Sendama v People (SCZ Appeal 29 of 1993) [1993] ZMSC 89 (3 March 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 29 of 1993 HOLDEN AT NDOLA (Criminal Jurisdiction) OSTRICK MMANSA SENDAMA Appellant vs THE PEOPLE Respondent CORAM: Sakala, Chaila and Chirwa JJJ. S. For the appellant in person Mr. S. A. G. Twumasl* Assistant Senior State Advocate* for the respondent. 3rd March* 1993 JUDGMENT Chaila* J. S. delivered the judgment of the court. Case referred to; (1). Adam Herejena v The People ZR 1984 page 19. The appellant pleaded guilty to the offence of manslaughter. The particulars of the offence were that he on the 20th March* 1992 at Mporokose in the Mporokoso District of the Northern Province of the Republic of Zambia, unlawfully caused the death of Blaekson Chongo. The appellant was given a jail sentence of 9 years Imprisonment with hard labour with 10 strokes of the cane. He has appealed to this court against sentence only. His main complaint is that the court imposed the 9 years Imprisonment and in addition he was given 10 strokes. This is very severe considering the fact that he is a first offender. He has asked this court to exercise leniency. The facts of the case showed there was some quarrel between the deceased and the appellant concerning some local court's fines. There were insults hurled at the appellant, which made the appellant annoyed. In anger he picked a stick and hit the deceased. In the case of Adam Berejena vs The People (1), this court /2...considered the - J2 - considered the question of corporal punishment. In that case the accused was convicted for theft of motor vehicle and was sentenced to 5 years imprisonment with hard labour plus 10 strokes with a cane. Silungwe C. J. as he then was expressed the views of the court as follows: ■This now leaves us with the trial court's order for corporal punishment. It is acknowledged that adult males are amenable to this form of punishment under section 27(3) of the Penal Code. In Nsondo v The People (3), following R. v Subulwa (4) this court held that adults should not be subjected to corporal punishment for sexual crimes and other crimes of violence* under the first schedule to Section 27(3) of the Code* unless the offence is committed in circumstances of brutality as distinct from brutishness. In cases of burglary, house-breaking, and theft, it was held in Alakazamu v The People (5), and in Malaya v The People (6), that caning can only be justified on the ground that it is expedient in the Interests of the community, for instance, where the crime has almost reached epidemic proportions. He would like to say that whether an order for caning relates to sexual offences and other crimes of violence, or to burglary, house breaking, or theft, the overriding conside­ ration is that the order should be expedient In the interests of the community, be it at a local or national level. As corporal punishment is a form of inhuman or degrading punishment, it is our considered view that it should be imposed very sparingly) but even then, this should be done only in the most serious circumstances, such as grave brutality or a most serious outbreak of crime; mere prevalence of crime Is not enough. We think that In this modem day and age, this form of punishment should be discouraged in Zambia. Indeed, the legislature Itself has moved towards this direction by Its recent repeal of mandatory caning in stock theft cases. In any event, corporal punishment should be regarded as uncalled for when a long custodial sentence is passed. In the circumstances, the imposition of corporal punishment in this case was most inappropriate and wrong in principle. It is accordingly set aside." In this case the learned trial judge imposed a sentence of 9 years Imprisonment which we consider was a long sentence. We feel that it was /3..,not appropriate * J3 - not appropriate for the learned trial judge to have ordered 10 strobes of the cane. That order is therefore set aside. We now come to 9 years imprisonment with hard labour. We have noted that there were insults and a quarrel. The sentence of 9 years imprisonment, taking the facts into account, has come to us with a sense of shock. The appeal against sentence is therefore allowed and it Is set aside, and in its place we impose a sentence of 4 years Imprisonment with hard labour with effect from the date of arrest. E. L. Sakala SUPREME COURT JUDGE M. S. Chaila SUPREME COURT JUDGE O. K. Chirwa SUPREME COURT JUDGE