Steward Mweene v The People [2020] ZMCA 179 (13 November 2020)

F- IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 75/2020 BETWEEN: STEWARD MWEENE LIEUC APPLICANT AND THE PEOPLE RESPONDENT Coram: M'chenga DJP, Makungu, Ngu lube JJA On 101h and 131h November, 2020 For the Applicant: For the Respondent: Mr. K. Tembo - Legal Aid Counsel Mrs. T. Banda - State Advocate National Prosecution Authority JUDGMENT Makungu, JA delivered the Judgment of the Court. Cases referred to: 1. Abedinego Kapeshi v. The People - SCZ Judgment No. 35 of 2017 2. Chabala v. The People (19 76) Z. R 14 3. John Lubhozha u. The People - SCZ No. 485 of 2013 4. Haonga and Others v. The People (1976) Z. R 200 (SC) Legislation referred to: 1. Penal Code Chapter 87of the Laws of Zambia (cid:9) (cid:9) (cid:9) 1.0 INTRODUCTION 1.1 This appeal emanates from the Judgment of Judge C. B. Maka - Phiri convicting the appellant for the murder of Charles Mweene, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia and sentencing him to death. The appeal is against the sentence only. 2.0 EVIDENCE ON RECORD 2.1 The prosecution's case rested on the evidence of four witnesses whom we shall refer to as PW 1 to PW4 respectively: PW1 Juliet Siamukulu, Charles Mweene's daughter and appellant's sister, PW2 Betty Siamwenya a business lady, PW3 Paul Katende a Medical Doctor and the arresting officer as PW4. The appellant gave sworn evidence and called no witness. Their collective evidence was as follows: The appellant suspected his father Charles Mweene of being a wizard as he used to dream of him as half snake, half human and holding other people. In late July, 2018 the appellant called for a family meeting to discuss the said dreams and superstitions where his father undertook to find a traditional healer or witch finder to resolve the matter. The appellant -J2- requested for the deceased's home to be searched for charms but the family members refused. He denied having threatened to kill him. According to PW1, at that meeting, the appellant threatened to "smash the old man" for bewitching him. 2.2 In early August, 2018 before a traditional healer was found; the appellant went into the bush only with his father to look for cattle. According to the appellant, while in the bush, his father showed him a root from which he mysteriously created a coffin. The appellant immediately started rolling on the ground and collapsed. When he gained consciousness, he found his father chanting that "come and kill him." As he was filled with fear, the appellant then picked up a stick which he hit him with on the legs. His father retaliated by grabbing his neck, then the appellant decided to hit him with the same stick twice on the side of the head. 2.3 According to the appellant, he left the scene without checking on the state of his father. The following morning, he left the village with his wife after telling PW 1 that their father was missing and feigning ignorance of his whereabouts. The following day, Charles Mweene was found dead and buried in leaves and debris with blood in the ears. -J3- 2.4 According to PW3, he conducted a postmortem examination on the body of Charles Mweene on 8th August, 2018 and found that he had sustained multiple fractures on the occipital area, penetrating wounds on the back of the neck and extensive lacerations on the brain. PW3's opinion was that the injuries were caused by a metallic instrument with a sharp point. 2.5 PW4 investigated the matter and found the appellant in Kalomo with the deceased's cell phone. Upon being interrogated, the appellant led PW4 to his house where an axe which was used in the commission of the crime was recovered. The appellant also led PW4 to the crime scene where he demonstrated how he killed his father. PW4's further evidence was that the appellant did not tell him that he assaulted the deceased for mixing charms and he did not find any charms at the scene. 3.0 DECISION OF THE COURT BELOW 3.1 The lower court accepted the above evidence and found accordingly. From the evidence of PW4, the court found that he axed the deceased on the head with an axe and not a stick -J4- as a stick would not have caused penetrative wounds of that extent stated in the postmortem report. 3.2 Further findings were that the appellant had both the motive and the opportunity to kill the deceased and killed him in line with his plans. That the accused's belief in witchcraft fell short of the threshold set in the case of Abedinego Kapeshi and another v. The People (1) as there was no visit to a witch doctor or witch finder and or consultation about witchcraft, or some suspicious event or admission by the deceased. Further that the accused's evidence that there were charms at the scene turned out to be untrue. The appellant was not in imminent danger at the material time. 3.3 In view of the foregoing, the court found the accused guilty of murder without extenuating factors and she accordingly meted out the mandatory death penalty. 4.0 GROUND OF APPEAL 4.1 (cid:9) There is only one ground of appeal framed as follows: 1. The trial court erred in law and fact by finding that the accused's defence of belief in witchcraft did not meet the threshold as established by law, when in fact it did. -J5- 5.0 APPELLANT'S ARGUMENTS 5.1 In the appellant's heads of argument it was submitted that the evidence on record clearly shows that there was suspicion that the deceased was a wizard and he was even confronted at one of the family meetings by the appellant who accused him of wanting to kill him in his dreams. The lower court should have taken the appellant's belief in witchcraft as an extenuating circumstance when sentencing him. Reference was made to the case of Abedinego Kapeshi and another v. The People (1) where the Supreme Court held inter alia that: "A belief in witchcraft should reach the threshold required for provocation if it is to serve as an extenuating factor to an accused person facing a charge of murder." 5.2 Counsel submitted further that in his defence, the appellant gave a reasonable explanation that he developed fear and rushed towards his father with a stick with which he hit him on the knees. His father grabbed him by the neck, which to him was a matter of life and death and as such, he decided to hit him with the same stick on the right side of the head. To -J6- fortify this submission reference was made to the case of Chabala v. The People (2) where the Supreme Court held inter alia that: "Because guilt is a matter of inference, there cannot be a conviction if the explanation might reasonably be true, for then guilt is not the only inference. It is not correct to say that the accused must give a satisfactory explanation." 5.3 We were therefore urged to allow the appeal, quash the death sentence, acquit the appellant and set him at liberty forthwith. 6.0 RESPONDENT'S ARGUMENTS 6.1 It was submitted on behalf of the appellant that the learned trial court did not err in law and in fact when it found that the appellant's defence of belief in witchcraft had not met the threshold as established by law. Extenuating circumstances are provided for in section 201 (2) of the Penal Code which reads as follows: "(a) An extenuating circumstance is any fact associated with the offence which diminish -J7- 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 behavior of an ordinary person of a class of the community to which the convicted person belongs." 6.2 In light of this provision, a plethora of authorities have held that a belief in witchcraft is an extenuating circumstance. However, a mere belief in witchcraft may not be considered an extenuating circumstance unless it attains a threshold where such belief is evidenced based and amounts to provocation. The case of Abedinego Kapeshi and Best Kanyankula v. The People (1) was relied upon where the Supreme Court stated inter alia as follows: "For belief in witchcraft to be treated as extenuating circumstances, it ought to go further that merely someone's subjective thought process. There has to be a verifiable set of circumstances that motivate such belief as happened in the Fabian (28) case.".... -J8- Hence, we now hold that a belief in witchcraft should reach the threshold required for provocation if it is to serve as an extenuating factor to an accused person facing a charge of murder. There is absolute need to protect victims of witchcraft accusations from unprovable allegations leading invariably to multiple violations of their rights, and in some cases death." ".... In our estimation, the plea in murder cases that the deceased had bewitched or threatened to bewitch the accused person, should be rejected unless it is shown on the evidence that the accused person had been put in such fear of immediate danger to his own life that the defence of grave and sudden provocation could easily be available on the facts. In other words, extenuation based on a belief in witchcraft should, as a general rule, be unavailing though it could in exceptional circumstances be considered." 6.3 In light of the Abedinego (1) case, counsel for the respondent opined that the appellant's belief in witchcraft does not meet -J9- the required threshold for provocation as it is premised on dreams the appellant had been having of the deceased in which he appeared half human and half snake whilst holding a lot of people on the sides, page 67 lines 6 of 9 of the record of proceedings refers. 6.4 Apart from theses dreams, there is no evidence on the record to substantiate his belief. To the contrary, PW1 's evidence was that after the appellant began having dreams of the deceased; a family meeting was called at which the deceased had even offered to find some money so that they could engage a witch finder, page 18 lines 5 to 9 of the record of proceedings refers. Unfortunately, this was never done as the appellant murdered the deceased before the witch finder could be found. 6.5 It was therefore submitted that the appellant had no basis on which to conclude that the deceased was indeed a wizard as he never consulted a witch doctor or witch finder, neither did he the deceased in a nefarious witchcraft position. Counsel further relied on the case of John Lubhozha v. The People (3) where the Supreme Court stated that: -J10- "It is essential in every case where the appellant's belief in witchcraft is either for the purpose of his defence or for the purpose of establishing whether extenuating circumstances exist, that the belief in witchcraft must be evidence based and must be established as a matter of fact. We envisaged such evidence to include, a visit to a witch doctor, witch finder, traditional healer or consultation about witchcraft or some other suspicious event or admission believed to have been authored by the deceased; or indeed, a demonstration of strong belief in a local ritual ordinary associated with witchcraft." 6.6 The respondent's counsel escalated his contentions as follows: In his defence, the appellant attempted to establish his belief by alleging that whilst alone in the bush with the deceased, the deceased picked up a root that he turned into a coffin and started to call out for people to kill him. This version was discounted by neither PW4's evidence who did not find any coffin nor charms where the deceased was found half buried. Moreover, if the appellant's claim that the deceased turned a -Jil- root into a coffin was true then he would have informed his sister (PW1) as soon as he went back to the village to go and check since it would have been very strange, frightening and confirmation of his suspicions. He would have pretended that the deceased was missing and left the village the following day. Besides, if the appellant suspected that his father was a wizard, he would not have gone in the bush with him. 6.7 The appellant's explanation was unreasonable and the trial Judge was on firm ground when she rejected it. This is very apparent as in the appellant's version; he claimed to have a stick to hit the deceased whereas the postmortem report and PW3's evidence that the deceased was hit with a metallic object. This indicates an untruth on a material fact and the weight attacked to the appellant's evidence is reduced as it is not possible that he hit the deceased with a stick as he alleged. In aid of this submission, we were referred to the case of Haonga and Others v. The people (4) wherein it was stated as follows: "Where a witness has been found to be untruthful on a material point, the weight to be attached to the remainder of his evidence is reduced; although -J12- therefore it does not follow that a lie on a material point destroys the credibility of the witness on the points (if the evidence on the other points can stand alone). In the case at hand, the appellant's evidence cannot stand alone in light of the evidence adduced by the prosecution." 6.8 In the absence of extenuating circumstances, the sentence meted out by the trial court was not wrong in principle. 7.0 OUR DECISION 7.1 We have taken into account the record of appeal and the written submissions made on behalf of each party. The conviction for murder is not being challenged by the appellant. The question as we see it from the sole ground of appeal is whether the appellant's belief in witchcraft should be taken as an extenuating circumstance in order to reduce the sentence. 7.2 We find the Abedinego case very useful in resolving this question. Looking at the manner in which the deceased was killed, it is clear that the appellant deliberately set out to attack and kill him as rightly found by the lower court. In short, the murder was premeditated as the appellant had -J13- expressed his intention to kill the deceased at the family meeting. He did not wait for a healer or witch finder to be found as the death occurred a few days after the said meeting where his father had undertaken to find a healer or witch finder to help resolve the matter. There was no verifiable set of circumstances that motivated the appellant's belief that the deceased was practicing witchcraft. 7.3 The allegations by the appellant that on the material date, he saw the deceased make a coffin while in the bush and that he was later chanting and advocating for the unknown to "kill him" were just fabricated stories by the appellant in order to cover up his evil deeds. That is because he had taken the opportunity to be alone with the deceased in the bush, a secluded place, without fear as he intended to carry out the death threat. The investigating officer PW4 was not told of the story of a coffin having been created from a root by the deceased. PW4 did not find any evidence of charms or the coffin which was purportedly created by the deceased before he was hacked to death. We accept the respondent's argument that the appellant's belief in witchcraft had no basis but his dreams as no witch finder confirmed the belief. The -J14- case of John Lubhozha v. The People (3) refers. The story of the deceased having created a coffin from a root was most likely a figment of his imagination. 7.4 We accept the appellant's counsel's argument that had the story of the coffin and chanting been true, the appellant would have told the people in his community about it as it would have been very strange and frightening and a confirmation of his suspicion. He would not have pretended that the deceased was missing and gone ahead to flee the village. That in our view, would be the standard behavior of an ordinary person of a class of the community to which the appellant belonged - see section 201 (2) (a) and (b) of the Penal Code. 7.5 The appellant in our view did not act in the heat of passion as he was not in imminent danger of being killed by the deceased at the material time. We take the view that he would have run away and called for help if he in fact saw his father practicing strange acts. We therefore cannot fault the lower court for finding that the principles set in the Abedinego case were not fulfilled in this case. -J15- 7.6 For the foregoing reasons, we reject the appellant's advocate's argument that the appellant had given a reasonable explanation of his actions and should have been acquitted. 7.7 We are well guided by the case of Haonga and others v. The People (4) that since the appellant had lied on the material facts such as having hit the deceased with a stick and yet he hacked him with an axe; that he did not know the whereabouts of the deceased when he had in fact buried his body, very little weight should be attached to the rest of his evidence which cannot stand alone. In the absence of extenuating circumstances, we uphold the death penalty. 8.0 CONCLUSION 8.1 In sum, the appeal lacks merit and it is dismissed. M'CH DEPUTY JUDGE PRESIDEN C. K. MAKUNGU COURT OF APPEAL JUDGE (cid:9) P. C. M. NGULUBE COURT OF APPEAL JUDGE -J16-