Masauso Mbuzi v The People (APPPEAL No. 65/2024) [2025] ZMCA 109 (13 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 65/2024 HOLDEN AT LUSAKA AND NDOLA (CRIMINAL JURISDICTION) BETWEEN: MASAUSO MBUZI APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga DJP, Ngulube and Chem be, JJA 17th June 2025 and 13th August 2025 For the Appellant: M. Kapisha, Legal Aid Counsel, Legal Aid Board For the Respondent: R. L. Masempela, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to: 1. Director of Public Prosecutions v. Risbey [1977] Z. R. 28 2. Shamwana and 7 Others v. The People [1985] Z. R. 4 3. Haonga v. The People [1976] Z. R. 200 4. Chizonde v. The People [1 975] Z. R. 66 5. Saluwema v. The People (1965] Z. R. 4 6. Dorothy Mutale v. The People [1995-1997] Z. R. 102 7. Emmanuel Phiri and Others v. The People [1978] Z. R. 79 J2 8. Mwape v. The People, CAZ Appeal No. 138 of 2017 9 . Machipisha Kombe v. The People [2009] Z. R. 285 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 BACKGROUND 1. 1 The appellant appeared before the Subordinate Court (Hon. Kaoma), charged with the offence of Incest contrary to Section 159 of the Penal Code. 1.2 He denied the charge, and the matter proceeded to trial. 1.3 At the end of the trial, he was convicted and committed to the High Court for sentencing. 1.4 In the High Court (Bawa, J.), the appellant was sentenced to 20 years imprisonment, with hard labour. 1.5 He has appealed against his conviction. 2.0 CASE BEFORE THE TRIAL COURT 2.1 On the 17th November 2022, Lancet Banda, a 'gender activist' of Shanganani Village, in Chipangali, was informed that the prosecutrix, a 14 years old girl, had been assaulted. 2.2 He referred her to a clinic, where a medical doctor found that she had recently had sexual intercourse. J3 2.3 When Lancet Banda interviewed the prosecutrix on the doctor's findings, she informed him that her father, the appellant, had sexual intercourse with h er on two occasions. 2.4 She also told him that on both occasions, her mother was away. 2.5 The matter was reported to the village Gender Based Violence Committee, which in turn informed the chief. 2.6 The chief summoned the appellant and questioned him over the allegation. The appellant admitted having had sexual intercourse with the prosecutrix. He offered to pay a fine , but the chief refused the offer, and directed that he be reported to t h e police. 2. 7 In his defence, the appellant denied having sexual intercourse with the prosecutrix. He told the trial Magistrate that his daughter was truant and had a chain of boyfriends. 2.8 He denied having admitted to the chief that he had sexual intercourse with the prosecutrix. He said he only agreed to having the matter settled at the chiefs palace. 2.9 The appellant called his wife as a witness. She testified that she was not away from home, on the days the prosecutrix claim ed the appellant had sexual intercourse with her. J4 2.10 The trial Magistrate found that the medical report corroborated the prosecutrix's claim that she had sexual intercourse. 2.11 He also found that the prosecutrix's claim that it is the appellant who had sexual intercourse with her, was corroborated by the appellant's admission to the ch ief. 2.12 The trial Magistrate convicted the appellant and committed him to the High Court for sentencing. 3.0 PROCEEDINGS IN THE HIGH COURT 3.1 The sentencing Judge noted that ordinarily, a father is supposed to provide love and protection to his daughter, but in this case, the appellant abused his daughter. 3.2 He proceeded to impose a sentence of 20 years imprisonment with hard labour. 3 .3 Dissatisfied with the decision of the High Court, the appellant has appealed to this court. 4.0 GROUNDS OF APPEAL 4.1 Four grounds have been advanced in support of the appeal. The four grounds of appeal raise two issues. 4.2 It is contended that the trial Magistrate erred when he placed reliance on the admission to the chief which was unfairly obtained from the appellant. The trial Magistrate also erred JS when he convicted the appellant, on the untruthful and uncorroborated evidence of the prosecutrix. 5 .0 UNFAIRLY OBTAINED ADMISSION 5 . 1 Mr. Kapisha submitted that the admission the appellant made to the chief should not have been relied on because it was obtained after threats. That being the case, the trial Magistrate erred when he failed to exercise his discretion to exclude it. 5.2 In response Mr. Masempela argued that since the appellant's admission was made freely and voluntarily, it was rightly admitted into evidence. He submitted that the allegation that the appellant was beaten, was not supported by any evidence. 5.3 The evidence on record shows that the prosecution witnesses denied the suggestion that at the chiefs palace, the appellant was threatened or forced into admitting that he had sexual intercourse with his daughter. 5 .4 In any case, in his defence, the appellant denied admitting having sexual intercourse with his daughter when he was questioned at the palace. J6 5 .5 The resolution of the question whether the appellant admitted having sexual intercourse with his daughter, therefore lay with the trial Magistrate determining which one of the two conflicting versions was true. 5.6 In the case of Director of Public Prosecutions v . Risbey 1 the Supreme Court held that where the acceptance of one of two conflicting versions of an event hinges on credibility, an appellate court is ill placed to set aside a finding by a trial court. 5 . 7 In this case, the trial Magistrate found that the claim that the appellant was assaulted prior to his admission at the palace, was not supported by evidence. 5 .8 On the evidence before him, it is our view that the trial Magistrate was entitled to come to that conclusion, and we find no reason for tampering with that finding as it was purely anchored on credibility of the conflicting testimonies before him. 6 .0 CONVICTION ON UNCORROBORATED EVIDENCE 6.1 Mr. Kapisha referred to the case of Shamwana and Seven Oth ers v . The People2 and submitted that the trial Magistrate erred when he found that the medical report was corroborative. He argued that the medical report cannot be treated as corroborative because it did not incriminate the appellant. J7 6.2 Mr. Kapisha also pointed out that in view of the wayward behaviour of the prosecutrix, she was not a credible witness and she had a motive to falsely incriminate the appellant. 6.3 He then referred to the cases of Haonga v. The People3 and Chizonde v. The People4, and submitted that since the prosecutrix was an untruthful witness, very little weight should have been attached to her testimony. 6.4 Finally, Mr. Kapisha argued that the appellant gave an explanation that could reasonably h ave been true, that t h e prosecutrix was truant and had a chain of boyfriends. 6.5 He then referred to the cases of Saluwema v. The People5 and Dorothy Mutale and Richard Phiri v. The People6 and submitted that in the circumstances, th e trial Magistrate should have found that the prosecutrix had sexual intercourse with persons other than the a ppellant. 6.6 In response, Mr. Masempela submitted that the prosecutrix's evidence was corroborated. He referred to th e cases of Emmanuel Phiri v. The People7 and Mwape v. the People8 and submitted that the medical report supported the prosecutrix's testimony that there was sexual intercourse. JS 6. 7 As regards the appellant being the person who had sexual intercourse with the prosecutrix, Mr. Masempela referred to the cases of Mwape v. The People 8 , Machipisha Kombe v. The People9 and Emmanuel Phiri and Others v. The People 7, and submitted that the appellant's admission to the chief was corroborative as it amounted to 'something more'. 6.8 Coming to the credibility of the prosecutrix's testimony, Mr. Masempela submitted that what she said, which was contradicted by other prosecution witnesses, was not material to the charge. 6.9 The requirement of corroboration in sexual offences, like defilement, is to rule out the possibility of false incrimination. In this case, the trial Magistrate found that the prosecutrix's evidence that she had sexual intercourse with the appellant was corroborated by the medical report and the appellant's admission to the chief. 6.10 The starting point is the evidential value of the medical report. It is our view that the trial Magistrate was correct when he found that the medical report was corroborative. He made it clear that it was corroborative of the prosecutrix's evidence that she had sexual intercourse. J9 6.11 He did not, as suggested by Mr. Kapisha, find that it coFroborated the prosecutrix's identification of the appellant as the off ender. 6.12 The trial Magistrate found that the evidence corroborating the prosecutrix's identification of the appellant as the offender, was the appellant's admission to the chief. 6.13 We have already indicated that this evidence was properly admitted, but was it corroborative? It is our view that it was. 6.14 It was corroborative because it supported the prosecutrix's evidence that the appellant had sexual intercourse with her. 6.15 However, it is also our view that the admission was much more than 'something more', as suggested by Mr. Masempela. This is because the admission was capable being the sole basis for convicting the appellant. It was evidence that independently proved the prosecutrix's allegation that the appellant had sexual intercourse with her. 6.16 In any case, we find that the trial Magistrate rightly found that the prosecutrix's evidence incriminating the appellant as the offender, was confirmed by the appellant's admission at the palace. 6.17 The appellant's admission to the chief, warranted the trial JlO Magistrate's conclusion that on the evidence before him, there was no danger that the appellant was falsely incriminated. 6 . 18 We are therefore satisfied that the ch arge of defilement that the appellant faced, was proved to the requ ired standard. 7.0 VERDICT 7.1 We find no merits in the arguments in support of the appeal and we dismiss th em. 7.2 Consequently, we uphold the conviction and the sentence imposed by the courts below. . .. DEPUTY JUDGE PRESIDENT ~~ R~Gl _ COURT OF APPEAL JUDGE :,() P. C. M. Ngulube ~ ••••• • •••••••••••••••••••••••••• •••••••••• Y. Chembe JJCOURT OF APPEAL JUDGE