have the potential to take away this right
from the accused. In a paper titled "Fair Trial Standards" Prof.
Michelo Hansungule cited the Supreme Court of India in the case of
Dharmeshbhai Vasudevbhai and Others v. State of Gujarat and
Others2 where a fair trial was defined to mean:
A trial before an impartial judge, a fair prosecutor and an
atmosphere of judicial calm. Fair trial mean a trial in which
bias or prejudice for or against the accused, the witness or the
cause which is being tried is eliminated.
We have deliberately discussed what a fair trial is as a
reminder to trial courts that this should be kept in mind as they
carry out their duty of delivering justice.
In the case in casu, the learned trial judge concerned himself
with the fact that the appellant was a resident of Chibolya where
crime is rampant and he labeled the appellant as a criminal. This
was totally uncalled for and goes against the principles of a fair trial
as the learned judge exhibited bias against the appellant. Further,
9
(814)
the learned trial judge, as we have alluded to herein, introduced his
own facts during sentence.
According to the learned trial judge,
the deceased was not part of the fight but that the fight was
between the appellant and two other male persons.
The learned
trial judge also stated that the deceased was trying to stop the fight
and that the appellant vented his anger on the deceased when he
did not deserve it. A perusal of the statement of facts reveals that
these facts were not in the statement of facts presented before the
court below. Indeed, as rightly pointed out by Mr. Muzenga, these
erroneous and prejudicial views by the learned trial judge led him to
believe that there were aggravating circumstances in this case - this
was
a
grave
misdirection
because
there
were
none.
And
consequently, he imposed a stiff sentence which cannot be justified
under the circumstances.
In the case of R vs. Edward Nsokolo3 the Court of Appeal, the
forerunner of this Court set out the principles to be considered by
trial courts during sentence as follows:
10
(815)
1)
2)
3)
4)
5)
Intrinsic value of the subject matter;
Antecedents of the accused;
Youth of the accused;
Conduct of the accused at the trial particularly with
regard to his plea;
Prevalence of the particular crime in the
neighbourhood.
In this case, the learned trial judge obviously failed to follow
the established principles of sentencing which can be found in a
plethora of cases in our law reports. We urge trial courts to follow
sentencing guidelines in the interest ofjustice.
Having stated the above, it is clear that the sentence of 20
years comes to us with a sense of shock. In this case, the appellant
picked a quarrel with two people and the fight ensued and in the
process, he struck the deceased with a stick. The deceased died a
few days later. The appellant is a first offender who readily pleaded
guilty and the facts of the case did not reveal any aggravating
circumstance.
We, therefore, set aside the sentence of 20 years and
instead, we impose a sentence of 10 years imprisonment with hard
labour with effect from the date of arrest.
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Appeal against sentence allowed.
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G.,S. PHIRI
SUPREME COURT JUDGE
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E.N.C. MUYOVWE
SUPREME COURT JUDGE
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M.-MALILA
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SUPREME COURT JUDGE
12
(816)