Sunday Siakalyabwizu Siamalambe and Anor v People (Appeal 341 of 2011) [2012] ZMSC 111 (6 November 2012)

JI IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL NO.341/2011 BETWEEN: SUNDAY SIAKALYABWIZU SIAMALAMBE 1st Appellant HERIDAH SIAMALAMBE 2nd Appellant VS THE PEOPLE Respondent Coram: Mumba, Ag. DC J, Phiri and Wanki JJS. On 14th August 2012 and 6th November 2012 For the Appellants : Mr. K. Muzenga, Acting Principal Legal Aid For the Respondent : Mrs. M. B. Nawa, Principal State Advocate - National Prosecutions Authority Counsel - Legal Aid Board JUDGMENT Mumba, Acting DCJ., delivered the Judgment of the Court. Cases referred to 1. Jack Chanda and Kennedy Chanda vs The People (2002) ZR 124 2. Bwalya vs The People (1995 - 1997) ZR 168 This is an appeal against sentence only. The appellants were convicted on one count of murder contrary to Section 200 of Cap 87. Upon conviction, they were sentenced to death. J2 Briefly, the background is as follows In August 2006, the deceased assaulted the 1st appellant such that the 1st appellant ended up in hospital, in Choma. The assault was reported to the police but by the time of the ceremony of the 11th September 2006, where the parties met again, the police had not yet arrested the deceased. On the material date, the deceased attended a tonga ceremony with his son, Dingani Sianoole, PW5. The appellants were the first to arrive at the ceremony, the deceased and PW5 arrived later, carrying a machete and a knob kerry. Weapons were carried as a tonga tradition. Soon after the deceased and PW5 arrived at the ceremony, the appellants tried to get hold of PW5, according to them, intending to take him to the police. However, PW5 managed to run away leaving his shirt with the appellants. When the deceased saw that PW5 was struggling with the appellants, the deceased hit the 1st appellant with his knob keriy. That was how they let go of PW5. Thereafter, the 1st appellant struck the deceased on the head with a machete. When he fell down, the 2nd appellant hit the deceased in the ribs with a knob kerry. The deceased was later found dead. J3 The evidence on record was that on the 11th September 2006, there was a tonga traditional memorial service ceremony known as “Mwesho”, at Shachibondo village in Choma. Beer was brewed and the people who gathered for the ceremony were partaking of the beer. According to the evidence of PW1, David Sizyoongo, the two appellants arrived at the ceremony where they found the deceased, Japhet Sianoole, who had arrived earlier. The 1st appellant attacked the deceased with a machete on the head. When the deceased fell down, the 2nd appellant hit him in the ribs using a knob kerry. Immediately after the attack, the appellants left. The deceased was assisted to his feet and escorted away from the ceremony, he did not reach home, the deceased was found dead the next day. PW2, Bamuntu Munsaka, told the trial court that on the date in question during the traditional ceremony, the witness saw the 1st appellant strike the deceased on the head with a machete. After the deceased fell down, the 2nd appellant hit the deceased with the knob kerry on the ribs. The two appellants then ran away. PW2 escorted the deceased away from the ceremony and left him on the way. The following day, the deceased was found dead. The post-mortem examination report was that the cause of death was a J4 head injury. Among other injuries found on the deceased were dislocated shoulder joints. There was evidence from the police officers involved in investigating this case which appears to show that the attack on the deceased was a revenge attack. In August 2006, the 1st appellant was beaten by the deceased such that the 1st appellant ended up in hospital in Choma. The assault was reported to the police. There was also evidence that at this traditional ceremony, almost all persons who attended carried with them some weapon of one kind or another, that was the tonga custom, but nobody carried a gun or an axe. Although there was beer drinking at the ceremony, the evidence of PW1, was that the two appellants were drinking wine. The learned trial Judge found that the evidence of the attack amounted to murder. She discounted the evidence of provocation on the ground that the earlier attack of the 1st appellant by the deceased had taken place a long time previously. The learned trial Judge also found that there were no extenuating circumstances to support any other sentence. After finding that there were no J5 extenuating circumstances, the death sentence was pronounced against both appellants. There is one ground of appeal against sentence which is that the learned trial Judge erred in law and in fact by not holding that there were extenuating circumstances when the evidence on record shows that there were such extenuating circumstances. In arguing this ground of appeal, it was submitted that there was evidence of drinking by both appellants, in lines 20 to 23 of the record, on page 14, the appellants were drinking wine. It was submitted that the intention of the appellants was to apprehend the deceased together with his son, PW5 because of the earlier assault on the 1st appellant. It was argued that the circumstances of this case indicated the presence of extenuating circumstances, which, according to Section 201(2) of the Penal Code, were defined as:- any fact associated with the offence which would diminish morally the degree of the convicted person’s guilt...” J6 The case of Jack Chanda and Kennedy Chanda v The People1 was cited to support the submission. In that case, this court held that:- “Failed defence of provocation, evidence of witchcraft accusation, and evidence of drinking can amount to extenuating circumstances”. It was contended that there was overwhelming evidence of drinking, a failed defence of provocation which was some form of revenge for the earlier attack on the 1st appellant. It was argued that on account of the incidents mentioned, there existed extenuating circumstances which could have persuaded the trial court to impose a sentence other than the mandatory death penalty. On these submissions, the court was urged to allow the appeal against sentence, to set aside the death penalty and to impose a more favourable sentence. On the evidence on record, there was evidence of drinking but there was no evidence that anyone was drunk. Infact, the evidence J7 of PW2, Bamuntu Munsaka, at page 17 of the record, when under cross examination, was that: yes, there was to be a dance but there was no drums sounded, as people were not yet drunk ...” r In the case of Bwalya vs The People2, there was evidence of general drunkenness, the appellant quarreled with several other people before he killed the deceased by hitting her on the head with a pounding stick. In that case this court said, on sentence, we considered that the drunken circumstances generally attending upon the occasion sufficiently reduced the amount of moral capability so that there was extenuation.” The death penalty was not imposed. Thus, evidence of drinking is not the same as evidence of drunkenness. There has to be evidence of a state of drunkenness J8 on the part of persons involved. Another equally important aspect of the Bwalya case was that the appellant did not choose his victim, he quarreled with several other people before the sudden attack on the deceased. In this case, the deceased and his son were targeted because of the past episode. In addition, the attack on the deceased happened soon after the deceased and his son arrived at the ceremony. So, drunkenness is eliminated as an extenuating circumstance. On the possible defence of provocation or failed defence of provocation, the appellants were the first to provoke the fight when they accosted PW5 who managed to run away. The previous incident of some time in August when the deceased assaulted the 1st appellant such that he was hospitalised, cannot be accepted as an excuse for attacking the deceased in the manner described because sufficient time had past to allow tempers to cool. The evidence shows that this was a revenge attack as the learned trial Judge properly found. J9 As to whether or not the 1st appellant acted in self defence, the evidence of DW4, Mutembo Siamwende, is telling on this point. On page 32 of the record, DW4 testified as follows:- “Japhet (the deceased) had already abandoned the knob kerry immediately after Japhet had hit Sunday with the knob kerry, he lost grip of it, it fell and it was at this point that Sunday picked the panga and hit Japhet on the flat side. Then Japhet fell to the ground.” On page 12 of the record, the evidence of PW1, was that; "Then Japhet fell down and the son to Sunday (1st appellant) Heridah (2nd appellant) got a knob kerry and hit Japhet on the ribs.” The evidence shows a concerted attack and a calculated one. Even after the deceased fell down after the 1st appellant hit him on the head, the 2nd appellant went ahead to hit the deceased with a knob kerry. Unfortunately, the head injury caused death. Aiming at the ■ head is almost always dangerous; a machete or panga is also a J10 dangerous weapon. With this clear evidence, it is hard to find extenuating circumstances. The provisions of Section 201(2) of the Penal Code are not available to the appellants. The case of Jack Chanda and Kennedy Chanda1, which was cited to illustrate the meaning of Section 201(2), cannot support the appellants’ case. This appeal fails and it is dismissed. F. N. M. Mumba ACTING DEPUTY CHIEF JUSTICE G. S. Phiri SUPREME COURT JUDGE M. E WANKI SUPREME COURT JUDGE