Patrick Mumba and Ors v The People (SCZ JUDGMENT NO. 22 OF 2004) [2004] ZMSC 155 (7 September 2004)

IN THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO. 22 OF 2004 HOLDEN ATNDOLA APPEAL NO. 64 OF 2004 (308) (Criminal Jurisdiction) BETWEEN: PATRICK MUMBA I ST APPELLANT PAMELA MUMBA MW ANSA 2ND APPELLANT ANNETA SEMUSHI JONAS KUNDA 3RD APPELLANT 4TH APPELLANT EMMANUEL CHIMENSE 5TH APPELLANT MWILA FELESHANO FRIDA FELESHANO MARY FELESHANO MONICA FELESHANO 6TH APPELLANT 7TH APPELLANT 8TH APPELLANT 9TH APPELLANT JENIPHER MW ANSA 10 TH APPELLANT AND THE PEOPLE CORAM: CHIRWA, SILOMBA, JJS AND MUNTHALI AG/JS. On 2nd June and 7th September, 2004 For the Appellants: Capt. Nanguzgambo, Director of Legal Aid For the People: Mr. F. C. Mchenga, Chief State Advocate JUDGMENT · - ------ - - - - - - - · - - - J 2 (309) Chirwa, J. S. delivered the judgment of the Court: Case referred to:- 1. R. V. Mufuna 5 NRLR, 721. When we heard this appeal on 2nd June, 2004 we reserved judgment to be delivered on 13th July, 2004 at Lusaka. It was not possible to deliver the judgment at Lusaka on the said date due to other commitments. However, the judgment is now ready to be delivered. The appellants, PATRICK MUMBA, PAMELA MUMBA MWANSA, ANNETA SEMUSHI, JONAS KUNDA, EMMANUEL CHIMENSE, MWILA FELESHANO, FRIDA FELESHANO, MARY FELESHANO, MONICA FELESHANO AND JENIPHER MW ANSA (in this judgment referred to as appellants I to IO respectively) were jointly charged with one count of murder contrary to Section 200 of the Penal Code, Cap. 87. The particulars of the offence were that all the appellants on 20th day of April, 2002 at Samfya in the Samfya District of the Luapula Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, murdered one PAUL CHITOMONDO. They all pleaded not guilty but after trial, they were all found guilty of the offence. However, when it came to sentencing, the appellants were not sentenced to the mandatory death sentence, but were sentenced to various terms of imprisonment, the Judge having found that there were extenuating circumstances in the matter, namely belief in witchcraft. The I st and 3rd appellants were sentenced to 20 years imprisonment with hard labour each with effect from 20th April, 2002. The rest of the appellants were ·sentenced to 15 years imprisonment with hard labour each also with effect from 20th April, 2002. They have appealed to the court against sentences only. The evidence before the lower court established the following facts:- The I st appellant is a witch-finder and 2nd appellant is his wife. The deceased was an old villager staying at his village with his wife who was PW2 in the court below. Appellant number 3 ---- ------- - - - J 3 (310) is the mother of appellants 4, 5, 6, 7, 8 and 9. In addition to these children, appellant number 3 had 6 other children who had died. Appellant 3 consulted a witch-finder, appellant I, who claimed that the deaths of these children were caused by the deceased. The appellants then organized themselves with others and went to the deceased's house where he was found with his wife, PW2. The deceased was asked to enter his house and give them money as they had found out that he was a witch but he refused to do so as he saw no ground for doing so. The appellants then dragged the deceased intending to take him to I st appellant's home. As they were taking the deceased, they started beating him with sticks and bare hands. PW! and PW2 followed the appellants as they were taking and beating the deceased and each time they came close they were threatened with death. PW! and PW2 gave up. The following day they checked for the deceased but could not find him. They reported to the Police on 22nd April, 2002 and on 23 rd April, 2002 with the assistance of the Police they found the decomposing body of the deceased in the bush. Because of its decomposed state, no post mortem was conducted and relatives of the deceased were advised to bury the deceased. It is from these facts that the learned trial Judge found all the appellants guilty of murder. As we said earlier, this appeal is against sentence only. In arguing the case for appellants 2, 3, 6, 7, 8, 9, 10, all female convicts, Capt. Nanguzgambo submitted that the sentencing of female convicts to a term of imprisonment with hard labour is against the practice and law. He submitted that female prisoners are always sentenced to simple imprisonment and for this submission he referred to the case of R. V. Mufuna, (!) where it was held, on review, that for women, imprisonment should always be simple imprisonment. As for appellant 2 there was no reason why she was given 20 years imprisonment as there was no evidence to highlight her role apart from being the wife to the appellant. Capt. Nanguzgambo concluded his submissions that by putting away for 15 years of appellants 3, 4, 5, 6, 8 and 9 the whole clan would be doomed. Mr. Mchenga, for the State, although indicating that the appeal is against sentence, he implored the court to pass a message to people like the I st appellant, witch finder, that the manner they conducted their business is criminal as without 1st appellant's action, the whole matter would not have happened. J 4 (311) We have considered the circumstances of the case. We must say that longevity is not a crime that whenever deaths occur in the village or area, old people should be blamed. We are of the view that they should be praised and their wisdom sought as to how they manage to look after themselves. We agree with Mr. Mchenga that without the 1st appellants professed profession such uncalled for and ugly murders would never happen. Coming to the sentencing of females to imprisonment with hard labour, we note that the case referred to us is a High Court case decided on review without chance being given to the State to put their view but we agree with the reasoning in it. Section 26 of the Penal Code provides that all imprisonment shall be with or without hard labour. In as much as Section 26 of the Penal Code is silent as to what sort of punishment is to be given to female prisoners, regard should be had as to what powers are vested in the people to execute or supervise the punishment. In this regard Section 75 of the Prisons Act, Cap.97, relevant is especially Sub-section 2 where it says:- "(2) Women prisoners shall not be employed outside a prison except on the recommendation of the medical officer on medical grounds and then only on such work as may be prescribed." It follows, therefore, from this that courts should not be passing sentences that cannot be enforced. For female prisoners, therefore, the courts should give simple imprisonment. This leg of Capt. N anguzgambo' s appeal in relation to female appellants succeeds. We will now consider the actual terms of imprisonment. In considering this aspect, we have to bear in mind that the offence proved is murder and but for extenuating circumstances, death sentence was not passed. This was an attack by a gang acting on un proven allegation. It is with this in mind that the sentences have to be passed and in doing so, we agree with Mr. Mchenga that a message must be sent to witch-finders that when they conduct their business of pointing at people as responsible for death or other calamities, they are committing an offence under the Witchcraft Act and when the offence is followed by an assault, by a gang for that matter, a deterrent sentence must be imposed. .... ' - - - - - - - - - - - - J 5 (312) Death must be accepted, either natural, deliberate infliction of injury or poison or accident. Deaths should not always be associated with witchcraft. We therefore see nothing wrong in the sentence imposed on the 1st appellant of 20 years imprisonment with hard labour, and the appeal against sentence by him is dismissed. As for appellant 2 who was sentenced to 20 years imprisonment with hard labour, we have seen nothing extraordinary of what she did on the evidence on record. The sentence of 20 years is set aside. The rest of the appellants are sentenced as follows: Appellants 4 and 5 to 15 years imprisonment with hard labour. Appellants 2, 3, 6, 7, 8, 9 and 10 to 15 years simple imprisonment. All these sentences for all the appellants are with effect from 22nd April, 2002, the day they were apprehended . ............................................. D. K. Chirwa, SUPREME COURT JUDGE. ............................................ S. S. Silomba, SUPREME COURT JUDGE. S. S. K. Munthali, ACTING SUPREME COURT JUDGE. 0