Elias Kundiona v People (Appeal No. 93/1993; SCZ JUDGMENT NO. 14 OF 1993) [1993] ZMSC 149 (2 December 1993)

IN THE SUPREME COUR'f OF ZliMBIP.~ SCZ JUDGMENT N0.14 OF 1993 HOLDEN AT LUSAKA Apeal No. 93/1993 ( 98 ► (Criminal Juris~icti dh, , '· BETWEEN : ELIAS KUNDIONA Appellant and I'HE PEOPLE Respondent Coram: Ngulube C. J~, Bweupe D. C. J., and Muzyamba J. S On 5th October and 2nd December, 1993 For the Appellant: Mr. E. J. Shamwana, SC , of Shamwana and Company with him Mr. Hakasenke For the Respondent: Mr. D. K. Kasote, State Advocate J U D G M E N T Ngulube, C. J. delivered the Judgment cf the Court. Cases referred tot l) Zulu -v- The People SCZ Judgment N?. 7 of 1991 . 2. Fraser -v- R 1 Meredith -v- R (1985) LRC · (Crim) 732. 3) Ba laugh -v- Crown Court of St . J,.lbans ( 197 4} 3ALL ER 283 4) Gusta and Jmo1:.he1· -·..;- The Peop le scz J·uagment No. 29 of 1988 S) Nguila -v- The Queen (1963-64) ZNR 1 4 6) ~ -v- Howe and o t hers (1987) AC.417 7) R -v- Gr a.ham ( 1901 ) l 8) DPP for Northern Ireland -v- Lynch (1975) AC 553 ;~11 ER 301 The appellant was sentenced to undergo three months impri.scnment with hard labour on one count of contempt and six months imprisonment wi t h hard labour on a second count of contempt of court. The sentences were concurrent, making an effective toi.:al of six months, four of which ©)' were suspended on the usual terms~ The e ffective sentence .. >i},,/ was to be served -with i,,ffect from the date of conviction. /2 •• - 2 - (9 9 ) The charge of contempt of court on the fi:-: .:-.it count related to the appellant 0 s failure without good cause to appear before the learned trial judge in respon~e to a issued against h im j_n wh i c h he was cited 'ic.r ccn tt~mpt, the :;ur,1mons to accused subject of the second c~unt . The charge on the second count related t o a sc~.1K1F.i.lcu~; ::.t'f i.<:',·-vi t 6.c i.:.:-::1.b1.,tc:d to him ::md intituled in the matt2r of the Pecple ~ersus ~amb ara~0 Kaunda the burden of which was t o ::1.llege t~rn.t t o be parti al and biased in others had ent e r e d i nto a p ac t favour of . MMD r.he t;uw n.11.ing µarty aga . Ln~t the then ruling th~ lew.:c:ned tJ:l a l :i~dg-e and three party and Gc,vE.irnmcn-:·: c:.nd tha t tee learr.ed trial judge had assured the MMD in advance that h e woulll convi ct Kamba.:·agc Kaunda of murder in order to ernba.i::ra ss Pr~siJent Kaunda. 'rhe appellant was proceeded against under Orde r 52 RSC as read with S116(3) of the Pe nal Code and this appea l is a gainst the conviction and sentence. The facts emerging were -\;hat the L~arned trial judge was presiding ~ver the trial -of ' Kambarage Kaunda when towards the tail end of that trial, counsel for th ~ defence, Mr. S. S. Zulu, move d the court to abort the trial on grounds of alleged bias and p -3.rtiali ty and p~oduced in support ,;1 document puporting to be an affidavit sworn by the appellant. cited for contempto t ried a nd convicb:::d and t he details of his case suffi c iently appear in Zulu -7~ The People(l). The '.i.~he advocate was appellant was to be tri8d a s th e sucond accused with the advocate but when he was s0rved with a summons t o .::,ccused, he did not come t.o court .:)n .14th Augus t, l SSl bl:,t ~:1a:~ hastily flown out of the country with his fami ly on arn!ngemants allegedly made by the former President and others. ~ bench warrant was issued and it was not until 19th Octobe r 1992 when i t was executed and the contempt proceedings heard. The court conducted an elaborate hearing invo lving eight witnesses for the prosecution and four for the defenc e and thereafter delivered a lengthy judgment in which the appe llc.nt was found guilty. Tho position of the appella ntr who had n0 visible i nvolving Kambarage Kaunda , was connection with the case that ~ in r e lation to the first countu he was misled int0 /3 •• - 3 - (100} believin(J. that th,a summons to accuse.a which cited him for contempt was a summons to a witness and he could choose to attend court or not to attend court since he was not involved in the criminal trial then in progress. In relation to the second count, his position was that he ~1as prevailed upon 6 under threats nnd compulsion by or on behalf of the former Pr,:_!sidc::-,t and ct1'.c:rsu as well (~s C;'1 ;::,con.l:.;;";r~ of a favour in ·che rc,at.t.er of .his disp:.>x.cd ,:;iti::;c·,n~.,;1.:q:,f to collaborate in a mischievous scheme to di~crcdi~ four judges, including the learned t1·Lal judge. He untl~rstood his collaboration in the affid&vit which was~ according to himv & fabrication by tho advocate anci ot.:ie.t-s, to r:.a.vt been f:o f.;;~ci.litate the setting up of a trihunalu a st~p tak0n only for the purpose of inquiring into the question of removing a judge from office for inability or for misconduct. Although the document was headed in the matter of thG pending criminal trial, the appellant's position was that he did not expect it to be produced in that trial. Before wt:a. come to the grounds of appeal and the arguments which were urged before us on both sidesr we consider it appropriate to say a few words on the subject of contempt generally and to make some pxeliminary observations on this case. It was not in dispute that ~ilful disobedience to a summons to ,.:ln accused to attcmd court .i.s a. contempt. It was also clearly a contempt (subject to the arguments based on duress which we will consider shor~ly) to attack the personal character of the le~rned trial judge by alleging bias and lack u£ impc..rti3.lityf 2r,d tc sccL to Z'boxt a trial ir: prog·ress on such grounds~ Buch act€ .5!.~.:e@ p):im;;( facie, calcnJ.a U:d to bring a co'..::r:t oz- a. judge ::_nto contempt v or to lower his ,:.u~.::.horityv or to intez·fere \dth the dua course of justice. lt should be borne in mind, as the J.earned authors of halsbury 1 s Laws of Englandi 4th Edition~ Vol.9, observe in paragraph 27, that contempts of this kind are punished not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the ~ttack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the cou.cl , from the mischief they will incur if the authority 0f the tribunal is undermined or impaired. It would not be Q legitimate /4 •. object of punishment for an aggrieved judge to s eek solely to vindicate ~ia per50nal honour or sate his wrath. It i s the public which must he protect-ed against loss of confidence and respecc for the courts engendered by acts calculated to undG:::-rnine auti,o:i::: i ty o r. to exposf,~ the codrts to contempt. It is ulso ~eccssary to bear in mind, as ~~s observed in th A e us l.r.:'. .. - 1 ·· f :~an c-1. se s o · ""R'• (''l"'R _.:! h ... -,,.1, -v- R ~ I t,,,,·=p··,·'l\'{ ,.,J;!.1.•~~ •. .,. Llr. -v- R ( 2 } , that thf: summa :r:y power to punish for c cnt<:0 c:nfJ:. is part of the inherent juriscU.cti..on of th(:: court. power 'impozing an unusual. c01~•.::at811.::i.ti.on 0£ ~·ol8s upon the judge, resulti~g in spe~ial ~esponzibi l ities. This is precisely the reason whv cases . ] H~t:, BALA UGH -·v - CI•!O(r1N COURT OF ST. I'.:. is an extraordinary J~LBANS< ) cou~sel t~"la.t i .t. should be "ex<::i:.::cisE2,d with scrupulous care, and only when the l.!asc is clear .::md. beyond reasonable doubt 11 ~ addi ilg that ,: a judge should act of his own motion only when i.t i.s urgant dnd imperative to act immediately. In all other cases he should not take it on himself to move. He should leav1.a! it to the A.t torncy-General or to the pa~·ty aggrieved to make. a motion in accordance '!i'lith the Rules in RSC oxder 52. The r eason is so that he should not appear to be both prosecutor and judger for that is a role which 6oes not become him well~. The requirements of due procf!s:s and natu:ral justice a l so demand t hat a contemnor be given a h~aring. are swift and punishment ins~antor, in keeping with the In on obvious case, th~ proceedings summary char act>::.,: of this ;c~xt.r.aodi112ry ju.d. sdic;tion. It was in this ligh~ that this co u~t ~n the related ZULU(l) case did not corr-,m:.:,nt f,:wour~bly on th-J holding of an elaborate and protr~cted bearing ,•:hich sex-vs•.1 only t:c accentuate the uncustomcil:- / time. However , whih: this cour ,-. in the ;;u.:..u(l) cas~ held judge -:\3 pros0,c·;1tor t:t the same :col,-J: of .--:i that the holding of such a trial was 1.mnecessary in summary proceedings, the conviction was nonetheless upheld on its own merit. Neither the stat.utf~s nor the Rules have provided how th~ summary trial for contempt should proceed and it will therefo:ro depend on what actual.ly d id take place in each case whether there was a fai.r hearing or not. The circumstances of each case will also suggast whether the aggrieved judge properly took cognizance of the offence or if it should have been referred for prosecution before /5 . 0 another court having regard to the need to balance between the undesir~hi l ~ ~y of a judge poss ibly te0 t i.fying and being cross-e.xamir.f ,d :,t; "' wi tne:3S bc f O ?.:·<;? an ... .>tl:· 2 .• ~ court: and the (102) 'I'he f i rst <,, ~c.>u nc'. a l lcg ,s.r:-, •~:::::;.~o·-: on ·th ·.' p 1:.::--~ of -: l:,e lear ned j udge. :.r: d e cid ing to hen.r U tt} c2.:S f.;: a ~v .:;.nst the '..'he .first L .mx;- of: the ,~.)·,:r-1rn,;;:r1t ·n :.s to the effect tria l appellant. that it waf. wron9 for U·,-a _,,3·9 r:Levo d himself af t. E: r 14th August 19 1~ 1 to 20th Octobe1: 1.r,~12. '. h~i L 01ps•.,' of. a pdricd o.f ov~r om.~ year f..::-om I~. was submitted judr:if,c; to h ear th0 case { l) that th-e learne d trial judge 2.c"..:.ed -:>Utwi tl1 S .116 of the Penal Code as read with RSC Order 52 bec~use he did not heed the guidelines in Gusta and Another -v- The People{ and s.s. Zulu -v- Th6 People • The argument. was that as the learned trial judge did not deal with the case on the same day of the offences under S116(2) ~ he should have reported the matter to the Director of Public Prosections as was suggeste d in GUSTA( 4 >. The postea ~n GUSTA( significant and attention should be paid to it. This court actually revised its orginal criticism of the proce edings and held th a t RSC Order 52. The case of ZULU(l) w~s said to be disti t hey were not ultra vires if grounded-in ) is 4 ) nguishable because the court took action inunouiatcly and remanded the contemnor in custody so t.t ,,,t adjourned merely f er an enquiry , ~s opfCSed t o t1e proceedings here which -:oolc place a _fi:; s _.7 a per iod of more : t w.;;: s argued '_h,:ct, ever. 1.f RS1: Order 52 than one year. did not specify c, time 11.rnit, the caution i:1 the BALOUGH( 3 ) case should huve been h0eded thr:1t ,1ct.i.()T~ .-:,ugh t: to be taken t h,. c~,;e was by a j udge of his own motion only •,,; h e :re Lt. ,ms urgent and imperative to act immec.:i.a.-tely ~ lt Wi:l S appellant had not Eov en c orr,mi t ted ,;t co.nt,.:,:mpt in the face: of the court. ::;:.-ibm ... tt.ed that the We havi:?. considerec.i t h e a rguments lmd er. this limb and . . 1 \ we do not agree that a differ ent a t titude s hould be adopted from that in the ZULU 1 'case. The events which moved the learned trial judge occurred in open court when Mr. Zulu tried to stop the ex iminal case :i.n progress. It is trite that the principles governing principal offender~ apply equally t o criminal contempt so that those who haver ,: ~~f in•t~ttc~: counselleo, procured, aided or abetted the commission of the offence ~re equ::..lly liable ano. can not escape liability simply because th0y werG not phys idally ~resent at the scene . Sight cannot b e l ost of tho fact that the .11:::,~::.-r.o/t tri.:".]. :;0.dq·;~ took f'l. Ci:ion :i.1:unedit~t:-:::ly and issued~ surm!,ns to accu2cd f cllo~~<l by~ bench ~a rrant returr::~bl c '.;-:"' ~-:...:·:-.: hi ITt~c lf. and we can ~o: s0e ~hat ~ ccn~ c}~1or can cust tho jucisdiction of an ag-gr: eved j 1.1d,_;-e or de ;·:1. Vf:: ;::1:? ,;.dvnnt.ag6 o.~ b,2n..-::f:; t l' Le ap2elic:11t luft chE:. j u.r.isdiction by going iLtc hid ::. nq ; _ _.;.n:i th.arch~' r;,f,:,. t.ng i ;: .imp:>ssible to be dealt w.i th for tlr;,,ith. Le,;..rned S ·.: abs Cor.1n',;8l :refE}c.-red to the lapse of tim(?; c:1s ~1ffcrd. Lrg ~ho .:::cg<;:r: i. c vE/1 j~1dge tim.? for passion to cool of:~ so that som(~ other court should deal with the in~ertinence off~rrad. As we hav0 already indicated, the punishmc:nt of contempt c.:in not .be for the gratification of a judge in some sort of fit of passion. On principle, the.refore~ c1 ens{• can not lose the immediacy or urgency originally attachinq to i t where it was imperative to take swift action ~uch th~t a with i t himself when it is thG off o nder himself who has judge should not proceed by his own act occasioned thr, deJ.;_~ y •;diich he l;;iter seeks to rely upon to critici 3G th( prnces dings agains t him. As far as we are able to ;_~ecc llect , n c i t.her a C(;!lCh warrant issued nor ,,, -::zso ,:ilre:t-!d~/ )~i h:;;.n,: ,::,~: c:~ autornatically b:-t 1._-1psc~ cf '.: _m,...;. ,.ic: ";:·:::. :1udgr; c ·:n ,-.: xp~.re ::,a·~:.i.:-.;f::'..,,,:: tht·t the lapse cf c.. imc- horc shou.lc: n::1::~.: n·; .-3 Lff .. :::;:':..n-::,.;: :md t.hat all the criticisms under dis eussion should attract ihe same response :1s we ga'Ao in. t~'.c __ ;t i.li \ - 1 case 'I .:.?. r~~sponse / i '· which it L; here unnecassa.ry t ') n ) 1:,►~at. ~ii~ a.r. E- that the l3arned trial juEge dio ~ot act 0~tw~th ~SC Orde r 52 as read with the relevant sect~on of the Penal Coda when, in essence, all that he did was to continue ~he .satisfied proceedings which had bcert promptly initia ted and would have long been disposed of £.-Ut for tl:0 ap:pullant 1 s own action. We, therefor.:.: ., do :-.ot uphold the arguments under this limb. The second argument on the first ground of ~ppeal was that the appellant was the victim of an unfair tri&l because the learned t.d ?l l :/., .. j_.;e was not impartial and independe nt. Admittedly l c1 judge reacting to , tn a tt:0 ck (104) upon himself n Bcessn.rily u.s 1:mmes many r o los in the proceedings rhis ~ .. s wLat make:, sununary contempt against a contemnor. extraordinary and it is ~n unavo idable aollorary that the tribunal is not COThp letely i m9a1 tial o r is the precis~; :reason why ci ::-cuJT'.:'.;'roc t i·:-n .1-s urs:·ed ~ but i ndependent. This a conviction~ i f p :i: q:i~rly n -2cor ci~c. ,. cc:.r.: n ot be criticised on the ground th:it the vi.ctiin of c, serious contempt has himself summarily d r::ialt. with the co:.·~ternnor. Another submissi·on w0.s t.h-3.t the tr lal wa ~, unfai r: because the case proceeded as an crcU.nnry c.rimina.!. tr.ia':. arid other persons implicated :::>y the appel 1a nt were not s.~milarly cited for the contempt. As wo poi:1ted out. in th.a zu:.u(l) case, an elaborate trial is unnecessary in sumi"Lary proceedings but the fact th-:lt one was conducted does not ipso facto invalidate the proceedings. We have already made the observation that no specific procedure is prescribed for Sl:irnmary contempt and the im?ortant point will be the observance of the basic princ~ples of fairnessv such as affording the accused the right to be hea~d in his own behalf. The argurr. Qnt concerning the non punishment in a similar manner of persons implicated by the appella11t was, we consider, explet.:.ve. We can think of no authority, and none was cited, for a proposition that a trial will be unfair if all the po:.sibl€., accused persons are not brought before the courto This limb is also not upheld . The second ground of ~ppsal all a gBd error on the part of the l •~arned t rial jud ~.;~ i.n ccmricting the appe llant. It was submib:.ed Th,,·.:: the appellant to th~ rGq~irc a s ~~nd~r d. the argum8nt being that the prose~utio:·1 wi tl'",es~H:s lid n •.)t c stu'...>lis h the ·;:hE two counts were not proved against ingredien~s of t he off0tccs charge[ with the r0sult that the learned trial :,udgG :..-:"•~l ::,e d on tha d Gf e nce s'tory. In our considered op:~ni on, t her !Z' w,'lS 2rr,ple: ovidcnco on the first count that ".:he appellant was 6 uly served with a summons to accused a nd the initial story of the a ppellant that the officers who served the documer:t had misled him into believing ti.at he had the option to respond or to ignore it was, quite prc•per ly, nhandoned by th~ appellant. His final story was that he was virtually in the custody of officials from Sl:.'ite Hovse and wa s not free to come to /8 •• court. Contra.ry t.o ltS\arned Stat~:: Counsel's submissi?n, the con temp~:: could only b e c;rpu:::ased 1:::: y t. he a ppellant offering a :.ceasonable exc use so th,::;,t it. is nvt c 1 mpet ent to argue that the court shou."..d WJt ha.ve c :·(c.,mi ncd. -tl1e d0 f ence story. The burden ,:,:3.!:: on L ,.:: a pr~--~ l:crnt. : -:> exp l.l~ .. 11 his fa i lure to come t c c,Yc.::.rt wh,~n evidt~1:c8 had estc:L l:~s l~ 8d service of the summo ns. With rt::qG.:::-d to hL, f in.~- 1 s tor y., it was clear that he c:lrnse I(.l i.: to particip~ te 1.n ,~r rangement::: f ...,,~ h.i.s ,_,wr. cieparture from ·;:c C)I!H,1 t) co ur-~. pr~.;)ferring instead the country. W1;: will re-t:-. ..1r:n to tne y:uE.s~·_if..;n whethBr h e so acted under duress j_n c moment. In r elation to the second count r ,,,e note that the learned trial judge had considered the allegation that the appellant signed tha affidavit which was authored by others and which had a~ready been signed by a Commissioner for Oaths so that he was not calle d upon to actually swear on the evidence, including i t before s uch commissic11er. . that of the appellant himse lf which can onl.y be regarded as the most favourabl€~ trial judge found that it was enough that th e appe ll~nt f:.:·0~11 his po int of view 11 the learned had knowingly apponc.~ed !':is signature. t ::: the document whose contents he was aware c,f . The l earned trial judge was on firm ground and we a re satisfied th~t~ subject to the th~~ i ~~.gredi e1~t s of tlK? s~~cond count question of du:i::-<•l SS v were well and truly eatablishoJ. ::ve .:iow cOiiH=· to t i.le~ t h i:rd. SF01. E:d 1Jf appea l which all~ged error in 1.7-W 3.nc i n f .:)Ct ::m the pa:.:t .;)f tr..e J.oarned tr ial judge when he disnissed t i1c. de.fence of c ::impulsion, or as it is :1ow rncre comm{.:,niy n::f'ey r,=d t.o du ress ()r coercion. This defsnc~ is p rovided f ~r under 3.1 6 of the Penal Code. As amended by Act No . 3 cf 1 9 90 which repealad and replaced the old s ecti0n, S.16 n~; re~ds - ~16. (1) Excep~ a~ ~~ov!d ed i n t h i s sectio n, a person sh&ll not be Jui lty of an offence if he doas 0 x omits to 60 any act under d~ress or coercio n. For the p~ ~pose of this section a person shall :o,;,1 :.:egarde<l as ha7ing done or omitted t o ao any act unde.r duress if h e was induced /9 •. .... s - (106) to do or omit tc, de the act by any threat ,)f death o r grievous harm t o himself or another and if at the tim<?. when he did or omitted to do the a ct he believed (whether or n ot on reasonable grounds)- (al t hat the harm threata~~d was death er g .d.,~vous injur ~n (b; thi:l. :.: the threat would be c2.rried out- (i) LwedintelyJ or (iii !.x2f,:.;rf• he: cc uld have any r eal opport~nity to seek official protecti.l.'.rt;, if he d id nu t d e, or emit t o do the a ct in questioni 3nd (c) that there was no way c f avoiding or preventing the harm threatened. {3) In this sectjcn "official pr0 tection" means the protecticn 0 f the police o r any authority m.:inaging any prison or o-c:her custodial institution, or any ether authority concerned with t!:.e mnintenance of law and order. 11 Before the ,:imendment cf 1990, S.16 •..)f Penal Code read- "S.16. il- person is not criminally r.8sponsible f·:)r an .:;;ffer.c& if it is ccmmitted by t;wo or more oi£end~r s 1 and if the act is d2ne or omitted only bi::cause du::: :t .!1g the:: whole c f the time in which i "': is b e:i ng den<~ er :Jmi ttea the person is c ,:.mpellci.1 tc do Oi:" cm i·::. t o do the act by the:. o ther ,·,£ fender o r ~:hre2ts o n -~f f&ndc :,.:·~ ,JrL\··c-us b,.:·d..i.'-.y l i-:u:m if hu r.efus0s; but threats .f.uti.:; ce in~lu.r:- ik: nc t e;~ct.se any cf:ence. 11 c f ., nsta}:;.t.ly h, kill him ,'!.' do him t he :/•=tr!:. c.f We note that, no doubt by en uv~rsightr tho learned trial judge and Counsel Jn h~th sid0s quGt ed the o ld section 16 and prc~cee6ed -,~,:, df.•;:. l v _: th the def (mCf: cf compulsicn on that .bi'lsis.. This ~rn.s 2J.s,-:--: the bc.~°>iS cf the i'.lrguments befo.rs us. judgo had t hif, t:.·, say at I- .. 96 cf tli.u .r.c..:c0.rcl- Ia c~e,::,ling ~•'i ;.h t!1is defanG'c? th<=:, l8arned trial "The fn idenc·~ I received i.n this case <li d n ot show that (l ither the fcrm<'.,!" Pres i de::nt ,, or Mr. Nyirenda or Mr. I(amim;1 or L~dcecl i·!(r ., SebastL:.n Zulu threatened the accused person with instant death er grievous bodily harm if he di( not cc:::.pc:ratr~ wi :h them . The secu.r.i ty off.icers who accompanied h i:n "'.:<'• Mr . Zulu ~ s office were n eant t. G pc:)::::ec·::. him anc1 the d0cument he, vms signing ,::,:-. .. ~ rw·::. t ~· threaten him ., and this is / 10 ., - 10 - (107) how the accused per5on understood their presence at the time. But aft1::r more than a year of thinking what to came and tell this court to s-trengthen his case that he was an unwilling pa:cticipant 1 he came up with this story that the presence of those officera frightene d him . on t~_ 12th of August.. was cl'2arly understood by the ~ccused person as we l l as this court as meani ng that if h G~ did not cc:opc.rate with the former Pre sident h L· 1.1a.y disappear_ without trace nt sonk. future time and n o·c t h Gre and c:hen. ·' ~~hat Mr.. Zulu told him in his off ice (Underlining supplisd~ It seems to us th;::,t th·.:.· new s,.:ction i.ntrodu;:~ed -:i numb~r of ne·w elements whic,'l should hav~ b-~;en ~:ake:n into ctccount. It is no long~r a res:1:irernent ·c:.hat. the offc.nd2r plflading duress was jcint.ly engagec. in committing an offt'-:>nce with the person er persons who throushout the duration of the commission of th:1t cff.:=mce compe lled hir;\ tc pa.r.t.icip,-::.te by threats of im.med:i at.s serious physical harm or death . That was the state of the law when Nguila -v- The Queen(S) was decidec..; in which the defence was not upheld when thE.\ threats were not of immediate dang(;;:r to llfe or limb but consisted o f threats to burn the n;!luctant off1c.mders I own houses if they did not participa~e in a politically-inspired orgy cf arson against oppono~ts' houses. Learned Counsel for the S tate Mr. K~ s 0V:l :,as cite-:i :..hi.s Gase to su.ppi:,rt in any cas~ ·;:he i:'pr0-llan.t w.:i s ambi·v ahm·;.: :Ln his ,:.;>:pJ.::-,n,•.t.i cin , that is t o say, ~~1ethe~ h€ ~ct~d J~~ ~£ f~~r f ~r his lifD or the pr~spect 0 f rew~r~ in the i ~ tt~r o f rosc l ving ~i s that he believcid (app.:;ren t: ::· eV'i il c-n g r o1.rnds which may not be rega rded as ;~ .: ... ,sc...,n.ccbl e when c 1ns idered cb jecti vc ly) th~ harm thn~a tened. W<"'.s doa th or g ;:: .i. cVG l.lS ). n jury . NEixt, he had to t,hcw that ~L; b e li(:Ved t lH~ d1ce.:;t woul:1 be .:·arried out irnrn0diately .2£__ bef-~1:t0 he could h avf~ any real opp o rtunity to seek officia l protGctic:iv as defined, and the re was no way o f avoiding or preventing the harm threatened. The prosecution wo uld have the burden o f disprcvi ng these. It is very doubtful whether the new s t ction can be regarded as having clarified the law surrounding the aefence of dur 2 ss. In the n o rmal c o urse 1 duress is a d e fence to a ll crimes but would hard lv ever Le available t o a·person charged /lL. .. :L!I. "' • •'' (lUd) with murder t Ser~ R -v- Howe and othE:rs ( ) whic,, has ext.ens i ve discussicns on. dur Gss. l: person may be regard(-_-,,:, ;,~s hcjv Lng acted under duress when he acts svlely as the rurnlt ' '.)f threats of cieatl1 or serious injury to himself 01· ~nether which operate on hJs m.ind at the time of his ac·,_. Previously, the th:reat had to be of immcJiate death or inju:r:y bu:. the new Secti·:m suggests th:Jt an immediD.te thro~t of future death or injary may hav2 to be taken into accour,t if the defendant is made to de the act before he has h~d any real opportunity to seek 9rotec:tivno The court now bas to consider also whether the dGfendant c01..1ld hav,.:;;, reasonabl·,· avoided doing tha act such as by running away or by sec~ing police protect.ion. Whatever may b€ said a.lxJUt the new section ,. it seems to us that it still supports ,the view ·, .. hat the test of whether a defendant wa.s compelled to ac.: as he did is still objective, not subjective. , h we respect-u -Y concur wit. abOV(-c; which applied dicta from R -v-· Graha~ ( . . t e sentiments in f 1 1 h In this regard, . R -v- I-I owe { G) ) 0·.ci the effect that a <lefendnnt is required to have the steadf- ~tnesa reasonably to be expected of the ordinary citiz~~ in his situation. Turning to cur present case, the learned t ~ i~l judge showed in the passag..? which we havE: qu·..,ted that ho accepted that the appellant 1 s will w~s ove~bcrns but dis~i.ssed the defence on the old formular that future thr~ats lid not avail. There was thus nc discussion ,.>f the new -'.''.l tern,Yt:.i ve situations besid~ iu~adiat~ h&rm, such as the absence or presence of any r:E::-al cpportunL.y t0 SE:':!\ p::c-teci.:ion :)r to avoid the h.2.;:m by nc;i: do i.ng ·,:he act ic.n.s compl.t1.i.nE!d of which in this case wer3 th,"J si9ni--:1g c.f the -.::.,ffcnding d0cument and the failure t.:) come t ,:; court. 'fo the eztent thot unly the old provision was discuEsod, there wus a rnisdirectJ.cn ,:~nd the question arisc~s whether wc. can apply the pruviso to Secticn 15 (l) of CAP.52~ It should be bornfi in mind, as Lcrd K.ilbrandc;n statC:;d ir, DPP fer Ncrthern Irel-~md - v- Lynch that: ( 8) "the decision of the threatened mm \,hose constancy is overborne so that he yields to th~ threat, is n calculated decision to de what he knuws to be wrong~ and is therefore that of e; man with. perhaps to some exceptionally limited extent, a he is at the same time a man whose mind is less guilty than is his who acts as a he does but under no such constraint." 'guilty mi1~ 0 • But /.1.2. - - 12 - (109) It should also be burna in mind that the new sec '~. ion cmvisages, paraphrasing the wor d s o f Lord Griffiths in R -v·· H:::,we( ) (above) when h e was commenting on a draft bill , 0 ;:.ry sirr.ilar to our new S.16, d urGsB ~s supposed to be a corr.~l~te defence in certain circumstancca and the l aw appears t~ t ~vc introduced it as a merciful c oncession to human frailt y . ,::.:fen.c-:e:::: '.:'.i:":::.a is tt.:, be taken c:1s havJ.ng act,i!c un<l0.:: d u:.-ess :i.f >:.c '<i,:.\s L nduced to take the action by any threat of harm t o h in!3~ l£ er another and at the t ime he to0k it he believed (¼h~thar or not en reasonablo grc unds) -~ (a) that the harm threatened was <lea th or S\a!r i::")us personal injury; (b) that t he t hr€:at would be carried out imme diately if he did not take -the action in que stion or, if not immediately, before he could have any real opportunity of seeking official protecticn: and (c} that there was no o ther way of avo iding e r preventing the harm threatened i' provided, however, that in all the circumstance s of the case h ~ c ould not reasonably have been expecte~ t o resist the thr ·~a t , The new section 16 d oes n et say what is to be tt~e posi.tion if any official prote ction which might hn7e bEien a':.·u~: i.:::tble in t he ci:rcumstances wo'Jld c,r mi.qht n o t have been (..f::c,.~tive to prevent the ha~m thre0t~nad anJ thic issue is impor tD nt in this ~ppeal ~ ecouse c f th~ learned tri~l judge, tha c the dur e ss was CO$ing from high up~ including those who were supposed to pr~vide the t h~ alleg atic~s" accepte~ by official protec tio n. Can i t be said that the appellunt had the relevant opportunity to seek protection or to avoi d or p.!'."event the harm, bea ring in mi nd that the releva nt time t o be taken into account is the t.ime when he t ock the action amounting to th~ Commissicn of the offences 't' The court below did not discuss the application 0i the new sectio n a nd the prosecution did n o t addres$ itse lf t o negativing the factors now relevant to duress. ,/1 3 . ,. - 13 - (110) However f i t i.s quite clear from the facts c,cccpt1:::•J in the court below that duress came only from .:..h" Ex(::Clr~:ivi~ f Office of the ~resident (Special Division) anJ ?ol~ce 2t StaLc House and not from the Arrny 1 N~tional SGr~ice, ~risons and cou.rts who are also 1 in the words of Sec1.:5 · ,,. H; ( 3: Suprap concerned with thE' r.\aintennncc-~ of law ,~.r..r.:: c:uler. On the facts of this c,~se \.. Je cannot say Ui,;:t tb Lppellant ~ad no real opportunity to seek official protection from either the Army, Natiou2l Service. Prisons or ccur t s. He had such an opportunity but did not seek pr~tection because 0 and this is quice obvious from th0 0vi~~nce o~ recc,rd f he was~ frc.m _the .inception r a. willing pt1::·ti"cipant in the whole scheme to discredit the four Juagss and that he stood to gain had ~he scheme succeeded by being g~anted Zambian citizenship. We ~re quite satisfied therefore that had ~he learned trial Judge considered the provisions of the nr~, section 16 be would have come to the same conclusion as he did. We would therefore apply th~ proviso to Section 1 5 (1) of Cap. 52 and dism~ss the _~ppeel against convicticn. We also find it uncessary for a decisiori in this case to discuss the ground of appeal concerning the compellaLility of the Head of Stdte as a witness. All we can say, obiter, is that R serving Piesident while no doubt a competent witness could not be coerced by criminal process or sanction if he declined to cooperate because the cons~itGtion grants immunity. With regard to the appeal against the effective sentence, we not0., thatt althcugh the appellant engag._,d in ccncluct. which was mischievous in the ext1•,3me and R rep.t·ebensible contempt, yet .lher~: wert: factors which ought to ha.ve been taken intu account and which have b€en urged before us. As Mr. Shamwana pointec.l 0JUtr tht=J appellant was in custody for two solid months from ~9th October 1992 to 18th December 1992 pending trial before he was releas~d un bail. /lL. - 14 - It seems to us that there tJt,re no good reasons f· .i.: wi ~:h holding credit for this period. Instead, the lE2rned t r~al judge offcrred to critici.sE: in unnecr:,;ssarily ur:cor·tplirn,::;r,:_,L'-'Y terms the sentence which this court substit.~t(~ fwr his own in thr~ related case involving th,~ practi ti0nu.- ., l'hE:·· principles of st,.ue J.ecisi!3 c::nd binci:n.g sr.1peri..i::.r precec'ent so necessary in our hierarchical system of JUG~ice z~cci~ed short shrift. It is w1:ong ir: principle~ and •-~OP..("..lc:i.vE:: cf discordq uncertaj nty ~nci :·i.nconsistcncy i"0:t :.:.ny L.<.c:r court to adopt such a stance tow~ras a sunior court:. was also a first affendur; anoth8r factc~ urg~d ~0fore us. Ihe 2ppellant We emphasize~ An aggrieved judge in surnrnc.1.::::y try to show restraint and to maintain uquanimi,y, For the reasons out.linedr W8 are satisfied that: the eff<':cti ve :;entence should be adjusted. The sentences were cuncurzent, making .~· .. ,ri-~ ·,,,rnpt should a total of six monthsr four of which were susp~n<led. \~ order and direct ·c:.h,:'tt credit be given for thE ·, ,.:c months already spent. in custody during trial, whidi rrt. ,:ns th1:: appellant has already served the two months he · ;,,_ s required to spend in prison. The appeal against sentenc~ is allowed to the extent indicated. M. M. S. W. Ngulube CHIEF JUSTICE B. K. Bweup~ DEPUTY CHIEF JUSTICE W. M. Mu;;~yamba SUPRt:ME COUR'l' ,JUDGE