Lewanika v People (Appeal 90 of 1987) [1987] ZMSC 53 (28 October 1987)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 90 of 1987 HOLDEN AT LUSAKA (Criminal Jurisdiction) MBOLOLWA FBIKUSITA LEWANIKA Appellant - v - THE PEOPLE Respondent before the Hon. Deputy Chief Justice, M. M. S. W. Ngulube, in Chambers C. K. Banda, of Banda and Associates, for the appellant G. S. Phiri, Senior State Advocate, for the respondent 28th October, 1987 Ngulube, D. C. J. RULING This is an application on the part of Mbololwa Mbikusita Lewanika for bail pending appeal to this court. The applicant has been convicted of a fairly serious offence of doing acts intended to cause grievous harm and sentenced to ten years imprisonment with hard labour. The application is brought in terms of section 22 and Rule 46 of Chapter 52 of the Laws of Zambia. Mr. Phiri the senior state advocate opposes the application for bail broadly speaking on two main grounds. One is that on a sentence of ten years, the applicant is unlikely to have served any substantial portion of it before the appeal was heard. Secondly he argues that, because the conviction was based on many findings of fact, she has little chance of succeeding on appeal. Mr. Phiri made these submissions in response to corresponding submissions advanced by Mr. Banda on behalf of the applicant. As I see it, the question of a convict serving a substantial part of the sentence is more relevant only in the case of short sentences. The argument concerning the 2/............................................. J2 : assessed merits of the appeal are obviously relevant although I must acknowledge my handicap in that I am called upon to take that aspect into consideration when I have not had the opportunity to see a copy of the judgment^ However, be that as it may, the very fact that counsel say there are many issues of fact is a good indicator that there maybe a lot 6f issues to be raised on the appeal and that accordingly it cannot be said in advance that there is clearly no merit in the proposed appeal. However, in this particular case, I must say that I have been swayed considerably by the fact that the applicant was on bail throughout the trial and I am assured that she at no time failed to surrender to her t£il whenever she was required to appear. I am also swayed by the assurances given by Mr. Phiri that during the trial there were in fact no incidents between the applicant and the complainants. Speaking for myself, I do not see that the conviction would necessarily provoke a situation which did not exist during the trial. I am also impressed by the fact that the applicant Is otherwise of good standing in that she is a lecturer at the University of Zambia School of Medicine where no doubt she must be rendering valuable services to the Nation. Having regard to the matters which I have indicated, I find that this is an appropriate case in which to exercise my discretion in favour of the applicant. I, therefore grant the applicant bail pending appeal and make an order for ball in the following terms:- 1. The applicant will pay cash bail of KB,000 and for this purpose the bail money amounting to this sum previously paid will stand as payment under this order. In addition the applicant must provide two working sureties each in the sun of KB,000 In their own recognizances. 2. The applicant must surrender her passport, or other travel documents as the case may be, to the Master of the Supreme Court. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE