Mudenda and Anor v People (Appeal 142 of 2021) [2022] ZMCA 61 (28 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 142, 143/2021 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: STEWARD MUDENDA L1SWANI MULIWANA AND THE PEOPLE 2 o SE? 2022 1st appellant 2nd APPELLANT RESPONDENT CORAM: Mchenga DJP, Makungu and Muzenga JJA On 15th February, 2022 and 28th September, 2022 For the Appellant: Mr, K. Katazo, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. C. Bako, Deputy Chief State Advocate, National Prosecution Authority DISSENTING JUDGMENT MUZENGA, JA dissenting. Cases referred to: 1. Benwa and Another v The People (1975) ZR 1 2. The People v Emma Kainga - SP/31/2021 3. Kambarange Mpundu Kaunda v The People (1990 - 1992) ZR 215 4. Roberson Kalonga v The People (1988 - 1989) ZR 90 5. Mulenga Katete v The People - SCZ Judgment No. 10 of 2010 J2 6. James Chibuye, Luckwell Ng'ambi and Penius Zulu v The People - SCZ Judgment No. 33 of 2010 7. James Kunda v The People - SCZ Appeal No. 235 of 2017 Statutes Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Constitution of Zambia, Chapter 1 of the Laws of Zambia. 3. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 4. The Firearms Act, Chapter 110 of the Laws of Zambia. 1 .0 INTRODUCTION 1.1 I agree with the majority decision except where the judgment upholds the conviction under Section 294(2), when the appellants were charged and tried for an offence under Section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia. 2 .0 THE DISSENT 2.1 I must state on the onset that in our jurisdiction, the prerogative to choose what charge to allocate to an accused or a suspect lies on the Director of Public Prosecutions, who according to Article 180(3) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia, is the Chief Prosecutor for the Government and Head of the National Prosecutions Authority. J3 2.2 The prosecution in this case opted to charge the appellants with an offence under Section 294(1) of the Penal Code when they knew too well the evidence they had against them. They cannot be faulted for their decision because it is their prerogative to choose their preferred offence. 2.3 The general position of the law is that a person cannot be convicted of an offence for which he or she has not been charged. There are exceptions to the foregoing principle. One of such exceptions is provided under Section 181 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. It provides that: "181. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it." 2.4 What is clear from Section 181 above is that a person may be convicted of an offence he was not charged with as long as the said J4 offence is a minor offence and it must be a kindred offence to the one originally charged. The Supreme Court in the case of Benwa and Another v The People1 had occasion to consider Section 181 and held inter-alia that: "(ii) It is not a condition precedent to the substitution of a minor offence under section 181(2) of the Criminal Procedure Code that it be cognate to the offence charged; the fact that the alternative is or is not cognate to the offence originally charged will be one of the factors to be taken into account by the court. The test to be applied by the court in considering the exercise of its discretion to substitute a minor offence is whether the accused "can reasonably be said to have had a fair opportunity to meet the alternative charge." 2.5 We equally recently pronounced ourselves on the issue in the case of The People v Emma Kainga.2 We stated that: "We agree with learned counsel for respondent that in order for a person to be convicted of a minor offence, he or she must have had an opportunity to defend themselves on the alternative charge. This ensures fair trial, which is a hallmark of the criminal justice system. The offences against liberty are totally unrelated offences to the offence of defilement. Clearly the respondent can certainly not be said to have had an opportunity to defend himself against this minor offence." 2.6 Clearly, a court cannot convict an accused person of a higher or more serious charge than one which he or she was initially charged with, J5 unless there has been an amendment of the charge, enhancing the same to a more serious one at an earlier time (during the case for the prosecution or in a ruling at case to answer by the court). See the case of Kambarange Mpundu Kaunda vThe People3 also referred to in the majority Judgment. 2.7 An offence under Section 294(1) is a minor offence and one under Section 294(2) is a more serious one as it carries a mandatory death sentence whereas the former carries a minimum of 15 years and up to life imprisonment. Therefore, when a person is charged under Section 294(2), he or she may be convicted for an offence under Section 294(1) as it is a minor offence. The reverse is not tenable at law. 2.8 I must state that the most apt thing for the prosecution to do is to charge an accused person appropriately. I have already stated that the Director of Public Prosecutions has the sole privilege of preferring whatever charge against an accused person, no matter how ridiculous the charge may appear, or whether supported by the evidence or not. It is not the duty of a court to appear to aid the prosecution or embark J6 on a strenuous effort to fit an offence in a realm outside what is clearly stated, unless a case fits in the acceptable exceptions. 2.9 In the case of Roberson Kalonga v The People,4 the appellant was convicted of aggravated robbery and sentenced to death. He was not charged with armed robbery. The Supreme Court had this to say: "The learned Director of Legal Aid on behalf of the appellant has drawn the attention of this Court to the fact that the appellant was not charged with the offence of armed robbery in accordance with section 294(2) of the Penal Code. Neither did the particulars of the charge allege the use of a gun. We agree with the learned Director that it is essential when there is an allegation of armed robbery that an accused must be notified that he stands charged with such an offence. In this particular case there was no notification to the appellant and therefore, as we will say later in this judgment, he will not be subjected to the death sentence." 2.10 The Supreme Court went on to hold inter-alia that: "It is essential when there is an allegation of armed robbery that an accused be notified that he stands charged with such an offence." 2.11 The Supreme Court quoted with approval the aforementioned principles in the Kalonga case supra, in the recent cases of Mulenga Katete v The People;5 James Chibuye, Luckwell Ng'ambi and Penius Zulu v The People;6 and James Kunda v The People.7 J7 2.12 What is clear from the authorities above is that the accused must be notified that he or she is at peril of suffering a death penalty. The Prosecution must thus put him on notice that the aggravated robbery with which he or she has been charged with is not ordinary aggravated robbery but one linked to Subsection (2)(a). 2.13 In the Mulenga Katete case, the appellant was charged with ordinary aggravated robbery, under Section 294(1) but was convicted of armed aggravated robbery under Section 294(2). The Supreme Court set aside the conviction and sentence of death on account that the particulars of offence did not allege or mention the use of a firearm (emphasis mine). 2.14 In the case of James Chibuye and Others v The People, the appellants were charged under Section 294(1) but were convicted under Section 294(2). The conviction was upheld because the particulars of offence clearly stated that the appellants were armed with firearms (emphasis mine). 2.15 What is clear from the cases of Mulenga Katete and James Chibuye supra is that the particulars of offence clearly stated without any doubt J8 or conjecture that the appellants were armed with a firearm (emphasis mine). 2.16 A firearm is defined under the Firearms Act, Chapter 110 of the Laws of Zambia in section 2 as: "Any lethal barreled weapon of any description from which any shot, bullet, bolt or other missile can be discharged or which can be adapted for the discharge of any shot, bullet, bolt or other missile." 2.17 Therefore, anything not meeting the definition above is not a firearm. In the case in casu, the particulars allege that the appellants were armed with a gun (emphasis mine). The definition of a firearm in Section 2 of the Firearms Act clearly excludes an air gun. It does not also include a toy gun. It follows therefore that the word gun does not necessarily mean firearm. It can therefore be said with certainty that there are some guns which are not firearms. I cannot thus state with the certainty required in criminal cases that the appellants were notified that the particulars of offence alleged that they used a firearm in committing the robbery. 2.18 It would have been different if the statement of offence stated the offence as falling under Section 294(2) and then the particulars refer to a gun. The defect in the particulars would have been cured by the J9 correct statement of the offence. I hold the view that the defect in the particulars cannot be cured by any form of interpretation that purports to equate the meaning of the word gun to a firearm as the law is clear as to what a firearm is. 2.19 The decisions of the Supreme Court require that where there is a lapse by the prosecution in charging under Section 294(1), a conviction under Section 294(2) is only tenable if the particulars of offence clearly state that the accused used a firearm. There are no two ways about it. I am of the considered view that we cannot give a layman's interpretation of the word firearm, especially when a statute clearly provides a meaning to it. The word gun is not synonymous to firearm. Whereas a firearm may be a gun, a gun may not be a firearm. This must be construed strictly and where there is ambiguity or two or more possible interpretations, one which is more favourable to an accused person must be adopted. 2.20 As I have already noted above, the state preferred a charge under Section 294(1), the particulars of offence they prepared referred to gun instead of firearm, proceeded to full trial and never attempted to amend the information. The requirement of the law is that the J10 statement of offence must state exactly the offence with which a person stands charged and the particulars of offence must clearly state the allegation fitting the statement of offence. The exception as guided by the Supreme Court, is that where the statement of offence has a charge under Section 294(1), a conviction under Section 294(2) is only sound where the particulars indicate that the accused was armed with a firearm. I am of the considered view that this exception cannot be expanded any further than the guidance by the Apex Court. 2.21 In the circumstances, I hold the view that the particulars of offence did not indicate that the appellants used a firearm and as such a conviction under Section 294(2) when they were charged under Section 294(1) is not tenable. I would have quashed the conviction for armed aggravated robbery and the sentence of death; and substituted it with a conviction for ordinary aggravated robbery and impose 25 years imprisonment with hard labour, effective the date of arrest. K. MUZENGA COURT OF APPEAL JUDGE