Patrick Kaweme and Duncan Musongo v The People (App. No. 55/56/2022) [2023] ZMCA 354 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA APP. No. 55,56/2022 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: PATRICK KAWEME DUNCAN MUSONGO AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM : Mchenga DJP, Chishimba and Muzenga JJAs On 16th November, 2022 and 23rd November, 2023 For the Appellant Mr. Lukwesa, Acting Chief Legal Aid Officer of Messrs. Legal Aid Board For the Respond ent Mr. M. Libaken i, Senior State Advocate of National Prosecution Au thority JUDGMENT Chishimba JA, delivered t h e Judgement of the Court. CASE AUTHORITIES CITED: 1. John Mpande v Th e People (1977) ZR 440 2. Kahale Kanyanga v The People SCZ Appeal No. 145/2011 3. Nelson Mpala & Others v The People (2014) ZR 125 4. Dickson Sembauke Changwe & !fellow Hamuchanje v The People (1988 - 1989) Z. R. 144 -J.2- LEGISLATION CITED: 1. The Penal Code Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellants were charged and convicted of the offence of murder contrary to section 200 of the Pena l Code Chapter 87 of the Laws of Zambia. 1.2 It was alleged that Patrick Kawem e (Al) and Duncan Musongo (A2) on a date unknown but between 16th and 17 th June, 2019, at Lufwanyama District of the Copperbelt Province of the Republic of Zambia, did murder Jeremiah Mulumbika. 2.0 FACTS 2. 1 The evidence adduced against th e appellants was as follows; that around 21:45 hours , PWl , Pau l Malichupa, a b ar owner, was at his bar with PW4, Majory Chisamba, a bar lady. Patrons in the bar included the appellants, the deceased and a man referred to as Bashi Joyce'. After a fracas erupted between th e father of Joyce and a brother to the deceased , PWl interven ed . Thereafter, h e instructed PW 4 to close the bar. -J.3- 2.2 During the said night at around 01:00 hours, PW4 heard the deceased crying out from A2's house that he was being killed. When she went to check, she found A 1 and A2 beating the deceased. They were lifting him up and then throwing him to the ground. Both were kicking and hitting the deceased against a mango root protruding from the ground. PW4 had a torch and lights from a neighbour's house enabled her to see what was happening. 2.3 When PW4 asked the appellants why they were b eating the deceased , A2 responded that he had stolen Kl2.00. She advised them to r eport the matter to the CCPU instead of beating the deceased. She observed at the time that the deceased's h ead was swollen. The appellants took the deceased and left for the CCPU m ember's house. PW4 and the deceased were cousins. 2.4 Peter Chilimina (PW6) , a member of the CCPU was asleep around 06:00 hrs , when he was awakened by a knock at the door. On enquiry, A2 identified himself and stated that he had a brought a thief. As PW6 was unwell at the time, h e directed A2 to PW3, Richard Nswana, another CCPU m ember. -J.4- 2.5 Nswana testified that on 17th June, 2019 between 01:00 and 03:00 hours, he was awoken by a person asking him to open his door. He opened the door and found the appellants with the deceased. The deceased was without a shirt but wore shorts. He was seated on the ground and appeared to be weak with no strength to stand. The appellants were standing and informed PW3 that the deceased had stolen K12.00 from A2's house. The deceased denied the theft. A2 was also holding a shirt. 2.6 PW3 told the appellants that he could not apprehend the deceased as there were no holding cells in the community. He told them to leave. As they left, he observed that A2 grabbed the deceased by the shorts and that the appellants held the deceased between them even though he was huge in stature. 2. 7 PW2 , Patrick Mulimbika, a brother to the deceased, stated that the deceased left home on 16th June, 2019. He never returned home . On 18th June, 2019 he met PW4 who is his cousin. She told him that the deceased had been beaten by the appellants and taken to PW3. PW3, he confirmed to him that the appellants had brought the deceased. PW3 advised PW2 and PW4 to report the matter to the police. -J.5- 2.8 PW3 further conducted a search of a toilet that had been built at the home of A2's parents by the appellants. The toilet was demolished and the search only yielded a shirt similar to the one A2 held when he went to PW3's home. On 20 th June, 2019, Al surrendered himself to PW3 who handed him to the police. 2.9 On 22 nd June, 2019, PW5, Vindopa Moyo received a phone call from the police informing him that the deceased had been thrown into a well at his plot. The police explained that the information came from two men. He recognized the name of A 1 as he had worked for PW5 at the plot for one month in 2017. The police picked him together with the fire brigade and proceeded to the plot were the body was retrieved from the well. 2.10 Moyo observed that the body of the deceased was swollen, decomposed, and only clothed in a pair of shorts without a shirt. The body had a bag around the head which was tied with a string. 2 .11 PW7, Dr. Luamba Mubikayi conducted the postmortem on the body of the deceased. The deceased died from suffocation or asphyxia due to the bag tied around his neck. PW7 also found haemorrhagic wounds on the arms and face caused by a blunt -J.6- instrument. He determined the cause of death to have been head injuries and asphyxia. 2.12 In his defence, Al stated that he was at PWl 's bar with the deceased. At around 21 :00 hours , he found the three Meleka brothers beating the deceased. When he tried to intervene, h e too was beaten. Al and the deceased escaped and fled to A2,s house who threatened to take them to the police. As they left A2's house, they met a drunk PW4 who insulted the Meleka brothers who in turn threatened to ambush the deceased. Al then escorted the deceased to PW3 and reported the incident. Thereafter, as they parted, the deceased told Al that he would follow the Meleka brothers for insulting him. The next day, PW3 apprehended and took him to the police. 2.13 As for A2, he told the court that on 16th June, 2019 at around 21:00 hours he was awoken by noise from the outside. When he went outside, he found people fighting whom he ordered to leave or else he would report them to the police. On 19th June , 2019 he was apprehended at his home by the police and later charged with A 1 for the offence. -J.7- 3.0 DECISION OF THE COURT BELOW 3. 1 The trial judge considered the evidence against the appellants and stated that it was based on circumstantial evidence. She found that PWl, PW3, PW4 and PW6 all saw the appellants with the deceased. In particular, PWl saw the deceased and the appellants at the bar. That PW4 saw the appellants beating the deceased at night at A2 's home. The evidence of PW3 and PW6 corroborated the testimony of PWl , PW2 and PW4 who are relatives of the deceased and as such, suspect witn esses. 3 .2 The trial court discounted the testim ony of the appellants as mere fabrications . She found that Al's testimony was an afterthou ght and confirmed that he was with the deceased as he was being beaten. As for A2 , she found no reason why th e prosecution witnesses would tell falsehoods against him. 3 .3 The appellants were convicted and sentenced to death. 4.0 GROUNDS OF APPEAL 4. 1 The appellants have advanced two grounds of appeal couched as follows: 1) The trial court erred in law and fact when it convicted the appellants of murder when the evidence on record should have led to a conviction for manslaughter; and -J.8- 2) The trial court erred in law and in fact when it sentenced the appellants to death without due consideration of the evidence on record which should have led to a finding of murder with extenuating circumstances. 5.0 ARGUMENTS BY THE APPELLANTS 5.1 The summary of the arguments in ground one 1s that the appellants did not act with malice aforethough t when they caused the death of th e deceased because th e eviden ce of PW 1, PW3 and PW4 all point to the undisputed fact that th e deceased stole from A2. That this act of stealing is what led the appellants to beat up the deceased. In so doing, the appellants therefore, did not act with malice wh en they caused the death of the deceased. 5.2 It was argued that even in cases of manslaughter, violence occurs and its presence does not always infer malice. The case of John Mpande v The People (ll was called in aid where the Suprem e Court guided that: (i) The offence of manslaughter does not consist simply in an unlawful act resulting in death; the act must at the same time be a dangerous act, that is, an act which is likely to injure another person. -J.9- (ii) The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of some harm resulting therefrom, albeit not serious harm. (iii) The likelihood of harm may stem not only from the violence of the unlawful act itself, but may arise also because of the circumstances in which the violence took place. 5.3 Counsel argued that wrong as the act by the appellants may be, it was an act devoid of malice with no intention to murder the deceased. 5.4 Ground two was argued in the alternative, that there were extenuating circumstances in the case which should have led to the appellants being found guilty of murder with extenuating circumstances. 5 .5 We were referred to section 201 of the Penal Code which provides that: 201(1) Any person convicted of murder shall be sentenced (a) to death; or (b) where there are extenuating circumstances, to any sentence other than death: Provided that paragraph (b) of this subsection shall not apply to murder committed in the course of aggravated robbery with a firearm under section two hundred and ninety-four. (2) For the purpose of this section- -J. 10- (a) an extenuating circumstance is any fact associated with the offence which would diminish morally the degree of the convicted person's guilt; (b) in deciding whether or not there are extenuating circumstances, the court shall consider the standard of behaviour of an ordinary person of a class of the community to which the convicted person belongs. 5.6 Legal Aid Counsel cited the case of Kahale Kanyanga v The People 12l where the court stated that: "In our view, Section 201 should be read with Black's Law Dictionary Eighth Edition by Bryan A. Garner at P.260, which defines extenuation as: "Mitigating circumstance, means a fact or situation that does not justify or excuse a wrongful act or offence, but that reduces the culpability and this may reduce punishment. A fact or situation that does not bear on the question of a defendant's quilt, but that is considered by the court in imposing punishment and especially in lessening severity of a sentence." 5. 7 Flowing from th e cited case and legislation, it was contended tha t there is no limit to what can or cannot be extenuating circumstances as long as the facts are within the provision. Therefore, th e lower court should have considered wheth er -J .11- there were extenuating circumstances in this case as opposed to limiting itself to what has been held. 5.8 It was contended that the act of the deceased stealing from A2 is what led to the attack. That in the Zambian set up, it is standard behavior of an ordinary person in almost all communities to act that way. However, it was conceded that it does not justify or excuse a wrong act or offence, but that it reduces the culpability which may reduce the punishment for the appellants because it is standard behavior. 5. 9 Therefore, in light of the circumstances of the case, it was submitted that the appellants should be found guilty of murder with extenuating circumstances, and be sentenced to imprisonment rather than death. 6.0 ARGUMENTS BY THE RESPONDENT 6.1 In ground one, it was argued on behalf of the respondent that according to Black's Law Dictionary, 2 nd Edition, West Publishing, 1910 at page 7 50, 'malice' does not only mean ill will against a person but signifies "a wrongful act done intentionally, without just cause or excuse". -J.12- 6.2 The unlawful act of beating and subsequent asphyxiation of the deceased through strangulation and suffocation with a plastic bag shows that the appellants should h ave known that such acts would likely cause death or grievous harm to someone. In support of this, the case of Nelson Mpala & Others v The People 131 was cited where the court guided that: " ... Under Section 204 of the Penal Code, Cap 87 of the Laws, malice aforethought is "deemed" to have been established in any one or more of the prescribed circumstances; these are: (a) an intention to cause death of or to do grievous harm to any person; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person; (c) an intention to commit a felony; and (d) an intention to facilitate the flight or escape from custody of a person who has committed or attempted to commit a felony." 6.3 As regards the second ground of appeal, the learned State Advocate disagreed with the assertion that the deceased was attacked because h e was suspected of having stolen money from on e of the appellants and that this should be taken as an extenuating cir cumstance, because beating suspects is the standard manner of behavior in the Zambian set-up. -J.13- 6.4 We were again referred to the Nelson Mpala case where the court stated as follows: " ... Mr. Phiri's argument suggests that since there was evidence that the deceased was suspected to have stolen some money from one of the appellants, his killing was under extenuating circumstances which the trial Court Jailed to observe. We do not agree, and we frown upon any suggestion that the killing of a human being as a result of deliberate torture, in violation of his rights as a suspect, is excusable in any form. In dealing with extenuating circumstances, we have stated before, that the failed defence of provocation; evidence of witchcraft accusation and evidence of drinking can amount to extenuating circumstances (see Jack Chanda and Another vs. The People). None of these defences were ever raised during the trial; and we must add that, evidence that the deceased was a suspect should never be considered anywhere near the guidelines which we have given in relation to extenuating circumstances." 6. 5 We were urged to dismiss the appeal and uphold the decision of the lower court. 7.0 DECISION OF THIS COURT 7 .1 We have considered the appeal, the grounds of appeal and h eads of arguments filed by the Learned Counsel. We shall deal with the two grounds of appeal simultaneously as they are related. • -J.14- 7.2 The appellants contend that the evidence on record should have led to a conviction of manslaughter as opposed to murder. That the violence meted out against the deceased was because he stole from A2 and was without malice aforethought. In the alternative, they argue that there exist extenuating circumstances in this case brought about by the deceased allegedly stealing Kl2.00 from A2 and being beaten for it which is common p lace in Zambia. 7.3 The issues for determination, in our view, from both grounds of appeal, are as follows: (i) Whether the prosecution had proved beyond reasonable doubt the offence of murder against the appellants; and (ii) If answered in the affirmative , whether there were extenuating circumstances to warrant a lesser sentence than death. 7.4 The offence of murder under section 200 of the Penal Code is defined as: Any person w ho of malice aforet hought causes t he deat h of anot her person by an unlawful act or omis sion is gui lty of murder. -J. 15- 7.5 As regards malice afor eth ou gh t, section 204 of the Penal Code defines it as follows: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) (d) an intent to commit afelony; an intention by the act or omission to facilitat e the flight or escape from custody of any person who has committed or attempted to commit afelony. 7.6 Therefore, to prove a charge of murder, it must be proved that there was a death, cau sed by an unlawfu l act accompanied by malice afor ethou ght. The app ellants contend that there was no malice aforethou ght when they caused the death of the deceased. That the act of stealing is what led to the appellants to beat up the deceased, and in so doing, caused the death of the d eceased. -J.16- 7.7 Can it be argued that there no malice aforethought? We refer to the case of Dickson Sembauke Changwe & Ifellow Hamuchanje v The People 141. The appellants, as in this case, argued th at they had no malice aforethought when they threw the deceased out of a moving passenger train in the night. It was argued that murder requires a specific intent and that they had no intention to kill. In its judgment, the Supreme Court guided that: "It is a question of fact whether a reasonable p erson must know or foresee that serious harm is a natural and probable consequence of throwing someone out of a moving t rain. If, armed wit h this realisation and foresight, and knowing that serious harm could result, an intent founded on knowledge of t he probable consequences will be evident and will be sufficient to satisfy section 204 of the Penal Code." 7.8 The evidence on record shows that the deceased was initially beaten on allegations of having stolen K 12. 00. The deceased was then strangled before being suffocated to death with a plastic bag being tied around his neck. This act shows that the appellants knew or ought to have known that serious harm, including death would result from suffocation. , -J .17- 7. 9 This conduct demonstrated the presence of malice aforethought as defined under section 204 of t he Penal Code. The appellants intended to cause the death of, or to do grievous harm to the deceased; or that they had knowledge that the act of strangling and suffocating the deceased with a p lastic on his head will probably cause his death or grievous harm. In any case, it is conduct that showed an intention to commit a felony. 7.10 Therefore, the appellants cannot be heard to argue that they assaulted and s u ffocated the deceased without malice or that the violence they meted out on the deceased was devoid of malice for which reason, the conviction for murder ought to be substituted with manslaughter. 7 . 11 Therefore, we are not persuaded by the arguments advanced by the appellants that they should have been convicted of manslaughter. The court below was on firrn ground 1n convicting the appellants of murder. 7. 12 The next issue to be determined 1s whether there were extenuating circumstances which should have led to a lesser sentence than death. -J.18- 7. 13 Section 201 of the Penal Code earlier cited under paragraph 5.5, provides that where there are extenuating circumstances, a sentence other than death, will be imposed. The Act further defines what an extenuating circumstance is, as any fact associated with the offence which would diminish morally the degree of the convicted person's guilt. 7.14 The appellants argued that in the Zambian set up, it is standard behavior of an ordinary person, in almost all communities to act in the way the appellants did, that is, beating a person caught or suspected of stealing. This standard behavior reduces the culpability which in turn, may reduce the punishment for the appellants. 7.15 We have no hesitation in dismissing the argument that in the Zambian set up, it is standard behavior of an ordinary person in almost all communities to beat up a suspected thief to death or that it is acceptable to beat up a person who steals from you. 7 . 16 As was held in the Nelson Mpala & Others case , we join the Supreme Court in frowning upon any suggestion that the killing of a human being as a result of deliberate torture, in violation of his rights as a suspect, is excusable in any form. • J -J.19- 7.17 We therefore hold that there were no extenuating circumstances to warrant a lesser sentence than death imposed by the lower court. We find no merit in the appeal and it is dismissed. We uphold the convictions and sentences imposed on the appellants. F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE