Attorney General v Maureen Nawakwi (APPEAL NO. 12/2011; SCZ/8/281/2010; Selected Judgement No. 15/2016) [2016] ZMSC 288 (9 June 2016)

• SELECTED JUDGMENT NO . 15/2016 (516) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 12/2011 SCZ/8/281/2010 BETWEEN: THE ATTORNEY GENERAL APPELLANT AND MAUREEN NAWAKWI RESPONDENT CORAM: Mwanamwambwa, Ag DCJ, Wood and Kaoma, JJS. On 7 th May, 20 15 and on 9 th June, 2016 For the Appellant: Ms. S. M . Wanjelani - Principal State Advocate . For the Respondent: No Appearance. JUDGMENT KAOivIA, JS, delivered the Judgment of the Court. Cases referred to: 1. Patel v Att01ney General (1969) ZR 97. 2. Anderson Kambela Mazo/ea and 2 others v Levy Patrick Mwanawasa and 2 others (2005) ZR 138. Statutes referred to: 1. The Dangerous Drugs Act, 1986 (Mauritius) 2. The Transfer of Persons Act, No. 1 0 of 2001 (Mauritius) SBII J2 (517) 3. The Transfer of Convicted Persons Act, No. 26 of 1998 of the Laws of Zambia, Section 4 (6). 4. The Prisons Act, Chapter 97 of the Laws of Zambia, section 140. 5 . The Constitution of Zambia, Chapte r 1 of th e Laws of Zambia, Articles 18(1) (4) and 23 (2) (3). 6 . The Narcotic Drugs and Psychotropic Substances Act, Chapter 96 of the Laws of Zambia. 7 . The Protection of Fundamental Rights Rules, Statutory Instrume nt No . 156 of 1969, Regulation 2 . The events leading to this appeal are that the respondent, a Zambian national, was convicted by the Mauritian Supreme Court on two counts of importing a nd trafficking in 292 .2grams of heroin powder contrary to that country's Dangerous Drugs Act of 1986 and she was sentenced to undergo penal servitude for life. The brief facts of the case were that upon her arrival in Mauritius from Bombay, India, en-route to Lusaka via Johannesburg on 17th July, 1996, the respondent was intercepted by a customs a11d excise officer who found a cylindrical packet concealed in her knickers and when she was subj ected to medical examination, four other cylindrical packets were retrieved from her rectum. The five cylindrical packets wrapped in tape were cleaned, weighed and a n a lys e d by the Forensic Science Laboratory and the contents were found to be heroin . SBII J3 (518) The respondent told the Mauritian authorities that she was used as courier by a male person called Sila whom she met in Bombay ·who promised her a commission had she successfully delivered the contraband to Mauritius. She further said that Sila inserted the four packets in her rectu1n and he told her to insert the fifth in her vagina since it was the biggest packet but because she could not do so, she kept the fifth packet in her knickers . The I - respondent admitted the charge and the lVIauritian Supreme Court in its judgment found her guilty as charged and sentenced her as foretasted with effect fron1 19 th March, 1998. Pursuant to the lVIauritian Transfer of Persons Act) JVo. 10 of 2001 and the Zambian Transfer of Convicted Persons Act) No. 26 of 1998> the respondent was transferred to Mukobeko Maximum Prison in Kabwe to serve the remainder of her sentence in Zambia. This was after the Minister of Home Affairs> on 6 th December> 2005 signed a Declaration a nd Certificate in respect of Foreign Convicted Person in accordance with the po,vers vested in him by section 140 (1) and (2) of the Prisons Act) Chapter 97 of the Laius of Zambia. SBII J4 (519) The Minister of Home Affairs d eclared that the Supreme Court of Mauritius is a co1npetent court to which section 140 of the Prisons Act applies; that the respondent was duly convicted by that court and was to be detaine d in Zambia as if she v.ras undergoing the s entence of a competent court of Zambia and that she b e treated and be subject to the provisions of the Pris ons Act during her detention until expiration of h er sentence. The Minister certified that the respondent was duly convicted and sentenced to penal servitude for life. By Originating Notice of J\/Iotion taken out on 3 0 th November, 2006, the respondent moved the High Court at Kabwe for determination of the following questions: "That the life sentence she was serving at Mukobeko Maxin1um Prison in Kabiue was inhe rited from the courts in Mauritius which do not have the s ame legal s ystem as Zambia)· that the offence she allegedly c07nmitted does not carry a life sentence in Zambia and thus s hould be reduced or defined)· that s he did not undergo a fair trial in Mauritiu s as a foreign national as the offence s he allegedly committed carries a public stigma in that country)· and lastly that at the time s he co mmitted the offence there SBII JS (520) was no law that permitted the inheritance of sentences imposed by foreign courts as such courts do not have jurisdiction in Zambia. )) The Originating Notice of Motion was supported by an Affidavit and a Further Affidavit in Support. The sum total of the two Affidavits was that upon being transferred from Mauritius, the respondent has b een in detention without confirmation of her sentence by any Zambian court henc e, the inherita nce of the sentence frorn Mauritius contravened Article 18 (1) and (4) of the Constitution of Zan1bia) Cap 1; that the sentence she was serving was unlawful as the courts in Mauritius have no jurisdiction over the Zambian courts; and that the offence she was alleged to have committed does not carry a life sentence in Zambia. Further, that she did not have a fair trial in Mauritius as such the life sentence was unjustified and should be quashed; that she was not accorded a proper h earing as the offence she was alleged to have committed carries stigma in Mauritius; and that her sentence b e commuted from life imprisonment to the maximum s entence in Zambia being a first offender as the sentence of life imprisonment comes with a sense of shock and in Zambia, the maximum sentence SBII J6 (521) for drug trafficking according to the Narcotic Drugs and Ps y chotropic Substances Act) Cap 96 of the Laws of Zambia is 10 years imprisonment and not life imprisonment . It was a lso asserted that the Mauritian Transfer of Persons Act) J'fo. 10 of 2001 en1powers the courts in home countries of transferred prisone rs to review and commute sentences according to the laws in their countries . The appellant filed a n affidavit in opposition 1n which it was deposed that the sentence and d etention of the r espondent at Mukobeko Maximum Prison were lawful as can be deduce d from the Declaration signed by the Minister of Home Affairs. And that the application to vary and commute the life sentence to 10 years was misconceived at law as there is no provision in the Mauritian Transf er of Persons Act) which empowers the Zambian courts to commute a sentence of a prisoner convicted in Mauritius . The learned High Court Judge considere d t h e affidavit evidence on record a nd the oral arguments by the parties . In his judgment dated 19 th May, 2 010, the Judge stated that under the Zambian Transfer of Convicted Persons Act) No. 26 of 1998 and the SBII .. J7 (522) Mauritian Transfer of Persons Act, No. 10 of 2001, it is perfectly legitin1ate for a convicted person to b e trans ferred from lVIauritius to Zambia and vice versa. Further, that the two Statutes taken toge ther with the de claration s ign ed by the Minister of Home Affairs, clearly showed that the respon dent's transfer from Mauritius to Zambia was 1n accordance with the laws of the Republic of Zambia and as such, perfectly in order and there was no n eed for any Zan1bian court to confirm the sentence at all. The Judge then considered section 6 of the lVIauritian Transfer of Persons Act which allows an offender transferr ed to that country to apply to a judge at chambers for a variation of the sentence imposed by a foreign court if it is in excess of the sentence for the kindred offen ce in Mauritius. The Judge found that under section 4 (6) of the Zambian Transfer of Co nvicted Persons Act, the respondent's application was not supported by the law. However, the learn ed Judge concluded that it is not reasonably justifiable in a free and democratic society for a sentence not in accordance with Zambian law to b e mainta ined s imply beca use it was imposed by a court of a country SBII .. e J8 (52 3) where a prisoner is transferred from as provided under section 4 (6) of the Transfer of Convicted Persons Act) ]'.fo. 26 of 1998 of the Laws of Zambia. Secondly, that it is not reasonably justifiable for a Zambian prisoner to b e made to serve a sentence longer than other prisoners convicted of kindred offences in Zambia simply because they were convicted outside Zambia a nd tra nsferred therefrom . The learned Judge was of the view that the purpose and intent of legislation providing for convicted persons to b e transferred to their countries of origin is to ensure that they s erve sentences 1n their own countries, and not for such transferred prisoners to stay in prisons longer than their Zambian counterparts who commit offences in Zambia and are tried under Zambian law. The learned Judge took the view that this is why the Mauritian Act provides for an application to a judge at chan1bers where the sentence is not 1n accord with the Mauritian law as this idea accords well with the respect or observance of national sovereignty and equal treatm ent for p eople who are simila rly placed, values highly cherished in a free and democratic society. SBII i e J9 (524) The learned Judge then held that section 4 (6) of the Zambian Transfer of Convicted Persons Act, is totally inconsistent with Article 23 (2) and (3) of the Constitution in that it introduced discriminatory treatment of offenders based on the country where they were convicted from. The Judge went on to strike down section 4 (6) of the Zambian Transfer of Convicted Persons Act and held that the High Court has power in appropriate cases to review any sentence imposed on a convicted prisoner transferred from another country to Zambia in order to ensure that it accords with Zambian law. The learned Judge also held that since the Zambian law does not provide for life sentence for the offence the respondent was convicted, this was an appropriate case to exercise such power. He then reviewed the sentence of life imprisonment imposed by the Mauritian Supreme Court as he considered it too excessive and he reduced it to 10 years imprisonment with effect from the date of the conviction . Discontented with the decision, the appellant appealed to this Court on two grounds. In ground 1, the appellant attacks the holding by the court below that Section 4 (6) of the Transfer of SBII JlO (525) Convicted Persons Act) ]Vo. 26 of 1998 is inconsistent with Article 2 3 (2 ) and (3) of the Constitutio n of Zambia. In ground 2, the appellant assails the learned trial Judge for reviewing the sentence imposed on the respondent by th e Mauritian Courts. On behalf of th e appellant, Ms . Wenj elani entirely relied on the appellant's filed H eads of Argument. In support of ground 1, it was contended that none of the r elief sought by the re s ponde nt in the court below touched on the constitutionality or lack thereof of the provisions of section 4 (6 ) of the Transfer of Convicted Pe rs ons Act) No. 26 of 1998 . It was argued that the r espondent did not in any of her pleadings raise th e issue of the provisions of the Act being unconstitutional despite being aware of the Act, pursuant to which s he was transferre d as evidenced by the signed declaration and certificate of the Minis ter of Home Affairs. It was furth er argued that the appellant was not made aware that the said section was b e ing ch a llenged in order to appropriately defend it. Thus, if the intention of the respondent had been to pursue her reme d y for the alleged infringement of Article 23 (2) and (3 ) of the Constitution) the pro cedure for commen cem e nt of an SBII J11 (526) action that p ertains to any allege d violations of the rights guaranteed 1n Articles 11 to 2 6 of the Co nstitution is clearly spelt out by law. That Regulation 2 of the Protection of Fundamental Rights Rules) Statutory Instnune nt No. 156 of 1969, provides that an application under Article 28 of the Constitution shall be made by way of a p etition. It was sub1nitted that this was complied with in the case of Patel v Attorney General1 in which the trial Judge held that the matters raised by that action were constitutiona l in nature and consequently, the action was properly commenced by way of a petition. It was therefore , argued that had the responde nt pleaded that the provisions of section 4 (6) of the Transfer of Convicted Persons Act) No. 26 of 1998 were unconstitutional, the a ppellant would have d efended the matter on the constitutional basis which require that breach of the fund a mental rights ought to b e commenced by way of petition . As authority, the case of Anderson Kamb e la Mazoka and two others v Levy Patrick Mw a nawas a and tiuo others2 , was cited in which we h eld, inter alia, that : SBII J12 (527) "The Junction of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to d e termine the matte rs in dispute between the parties. Once the pleadings have been closed, the parties are bound by their pleadings and the court has to take them as such." It was thus submitted that the court below err ed in law and fact by granting a relief that was neither pleaded nor sought by the respondent and which the appellant was not given an opportunity to defend. Regarding ground 2, which faults the court b elow for reviewing the sentence imposed on the respondent by the Mauritian courts, it was submitte d that the sentence was handed down by the Supreme Court of Mauritius after a full trial as evidenced by a copy of the judgment on the record of appeal. It was further submitted that the law that was used to transfer the respondent from Mauritius to Zambia was section 4 (6) of the Transfer of Convicted Persons Act, which provides that "the conviction or sentence of a convicted person transferred to Zarnbia shall not be subject to any appeal or review in Zambia ." It was also contended that the court below did state in its judgment that the respondent's 'transfer from Mauritius to Zambia SBII J13 (528) was in accordance with the Laws of the Republic of Zambia, and as such perfectly in order, and there was no need for any Zambian Court to confirm the sentence at all.' It was contended that the Mauritian law has a similar provision to ours except that that country's law provides for an application for r eview where the sentence exceeds that country's maximum but does not provide that a transferred convict can do so in the country to which the convict is transferred. Further, that the Zambian legislature did not intend that the Zambian courts act as appellate courts against sentences imposed by foreign courts. Rather it is intended to facilitate citizens convicted abroad to serve their sentences in Zambia and not to review their sentences in instances where the penalty in Zambia may be lower. It was pointed out that it remains to be seen if in instances where the penalty may b e higher in Zambia for a similar offence , any Zambian citizen convicted abroad in a jurisdiction where the penalty is lower, would agree to the sentence being enhanced to meet the Zambian standard or penalty. It was therefore, argued that SBII J14 (529) the review of the sentence by the court below was erroneous and not supported by the law. We were urged to allow the appeal. The respondent neither made an appearance nor filed Heads of Argument. We have considered the record of appeal and the arguments by the appellant. With regard to ground 1 of this appeal, the thrust of the appellant's arguments is that the court below erred when it held that section 4 (6) of the Transfer of Convicted Persons Act) No . 26 of 1998 is inconsistent with Article 23 (2) and (3) of the Constitution of Zambia because the constitutionality or otherwise of the said section was not pleaded. We have perused the Originating Notice of Motion filed by the respondent. We are inclined to agree with the appellant that none of the relief sought by the respondent touched on the constitutionality or otherwise of section 4 (6) of the Transfer of Convicted Persons Act) No. 26 of 1998. What the respondent sought before the High Court was essentially for the court to determine if she was lavvfully detained at Mukobeko Maximum Prison in accordance with Zambian law. SBII JlS (530) In her affidavit evidence, the respondent did not allege any discrimination in the manner she was transferred from Mauritius to Mukobeko Maximum Prison but she contended that the sentence imposed on h er by the Mauritian court contravened Article 18 (1) and (4) of the Zambian Constitution as the same was merely inherited and did not bind the Zambian jurisdiction. For clarity, Article 18 (1) and (4) respectively provides as follows:- "(1) (4) If any p e rson is charged with a criminal offence, then, unless the charge is withdrawn, the case s hall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. A person shall not be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute s uch an offence, and a p enalty s hall not be imposed for any criminal offence that is severer in degree or d escription than the maximum p enalty that might have been impose d for that offence at the time it was committed." It is quite clear that the above prov1s1ons are intended to secure the protection of the law for any person who is tried in the Zambian courts and have nothing to do with discrimination. Even assuming that the r espondent's case was premised on discrimination, Article 23 (2) and (3) of the Constitution does not SBII J1 6 (531) envisage the discrimination that the learned Judge deduced in the circun1stances of this case. Moreover, we agree with the appellant's argument that if the respondent's intention was to challenge the constitutionality of section 4 (6) of the Transfer of Convicted Persons Act) No. 26 of 1998, then the appropriate mode of commencement of action should have been by way of petition as provided by Regulation 2 of the Protection of Fundamental Rights Rules, Statutory Jnstru1nent No. 156 of 1969 which was the position the court confirmed in the case of Patel v Attorney General1. Quite clearly, had the matter commenced by petition alleging that section 4 (6) of the Transfer of Convicted Persons Act is unconstitutional for being discriminatory as provided under Article 23 (2) and (3) of the Constitution, then the appellant would have had an opportunity to prepare and defend the case on that basis . We therefore, uphold ground 1 as it has merit. In relation to ground 2, the gist of the appellant 's arguments is that the learned judge in the court below had no jurisdiction to review the sentence imposed on the respondent by the Mauritian SBII Jl7 (532) court as section 4 (6) of the Transfer of Convicted Persons Act does not provide for review of the sentence imposed by a foreign court as it is merely inte nded to facilitate the transfer of Zambian citizens to serve sentences imposed by foreign courts in their home country. We have considered the arguments on this ground . For avoidance of doubt, we h ereunder reproduce section 4 (6) of the Transfer of Convicted Pe rsons Act. It reads as follows : I "(6) The conviction or sentence of a convicted person transfened to Za mbia under this Act s hall not be subject to any appeal or review in Zambia" (Underlining ours for emphasis only) . It is clear from the above that by the use of the word "sharf', the intention of the legislature was not to allow for appeals or reviews of convictions or sentences imposed by courts in other jurisdictions when a convict or prisoner is transferred to Zambia. This follows that the courts in Zambia have not b een clothed with jurisdiction to r eview sentences imposed by foreign courts when a convict is transferred to serve their sentence in Zambia. The position vie take is that the Judge in the court below was swayed into delivering a moral judgment because despite finding that the transfer of the r espondent fro1n l\!Iauritius to Zambia was in SBII J18 (533) accord with the lav,s of the Republic of Zambia and as such perfectly in order and there was no need for any Zan1. bian court to confirm the sentence at all, he went on to hold that section 4 (6) of the Transfer of Convicted Persons Act is inconsistent with the Article 23 (2) and (3) of the Constitution in that it introduced discriminatory treatment of offenders based on the country where they were convicted from. In our considered view, it 1s clear that unlike the Mauritian Transfer of Persons Act which allows Mauritian courts to review or vary sentences imposed by courts in other jurisdictions to bring them in conformity with kindred offences under Mauritian law, section 4 (6) of the Zambian Transfer of Convicted Persons Act does not. So, whether or not the Narcotic Drugs and Psychotropic Substances Act) Cap 96 of the Laws of Zambia provides for a lesser sentence than that imposed in Mauritius for drug trafficking, the sentence imposed on the respondent by the Mauritian court was not reviewable by the Zambian courts. Perhaps, we could only invite the legislature to consider amending the law so that it is in conformity with international I • SBII J19 (534) practice such as 1s the case with Mauritian law so that when Zambian convicts are transferred from other jurisdictions to serve sentences in Zambia, their sentences should be made reviewable by the Zambian courts in order to re-align them with kindred offences in Zambia. The sum total is that this appeal has merit and we a llow it. I We order that Maureen Nawak,Ni be traced, apprehended and taken back to prison to s erve her sentence. In the circumstances of this case, we make no order as to costs. " A . . 'wooD SUPREME c6URT JUDGE -..::-:----1l71~~- ······-·-·- _;.;;, R. M. C. KAOMA SUPREME COURT JUDGE SBII