Steven Mwape v The People (Appeal No. 98/2022) [2023] ZMCA 439 (23 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA/NDOLA (Criminal Jurisdiction) Appeal No. 98/2022 BETWEEN: STEVEN MWAPE AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga, JJA On 20th January, 2023 and 23 rd August, 2023. For the Appellant: Mr. C. Siatwinda, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. Bob Mwewa, Senior State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mushemi Mushemi v. The People (1982) ZR 71 (SC) 2. Francis Mayaba v. The People - SCZ Judgment No. 5 of 1999 3. Kasebya Mwaba v. The People - CAZ 135/2018 4. Sakala v. The People (1987) ZR 23 J2 5. Guardic Kameya Kavwana v. The People - Appeal No. 84/2015 6. Hassan Kainda v. The People - CAZ Appeal No. 220/ 2020 7. Nyambe Kimba v. The People - CAZ Appeal No. 09/2022 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was sentenced to death by Mumba J. following a conviction of murder in the High Court. His co-accused was aquitted. 1.2 The particulars of offence alleged that on 15th January, 2021 at Samfya in Luapula Province of the Republic of Zambia, the appellant and his co-accused murdered Kabanki Mwansa. 2.0 PROSECUTION EVIDENCE BEFORE THE TRIAL COURT 2.1 The appellant's conviction was secured by the evidence of four prosecution witnesses. The evidence implicating the appellant was proffered by PWl, PW2 and PW3 who are the deceased's close relatives. A summary of the facts which gave rise to the murder herein were that a person by the name of Chola Moloshi was attacked by a crocodile. A search for the body commenced. The appellant and two • • ; .. J3 other persons travelled from Kitwe to the village in Samfya District to join in the search. 2.2 On arrival, they went straight to the deceased and accused him of having killed Chola Moloshi. They dragged him and assaulted him. Chola Moloshi's family thus consulted a witch doctor who showed them a video of how the deceased turned himself into a crocodile and killed Chola Moloshi. Consequently, they came back, picked up the deceased and took him to the village headwoman. After a meeting there, the appellant and others promised not to assault the deceased and they released him. It would appear the information from the witch doctor infuriated members of the public. After a short while, the appellant and a mob of people followed after the deceased and assaulted him until he died and buried him there. None of the witnesses followed where the mob had taken the deceased and killed him. According to PW4 the body was later exhumed and was found to have two deep axe wounds. 2.3 This marked the end of the prosecution case. The appellant and his co-accused were found with a case to answer and put on their defence. J4 3.0 DEFENCE 3.1 The appellant's co-accused person testified as DWl. 3.2 In his defence, the appellant (DW2) opted to give sworn evidence and called two witnesses. He denied being involved in the murder of the deceased. He told the trial court that on the fateful day, he was at Lake Bangweulu searching for the body of Chola Moloshi and as he was going about the search he met unknown people who informed him that the deceased had been killed by a mob of people after what a witchdoctor showed them. 3.3 DW3 confirmed the appellant's alibi. DW4 told the trial court that she was with t_he appellant on the fateful day at Lake Bangweulu looking for the body of Chola Moloshi. Her evidence was similar to that of the appellant. 3.4 This marked the end of the defence case. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After careful consideration of the evidence before him, the learned trial judge was satisfied that the offence of murder was established and that the appellant took part in assaulting the deceased. In light of the injuries, the court found that the appellant intended to cause grievous ·• harm. The appellant was later sentenced to death and his co-accused JS was acquitted. 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the conviction and sentence, the appellant launched the present appeal fronting two grounds structured as follows: (1) The trial court erred in law and in fact when it held that the evidence of PW1, PW2, and PW3 is cogent enough and that the danger of false implication of the appellant had been excluded; (2) The court below misdirected itself when it failed to address its mind to the fact this was a case of mob instant justice and there was no evidence to show that the appellant delivered the fatal blow that caused the death. 6.0 THE APPELLANT'S ARGUMENTS 6.1 In regard to ground one, learned counsel for the appellant submitted that despite the trial court warning itself on the dangers of convicting on the evidence of suspect witnesses, the trial court failed to appreciate the glaring discrepancies in the evidence of the eye witnesses which are fatal to the prosecution's case. According to counsel, it is surprising that the evidence of three witnesses are J6 different despite the three being present when the incident occurred. It was pointed out that the discrepancies go to the root of the witnesses' credibility. 6.2 It was contended that PW3 gave the impression that the whole beatings and killing of the deceased happened in a single day on 13th January, 2021 whilst PW1's position was that it was a series of events starting from 11 th January, 2021 when the appellant arrived at the funeral on to 16th January, 2021. It was submitted that the conclusion to be drawn from the aforementioned discrepancies is that the three eyewitnesses did not assist the trial court in arriving at the truth of what transpired. 6.3 It was further contended that the trial court did not give reasons why it preferred the evidence of the prosecution witnesses who materially contradicted themselves, to the evidence of the defence. We were referred to the case of Mushemi Mushemi v. The People 1 where it was held that: "A conviction based on a finding of fact which is in direct conflict with the overwhelming balance of the evidence, that evidence having been glossed over, cannot be upheld. The credibility of a witness cannot be assessed isolation from the rest of the witnesses whose in J7 evidence is in substantial conflict with that of the witness. The judgment of the trial court faced with such conflicting evidence should show on the face of it why a witness who has been seriously contradicted by others is believed in preference to those others." 6.4 In summation, learned counsel contended that the evidence relied upon by the trial court cannot reasonably be said to be credible and required to be corroborated. We were urged to uphold this ground of appeal. 6.5 In support of ground two of the appeal, it was contended that, in its judgment, the trial court did acknowledge that the deceased was killed and buried by a mob of people but failed to address its mind to the issue of mob instant justice and whether it was the appellant who delivered the fatal blow. In support of this argument, we were referred to the case of Francis Mayaba v. The People. 2 6.6 In conclusion, we were urged to allow this appeal, set aside the conviction of murder and acquit the appellant. 7.0 RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, the learned counsel contended that the trial court rightfully found the evidence of PWl, PW2 and PW3 credible JS despite them being related to the deceased and a few discrepancies. The trial court addressed its mind to the possibility of false implication and discounted it on the basis that there was no evidence on the record that they had a motive to falsely implicate the appellant. It was further contended that the discrepancy in times could be attributed to the fact that none of the witnesses had a watch and they all merely estimated the time. We were referred to our judgment in the case of Kasebya Mwaba v. The People3 in which we held that certain discrepancies could be attributed to lapse of memory rather than untruthfulness and minor discrepancies do not go to the root of the case. We were urged to dismiss this ground of appeal. 7.2 In regards to ground two of the appeal, it was learned counsel's contention that it is clear from the evidence on the record that the appellant planned to kill the deceased before he even arrived in Luapula as was evidenced by PWl, that the appellant called him and informed him to stop search for the body of Chola Moloshi as he already knew who had killed him. It was submitted that the appellant and his accomplices embarked on a joint enterprise to murder the , ., J9 deceased and whipped up a crowd of mourners to assist them in achieving the death of the deceased. 7.3 We were referred to the case of Sakala v. The People4 in which it was held that: "Section 22 of the Penal Code clearly contemplates that liability will attach to an adventurer for the criminal acts of his confederates, which will be considered to be his acts also if what those confederates have done is a probable consequence of the prosecution of the unlawful common design." 7.4 In summation, it was submitted that the appellant having the malice aforethought and being a participant in the act that killed the deceased, he killed the deceased. We were urged to dismiss this appeal and uphold the decision of the trial court. 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Siatwinda placed full reliance on the documents filed. On behalf of the State, Mr. Mwelwa informed the court that the State would equally rely on the heads of argument filed before the court. JlO 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have pedantically considered the evidence on the record, the arguments by counsel and the judgment sought to be assailed. We shall deal with the grounds of appeal in the order in which they were presented. 9.2 With regard to the issue raised in ground one of the relationship of the witnesses to the deceased, we note that there is indubitable consanguinity between the witnesses and the deceased person. In this respect, PWl is the deceased's step son while PW2 was a relation of the deceased. The Supreme Court in the case of Guardic Kameya Kavwana v. The People5 stated that "there is no law which precludes a blood relation of the deceased from testifying for the prosecution. Evidence of a blood relation can be accepted if cogent enough to rule out any element of falsehood or bias." 9.3 We also hold the view that the trial court properly addressed its mind to the possibility of false implication and discounted it on the basis that there was no evidence on the record that they had a motive to falsely implicate the appellant. On this score, we find no merit in ground one. Jll 9.4 With respect to ground two of the appeal, we note that from the evidence on the record, the deceased dled due to the acts of a mob. We have in a number of cases, one of which is Hassan Kainda v. The People6 and Nyambe Kimba v. The People7 given proper guldance on how to handle cases which fall under mob attacks. 9.5 In the case of Francis Mayaba v. The People supra the Supreme Court guided that: "This was a case of mob instant justice and there is no evidence that the appellant or indeed the juvenile offender delivered the fatal blow that caused the death of the deceased. We would therefore allow the appeal and quash the conviction for murder and substitute a conviction for manslaughter contrary to Section 199." 9.6 In this appeal, many people gathered at the headwoman's palace for a hearing where the appellant and hls family promised to let the deceased free. From the evldence on the record, a mob later followed the deceased, killed and buried him. All the witnesses on record testlfied that the deceased was taken by a mob of people and none of them saw with their eyes who actually kllled the deceased or what exactly transplred where the mob took the deceased. J12 9. 7 We are not in any doubt whatsoever that the appellant was part of the mob which inflicted injuries on the deceased. To that extent, the trial court was on firm ground when it held as such. The offence is however not murder, but manslaughter. Had the learned trial court properly directed its mind, it would no doubt have reached the verdict as ours. On this score, we find merit in ground two and allow it. 10.0 CONCLUSION 10.1 Having found merit in ground two, we therefore quash the conviction of murder and set aside the sentence of death. We instead find the appellant guilty of manslaughter. 10.2 In sentencing, we have taken into consideration the circumstances of the case and the trauma the deceased and his family went through. We note that a belief in witchcraft has been deeply entrenched in the Zambian psyche. Perceived witches have in many of our communities been treated with untold mob violence and rough justice. 10.3 Many of those accused of witchcraft have been ostracized by their families and communities; subjected to life-threatening assaults; dehumanized; have had their property destroyed and in extreme cases, brutally murdered, as was the case in casu. The appellant's conduct, • • ... J13 like many others, has led to many unfortunate deaths in our communities. We thus see it befitting to depart from our sentencing trend for manslaughter cases in order to send a message that killing suspected practitioners of witchcraft, whether actual or perceived must be frowned upon. We sentence the appellant to 10 years imprisonment with hard labour with effect from 8th March, 2021, the date he was taken into custody. DEPUTY JUDGE P B. M. · AJULA COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE