Banda v People (SCZ Appeal 44 of 1993) [1993] ZMSC 61 (6 April 1993)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA. (Criminal Jurisdiction) SCZ Appeal No. 44 of 1993. LYSON BANDA Vs THE PEOPLE Appellant Respondent Coramt Sakala, Chaila and Chirwa, J. J. J. S. 6th April. 1993. For the appellant, Mr. M. H. A. Samad, Senior Legal Aid Counsel. For the respondent, Mr, L. N. Muuka, State Advocate. JUDGMENT Sakala J. S. delivered the Judgment of the court. The appellant, who was originally charged with murder, pleaded guilty to a reduced charge of manslaughter. The particulars of the offence alleged that, the appellant, on 1st January 1991, at Petauke in the Petauke District of the Eastern Province of the Republic of Zambia, unlawfully caused the death of Idah Banda, his daughter. The facts of the case as presented by the prosecution were that, on 31st December, 1990, the appellant had returned late afternoon from where he had been doing some piece work. He called for his daughter. When the daughter approached him, he pushed her. She fell to the ground. Thereafter, the appellant took some fibre and tied the deceased's legs and beat her all over the body with a bamboo stick. The appellant's mother and his sister and wife tried to rescue the deceased but the appellant threatened them all with death. The deceased was finally rescued by Mr. Bauleni Phiri. The following day on 1st January, 1991, the deceased died on the way to the hospital. Before sentencing the appellant after mitigation on his behalf the learned trial Judge had this to say: "This death is unfortunate. The deceased daughter was only 9 years old. It is unfortunate that this court will never know what the deceased infant did. Sentencing becomes complex or difficult when situations leading to death are cloudy or latent." The appellant was thereafter sentenced to seven years imprisonment with hard labour with effect from 3rd January, 1991. We share the sentiments expressed by the learned trial Judge before he sentenced the appellant. It was for that reason that we granted Mr. Samad a brief 2/.. A it i * "A J2. adjournment to ascertain the reasons for the brutal beating up of an eight years old daughter. After the adjournment* Mr. Samad informed the court that the reasons leading to the brutal assault were that* the deceased used to abuse the appellants mother and used to keep away from home for several days. On this particular day* the deceased had been away from home for sometime. When she came home* the appellant reprimanded her and tied her legs in order that she does not run away from home. Mr. Samad pointed out that the appellant has several children who would suffer and take to the streets if the appellant had to languish in prison for a long time. We have considered the mitigation put up by Mr. Samad. Perhaps we are now in a better position than the trial judge as to the reasons leading to the brutal beatings. To us* it appears Incredible that a child of eight years can have been accused to have abused her gran^ mother and even if she did* at eight years* she could not know that she was abusing her grand mother. These facts do not In our view even mitigate the case. If any thing* they worsen the case. The assault was senseless and brutal. The sentence of seven years imprisonment with hard labour does not come to us with a sense of shock and it is not wrong in principle. The appeal against sentence is dismissed. E. L. Sakala* SUPREME COURT JUDGE. M. S. Chai la. SUPREME COURT JUDGE. D. K. Chirwa* SUPREME COURT JUDGE.