Mary Mukonda v People (Appeal 140 of 2000) [2001] ZMSC 134 (23 January 2001)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 140/2000 HOLDEN AT LUSAKA (Appellate JURISDICTION) BETWEEN: MARY MUKONDA APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, Ag. DC J, Chibesakunda and Mambilima, JJS on 23rd January 2001 For the Appellant: Mr A M Bwalya, Senior Legal Aid Counsel For the Respondent: Mr C Mchenga, Senior State Advocate JUDGMENT Chibesakunda JS, delivered the judgment of the Court The Appellant was convicted on the information containing one count of the offence of infanticide contrary to Section 203 of the Penal Code, Cap 87 of the Laws of Zambia. The particulars being that on the 12th day of September 1999 at Chama in Chama District of the Eastern Province of the Republic of Zambia, by willful act or omission, she did cause the death of her child, being a child under the age of 12 months old. The facts on which the Appellant was convicted are that on the 12th of September, 1999, at Kazembe Village in Chama, PW1 heard a sound of a baby crying in the pit latrine. He informed other villagers who then retrieved the baby from under the pit latrine. It was a baby girl, newly bom. - J2 - She was still alive at the time she was retrieved but died five minutes later. On inquiry by the villagers, the Appellant was identified as the woman who had just given birth to a baby. When questioned by a traditional mid-wife birth attendant, the Appellant admitted to dumping the baby in the pit latrine. In addition, when the police visited the village they visited her house they found bloodstains on the reed mat. Before the learned trial Judge the Appellant gave a different version that in fact she had gone to the toilet to relieve herself. And that although she was eight months pregnant she did not expect to give birth at that point because her four previous pregnancies she had given birth after nine months. She testified that when she was in the toilet she had pains and that she was weak and as a result the baby dropped in the pit latrine as the pit latrine’s hole was very wide and that it was very late she tried to inform the villagers but by the time she tried they had already retrieved the baby from the pit latrine. The learned trial Judge rejected that and convicted her of the offence. She was sentenced to seven (7) years imprisonment and hence the appeal before us. The appeal is against sentence only. Before the learned trial Judge the counsel representing the Appellant put in a lengthy mitigation, more or less stating what Mr Bwalya has said today before this court that she was: 1) 2) 3) a first offender; had four children before; and a single parent and the children were school going and that they needed mother’s care. J3 We have listened to the mitigation which has been put to us on behalf of the Appellant. However, we want first of all to point out that Parliament in this country has equated this offence more or less to the offence of manslaughter giving life imprisonment for this offence. Parliament has realized that in fact doing what the Appellant did amounts to depriving, unlawfully, an innocent baby of her right to life and as such it is a very grave offence. Women in the position of the Appellant are meant to realize that even if they have difficulties in looking after what may be regarded as unwanted babies, there are alternatives to that, like places where babies can be adopted. And that it is a grave offence to take the life of that innocent child. However, we have accepted what Mr Bwalya has said that the four children would need a mother to grow up and that being an orphan she bears a duty too to those four children to bring them up well. So against that background we are going to disturb the sentence. We quash the sentence of seven years. We substitute that with the sentence of three years simple imprisonment with effect from the time she was arrested. E L Sakala ACTING DEPUTY CHIEF JUSTICE L P Chibesakunda I C Mambiliina SUPREME COURT JUDGE AG. SUPREMECOURT JUDGE