D.B ( a Juvenile) and Anor v The People (Appeal No.27a+b/2023) [2024] ZMCA 339 (18 December 2024)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.27a+b/2023 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN : D . B . (a Juvenile) S. B. (a Juvenile) AND THE PEOPLE usLlC OF ZAAfe '!;!!:$ Of APP~ D,...('I ""'"' m ~Ii~ a _____ ___, I '-A"' 1 8 r:i., J1., CRIMINAL REGISTRY 2 1 st APPELLANT 2ND APPELLANT RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe JJA ON : 23 rd January 2024 and 18 t h December 2024 For the Appellant: A . Banda-Chimimba, Legal Aid For the Respondent : Counsel , Legal Aid Board G. Zimba, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court . Legislation referred to: 1. The Penal Code , Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code , Chapter 88 of The Laws of Zambia 3. The Juveniles Act , Chapter 5 9 of the Laws of Zambia 4. The Pena l Code (Amendment ) Act No. 23 of 2022 J2 Case referred to: 1 . Paul Watson Katembele v . The People [1977] Z . R . 90 1 . O INTRODUCTION 1 . 1 The appellants , who were juveniles at the time the offence was committed , appeared before the High Court , jointly charged with the offence of murder contrary to Section 200 of the Penal Code . 1 . 2 They denied the charge and the matter proceeded to trial . At the end of the trial , they were both convict e d for committing the offence . 1.3 The trial Judge found t hat there were no extenuating circumstances and sentenced the appellants to life imprisonment . 1 . 4 They have appealed against the sentences only . 2 . 0 CASE BEFORE THE TRIAL JUDGE 2 . 1 On the evidence before her , the trial Judge found that on 31 s t July 2019 , around 21 : 00 hours , in Sinda , the appellants murdered Mercy Tembo . 2.2 After considering the circumstances in which the offence was committed , the trial Judge also found there were no facts that could amount to extenuating circumstances , for the purposes of sentencing . J3 2 . 3 She proceeded to sentence the appellants to life imprisonment . She did not ascribe a reason for imposing that sentence . 3 . 0 GROUNDS OF APPEAL AND SUBMISSIONS BY THE PARTIES 3.1 The sole ground of appeal is that the trial Judge erred when she sentenced the appellants to life imprisonment . 3.2 It was submi tted that the trial Judge erred wh en she sentenced the appellants to life imprisonment , because they were children at the time the offence was committed ; Section 72(1) of the Juveniles Act was referred to in support of the proposition . 3 . 3 Finally, reference was made to Section 25 of the Penal Code and it was submitted that the appellants should have been sentenced in accordance with that provision , as it stood , at the time the offence was committed . 3 . 4 In response to the sole ground of appeal , it was submitted that Section 72(1) of the Juveniles Act , was not applicable to this case as the appellants were not children at the time the offence was J4 committed. The sentence imposed by the trial Judge was therefore correct. 4 . 0 CONSIDERATION OF APPEAL AND DECISION OF THE COURT 4.1 At the time the appellants were being sentenced , although their actual ages were not ascertained , it was not in dispute that they were below the age of 18 years at the time they committed the offence. 4.2 Further , it is common cause that following the enactment of the Penal Code (Amendment) Act of 2022, Section 201(1) (a) of the Penal Code, which prescribed the sentence for a person convicted for the offence of murder , and Section 25(2) of the Penal Code, which prescribed the sentence where such a person was below the age of 18 years, were amended . 4 . 3 Even if this is the case , in the case of Paul Watson Katembele v . The People1 , it was held that an offender should be sentenced on the basis of the law as it stood , at the time the offence was committed. 4 . 4 Before the 2022 amendment , the relevant portions of Section 201 of the Penal Code, which prescribes the sentence for the offence of murder , read as follows : JS (1) Any person convicted of murder shall be sentenced- (a) to death ; or (b) where there are extenuating circumstances , to any sentence other than death : 4 . 5 Also applicable to the appellants ' situation was Section 25(2) of the Penal Code. Before the 2022 amendment , the provision read as follows : ' Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if i t appears to the court that , at the time when the offence was committed , he was under the age of eighteen years ; but in lieu thereof the court shall sentence him to be detained during the President ' s pleasure ; and when so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct ' 4.6 It follows , that having found that there were no extenuating circumstances , the trial Judge should have complied with Section 25(2) of the Penal Code, and ordered that the appellants be detained during the President ' s pleasure . J6 4 . 7 In view of that error , we set aside the sentences of life imprisonment and we order that the appellants be detained during the President ' s pleasure , for this is the sentence that was in place at the time the appellants committed this offence . C. F. R. Mcheng DEPUTY JUDGE PRESIDENT UC OF ZAi\f coGRTOFAP~ . 1 8 D~C 2C~t ~ .l.'. LLl. L.>:= ga COURT OF APPEAL JUDGE · --·· -·-- . ~ 5006 7. L\J .. .................. ~.~~ ............ . Y . Chembe COURT OF APPEAL JUDGE