The People v Jonathan Hajaya and Ors (HP/230/2022) [2022] ZMHC 67 (14 November 2022)

IN THE HIGH COURT FOR ZAMBIA HP/230/2022 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN THE PEOPLE vs JONATHAN HAJAYA 1sT ACCUSED (Al) OSBORNE MAMBO 2ND ACCUSED (A2) TYSON HACHIYAKO 3RD ACCUSED (A3) BEFORE HONOURABLE MR. JUSTICE KENNETH MULIFE APPEARANCES: For the Sta te : Ms. 0. Muhwcnde - Senior State Advocate, Mr. V. Choongo - State Advocate Mrs. Sikanyika - State Advocates NA1JONAL PROSECUTIONS AUTHORITY. For the Accused: Ms. M. Nzala - Legal Aid Counsel LEGAL AID BOARD. JUDGMENT CASES REFERRED TO: 1. Mwewa Murano v The People (2004) Z. R. 207 2. R v Larkin (1942] 29 Cr App R 18 J. Simon Malambo Choka v The People (1978) Z. R. 243 4. Lube ndae v The People (1983) Z. R. 54 5. The People v Kalulu (1972) Z. R. 126 6. Woolmington v DPP /1935] AC 462 7. Chuba v The People (1976) Z. R. 272 8. Mpande v The People (1977) Z. R. 440 9. R v Church /1965] 2 All E. R. 72 Legislation referred to: 1. The Penal Code, Chapte r 87 of the Laws of Zambia. 2 . Inland Wate rs and Shipping Act, Chapter 466 of the Laws of Zambia. Works referred to: 1. Flalsbury 's Laws of England, 4 th Edition 1.0 INTRODUCTION 1. 1 In t hi s m a tter , th e Accused persons (Al - A3), stand ch a rged with a nd plead ed not guilty to six Counts of the offen ce of manslaughter contra ry to Section 199 of the Pen a l Code, Cha pter 87 of the Laws of Zambia (herein after r eferred to a s 'Ca p. 87 '). 1. 2 The particulars of offence in Count 1 allege that the Accused p ersons, on the 1 st day of January 2 022 at J2 Siavonga in the Siavonga District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, did unlawfully cause the death of ALLAN MWAANGA. 1. 3 The particulars of offence in Count 2 allege that the Accused persons on the 1 sL day of January 2022 at Siavonga in the Siavonga District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, did unlawfully cause the death of RONALD LIBUKU. 1.4 The Particulars of the offence in Count three were that the Accused persons on the IsL day of January 2 022 at Siavonga in the Siavonga District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, did unlawfully cause the death of RODWELL CHILESHE. 1. 5 The particulars of the offence in Count four alleae b that the Accused persons on the 1 s L day of January 2022 at Siavonga in the Siavonga District of the Lusaka Province of the Republic of Zambia, jointly J3 and whilst acting together, did unlawfully cause the death of GOODSON HAMAILA. 1.6 The particulars of the offence in Count five allege that the Accused persons on the 1st day of January 2022 at Siavonga in the Siavonga. District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, did unlawfully cause the death of ~ NIZA MUCHIBILA. 1.7 The particulars of the offence in Count six allege that the Accused persons on the 1 s t day of January 2022 a t Siavonga in the Siavonga District of the Lusaka Province of the Republic of Zambia, jointly and whilst a cting together, did unlawfully cause the death of ZEBRON SHIKAMBO. f. . 2.0 INGREDIENTS AND BURDEN OF PROOF 2.1 I warn n1yself at the outset that in crin1inal cases, the burden of proving every element of the offence and proving the guilt of the Accused persons from the beginning to the end lies on the \. J4 prosecution and the required standard is b eyond reasonable doubt. This was enunciated in the case of Mwewa Murono v The People. r1J 2 • 2 In view of the above there is no burden which rests on the ' Accused persons to prove their innocence but are entitled to give evidence and call witnesses or elect to remain silent. 2.3 At the close of the case, if it appears that there is any doubt that has been cast on the prosecution's case, that doubt will be determined in favour of the Accused persons. 2.4 In order to secure a conviction, the prosecution must satisfy me on each and every ingredie nt of the offence charged. The offence of manslaughter is a n chored on section 199 of Cap. 87 which provides as follows: "Any person who by an unlawful act or omiss ion causes the death of another person is guilty of the felony termed "man-slaughter". An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm". J5 2 ·5 In this matter therefore, in order to establish the guilt of the Accused persons, the prosecution must prove that the Accused persons caused the death of the deceased persons by an unlawful act or omission. 2.6 I shall revert to this aspect in the due course. 3.0. SUMMARY OF EVIDENCE 3.0.1. Evidence on behalf of the Prosecution 3.0.1.1.1 shall now consider the prosecution's evidence. It was supplied by seven witnesses. The first witness, PWl, was Bwembya Nseluka. He told the Court that at the material time , he owned three fishing boats which he used for fishing on Lake Kariba. The fleet of boats included the boat in issue namely "Sunrise II" bearing registration number KVF 18 (hereinafter referred to as "the boat"). He stated that the boat was registered with the Maritime Departn1ent in the Ministry of Transport and Communications and proof of this aspect is the certificate of registration which he identified and was marked as ID2. J6 3 .0. l .2 . He told the Court that he employed the three Accused persons to work on the boat. A 1 was employed as a Coxswain or Captain and his duties were to drive the boat and to give assignments to his crew members on what to do when fishing. That A 1 had a valid Launch Master Certificate to drive this vessel which he identified and was marked as ID 1 for identification purposes. A2 and A3 were employed as his crew members on the boat and their duties were to lift the net when fishing and to attend to any other assignment given to them by the capta in (Al) . 3.0.1.3. The witness narrated that the fishing boat operated by the Accused persons had safety measures such as life jackets, a whistle and a sand buc ke t but there were no life boats b ecause the vessel was s mall a nd that was not a requirement for a boat of that size in compliance with the boat's Registration Certificate. He narrated that his boat was only allowed to carry a maximum number of four p eople . 3 .0. 1.4. It was his testimony that on 1 s t January 2022 around 18:30 hours, he received a call from Christopher Siachiti who was J7 one of his workers to the effect that there was a search party ' instituted for the deceased persons who had drowned in Lake Kariba and that he was engaged to help with the lighting from the boat which used a generator. He stated that Christopher Siachiti also informed him that the deceased persons had been swimming in the Lake and playing on the boat but jumped off when Al left with the boat and they drowned when they remained. 3.0.1.5. The witness explained that he called Al to inquire about the incident and he confirmed that the boat was docked at the h a bour before the Accused persons went fishing. He explained further that A 1 informed him that there were p eople who were using the boat as a diving board as they were swimming. f-Ie recalled that Al informed him that b efore the boat le ft, h e told the people to get off the boat. The witness told the Court that Al learnt of the incident from him as he was not aware of what transpired a t the scene after h e left. 3.0.1.6. He stated that Christopher Siachiti later informed him that the search party h a d been h a lted and would continue the following d ay. The witness s tated that h e suspected that two ~J8 bodies had been found on the material day. He narrated that the fallowing day, he received a call from a Marine Officer in the Police Marine Department who informed him that he needed to take the Accused persons for questioning. He stated that the following day, he took the Accused persons who gave their statements and the Marine Police then asked them to report to the Criminal Investigations Department of the Zambia Police Service. He told the Court that the Accused Persons' statements were also recorded at the Zambia Police Service in Siavonga. 3. 0. 1. 7. It was PW l 's evidence that the Accused persons were then arrested for the offence of manslaughter of the deceased p ersons herein . 3.0. 1.8. During cross-examination by Defence Counsel Ms. Nzala, the witness admitted that he learnt of the details of the incident from other people as h e was not present at the scene on the material day. He also admitted that he could not confirm if the people who were jumping off the boat did it with the knowledge of the Accused persons. He admitted further that he could not have known if people were jumping off the boat J9 as it was leaving. The witness confirmed that it was a practice for a lot of people at their own will to go swimming at the Lake during the new year period. The witness also confirmed that A 1 informed him that people had already disembarked from the boat at the time that it was leaving and that A 1 was not aware of whatever transpired after the boat left. He confirmed that there were safety measures on the boat but that h e did not produce the life jackets in Court. 3.0. l.9. PW2 was Lisulo Mubiana, an Inspector in the Zambia Police Service. He told the Court that he was a trained Coxswain and Diver and some o f his duties involved retrieving objects from \Vaters inc luding dead bodies. 3.0. 1.10. I-Ic recalled that on 1st January 2022 at around 19:00 hours, h e was on his way to report for land patrol duties when h e r eceived a report from the m embers of the public that six youths from th e SDA Church who were camped at Siavonga Secondary School had drowned in Lake Kariba in Siavonga at a place called Chi1nutuzi. The witness stated that he changed course and went to Chimutuzi. JlO 3 · O · l .1 1; He narrated that when he arrived at Chimu tuzi around 19:00 hours, h e found a group of civilians and police officers who were already gathered to h elp with the search. He also narrated that he found two dead bodies on the shore of the Lake. He stated that the two dead bodies he found ashore were amongst the deceased p ersons who w ere alleged to have drowned. He told the Court that he took over the coordination of the s earch. 3.0.1.12. PW2 also told the Court that he called PWl so that his other vessel which was docked on the scene, could be used to light up the scene. He stated that he and the people present managed to retrieve three more bodies which were found about ten metres away from the shore . He told the Court that the depth of th e water where the bodies were retrieved was about two metres. He stated that the search party could not continue because it became dark and d a ngerous to continue . He s tated that lhe last body was retrieved the following day around 0 8 :00 hours and was retrieved at the same scene where the other bodies were recovered. He clarified that the bodies were r etrieved u n d er water. Jl 1 ( fJ 3 · O. l .13 · His testimony was that the bodies were taken to the Siavonga Hospital Mortuary and it was while he was still at the hospital that one of the eye-witnesses he came to know as Shepherd (PW3), informed him that the deceased persons were using the boat in issue. 3. 0. 1.14. PW2 stated that he then summoned the owner of the boat (PWl) together with the three crew members (Al to A3) for the boat who turned out to be PWI 's employees on the said boat. PW2 told the court that he knew Al before. He explained that A 1 was the Captain and therefore in charge of the boat and it was his duty to secure the lives of everyone who comes on board the boat. He further clarified that where a p erson is a Captain of a fishing boat such person's duties include moving th e vessel to where they should fish from. f 3.0.1.15. After m eeting PW 1 and the Accused persons, PW2 confiscated ID J from A 1 and ID2 from PWl. l-Ie stated that thereafter he h a nded over PW 1 and the Accused persons to the Criminal Investigations Departine nt (CID) for further investigations. Jl 2 3 .0 . l. l.6 . During cross-examination by Ms. Nzala, the witness stated that he has been a Marine Police Officer for eight years. H e also stated that it was not his first time to retrieve dead bodies from the lake. He also told the court that when a search for a dead body from the Lake was conducted, it was usual to widen the search area further than the suspected site depending on the weather conditions and the current of the water because, it ·was usually possible that the body would not be found on the point of drowning as it could be drifted away by the weather and the water dynamics. The witness stated further that in a case of drowning, it was not always the case that a body would move away from the point of drowning. He stated that the search area could be widened wh ere he was not sure where the body was likely to be found. The witness a dmitted that h e did not tell the court the condition of the weather on the material day so as to a scertain whether the d eceased 's bodies had moved away from the point of drowning but stated that he could confirm as a matter of fact that the d eceased bodies were found at the site where they drowned. I-le told the court that when he went a13 to the scene, he found a boat docked at the scene but this was not the designated habour. 3.0.1.17. The witness told the Court that he did not carry out any investigations in the matter and his knowledge as to Al's role in this matter was obtained from ID 1 and the information given by PWl. He admitted that he did not witness the incident on the material day and was just informed of what ~ transpired. 3.0.1.18. ln re-examination by Mrs. Sikanyika, the witness told the Court that the moving of a body from the place of drowning d epended on whether it is windy or the water current is strong. 3.0.1.19. PW3 was Shepherd Chisulo. He told the Court that he was present at the scene when the events leading to death of the Deceased persons in this matter occurred. I-le went to the scene on the material day between 13: 00 hours and 14: 00 hours whereupon he sat by the Lake side browsing on his phone and watching members of the SDA Church svvimming. That between 15:00 hours and 16:00 hours, the subject boat came to dock where the people were S\vimming. One portion Jl4 of the boat was in the water whereas the other portion was resting on the sand. 3.0.1.20. PW3 told the Court that the boat docked at that spot for about twenty minutes during which the people who were swimming used it as a diving board to jump into the Lake. After twenty minutes, the Coxswain started the engine and reversing the boat into the water whilst people were still on board. PW2 was watching the boat from a distance of twenty m eters and the visibility was clear as the sun was still shining. That as the boat reversed into the water, the people on board s tarted to jump from the sides of the boat into the wate r. Eventua lly, the boat turned to face the deep waters but people were still jumping from it into the water. That after the boa t h a d le ft, the people on the beach started asking for the other s' wher eabouts and he could hear the names of the people they were searching for. 3 .0 . 1.21. It is PW3's testimony that h e is familia r with Lake Kariba as he was born around that area and had sv.ram on the Lake before . He told the Court that the shallow waters at the site where people were jumping from the boat into the lake was a Jl5 ' I "! i ,, stretch of about t en meters and the d epth of the water on that stretch is about 1.6 meters. That the boat turned into the deep waters at a distance of about twenty meters off the shore and that at the spot where the boat turned, the water is deep but he did not mea sure the depth because he did not participate in retrieving the dead bodies from the Lake. 3.0 . 1.22 . PW3 stated that when the swimmers started s earching for each other, he drew n ear to them and learnt that there were m a le p ersons who were missing. He advised them to go and report the incident to the Police and he gave them directions. On his part, PW3 search ed his phonebook for the mobile numbers for divers and found for one Douglas, a local diver. Douglas came to the scene but after the police marine had already arrived between 17:00 hours and 18:00 hours. The Police marines and local divers started s earching for the d rown ed bodies. They retrieved three bodies. When it got dark, they ask ed for light from another boat belonging to the same company that was docked a round the same site. Light was supplied and they recovered two more bodies. 3.0.1.23. PW3 gave a statement to the police. J16 I: l l·· ( I J ' l 3 .0. l .24. Under cross-examination by Ms. Nzala, in addition to what he stated in examination-in-chief, PW3 stated as follows: that · on the material day, the Lake was open to members of the public and there were many people around swimming; that swimming on the Lake is a usual life style for people in that area; that the people who do not know how to swim would just be by the Lake and pour water on their bodies; that on ( i the material day p eople swam and dived into the Lake from the subject out of their own will; that he did not pay attention to the number of people who were on the boat; that from a point \Vhere the boat was dock ed and as it was reversing up to 10 m e ters, it is shallow but the boat turned at a distance of 20 meters and that according to him, the people who were swimming knew how to swim. ( 3.0.1.25 . There was no re-examination. 3.0.1.26. PW4 was Cornelius Chileshe Kasapula, a brother to the La te Rodwell Mulen ga Chileshe, the Deceas ed in Count 3 in this matter. Suffice from the outset to state that unknown to the Court, this witness h ad b een present in Court when PW 1- PW3 te stified. However, the witness told the Court the Jl 7 following: that on 31 st December 2021, he was invited by his late brother to join him in a Camp meeting for the SDA Church that was being held in Siavonga. PW4 accepted the invitation and travelled from Lusaka where he was to Siavonga on the same day and arrived between 21 :00 hours and 22:00 hours . On 1s1 January 2022, PW4 alongsid e six other SDA members who included the Late Rodwell Mulenga Chileshe decided to go swimming in Lake Kariba. Upon reaching the harbor, they found more than fifty other m embe rs of their church who were also attending the same Camp meeting. They were swimming and it was between 15:00 hours and 16 :00 hours. PW4's group joined in swimming. In the process a boat that had three crew m e mbe rs came to dock b esides the Lake ·whereupon, over thirty members of the SDA started to use it as a diving board to dive into the Lake a s one portion of the boat \;vas on the land whereas the other portion was in the water. The boat crew m embers however saw the swimmers use the boat in this manner. J18 3 .o. 1.27 • It was PW4's testimony that the swimmers used the boat for about 20 minutes during which the Coxswain had gone to the market to buy something but the other two members of the crew had throughout been on the boat. That when the Coxswain arrived, he found the swimmers still using the boat. The Coxswain started the engine of the boat without telling the swimmers anything. The other two members of the ~ crew did not also speak to the swimmers. Slowly, the boat started to move into the deep waters from the shore and the S\Nimmers started jumping from it into the water. The Coxswain sa\.\1 them jump into the water but he said nothing. Similarly, the other two members of the crew said nothing. PW4 and tvvo of his friends (Zebron and John) jumped off the boat into the Lake when the boat reached a point where there was a beacon going in to the other side of the Lake. That was a distance of about twenty meters from the shore. 3.0.1. 28. PW4 told the Court that the swimmers jumped off the boat due to panic as they did not knovv vvhere the boat was going since they were not told by the members of the crew. That after jumping into the water, PW4 and many other swimmers J19 struggled to swim back to the shore as the boat was in deep waters. That notwithstanding, the boat kept on going. PW4 was helped by one of the swimmers who knew how to swim, to make it to the shore. It was then that he discovered that the Deceased p e rsons herein had not survived. 3.0.1.29. That one of the SDA Church Leaders, Michael Hakalale, who was also one of the swimmers tried to communicate with the Coxswain to consult if there were still some people on the boat as it h a d gone. The response was that save for the three members of the crew, there were no other people on the boat. The survivors were told to go back to the Camp at Siavonga Secondary School. 3.0.1. 30. During cross-examination by Ms. Nzala, PW4 stated as fallows: th at the swimmers went swimming without the permission of the Camp lead ers - the presidents and that the said presidents were not part of the people who ·were at the Lake at the material time; that the swimmers used the boat in issue as a diving board to jump into the Lake, on their own will but without the p ern1ission of the boat cre\iv m em b ers· ' that a person who was not a member of the SDA church J20 members attending the Camp meeting would not distinguish members of the SDA Church from none members among the swimmers on the material day but that there were other members of the public at the shore; that due to a hive of activities on the material day, it was quite difficult for him to observe everything that was taking place on the boat. 3.0.1.31. PW4 told the Court that at the time the boat started off, it did not need to be pushed into the water in order for it to move; that it is not true that by the time the boat was leaving, all the swimmers had jumped off the boat and were already in t h e water ; th a t in his testimony he did not mention if the b oat crew m e mbe rs knew that he was struggling to swim after jumping off th e boa t when it was leaving. 3.0.1.32 . During r e-examination by Mr. Choongo, PW4 clarified as follows: tha t when the boat started to move away from the shore, h e could not tell the position where the crew members were because ther e were a number of the swimmers who started to jump off the boat. 3.0.1.33. PWS was Saul Mbewe, a Surveyor of Vessels under the Department of Marine and Inland Waterways in the Ministry J21 of Transport and Logistics. He told the Court he holds a SILT obtained from ZAMIM in Zambia; a Maters' Degree in Transport Economics and Logistics obtained from the Eastern and Sothern Africa Management Institute in Arusha, Tanzania. 3 .0.1.34. The witness told the Court that his duties involve inspection of vessels to ensure safety of navigation and testing of boat captains and their crew for competence in their respective fields. He told the Court the following: that he was part of a four-m em ber team that was sent from Lusaka by the Permanent Secretary in the Ministry of Transport and Logistics, to investigate the subject fatality. While in Siavonga, the team was joined by PW2. The Team from Lusaka travelled to Siavonga on 2 nd January 2022 ·with the objective of establishing tr..'.'; cause of the accident with the aim of r educing or avoiding sirriilar occurrences in the future. The methodology of the investigations involved the following: interviews with relevant personnel namely PWl, Al and the survivors. In this respect, PW5's testimony is based on and therefore similar to that PW 1, PW2 and A 1 . J 22 3 .0. l .35 . PWS told the Court that the methodology also extended to the inspection of the vessel In Issue. In the end , PWS generated a written report depicting his findings. He identified and tendered it in evidence and was marked exhibit P3 s11fice to note that exhibit P3 is neither signed nor contained PWS's names. PWS told the Court that he forgot to include these details on it. l ; 3 .0.1.36. Quoting only relevant portions, exhibit P3 states as follows: I "FINDINGS OF THE INVESTIGATION The investigation reviewed that the accident occurred on New Year's Day and as such, a lot of people were celebrating the New Year. The investigation also found that what was being perceived as a beacon dividing shallow and deep waters was actually a beacon for the submersible pump for Chimutuzi Lodge. It has to be noted that a submersible water pump will only be positioned or installed at a site with relatively deep waters to ease suction. It can therefore be concluded that the point where the beacon was sited is actually on deep waters. Every boat that is docked, such a vessel is usually moored. If this was the case, it is illogical for the coxswain to release the ropes J23 and start off without making sure that the safety of the passengers is assured, or making sure that people who were on board the vessel have moved to safety. It is alleged by the survivors that there was no any form of communication with the captain and his crew, hence the youths from Lusaka deciding to jump thinking they were still in shallow waters. The~ investigation further reviewed that the Captain and his crew never cared about the safety of persons onboard their vessel as was evidenced by their departure. Even after being informed about the accident involving their vessel, the captain and his crew never bothered to return to the scene of the accident to check on what happened ... The investigation reviewed that when the vessel in question was about to leave for fishing, the Captain and his Crew new that there were people on board their vessel. As required by the Act, the Captain and his crew new that their vessel only carries members of the crew who are also used as deckhand when fishing. Any other person on board the vessel was supposed to be assisted to disembark before leaving the harbor. The Captain and his crew were responsible for the safety of persons on J24 board their vessel as stipulated in the Act. It is therefore evident that the Captain and his crew exhibited a high level of negligence by letting the persons on board the vesseljump into the water despite knowing that their vessel had moved into deeper waters. \ The investigatiori also reviewed that the persons on board were not Siavonga residents but youths from various SDA Church groupings in Lusaka who had gone for church meetings. Information gathered reviewed that most of them were expected to be in camp and realizing that the vessel would only return the Jo llowing day, this caused fear in them forcing them to jump off the rig, sadly to their death. CONCLUSION The accident occurred due to human error on the part of the boat Captain and his crew by failing to apply the requirement of the Inland Waters Shipping Act Cap. 466 of the Laws of Zambia on safety of navigation". 3.0.1.37. PWS added as follows: that according to the Inland Waters Shipping Act Chapter 466 of the Laws of Zambia, no person is supposed to drive a vessel without securing the safety of J25 board their vessel as stipulated in the Act. It is therefore evident that the Captain and his crew exhibited a high level of negligence by letting the persons on board the vesseljump into the water despite knowing that their vessel had moved into deeper waters. . ' The investigatiori'also reviewed that the persons on board were not Siavonga residents but youths from various SDA Church groupings in Lusaka who had gone for church meetings. Information gathered reviewed that most of them were expected to be in camp and realizing that the vessel would only return the following day, this caused fear in them forcing them to jump off the rig, sadly to their death. CONCLUSION The accident occurred due to human error on the part of the boat Captain and his crew by failing to apply the requirement of the Inland Waters Shipping Act Cap. 466 of the Laws of Zambia on safety of navigation". 3.0.1.37. PW5 added as follows: that according to the Inland Waters Shipping Act Chapter 466 of the Laws of Zambia, no person is supposed to drive a vessel without securing the safety of J25 3 .0.1.40. PW5 stated that 15 meters from the spot where the boat had docked, there was a beacon depicting the spot at which r ' submersible pump supplying water to Chimutuzi Lodge was situated and that this is the spot where people on board the boat started to jump off the boat. He stated that such a pump can only be placed where the water is deep. ·i i' I, ,. ' I, i, [, I 3.0.1.41. He concluded that the accident was caused by human error. 3.0.1.42. Under cross-examination by Ms. Nzala and re-examination, Pw5 r ecited his evidence above and the contents of exhibit P3. 3.0. 1.43 . PW6 was Manongo Mabwelele. He told the Court that he was inv ited as a presenter or Instructor at the subject SDA Youth Camp meeting that was held in Siavonga. He stated that the Camp meeting was headed by five Presidents of the five SDA Districts whose youths (exceeding 200) had gathered in Siavonga. He made his presentation on 30th December 2021. That after prayers and lunch on Saturday, 1 sL January 2022, the participants gathered for lessons aaain b . in the Hall. That the next program was for a selected group J27 of leaders to be in any hidden location within the Camp so that the Youths would follow them and do a program called Bible Excavenger. When the program ended, participants were about to go to the hostel when one of the Camp Leaders ~\ (Blessings Lumarnba) who was with PW6 received a phone call between 15:30 hours and 16:00 hours to the effect that some youths of the SDA had drowned in Lake Kariba. PW6 and the others who included Blessings, rushed to the scene and whilst there, as the overall leader of the Camp meeting, he was urged to take charge because the other leaders were sha k e n. 3.0.1.44. PW6 told the Court that when they arrived at the shore, they found some leaders crying and shaken. They were told that six of the youths had drowned in the Lake where they had gone to swim on their own. Further, the deceased had been playing on the boat which had left. 3 .0.1.45 . PW6 and others approached a man who had just gotten onto a boat that was around the scene to ask him if he knows the boat that had just left the shore. The man, Eugene Simbayi hesitantly phoned Al. Eventually, PW6 was given an J28 ,, ' ,! I : ' ' ! I I ' I I I I i opportunity to talk to Al using the same mobile phone . He told A 1 t o go back to the shore because people had died. H e further asked A 1 if there were people on his boat. A 1 said there was no one on the boat. 3.0.1.46. It was PW6's testimony that Marine officers also spoke to Al on phone and asked him some questions. It would appear that Al's phone eventually went off and he did not return to the scene that day. Marine officers started retrieving the drowned bodies from the Lake. When it got dark, an Officer from one of the offices in Siavonga told the gathering to go back to t h e Camp a s the search would continue later. PW6 saw that 5 bodies h a d b ee n retrieved amongst whom was that of Ron a ld Li buku and Rodwell Chileshe his deceased friends but overall , all th e retrieved bodies were identified by their respective Distric t leaders. The last body vvas retrieved from the water the following day. 3 .0.1.47. PW6 told the Court that they infonncd other Leaders of the SDA youth movement who joined them in Siavonga the following day. J29 3 .0.1.48. Under cross-examination by Mrs. Mulubv,.ra, PW6 stated as follows: that the youths illegally went to the Lake from the Camp site; that the youths went to the Lake without their leaders; that he wouldn't know if the accident happened in deep or shallow waters because he was not present at the scene when the accident happened. 3.0.1.49. PW6 told the Court that the first three bodies were retrieved with ease from th e Lake; that the first five bodies were found within a distance of about fifteen meters from where he stood; that h e is not aware that the deep waters begin from a dista n ce of 20 meters; that h e is not aware that the Accused did not cause the dea th of the deceased persons. 3 .0.1.50. PW6 disputed Counsel's suggestion that the deceased were responsible for their own drowning because they went ((( swimming when they did not know how to swim. 3.0.1.51. There was no re-examination. 3. 0.1.52. PW7 was Chishiba Eugene. He is a Detective Constable in the Zambia Police Service and Arresting Officer in this 1natter. He was assigned to conduct investigations in this case on 19 th February 2022. I-le did not exp erience this case J30 first hand . His testimony is primarily based on those of the p eople h e intervie"'rcd namely, PWl , PW3, PW4 , PW6 , Al , A2 and A3. It is accordingly similar to the said witnesses' evidence and for avoidance of repetition, I shall not recite it. 3.0. 1.53. PW7 also visited the scene for purposes of scene reconstruction wher eupon he made the following findings: that the drowning h a ppen ed between a distance of 15 and 20 tl. m eters a way from the shore. 3 .0.1 .54. The witness d es cribed the boat in issue as too slow when moving, big a nd n ot capa ble of making U-turn but in order to turn, it has first to r everse into deep water and make a half cir cle there; that wh ere th e boat in issue was docked, it had to r ever s e fo r a d is ta n ce of 5 meters from the shore before it could turn; t h a t th e vessel is a fishing boat and that it is ((( d esigned to carry a m aximum of four p eople . 3 .0.1.5 5. PW7 told the Co u rt th a t the boa t wa s at t h e material time operated by the Acc u sed p ersons a nd when the incident occurred, ther e we r e a bout thirty p eople (including the Deceased p ersons in this m a tter) on board; that the Deceased J31 persons drowned as they attempted to jump out of the boat as Al drove it into the deep waters. 3.0.1 .56. PW7 told the Court that the incident happened at a spot where there was a submersible pump for Lake Safari Lodge hence in deep waters because a submersible pump cannot be installed in shallow waters. Further confirmation that the incident happened in deep waters is the involvement of divers {£· who use gas cylinders 3.0 .1. 57. PW7 told the Court that the bodies of the six Deceased persons in this matter, were retrieved from the Lake and subjected to postmortem whose respective postmortem r e ports h e iden t ified and tendered 1n evidence marked Ex hibits P4 (c ), (a ), {c), (d), (f), and (b), respectively. The Postmortcm Reports indicate that all the Deceased persons died a s a res ult of drowning by asphyxia. 3.0 .1 .58. PW7 also tendered ID 1 and ID2 into evidence and were marked Exhibits Pl and P2 , r espectively. 3.0.1.59. PW7 interviewed Al - A3 and since they did not give him a satisfactory explanation, he arrested and charged them with J32 the subject offence for failing to make the people on board the boat to disembark before leaving the shore. 3.0.1.60. Under cross-examination by Mrs. Mulubwa, in addition to what he stated in examination-in-chief, PW7 stated as follows: that he did the scene reconstruction five days after the incident had occurred in the company of PW2 but in the absence of Al -A3· that he is not aware that a submersible ' pump can be installed in shallow water or that it can pump water at a depth of 4mm as long as the input vents are submerged. 3.0.1 .61. PW7 disputed Counsel's suggestion that from 15 meters from the shore the depth of the water is 2 meters but that the depth could be between 10 - 15 meters; that Al (and not A2 and f\3) told him that he told the swimmers to leave the boat ((( before the boat started off; that the Accused told him that on the m a teria l day, the boat did not just start off as it was stuck. However, it is not to his knowledge that the Accused persons had to ask for help from people to push the boat into the \,vater. The witness stated that the boat was stuck because of the people on it. He also told the Court that he J33 assumes that when a person dives into water, he/ she knows how to swim and that none of the survivors in the subject incident told him that they did not know how to swim. 3.0.1.62. Under re-examination by Ms. Muhwende, PW7 told the Court that it is not possible to install a submersible pump at a deep 4mm in Lake Kariba because of debris; that the subject boat docks in such a way that its front part will rest on sa11.d while the other part is in water 3.0.1.63. This marked the close of the prosecution case. All the Accused persons were found with a case to answer and put on their d e fence. A J and A2 elected to give sown evidence. A3 elected to remain silent. All of them did not call a witness. Suffice it to state that each Accused person is entitled to elect the course he has adopted. ((( 3. O. 2. 1. Evidence by the Defence 3.0.2.2. A 1, admitted being the Captain of the subject boat. That on the material day, the subject boat h ad docked at Chimutuzi Harbour in readiness for Al -A3 to use it to go fishing on Lake Kariba. Whilst waiting for A2 to come back from the market ~J34 where he had gone to buy a fan belt for the boat, A 1 and A3 sat outside the said boat watching men and women swimming in Lake Kariba. It was around 16:00 hrs. After thirty minutes, A 1 saw that the people were playing on the boat, he suggested to A3 that they go and wait for A2 from inside the boat because the people would d estroy things. The duo did as A 1 suggested. t£. 3.0.2.3. Whilst in the boat, Al and A3 just watched the people in the boat. They did not talk to anyone. A2 came back from the market after 16:50 hours whereupon Al told the people to vacate the boat as the boat would be leaving since the person A 1 and A3 \. Vere waiting (A2) had come back. All the people except for about four vacated the boat. That when A2 got onto the boat, A 1 started the engine but the boat could not move as it was stuck in the sand. He told A2 and A3 to push it which they did and the boat started to reverse slowly and A2 and A3 got back onto the boat. At this time all the swimmers had vacated the boat and \Vere swi.mming. He engaged the forward gear after reversing for about 20 - 25 meters. Apart from A 1 -A2, there was none else on the boat. J35 3 .0.2.4. Al told the Court that his team reached its fishing site a t around 19:30 hours. At 19:40 hours, he received a phone call from his workmate but using a strange number. The caller told him that seven people were missing at Chimutuzi Harbour and was finding out if A 1 had carried them on the boat to teach them how to fish. A 1 denied having carried them and the phone call was terminated. 3.0.2.5. At around 20: 00 hours, PWl phoned Al to ask how far he was and about what had transpired at Chimutuzi Harbour. A 1 told him he was very far whereupon PW l told him to continue working and to r eturn the following morning which h e did. That the Accused Persons found PWl at the Harbour and h e n a rra ted to them the rumours going around concerning the su bjcct incident and to take the boat to the I I <(( Marine which he did and thereafter proceeded to Siavonga Police to give a statement. after giving statements, Al-A3 were told to go back home and would be told what to do the following day. The following clay the Accused persons were called back to the police where they were granted police bond. On the same day, Marine Officers from Chilanga picked them J36 and took thc1n to the scene and asked them what had happened and they explained. 3.0.2.6. Al disputed PW7's evidence that the boat had docked at spot where the waters were 9 to 1 O meters deep. He stated that the boat had docked at a depth of 4 to Smeters; that contrary to the assertion that the boat got stuck because of the people who were on it, it got stuck because the person who docked did not know how to dock and as such it got stuck. 3.0.2.7 . Al stated that the boat was docked far from the spot where ,. ·~ the su bmcrsible water pump for the Safari Lodge was installed a lbeit that all the pumps around that area are not install ed in d eep waters and are secured with nets to sieve the foreign bodies. Further ·that the site for the submersible pump is restricted. (( 3.0.2.8. Under cross-examination by Mr. Choongo, in addition to what he stated under exa1nination-in-chief, Al stated as follows: that on the material day, some people at the shore were in waters at the depth of their chests while some were on the subject boat jumping onto it, diving into the water and jump back onto the boat; that during that time he watched J37 those people swim, he never saw any one of them drown so too was th e position when he was driving off the boat; that the water was shallow where the boat had docked and 4 -5 m eters where the body of the boat was; that the people were jumping from the portion of the boat that w a s in shallow waters. 3.0.2.9. Al disputed the suggestion that he drove away the boat without warning the people on board; that the last four p eople to leave th e boat did not jump off the boat after it had moved 15 m e te rs from the shore; that if a person who doesn't kn ow how to swim jumps into the Lake 15 meters from the shore, h e /she wo uld drown. The witness disputed the sugges tion th a t the d eceased persons drowned b ecause they h ad jumped from the subject boa t when the boat had moved to deep waters. 3.0.2.10. A 1 told the Court tha t the person who phoned him as he was out fishin g, n eith er told him to go back to Chimutuzi Habour n or told him that people h a d drowned. Ra ther, the caller only told hin1 that seven people were missing and in r elation to his boat; that whilst out on the Lake fishing on the J38 material day, he never svvitched off his phone.; that when seated on the boat, he could see everyone on board. 3.0.2.11. Under cross-examination by Ms. Muhwende, Al told the Court that :when he told the people who were playing on the subject boat to leave the boat, all of them were present on the boat; that he is aware that as Coxswain, he has a duty not to allow anyone to be on the subject boat for any purpose; that ~ he did not breach this duty; that he did not allow anyone to use the boat on the material day by watching them for 20 minutes using it; that he did not do anything and this is because he found them already on the boat playing when he arrived at the shore; that the deceased persons did not die as a result of his negligence. 3.0.2.12. In re -exam ina tion , A 1 clarified that he did not measure the d epth of the water at the site were the boat was docked but he knew the depth to b e 4 ·- 5 m eters because he kr1ows the place . 3.0.2.13. A2's testimony was that he is the individual who docked the boat at Chimutuzi Harbour so he could buy a fan belt. That when he docked the boat at the harbour, he found people J39 i ' ~ swimming. That the moment he jumped out of the boat, th e people who were swimming jumped onto the boat in order to use it as a diving board. That shortly thereafter, A3 and Al arrived at the Harbour. The trio spoke before A2 left for the market. He came back at about 16:50 hours. That he found A 1 and A3 on the boat. The swimmers were also still on the boat and that A 1 told the swimmers to leave since A2 had come back and that the boat was leaving. The people vacated the boat and A 1 started the engine in an attempt to reverse the boat but the boat was stuck and had to be pushed into the \Valer by f\2 and A3. From here, A2's version of the events th at fallowed is the same as that for A 1. For avoidance of repetition , I shall not recite it. 3. 0. 2. 14. Und e r cross-examin a tion, A2's ansvvers were similar to those for A 1. Similarly, I shall not r ecite his an.swers here for avoidance of r epetition save for the following: that himself, A 1 and A3 did not stop the swimmers from using the boat when the boat docked. 3.0. 2. 15. A3 elected to r emain silent. He is p erfectly entitled to adopt this course. Further, the burden and standard of proof placed J40 on the prosecution does not change as a result of A3's ch oice to remain silent. 3. 0. 2. 16. This marked the close of the case for the Defence. 4.0. SUBMISSIONS 4.1. I received written submissions from both the prosecution an.d the Defence. The Prosecution submitted a s follows: that it is not in dispute that six lives were lost on 1 s L of January 2022 as a result of drowning; that in dispute is if the Accused Persons caused the deaths. And that however, the accused persons did unlawfully cause the 6 d eaths. 4 .2. Counsel referred me to the following dictum by Humphreys, ,J , according to the case of R v Larkin2 "Where the act which a person is engaged in performing is unlawful, then if at the same time it is dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of the other J41 person by that act, then he is guilty of Manslaughter". 4. 3 . I was also ref erred to the following provisions of Section 23 of the Inland Waters Shipping Act Chapter 466 of the Laws of Zambia which states as follows: "(2) If the master or a member of the crew of a vessel which is registered or should be registered in terms of the Act by willful breach of duty or by neglect of duty or by reason of drunkenness- (a) does any act tending to the immediate loss, destruction or serious damage of the vessel or tending immediately to endanger the life or limb of a person be longing to or on board the vessel; or (b) Refuses or omits to do any lawful act proper and requisite to be done by him for preserving the vessel from immediate loss, destruction or serious damage or for preserving any person be longing to or on board the vessel from immediate danger to life or limb; he shall be guilty of an offence". J42 4.4. It was submitted that according to exhibit P2, the certificate of Registration of t.he vessel in issue, the vessel is intended for fishing purposes and can only accommodate 3 passengers. However, despite b eing a\\rare of this requirement, the Accused persons did not bother to stop the Seventh Day Adventist members who were at the tim e visiting the area, from using the boat {[ as a diving surf ace when it was still docked; that when A 1 came to the boat, he started reversing into the waters without saying anything to the thirty people on board the boat and this caused them panic whereupon some m anaged to jump off the boat at that point while others only m a n aged to jump off at about 15 to 20 meters away from t h e shore. That considering that PW4 is a brother to one of the d eceased in the matter (Rodwell Chileshe), on the au thority of the cases of Simon Malambo Choka v The People,3 his evidence rnust b e corroborated as he may have an interest. to s erve . That however, PW4's evidence has b een co1-ro borated by PW3, an independ ent witness. J43 ' f' I I I I 4.5. Counsel contended that the mere act of starting t o m ove the boa t Tvh en there vvere m ore than 4 p e ople on board who were a t._ the time jumping off, a mounted to gross negligence an.d as such, endangered the lives of the passengers; that_Al admitted that a t the time when the boat in issu e was docked, a nd when members of the SDA were using it as a d iving s urface, no report of drowning was m a de but only when h e started moving the boat. 4.6 . Here, I was referred to the following holding of the Court in th e case of Lubendae v The People4 "An event occurs by accident if it is a consequence which is in fact unintended, unforeseen or such that a person of ordinary prudence would not have taken precautions to prevent its occurrence". 4. 7. I was also referre d to the following holding of the Court, in the case of The People V Kalulus "to render a person guilty of manslaughter, the negligence must be a direct and immediate cause J 44 of death and must show such disregard for the life and safety of others as to amount to crime against the state, the word "reckless" must clearly describe the necessary degree of negligence. 4.8. Counsel submitted that according to PWS, despite being informed about the drowning, A 1 and his crew members did not bother to return to the scene as reasonably expected. That instead, Al switched off his phone and this signifies that the Accused persons had no regard for life a nd s a fety of others both at the point of taking ' ,. off a nd therea fter. 4 .9 . Il was Co un sel's submission that the deceased did not di e as a result or an accident but as a result of the unlawful acts of the accused persons. That had the Accused ensured that everybody had d isembarked from the boat bcf ore taking-off or had the said persons stopped the deceased persons fron1 using the boat to dive into the water, the deaths would have been J45 avoided. 'T'hat in the result, I should convict the accused persons. 4.10. Turning to Defence, Counsel for the Accused first outlined the ingredients of the subject offence as outlined above. Counsel cited the cases of Woolmington v DPP6 and Mwewa Murano v The People (supra) to posit that in criminal cases the legal burden of proof lies from the beginning to the end of the case, on the prosecution to prove the guilty of an a ccused . 4. 11. Il was s ubmillcd lha l the fact the Accused Persons did n ot s top th e p eople from playing on the boat, firstly does not e ntail lha l they allowed them and secondly, that they did not breach any provisions of the Inland Waters Shipping /\c l beca use they did not act or omit to act in any way lhal endangered anyone's life. That the people playing on the boat wilfully did so and were all adults at law capable of making their own decision. J46 4.12. That PW4's evidence must be disregarded because his • statement was recorded on the day trial begun and two witnesses (PW 1 and PW2) had already testified and that he was not earlier interviewed as a survivor as evident in exhibit P3; that A 1 testified that he told everyone to leave the boat and that both A2 and A3 co.rro borated this evidence. 4.13. I will pause here to correct Counsel since her submission is not supported by the evidence on record. The r e cord disclose that A3 elected to remain silent. It is there fore misleading for Counsel to suggest that A3 testified . Counsel is accordingly urged to amend her records. 4 . 14. Reverting to the submissions, Counsel submitted that the moment they drove the boat into the water, there was no other person on board the boat apart from the Accused Persons. And that even if the allegation that there were still people on board turned out to be true, it follows that the people had made a decision to jump into the water, an act that cannot render the Accused J47 persons negligent. Here, I was referred to Humphrey, J's dictum above in the Larkin case (supra) . 4.15. Counsel submitted that the act by Al to start the engine of the boat was a lawful act; that contrary to PW7's assertion that the boat carries only up to 4 people, the evidence that is not corroborated by PW2 or exhibit P3, the boat can carry more than 4 people; that there is no evidence that the mere driving of the boat is a dangerous and an unlawful act that could endanger lives and caused the death of the deceased persons. 4 .1 6. I was urged to disregard exhibit P3 because the findings therein are based on hearsay evidence in the sense of containing information that was obtained from an alleged survivor, who never testified before this Court. And, that PW2 is not an expert witness as an expert witness is one who provides the Court with a scientific basis for examining evidence of a technical nature. Here, I was referred to the following holding of the Court according to the of Chuba v The People7 J48 • I I "The learned magistrate approached the case properly when he said 'the expert evidence is there to provide the court with the necessary scientific criteria for testing his accuracy so as to enable the court to form its independent judgement; that is by applying these criteria to facts proven in evidence. 4.17. Counsel submitted that nothing 1n t he findings contained in exhibit P3 can be used by this Court to properly conclude with certainty that the deceased in this matter did not die as a result of their own act when th ey jumped into the water and swimming at the depth th ey co uld not contend with. 4.18. Counsel submitted that the defence by the Accused p e rsons that they had informed everyone to leave the boat before departing and that the time they got into deep waters, there was no one on board, is probable and possible. As such, it can be properly said that the Prosecution has not discharged its burden of proof to the required standard. That I should accordingly acquit the Accused persons. J49 I i i I ,· I 4. 19. These arc the submissions in toto and I am indebted to both Counsel. 5.0. CONSIDERATION AND DECISION 5.1. I have considered the evidence and submissions. I shall now state my findings and apply the law thereto. 5.2. It is not in dispute that many youths belonging to the SDA Church (including the six deceased persons in this matter), who were attending a Church Conference in Siavonga District, went to swim in La k e Ka riba on 1 st January 2022; that in the due course , the Deceas ed persons died by drowning in the Lake. Apa rt from the evide n ce by all the prosecution witnesses, the fact tha t th e Deceas ed persons died by drowning is confirmed (( by their res pective postmortem reports (exhibit p4). 5.3. In dispute and for determination by this Court, is whether or not the deceas ed died a s result of an unlawful act by the Accused Persons. This is in view of the contest between the Prosecution and the Defence as, on the one part, the Prosecution have contended that the Deceased persons died J50 because of an unlawful act by the Accused Persons. This is allegedly in the sense of the Accused persons not stopping the swimmers from using the boat in issue as a diving surface into Lake Kariba. And, when A 1 drove the boat into the deep waters of the Lake without the Accused persons warning the deceased persons and other swimmers on board to vacate the boat. Suffice to state that the Accused Persons were the crew members on the boat in issue on the material day and that indeed, they had docked the boat at the scene of the drowning from where they started -off for a fishing expedition. It suffices a lso to state that it is incontrovertible that the Accused persons did not slop the swimme rs from using the boat as a diving surface into the Lake, during the time the boat was docked at the scene of the drowning. (( 5.4. Delving further in Lh c eve nts of the material day, the Accused Persons h ave argued that much as they did not stop the swimmers from using the boat as a diving surface, they told swimmers to vacate the boat before it left the docking site for deep waters. Further, that by the time the boat was leaving, all ' :i ~ I i I the swimmers had vacated the boat. Therefore, they are J51 disputing the Prosecution's contention that the deceased persons died as a result of an unlawful act by the Accused persons. 5 .5. At this stage, I revert, as committed earlier, to the ingredients of the offence of m a nslaughter. As can be discerned, of the two constituent conducts envisaged in the commission of the offence of manslaughter, Section 199 of Cap. 87 has only d e fin ed one conduct namely, an 'omission'. It has not d efined the conduct con stituted in the phrase 'unlawful act'. As such, the definition or context of the phrase must be sought elsewh er e. 5.6. Firstly, f find guidance from the Learned Authors of the Halsbury's Laws of England, 4th Edition, where, in Volume II (( (1) p a ragraph 436, they s ta te of "Involuntary manslaughter" as b eing corn mi tted "(a) where death results from an unlawful act which any reasonable person would recognize as likely to expose another to the risk of injury; and (b) where death is caused by a reckless or grossly negligent act or omission". J 52 5 · 7 • At paragraph 444 of the said text, and summarizing the position of the decisions in the English Courts on t he offence of man.slaughter, the Learned Authors proceed thus: "where death is caused by an unlawful act, the person doing that act is guilty of manslaughter only if any reasonable person would inevitably recognize that the act would expose the victim to the risk of at least some harm ... Although it need not be proved that the accused himself intended, or even foresaw, harm to another, the requirement of an unlawful act will ordinarily require proof that he had the requisite mens rea t o render that act unlawful. Thus where, for example, the unlawful act alleged is assault, a verdict of manslaughter cannot be supported unless it is shown that the accused had the mens rea for an assault". 5.8. Humphrey, J expresses simila r views in the case of R v Larkin (supra). He s ta tes a s follows : ((. ({ J53 "where the act which a person is engaged in is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter". 5.9. Back home, the foregoing views were quoted with approval by (( the Supreme Court in the case of Mpande v The People, 8 a case involving m anslaughter. The Court then cited t he case of R v Church9 in whic h Edmund Davies, J at page 76 illustrated the sen se in whic h "d a n gerous" a s used in Larkin should be u nderstood thus : " ... an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to at least, the risk of some harm resulting therefrom, albeit not serious I ,, harm". J54 5. 10. In view of the foreaoing it can be said that for a n 'unla wful a c t' b ' to support a charge of manslaughter, it must be a dangerous act and foreseeably by a prudent person, as capable of causing injury and that dea th inadvertently occurs as a result of the act. 5.11. With that said I revert to determine the issue in dispute. ' Firstly, I have no h esitation in finding that the boat in issue is linked to the drowning of the Deceas ed persons. I am of this view b ecause it is not in dispute tha t before the boat docked at the s ite in issu e, ther e was no fatality yet people had been swimm ing a t th e same site . Similarly, there was no fatality that occurred during th e e n tire p eriod the boat had docked at the s ite yet admitted ly, th e s immers were swimming at the same s ite and even using the boa t (albe it unauthorized by the Acc u sed per sons, as con ced ed by Pw4 ), as a diving surface to jump a nd swim into t h e Lak e. Strikingly, the subject fatalities were only experien ced aflcr the boat d ep arted the site. Logically, it implies th a t the boa t s t a rte d -off with p eople on board so that some of them jumped -off wh en it h a d enter ed deep waters which they could not n avigate a nd ther eby drowned. If this was not th e position, th er e would b e no fatality b ecause as stated J55 already, people had been swimming at the same site before the boat docked and during the period it was docked there yet none of the swimmers drowned. 5.12. The foregoing finding defeats the Accused persons' evidence that all the swimmers had vacated the boat at the time the boat was departing for deep waters. 5. 13. The next issue for detennination is if the Accused persons had warned the people to vacate the boat before the boat departed the site. As noted already, it is not in dispute that the Accused p ersons did not stop the swimmers from using the boat as a di ving surface durin g the period it was docked at the site and as a s tarting point, I out rightly hold that it was negligent for th em to omit lo fe nd -off the swimmers. I am of this view because r ' I r. I r ' ~ ' ((( Al and A2 admitted during cross-examination, that members of the boat crew owe the people on board their boat, the duty to ensure their safety and that they have a duty not to allow anyone to be on the subject boat for any purpose. That notwithstanding, I note, as found already, that none of the swimmers drowned during the time the boat was docked. As J56 such , there is no liability that can accrue to the Accused persons for their omission to stop the svvimmers from using the boat as a diving surface during the period the boat was docked at the site because there was no fatality that occurred, as a result. 5.14. Of importance and in dispute, is if the Accused persons had told the swimmers to vacate the boat before the boat left the site where it was docked. As stated already, parties have advanced conflicting versions 1n that whereas the Prosecution (particularly Pw4) stated that the boat departed the site without th e Accused warning them to vacate, the Accused persons have stated otherwise. I n ote that Pw4 indeed is a witness whose evidence must be a pproached with caution firstly because being a relative to one of the deceased persons, he can be classified as a witness with a n interes t to save. Secondly, because unknovvi1. to the Court, he sat in Court and listened to the evidence of Pwl - Pw3. With this background, it is common knowledge that he is likely to be influenced by Pwl - Pw3's evidence . Considerina that there is no law that a llows the Court to discard Pw4 's evidence because h e had listened to the evidence of other J57 ((( witnesses before he could testify, there is need for his evidence to be corroborated in as much as the corroboration would be required on account of his being a relative to one of the deceased persons. The corroboration should be to the effect that the Accused persons never warned the swimmers to vacate the boat before the boat left the docking site. 5.15. Having combed through the record, I have not found any corroborative evidence. For this reason, I am inclined to discard Pw4's evidence for it shall not be safe to rely on it. I thus accept the Accused persons' story that they had warned the swimmers to vacate the boat before it left the site for deep waters. This notwithstanding and for the stated reasons, I reject the Accused 's story that th ere was no swimmer on the boat by the time the boat was d ep a rting the shallow waters for deep waters. ((( My finding is that the boat departed the shallow waters with swimmers on board and in view of the flat design of the boat, it cannot b e argued that the Accused p ersons did not see the swimmers still on board at the time they were departing the shallow waters. Their denial of the presence of swimmers on the J58 I I, I i• \ I I i boat at the time of departure, is clearly an afterthought as it is contradicted by the results of the surrounding events. 5.16. I am nonetheless of the view that the swimmers were still on board the boat at the time it was leaving for deep waters, as a result of their own unresponsiveness or n egligence so that by the time they opted to vacate the boat, it was already in deep waters which they could not navigate. I am of this view because according to Pw4 and PW7, the boat in issue moves slowly and with this background and the exercise of due diligence, an alert and prudent person could have noticed its movement and vacated when it was still in shallow waters. For the deceased p ersons to have waited until the boat moved 15 to 20 meters in to the Lake before they could jump-off, as the evidence suggests, was an act of negligence on their part. Therefore, they contributed lo their misfortune. 5. 1 7. On the part of the Accused persons, I have found that they committed an unlawful act in this matter. The unlawful act lies in driving the boat into deep waters despite t he swimmers still J59 being on board. And, this act is solely attributed to Al for h e was the coxswain of the boa t. In view of this, A2 and A3, arc innocent of the charge. 5. 18. Further, Al's stated act rema ins unlawful, regardless of the fact that swimmers were trespass ers on the boat and had been warned to vacate the boat b efore it departed the shallow waters. In my view, upon seeing swimmers still on the boat, Al should have avoided driving th e boat into the deeper waters for there, lay to a prudent p erson , an obvious risk of the swimmers drownin g. However, d espite this obvious risk to the swimmers, Al proceeded to drive them further into deep waters more and more in reckless disregard for the consequences of his actions and I adjudge it to b e grossly negligent. Suffice to state that contributory ncg]igcncc (which is wha t the deceased p ersons did in this matter) , is not a d e fence in a charge involving manslaughter. Rather, it is only a mitigating factor in terms of sentence . J 6 0 5 · 19 •Accordingly, I have found that much as the d eceased persons behaved negligently and thereby contributed to their misfortune, their deaths could have been avoided had A 1 behaved prudently by not driving the boat into deep waters. I therefore attribute the deceased persons' drowning partly to their own negligence and partly to A 1 's n egligence which is an 'unlawful act' within the meaning of Section 199 of Cap. 87 • 6.0. VERDICT AND CONCLUSION 6. 1. In conclusion and based on the outlined r easons, I am not satisfied that the p rosecution has proved its allegations in this m atter against A2 a nd A3, b eyond reasonable doubt. I accordingly acquit /\2 a nd A3 of the subject charges and direct ( - th at they b e set at liberty forthwith. 6.2 . Turning to A 1 and for th e outlined r easons, I am s a tisfied that the prosecution has proved all th e six allegations against him in this m atter, beyond reasonable doubt. I thus find him guilty as charged and accordingly convict him of the offence of J 61 Manslaughter contrary to 199 of the Penal Code, Chapter 87 of the Laws of Zambia, on all the six Counts. DELIVERED IN OPEN COURT THIS 14TH DAY OF NOVEMBER, 2022. . \tn~--- KENNETH MULIFE HIGH COURT JUDGE J62