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Selected Judgment No. 31 of 2015

IN THE SUPREME COURT OF ZAMBIA

HOLDEN AT NDOLA(Criminal Jurisdiction)

BETWEEN:

Appeal No. 145/2015

GIFT NKANZA

AND

THE PEOPLE

APPELLANT

RESPONDENT

Coram: Phiri, Muyovwe, and Malila, JJSon the pt September, 2015 and 9th September, 2015

For the Appellant: Mr. K. Muzenga, Deputy Director Legal Aid

For the Respondent: Mrs. M.e. Mwansa, Principal State Advocate

JUDGMENT

Muyovwe, JS, delivered the Judgment of the Court.

Cases referred to:

1. Lt. General Wilford Joseph Funjika Vs The Attorney General(2005) Z.R. 97

2. Dharmeshbhai Vasudevbhai and Others v. State of Gujarat andOthers Criminal Appeal No. 914 of 2009.

3. R vs. Edward Nsokolo 2 N.R.L.R. 85

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Legislation referred to

1. The Penal Code, Chapter 87 of the Laws of Zambia2. The International Covenant on Civil and Political Rights (ICCPR)

Other Materials referred to:

1. Fair Trial Standards, Paper presented by Prof. MicheloHansungule to the Southern Africa Chief Justices' Forum heldfrom 27th to 29th August, 2015 at Victoria Falls Town, Zimbabwe.

The appellant on his own plea of guilty and admission of facts

was found guilty and convicted by the High Court at Lusaka of the

offence of manslaughter contrary to Section 199 of the Penal Code,

Cap 87 of the Laws of Zambia. The trial court sentenced the

appellant to 20 years imprisonment with hard labour.

The particulars of the offence alleged that the appellant on

23rd March, 2014 at Lusaka unlawfully caused the death of Joseph

Mumbi (hereinafter referred to as "the deceased"). The facts were

that on the material day around 16:00 hours in Chibolya compound

in Lusaka, the appellant picked up a fight with two male persons.

In the process, the appellant picked up a wooden stick and hit the

deceased on the head and he fellunconscious to the ground. On the

25th March, 2014, the deceased's condition worsened and the

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matter was reported to the police, thereafter, the deceased was

taken to the clinic where he was referred to the University Teaching

Hospital. The deceased was admitted but he passed away the next

day on the 26th March, 2014. The appellant was apprehended by

the deceased's relatives. On 31st March 2014, a postmortem

examination was conducted on the body of the deceased and the

• pathologist found that the cause of death was brain hemorrhage

due to traumatic fracture of the skull due to traumatic head injury.

On behalf of the appellant, Mr. Muzenga the learned Deputy

Director of LegalAid advanced one ground of appeal couched in the

followingterms:

1. The sentence of 20 years imprisonment imposed on the appellantis too excessive since the appellant is a first offender who readilypleaded guilty to the charge.

The learned Deputy Director filed heads of argument which he

relied on and briefly augmented orally.

In support of the lone ground, Mr. Muzenga in his filed heads

of argument submitted that the sentence of 20 years imprisonment

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imposed on the appellant was excessive considering that he was a

first offender, was remorseful and pleaded guilty to the charge. He

submitted that the trial Judge in sentencing the appellant took into

account irrelevant factors which he found to be aggravating and yet

they were not part of the statement of facts. Counsel found it

imperative to refer us to the strong sentiments expressed by the

learned trial judge during sentence. We shall examine the learned

judge's comments in due course.

It was submitted that the sentiments by the learned judge

were not part of the statement of facts and Counsel wondered where

the learned Judge got the facts which he used to justify the

imposition of the stiffer penalty. Counsel argued that, the learned

judge fell into grave error when he relied on facts which were not

contained in the statement of facts.

It was Counsel's submission that the appellant was gIven a

stiffer punishment on account of residing in a township which is

perceived to harbor criminals. Counsel argued that such

considerations were a serious misdirection as a community's

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perceived criminality could not be attributed to an individual. He

contended that the sentence of 20 years was manifestly excessive

under the circumstances and should come to us with a sense of

shock. He urged us to uphold the appeal by setting aside the

sentence of 20 years and in its place impose an appropriate

sentence.

In his brief oral arguments, Mr. Muzenga submitted that if

sentences will be premised on which compound an accused was

coming from, it will prejudice the poor who are likely to receive hefty

sentences. He urged us to direct trial courts not to consider factors

that would prejudice an accused during sentence. Counsel pointed

out that the appellant was fighting with two males of equal strength

and, therefore, the learned trial Judge should have taken this factor

into account. He submitted that the sentence of 20 years for a

person who admitted the charge and without aggravating

circumstances was exceSSIve. According to Mr. Muzenga, a

sentence of 3 years would be adequate and reasonable under the

circumstances.

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Mrs. Mwansa, the learned Principal State Advocate submitted

that as the appeal related to sentence only, she left it to the

discretion of the court.

We have considered the evidence on record and the arguments

by learned Counsel for the appellant.

We take cogmzance that the appellant engaged himself in a

fight against two people and in the process he picked up a stick and

hit the deceased on the head who died a few days later. We are

alive to the fact that the appellant was a first offender who readily

admitted the charge. We have addressed our minds to the strong

comments uttered by the learned trial judge during sentencing.

The following is an excerpt of the strong sentiments made by the

learned trial Judge found at Page 13 of the record of appeal:

" I have taken into account the fact that the convict is a firstoffender who has readily pleaded guilty to the case. However, I findthe offence to be aggravating by the fact that the deceased appearsto have been innocent of the quarrel that had erupted between theconvict and the other two people. In other words the deceased hadnot offered any provocation to the convict but rather he was tryingto maintain law and order by stopping the fight. The convicttherefore had no cause whatsoever to turn his anger on to thedeceased. I am not surprised that the convict is from Chibolyatownship which is notorious for criminal activity. I propose to getrid of at least one such criminal today by sending him away for along time."

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We have critically examined the above cited comments of the

learned trial Judge in light of the statement of facts produced by the

prosecution in the court below. It is necessary to reproduce part of

the facts before the lower court in order to have a perspective of

where the trial judge was coming from when he made the cited

comments above. Paragraph 2 of the statement of facts found at

Page 8 of the record of appeal reads as follows:

"On 23rd March 2014, around 16hours in Chibolya compound inLusaka in the District and Province of Lusaka of the Republic ofZambia, GIFT NKANZA the accused person herein, picked up aquarrel with two male persons. A fight ensued and in the processthe accused person picked a wooden stick which he used to hit thedeceased on the head. The deceased namely, JOSEPH MUMBI, felldown and became unconscious. The accused person left the crimescene. The deceased was taken to his mother's place in John LaingCompound."

From the above paragraph, it is crystal clear that the learned

trial judge introduced his own facts which he took into account to

justify the imposition of the stiff penalty. We must emphasize for

the guidance of lower courts that in sentencing an accused person,

a trial court should restrict itself to the statement of facts presented

by the prosecution. The court should not allow itself to stray

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outside the statement of facts as doing so may prejudice the

accused and may result in an unfair trial. As the learned Deputy

Director submitted, consideration of the accused's home area as it

happened in this case, has the danger of depriving the poor, or

indeed any accused person for that matter, of a fair trial which is

guaranteed in our Constitution. In the case of Lt. General Wilford

Joseph Funjika vs. The Attorney Generall we held, inter alia,

that:

2. Article 18 of the Constitution provides for the accused'sindividual rights to protection by law. It protects the fair trial ofa person charged with a criminal offence.

The provIsIon m our Constitution is further amplified by

Article 14 of the International Covenant on Civil and Political

Rights (ICCPR)which states that:

All persons shall be equal before the courts and tribunals. In thedetermination of any criminal charge against him, or of his rightsand obligations in a suit at law, everyone shall be entitled to a fairand public hearing by a competent, independent and impartialtribunal established by law...

Clearly, the right to a fair trial is paramount as it safe guards

individuals from unlawful or arbitrary deprivation of their human

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rights and freedoms and it ensures effective functioning of the

administration of justice. It is, therefore, important to guard

against any factors that have the potential to take away this right

from the accused. In a paper titled "Fair Trial Standards" Prof.

MicheloHansungule cited the Supreme Court of India in the case of

Dharmeshbhai Vasudevbhai and Others v. State of Gujarat and

Others2 where a fair trial was defined to mean:

A trial before an impartial judge, a fair prosecutor and anatmosphere of judicial calm. Fair trial mean a trial in whichbias or prejudice for or against the accused, the witness or thecause which is being tried is eliminated.

We have deliberately discussed what a fair trial is as a

reminder to trial courts that this should be kept in mind as they

carry out their duty of delivering justice.

In the case in casu, the learned trial judge concerned himself

with the fact that the appellant was a resident of Chibolya where

crime is rampant and he labeled the appellant as a criminal. This

was totally uncalled for and goes against the principles of a fair trial

as the learned judge exhibited bias against the appellant. Further,

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the learned trial judge, as we have alluded to herein, introduced his

own facts during sentence. According to the learned trial judge,

the deceased was not part of the fight but that the fight was

between the appellant and two other male persons. The learned

trial judge also stated that the deceased was trying to stop the fight

and that the appellant vented his anger on the deceased when he

did not deserve it. A perusal of the statement of facts reveals that

these facts were not in the statement of facts presented before the

court below. Indeed, as rightly pointed out by Mr. Muzenga, these

erroneous and prejudicial views by the learned trial judge led him to

believe that there were aggravating circumstances in this case - this

was a grave misdirection because there were none. And

consequently, he imposed a stiff sentence which cannot be justified

under the circumstances.

In the case of R vs. Edward Nsokolo3 the Court of Appeal, the

forerunner of this Court set out the principles to be considered by

trial courts during sentence as follows:

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1) Intrinsic value of the subject matter;2) Antecedents of the accused;3) Youth of the accused;4) Conduct of the accused at the trial particularly with

regard to his plea;5) Prevalence of the particular crime in the

neighbourhood.

In this case, the learned trial judge obviously failed to follow

the established principles of sentencing which can be found in a

plethora of cases in our law reports. We urge trial courts to follow

sentencing guidelines in the interest ofjustice.

Having stated the above, it is clear that the sentence of 20

years comes to us with a sense of shock. In this case, the appellant

picked a quarrel with two people and the fight ensued and in the

process, he struck the deceased with a stick. The deceased died a

few days later. The appellant is a first offender who readily pleaded

guilty and the facts of the case did not reveal any aggravating

circumstance. We, therefore, set aside the sentence of 20 years and

instead, we impose a sentence of 10 years imprisonment with hard

labour with effect from the date of arrest.

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• •

Appeal against sentence allowed.

(~ll::-:i~\i "/'.,.

, -J ~. ,lA...\..........••••....... ......~,......•........G.,S. PHIRI

SUPREME COURT JUDGE

I. E.N.C. MUYOVWESUPREME COURT JUDGE

..................•••.• ~~~•..................M.-MALILA~

SUPREME COURT JUDGE

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