The People v Kennedy Nyeleti (HPC/16/2021) [2022] ZMHC 50 (29 March 2022)

Rl Ci IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN HPC/16/202 1 THE PEOPLE vs KENNEDY NYELETI BEFORE HON. MR. JUSTICE KENNETH MULIFE APPEARANCES: For the Sta le : Mrs. Chizongo} State Advocate} National Prosecutions Authority (NPA} For th e Dc f c ncc: Mrs. Sara Larios} Pro Bono Counset Legal Aid Board RULING ((, CASES _REFERRED TO: 1. The People v. Kelvin Musole HPC/ 10/2021 11. The People v. Chiscrnbe (2 01 l), Vol. 3 ZR 111. The People v. Franc.is Musonda & Another v. HP/40/2011 1v. M\vanza & Anothe r v. Attorney General (Selected ._Judgment No. 33 of 2019) v. Gcdion Musonda & Another v . The People (1979) ZR 218) (SC) v1. Joseph Besa (Juvenile) v. The People (Appeal No. 30 of 2016) R2 STATUTES REFERRED TO: 1. Criminal Procedure Code, Chapter 88 of the Laws of Zambia 11. Juveniles Act, Chapter 53 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 On 1 st June 2021, Kennedy Nyeleti, a juvenile offender, was arrested without a warrant and he was charged with the offence of House Breaking and Theft Contrary to Sections 301 (b) and 272 of the Penal Code Chapter 87 of the Laws of Zambia. 1 .2 Th e partic ulars of the offence were that the within named juvenile offender, on 7 th May 2021, at Chirundu in t.h c Chirundu District. of the Lusaka Province of the Rcpu bi ic of Zambia did break and enter into a dwelling house of one Distubbcr Ma pulanga with intent to steal therein a nd did in fact steal therefrom 1 laptop bag, 1 solar panel, 4 pairs of shoes altogether valued at K 1, 180.00 t.hc property of the said Distubber Mapulanga. 1.3 On 28 th . July 2021, the Juvenile Offender was found guilty upon his own plea, by the Magistrate of the Second Class at Siavonga, before whom he appeared. He also r eadily admitted having had committed the same offence previously. The Social Welfare Report that. (f_. R3 was subsequently genera te d in h is respect, disclose l hal the ~Juvenile Offender committed the first offence on 13 th J a nuary 2021 a t Chiru ndu in the Chirundu District of the Republic of Zambia. 1.4 Following fro1n the foregoing , the Learned Magis tra te made a r efonnatory Order in r espect of the Juven ile Offender in th e following t erms: "I have considered everything said in mitigation by the Juvenile Offender. I have also considered the social welfare report and that the juvenile is a second offender. The offence committed is a serious one and on the increase in the communities. In order to deter ot~er juveniles w h o would be offenders of a similar offence, I o r der that the juvenile be sent to Katombora Reformatory School so that the Department of Social Welfare will help the Juvenile to grow into a responsible future citizen. This order wi ll depend on the assessment by the Department of Social Welfare". 1. 5 A reform a tory order as a means of correcting juvenile d elinquents , is provid ed for under section 73 (1) (d) of the Juveniles Act, Chapter 5 3 of the Laws of Zarn bia (( . R4 ·• following terms: (hereinafter referred to as the 'the . Juvenile s Act') in the "Where a juvenile charged with any offence is tried by any court, and the court is satisfied of his guilt, the court shall take into consideration the manner in which, under the provisions of this or any other written law, the case should be dealt with ... by sending the off ender to a reformatory". 1. 6 According to section 94 (1) of the Juveniles Act, "No reformatory order made by a juvenile court shall be carried into effect ... until the record of the case or a certified copy thereof has been transmitted to and the order confirmed by the High Court". 1.7 It was on the a uthority of the said section 94 (1) of the Juveniles A ct afore-cited, that the Learned Trial Magistrate referred the subject Reformatory Order for confirm a tion by this Court. 2.0 SUBMISSIONS BY THE PARTIES 2. 1 The Record was transmitted to the High Court for confirmation of the Order on 7 th March 2 0 22 and w as thereafter allocated to m e on 14 th March 2022 , R5 whereupon I listed it for a hearing on 21 st March 2 021. It would also appear that the Juvenile Offender has been reman.ded in custody from th e date he v.ras arrested on 1 st June 2021. Thus, as at the date of this Ruling, he has been in custody for a period of almost ten months. 2.2 On 16th Ma rch 2022 , the defence filed into the High Court of Zambia Criminal Registry, written submissions a h ead of the hearing. The State did not file written submissions. The submissions by the defence raised two issues for consideration by the Court namely: (i) whether the lower court followed the correct procedure when it received evidence of previous convictions in respect of the juvenile offender; and (ii) whether in confirming the order this court will take into account the time spent by the juvenile offender in custody while awaiting confirmation. 2.3 In relation to the first issue, Legal Advocates for the lJuvcnile Offender sub1n itted that the Social Welfare Report presented before the trial court alleged that the juvenile offender was a second offender having been prosecuted for a similar offence in January 2021. The defence also indicated that the public prosecutor informed the court that the juvenile offender had a previous record of conviction t o his name for th e s imilar offence. However , Counsel picked issue v.rith th e R 6 ,, manner in which the prosecution broug ht the p r evious conviction to the attention of the court without producing evidence in r e spect there of, a position which Counsel a rcrue d violated Section 142 of the Criminal b ' Procedure Code, Chapter 88 of the Laws of Zambia (her einafter ref erred to a s the 'Criminal Procedure Code') whic h provides for the procedure on hovv previous c onvictions s hould b e proved. 2 .4 Cou nsel a ls o r eferred m e to the case of The People v . (( K e lvin Musole HPC/10/2021 1 in which Hon. Justice D . l\11. Malan1a confirmed th e holding of Dr. Matibini SC. J udgc (as h e t h e n wa s) in the case of The People v . Chisembe (2011), Vol. 3 ZR2 on the import of the said Section 14 2 of th e Criminal Procedure Code. It was h eld in that case t h a t "Once i nformation concerning a previous conviction has been brought to the notice of the court when s e ntence is being considered, the court is duty bound to hear evidence concerning previous conviction in order to make a finding as to whether or not the accused per son had a previous conviction in respect of the relevant offence". 2 .5 It was t h e d efen ce's submiss ion that th e failure to b rina b a certified copy of an extr act of th e O rder or Warrant of R7 Commit1nent, was a senous procedural irregularity which had an effect of tainting the juvenile offender. The defence submitted therefore that the failure of the lower ' court to investigate or inquire into the previous conviction of the juvenile offender, was fatal to the prosecution's case, and as such the juvenile offender ought to have been treated as a first offender. 2.6 Turning to the second issue, the defence submitted that the High Court has exercised its discretion on many ((_ oc casions to quash Reformatory School Orders which \Ver e viewed to be overly severe in proportion to the off c n ce committed and instead made orders for more su ita ble a lternatives. The defence submitted that the I Iigh Court h a s a history of taking into consideration the tim e s p e nt by a juvenile, in detention at the time the case is be ing considered for confirmation. (f , 2 .7 In substantiating the argument that the time spent by th e juve nile in custody pending the hearing for c onfirmation, should be taken into account by this Court, the defence referred me to the case of The People v. Francis Musonda & Another v. HP/40/20113 in which Dr. Matibini SC. J, while considering the matter for confirmation held that "I am therefore obliged to give the juvenile offenders credit for the t ime they h a ve spent in (( R8 custody. In the circumstances, pursuant t o Section 338 (1) (i) of the Criminal Procedure Code, I am inclined to grant the juveniles a conditional discharge". 2.8 Counsel also referred me to the case of Mwanza dr. Another v. Attorney General (Selected Judgment No. 33 of 2019)4 at pc:u-agraph . Jl6.3 where the Supreme Court of Zambia held that "being incarcerated is punishment enough, being served. Bad inadequate or unsafe food or being kept in inhumane conditions is unfairly punitive". 2 . CJ Counsel for Lhe defence submitted that the time the . Ju venile Offender spent 1n custody pending confirm a lion of the Order in addition to the time he was in custody awaiting his guardians b efore he could take pJca, ran almost to Nine (9) Months, 2 1 days. Therefore , Counsel beseeched the Court to consider substituting the Rcfonnatory School Order replacing it with an order requiring the parents or gucu·dians of the offender to give security for the good behaviour pursuant to Section 73 (1) (h) of the Juveniles Act. The defence submitted that the Reformatory School Order 1night not achieve the intended purpose for the Juvenile Offender but \,Vould rather cause more physical, mental and psychological harm to him. R9 2.10 Counsel for the defence proceeded to submit that the Social Welfare report indicated that the juvenile offender hails from an intact family and that, that in itself is enough guarantee for the parents to give the necessary security for the good behaviour of the child considering that he is of tender age. In augmenting his submission, Counsel referred the Court to the case of Chisala v. The People (1975) Z. R. 239(SC) in which the Supreme Court of Zambia held that "Particularly when dealing withjuveniles one of the major objectives is to attempt to rehabilitate the offender so that he becomes a useful member of society. The best that can be said is that experience has shown that certain solutions are less unsatisfactory than others ... the court should never order that ajuvenile be imprisoned without considering the suitability of alternative orders under the juveniles Act". 2.11 Counsel also referred the Court to the case of Gedion Musonda & Another v. The People (1979) ZR 218) (SC)5 in which it was held that "a reformatory school order is a very severe punishment and should only be made when other methods of reformation are in the circumstances ( ( ( RlO inappropriate or have proved to be in vain in the past". 2. 12 I was also ref erred to the case of Joseph Besa (Juvenile) v. The People (Appeal No. 30 of 2016)6 where the Supreme Court held that "Indeed a reformatory order would be suitable in dealing with a juvenile offender whose antecedents show that he is prone to crime or where the facts disclose some aggravating conduct in the commission of the offence on the part of the offender. Nothing of this sort happened in this case. A trial judge merely founded her decision on the perceived shortcomings of the mother". 2.11 In view of the foregoing a r guments and legal authorities, 1.he defence s ub1nitted tha t the Court below erred when it received evidence of previous convictions without following the set out procedure in Section 142 of the Criminal Procedure Code. Further, the d efence beseeched the Court to consider giving credit to the time the juvenile offender spent in custody, and the considera tion s hould b e with a view that the court should impose an Order which would dis -enable the juve nile offend er to go to reformatory school. Rll 3 .0 HEARING OF THE MATTER FOR CONFIRMATION 3.1 When the 1natter came up for hearing on 21 s L March 2021, Mrs. Chizongo, State Advocate, made oral submissions on both issues raised by the defence in their written subrr1issions. Regarding the first issu e, Counsel submitted that although the record does not show whether the trial Magistrate had inquired into the said previous convicti on, it nonetheless discloses that the Juveni le Offender admitted having been a second offender. At the same time the Social Welfare Report nlso contained a submission that the Juvenile Offender had a previous conviction for a similar offence. ( 3.2 The S ta te, however, conceded that the Learned Trial tvlagis tra tc did not indeed inquire into the said previous con vic tion . Thereby, Section 142 of the Criminal JJrocedure Code was violated. It ,,vas the State's s uhmissjon that the said failure to follow procedure by th e Learned Trial Magistrate vvould necessitate expung ing of the submission for previous conviction from the record. ~lowcvcr, Counsel prayed for time to enable the SI.ate adduce evidence of the previous conviction as prescribed by section 142 of the Criminal Procedure Code. 3.3 In r esponse to the second issue, Mrs. Chizongo agreed '-"'ith the defence that in its Order, this Court should . (( Rl2 consider the time that the juvenile has been remanded in custody. This closed the submissions by the State. 3.4 Mrs. Sara Larios, Legal Advocate for the Juvenile Offender made oral submissions in response to those by Mrs. Chizongo. Regarding the first issue and the application by the State to be g ranted time to produce evidence about the juvenile offender's previous conviction, Counsel lamented that the process would further protra ct the detention of the Juvenile further and thus not in the best interest of the juvenile offender. This, Counsel submitted is evident from the long period it too k for the record of proceedings to be conveyed to t his Court, from Chirundu vvhere the case was de te rmin ed. Thus, Counsel objected to the application by th e S t.a t e. 3 .5 With th al s c:1id, Counsel urged this Court to treat the juve nile offender as a first offender. It vvas Counsel's fur th e r subrnission that even if the Juvenile Offender was to be regarded as a second offender, that would not render the Reformatory School Order automatic, since the Court ~ti ll has other options of dealing with th e Juvenile Offender. 3 .6 Counsel submitted that the co1nplainant in the instant case is the Juvenile Offender's ovvn mother and it would appear that the offence occurred at the Juvenile Offender's family home. Counsel submitted that the R13 Social Welfare Report also indicated that the complainant in relation to the first offence for whicl1. t he juvenile offender sustained a previous conviction, was the Juvenile Offender's mother and that the items which were allegedly stolen in the first offence were also from the family house. 3. 7 Counsel submitted that revelations that the Juvenile Offender commits these offences at the family house seem to suggest that there is something wrong within (( th e fa mily and it would be unfair that he should suffer (( the consequences of his family relationship alone. It was a lso subm itted that this Court should consider alt crnativc n1casures as opposed to sending the juvenile offe nd e r to a reformatory institution. Counsel beseeched the Court to consider an Order that would acco rd the juvenile offender and the family to resolve th e ir issues a nd perhaps for both the mother and the juvenile offende r to receive counselling. 3.8 Counsel sub1nittcd that the Juvenile Offender has been in custody since his arrest on 1 st June 2021 to date which e ntails that he has been in custody for about Nine (9) months, 21 days. It was Counsel's submission that it was a serious issue with far reaching consequences that the juvenile offender remained in custody for such a long time. R14 3 .9 Th ese were the oral sub1nissions and issues in toto. 4 .0 CONSIDERATION AND DECISION 4.1 I have considered the issues and submissions . . Henceforth, I outline my determination. 4.2 It is not dispute that the matter is before me for confinnation of the Reformatory School Order that was imposed on the Juvenile Offender by the trial Court. This followed a finding of guilty upon the Juvenile Offender's own plea. The finding of guilty is not contested and after perusing the Record of Proceedings, I am equally (( satisfied with its propriety. I moved myself in exploring the proprie ty of the finding of guilty pursuant to my po\ver of revis ion vested in me by section 13(3) of the C rirnin a l Procedure Code as read with section 337 and 138 o f th e sam e Code. The said provisions enjoin me to sc1li s fy myself with the propriety of the proceedings and findin gs of a subordinate court before confirming the Orde r. (( 4 .3 That said , I now consider the two issues raised by the defence. Thus regarding the first issue, namely if the previous conviction was prope rly entered by the Trial Magistrate, there is no dispute that the relevant law is section 142 of the Criminal Procedure Code. The nagging question is if the manner the previous conviction was received by the Trial Magistra te breached Section 142 of the Crim.inal Procedure Code. Quoting only relevant portions , the provision stipulates as follo~,s R 15 ''142. (1) In any inquiry, trial or other pro ceeding under this Code, a previous conviction may be proved, in addition to any other mode provided by any law for the time being in force (a) by an extract certified, under the hand of the officer having the custody of the records of the court in which such conviction was had, to be a copy of the sentence or order; or (b) by a certificate signed by the officer in (( charge of the prison in which the punishment or any part thereof was suffered, or by production of the warrant of commitment under which the punishment was suffered; together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted. (2) A certificate in the form prescribed given under the hand of an officer authorised by the *President in that behalf, who shall have compared the fingerprints of an accused person with the fingerprints of a person previously convicted, shall be sufficient evidence of all facts therein set forth provided it is produced by the person who took the fingerprints of the accused ... " 4 .4 The State and the Defence are in unison tha t the procedure a bove outlined by Section 142 of the Cr i1ninal R16 Procedure Code was violated by the trial Magistrate a s he did not inquire into the previous conviction. They both contended that the Learned Trial Magistrate should have received evidence relating to the record of the said previous conviction. That due to this omission, the previous conviction must be expunged from the record. In the result, the State has applied for leave to enable it adduce evidence of the previous conviction, an application which the Defence has opposed based on the reasons outlined above. 4.5 I have carefully examined the authorities cited by the Defence which interpreted section 142 of the Criminal Procedure Code. With great anxiety and circumspection, I have a lso examined the said section 142 of the Criminal Proccd urc Code whereupon I have formed the view that the provision envisages a situation ,vhere an accused p erson is disputing a previous conviction. vVhere this is the position, the requirement to prove the previous conviction generates and the mode of proof is as prescribed by Section 142 of the Criminal Procedure Code namely, by production of an extract certified by an officer of the court having custody of the requisite court record, a certificate signed by the officer in charge who had custody of the accused or a warrant of committal. In other words, it is a denial of a previous conviction that triggers the duty on the part of a prosecutor to prove the previous conviction and a corresponding duty on the ( 1\ R17 p a rt of the court , to jnquire into the previous conviction. The authorities cited by the D efence equally depict a denial of a previous conviction. 4 .6 On the contrary, I am of the strong view that th e r equirements prescribed by section 142 of the Crimina l Procedure Code do not apply to a case where a previous conviction has been admitted. I a m of this vie\l\r because logically, an a dmission r e nders proof of the admitted statemen t irrelevant since the a dmitted statem ent ( b ecom es a fact. This view is supported by the case of Sydney Chileshe Vs the People Appeal No. 72/2004. ( 4. 7 J\rpli ed to the present case, the foregoing principle e ntai ls th at the Juvenile Offend er's admission of the previou s conviction in issue, ousts the requirements of Sect ion I 4/. of the Criminal Procedure Code as it renders proof' o f the previous conviction, irrelevant. In con cluding here and for avoidance of doubt, I reiterate th a t th e dut.y lo a dduce evidence under Section 142 of th e Crim in a l Procedure Code, only arises where a previous conviction has been disputed. Section 142 of the Criminal Procedure Code docs not apply to a case where a previous conviction h as been admitted (such as the present one) because the admission renders proof of the statement irrelevant. R18 4.8 In the view that I have taken, I have not found any procedural impropriety in the manner the previous conviction was received by the Leaned Trial Magistrate . There was no duty on the part of the Public Prosecutor to adduce evidence confirming the previous conviction as it was extinguished by the Juvenile Offender's admission. Correspondingly, the Juvenile's admission exbnguishcd the Trial Magistrate's duty to inquire into the previous conviction. In the result, I reject the Defence and State's assertion of impropriety in the manner the ( previous conviction was received. For obvious reasons, I C ulso reject Mrs. Chizongo's application for leave to add uce evidence of the said previous conviction. In the like manne r , f decline the invitation by the defence to t real the j uvc nile offender as a first offender. I acco rding ly sustain the submission of the previous co n viction on the part of the Juvenile Offender . 4.9 I now consider the second issue raised by the Defence namely, if I should take into account the period the Juvenile Offender h as been detained pending confirmation of the rcforn1atory Orci.er. Similarly here, the Defence and the State are in agrec1nent that I should take into account the period of detention. In augmenting their position, the Defence have cited a ple thora of authorities which I have anxiously examined and agree ,,vith. Indeed, credit must be given to the time spent in detention \Vhen sentencing a convict and this is for the R19 reason that in the Zambian juris diction, conditions in d e tention facilities are harsh. Accordingly, d etention in such facilities is punishment in its own right. It would the refore be an injustice to ignore a period of a bout t en months which the ~Juvenile Offender has been remanded especially considering that the delay in conveying the record for confinnation is not as a result of his fault but due to a dministrative lapses in the court below. 4.10 Turning to the Reformatory Order in issue, there is no denial that the mode of disposal of a matter involving a juvenile offender must be that which is in the best interest of the Juvenile. In other words, the Order of the Court must be that which would eliminate conditions which h,1 vc a potential to drive the Juvenile deeper into 8 lire of crime. Such an Order is only possible through a socia l inquiry report cu1d it is for this reason that a social welfare report, according to section 64(7) of Cap. 53, is a mandatory requirement ·when courts are correcting a j uvcnile dclinquen t. Further, in the Joseph Besa case (supra), the Supreme Court strongly urge against disregarding social welfare r eports . ( ( R20 4.11 In this matter ' the social welfare report has reco1n1nended for a Reformatory Order. Further, as highlighted already, this is what influenced the imposition of the Order by the Learned Trial Magistrate. This notwithstanding, I note that the recommendation h as b een greatly prompted by the unwillingness of the Juvenile's parents to accommodate the Juvenile in their ( household. For this reason, the parents pressed for the re formatory ord e r. On the other hand, the report further disclose th a t the juvenile's delinquent conduct is as a resul t of parental neglect so that even the probation order that was made in the first offence, failed to b e implemented because the said parents neglected to avail the Juvenile Offender to Probation Officers. For these reasons, the Juvenile Inspector who generated the social welfare report h as rcluc ta .. ntly r ccon1n1ended for the Reformatory Order as she is of the view that it is not appropriate for the J·uvcnile Offender to be separated fro1n his parents only because they have failed to exercise due care towards him. R21 4 .12 I have found n1erit in the Juvenile Inspector's relu c tance to recomn1end for the subject Reformatory Ord e r because clearly, the '-Juvenile's delinquent behaviour is as a result of parental neglect. His parents have abdicated their duty to guide and nurture him into a responsible person. It is for this reason that he has only been stealing from them. It is further for this reason ( that the probation order in the previous offence failed . To resort to a reformatory order when other means of corr ecting the juvenile have not been tried would be harsh . It would be similarly harsh to resort to a reformatory order when the juvenile's delinquent b e h aviour is as a result of parental neglect. Suffice it to note that by section 74 of the Juveniles Act, parents have a duty lo exercise due care over their children in a way of prevent ing them from engaging themselves in delinquent behaviour. 4 . 13 For the a bove-outlined r easons , I find that the subject r eformatory order is not on firm ground as it ,.vould not be in the best interest of the Juvenile. I am of this view R22 because as stated already, the recommendation was induced by the desire to relieve the Juvenile's parents of their duty to exercise due care towards the J uvenilc and in any case, other means of correcting the juvenile offender have not yet been tried since the probation order in the first offence failed on account of parental neglect. For this reason, I invoke my power of revision under s ections 13(3) and 338(l)(a)(i)(ii) of the Criminal Procedure Code and thereby quash the said reformatory order. It is s ubstituted for a probation order and both th e Ju ven ile a nd his parents shall co-operate with proba tion offi cers. In the view that I have taken the ' Dc fcncc's second issue has succeeded. 4 .1 4 Leave to Appeal is granted DELIVERED AT LUSAKA, TH:IS 29TH DAY OF MARCH, 2022 KENNETfI MULIFE HIGH COURT JUDGE ( (