The People v Japhet Chataba (Convict No. 1) and Steven Sambo (Convict No. 2) (HBR/06/2018) [2019] ZMHC 40 (27 November 2019)

BETWEEN: V JAPHET CHATABA (Convict No.1) STEVEN SAMBO (Convict No. 2) Before: The Hon. Mr. Justice Charles Zulu For the State: For the Convicts: Mr. D. Akalemwa, State Advocate, National Prosecution Authority. Mr. D. Libati, Messrs Abha Patel & Associates. JUDGMENT Cases referred to: 1. Mwewa Murano v The People (2004) Z. R. 207. 2. Dorothy Mutale and Richard Phiri v The People (1997) S. J. 51 (S. C) 3. Attorney General v Kakoma (1975) Z. R. 212. 4. Attorney- General v Marcus Kampamba Achiume (1983) Z. R. 1 (S. C. J Legislation referred to: 1. The Constitution of Zambia (Amendment) 2016. 2. The Penal Code Chapter 87 of the Laws of Zambia. 3. The Criminal Procedure Code Chapter 88 of the Laws of Zambia. -J2- This case was remitted to the High Court for sentencing in terms of section of 21 7 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia. The two convicts were facing two separate charges of unnatural offences contrary to sections 155(a) and 155(c) of the Penal Code Chapter 87 of the Laws of Zambia as read together with Act no. 15 of 2005. Dissatisfied with their convictions, the convicts opted to seek a review of their convictions before this Court pursuant to section 338 ( 1) (a) (i) of the Criminal Procedure Code Chapter 88 of the Laws of Zambia and Article 134 (c) of the Constitution of Zambia (Amendment} 2016. The same respectively provides: 338. (1) In the case of any proceedings in a subordinate court, the record of which has been called for, or which otherwise comes to its knowledge, the High Court may- (a) in the case of a conviction- (i) con.firm, vary or reverse the decision of the subordinate court, or order that the person convicted be retried by a subordinate court of competent jurisdiction or by the High Court, or make such other order in the matter as to it may seem just, and may by such order exercise any power which the subordinate court _might have exercised; And Article 134 (c) of the Constitution provides: 134. The High Court has, subject to Article 128- (c) jurisdiction to review decisions, as prescribed. Notwithstanding the general provisions in section 339 of Criminal Procedure Code Chapter 88 of the Laws of Zambia that: no party has the right to be heard, either personally or by advocate when the High Court is exercising its powers of revision, I, nevertheless opted to exercise my discretion in favour of the proviso, which state that: the High Court may if it thinks fit when exercising such powers hear any party either -J3- personally or by advocate . To this end the advocate for the convicts relied on their "heads of argument" in support of reversing the decision of the subordinate court to convict the two convicts. The State made no submissions and left the matter to the discretion of the Court. In count one, the first convict, Japhet Chataba was charged with unnatural offence contrary to section 155 (a) of the Penal Code Chapter 87 of the Laws of Zambia. And the particulars of the offence alleged that, on the 25th day of August 2017, at Kapiri Mposhi District of the Central Province of the Republic Zambia, the convict herein Japhet Chataba had carnal knowledge of Steven Samba against the order of nature. In count two, the second convict, Steven Samba was charged with unnatural offence contrary to section 155(c) of the Penal Code Chapter 87 of the Laws of Zambia as read together with Act number 15 of 2005 of the Laws of Zambia. And the particulars of the offence alleged that on 25th day of August, 2017, at Kapiri Mposhi District of the Central Province of the Republic of Zambia, the convict, Steven Samba did permit a male person, Japhet Chataba to have carnal knowledge of him against the order of nature. The case was heard and determined by the Magistrate of the first Class sitting at Kapiri Mposhi Subordinate Courts. The State called five prosecution witnesses. And after finding the convicts with a case to answer respectively, the convicts elected to exercise their rights to remain silent. The prosecution evidence in the court below as distilled from the record and the judgment of the court below is that, on August, 25, 2017, at about 15:00hours, the convicts booked room 16 at Chanika Lodge 1n Kapiri Mposhi district. At the lodge they were attended to by a Supervisor -J4- of the said lodge named Lisa Mangala who testified as the first prosecution witness (PW 1) . Ten ( 10) minutes after lodging, the first convict, Japhet Chataba returned to the reception to buy condoms from PWl. PWl registered surprise how the two were to have sex since both were male. The first Convict is reported to have responded that, he was going to have sex with the second convict, Steven Sambo. Upon hearing this, PWl decided to go behind room 16 to eavesdrop and snoop. When PWl peeped through the open window, she saw the first convict having sexual intercourse with the second convict against the order of nature otherwise called sodomy. When PWl saw this, she alerted others including PW3, Abel Sampa who also witnessed through the window the said act. On the second occasion when PW 1 returned to the room after notifying her sister, and when she peeped again through the window, she found and saw the first convict beating the second convict, and the latter was complaining that he was tired, in the process the latter passed his phone through the same window to PW 1 and requested to be rescued because he felt he was under threat of being killed by the first convict. It was reported that later the first convict was seen outside the room half naked pursuing the second convict who was also half naked in order to restrain ,----,_ the latter from abandoning him. The medical examination on both convicts was only done by PW4, Dr. Koko, a Medical General Practitioner, ten days after the event and whose findings did not support the allegations of sodomy, nevertheless, the doctor did not exclude the possibility of sodomy considering the amount of time that had elapsed from the alleged date of the incident to the date of the medical examination. -JS- The trial Magistrate was satisfied that the prosecution had proved both cases against the first and second convict respectively beyond reasonable doubt, he thus found them guilt and convicted them accordingly. Counsel for the convicts, Mr. Libati, in his submissions seeking to reverse the decision of the court below, sought to rely on the arguments stated hereinafter. Firstly, that the convicts were convicted on the basis that that they had opted to exercise their constitutional right to remain silent, which conduct on the part of the trial Magistrate was alleged to be in .------_ contravention of their guaranteed rights in Article 18(2}(7} of the Constitution of Zambia. It was argued that the trial Magistrate fell in error for penalizing the convicts for opting not to respond to allegations levelled against them. The basis for this complaint 1s allegedly derived from the sentiments expressed by the trial Magistrate at page J 24 of the judgment to the effect that: ,,--.., On the other hand, r agree with the State's submission on Simutenda v the People (1975} ZR 294 and The People v Kalenga and Mafumu (1968} ZR 181 as regards the accused electing to remain silent on the evidence available .... On the accused persons option to remain silent in the face of unchallenged, reliable and credible evidence from the inescapable and only reasonable prosecution, inference drawn from the facts herein is that the accused persons are guilty the only Secondly, that the trial court disregarded the presumption of innocence. Thirdly, that the Prosecution failed to discharge its burden of proof by way of proving the case beyond reasonable doubt, and that there was no evidence to warrant the convictions. Further, that the trial court opted -J6- to patch up the gaps in the prosecution evidence. In this respect reference was made to the case of Mwewa Murono v The People (2004} ZR 207, wherein the Supreme Court gave the following guidance: In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution. In addition to the above, Counsel argued that the trial Court failed to adhere to the requirement that, in criminal matters all inferences that create doubt should be resolved in favour of the accused person. That when the trial Court was called to deal with challenges raised against PWl and PW3, regarding their alleged inconsistencies, the trial court in its judgment at page JlS simply stated: Counsel submitted that PWl and PW3's evidence was inconsistent as PWl or PW3 could not recall if they saw each other during the event. Counsel also submitted that there was some inconsistence in the distance from the window to where the accused were allegedly having sexual intercourse. In my view the distance of 2,5 meters stated under cross examination cannot be said to amount to inconsistence. In support of his argument Counsel made reference to the case of Dorothy Mutale and Richard Phiri v the People (1997} S. J. No. 51 (S. C} wherein it was held: Where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the Court will adopt the one, which is more favorable to an accused if there is nothing in the case that exclude such inference. Finally, Counsel for the convicts urged the Court to reverse the decision of the trial court and quash the convictions thereof. -J7- I have carefully examined the record herein and considered the arguments by the convicts tendered by Counsel. I am mindful that the process invoked herein, is one for review rather than an appeal. It is therefore apt to state that section 337 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia defines the purview and object of a review, which is for purposes of the High Court satisfying itself as to the correctness, legality and or propriety of any finding, sentence or order of the court below and as to the regularity of any proceedings thereunder. And for the avoidance of doubt section 337 of the said Act is hereby reproduced: The High Court may call for and examine the record of any criminal proceedings before any subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed; and as to the regularity of any proceedings of any such subordinate court. It is clear that in exercising its revisionary jurisdiction, the High Court must judiciously address its mind to issues purely of substantive law and/ or adjective law relevant to the case to test the correctness, legality and propriety of the Subordinate court's decision(s) and the regularity of the proceedings in question. Therefore, it appears to me that there is no .,.---,,. room for review of a decision or finding of a lower court purely on the basis of reversing or confirming findings of facts in the hope of reaching an alternative verdict unless such findings are incorrect, illegal or improper within the object of section 337 of the Criminal Procedure Code Act. Having perused the arguments by the convicts, I note the same is mostly premised on challenging the findings of fact made by the trial court. Notwithstanding that this is a review, cases determined on appeal -J8- provide guidance, which is still helpful 1n this case. Firstly, I have recourse to the case of Attorney-General v Kakoma (1975} Z. R~ 212 (S. C. J wherein it was held A court is entitled to make findings of fact where the parties advance directly conflicting stories, and the court must make those findings on the evidence before it and having seen and heard the witnesses giving that evidence. Furthermore, in the memorable case of the Attorney General v Marcus Kampamba Achiume (1983} Z. R 1 it was held: The appeal court will not reverse findings of fact made by a trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. Needless to say, the trial Magistrate had occasion to see and hear the witnesses, which opportunity this Court does not enjoy. The trial Magistrate reached his findings of facts after assessing the truthfulness and reliability of the witnesses leading to his conclusion that the convicts were guilty as charged. Therefore, the trial court cannot be faulted for making findings of facts and there is no basis via review to substitute the said findings of the trial Magistrate. I further find no irregularity in the proceedings and I find no impropriety in the decision the trial court arrived at. And for the avoidance of doubt it should be recorded that the convictions of the two convicts herein was based on the evidence adduced by the prosecution rather than on the allegation that the convicts were penalized for electing to remain silent. Equally, the record does not show shortcomings or deficiencies in the prosecution's case or in the proceedings, if any, which were irregularly cured by the Magistrate in his findings. -J9- Furthermore, the trial court did not disregard the presumption of innocence constitutionally afforded to the convicts. In his judgment, the trial Magistrate duly warned himself that the burden of proof of proving the case beyond reasonable doubt was shouldered by the Prosecution. He further recognized the rights of the convicts to remain silent. The trial court's sentiments in his judgment as to the consequence of choosing to remain silent in the face of the prosecution evidence, did not in any way take away their rights and does not in any way render his final decision incorrect or irregular. The convicts' Counsel also raised the issue pertaining to the decision of the trial Magistrate regarding the testimony of the medical doctor whose findings, the convicts' Counsel regarded was unfavourable to the prosecution's case. According to Counsel the findings ought to have persuaded the trial court to make a favourable inference in favour of the convicts. The decision of the trial court cannot be said to be incorrect or illegal or improper in anyway. In fact, the trial Magistrate's decision in this regard was sure-footed in the well settled principles of law that, courts are entitled to disregard the opinion of the medical doctor and make its own independent decision based on the evidence before it. ( vide Mangomed Gasanaiieu v The People (2010} Z. R. Vol 2. 132). In the face of the evidence of eye witnesses which according to the court below was corroborated there was no room for multiple inferences to be drawn. The trial Magistrate in his judgment was cautious and categorical when he stated that: Nonetheless, with or without the Doctor's findings, in my view I would still have arrived at the just decision in the final analysis taking into account the circumstances of the case. In fact the Doctor's findings amount to medical opinion of which -JlO- the court at the end makes its own decisions on the overall evidence. It is, therefore, clear that there is no basis to justify the exercise of revisionary powers to quash the convictions. In view of the foregoing, I come to the conclusion that all in all there is no basis to warrant the quashing of the proceedings, judgment and the convictions thereof. Accordingly, the judgment of the trial court is hereby confirmed and now what remains is sentencing of the convicts by this Court. • DELIVERED THE~ tL DAY OF NOVEMBER 2019. e __ ~_ ~. THE HON. MR. JUSTICE CHARLES ZULU