Tobias Tumbela v the People (APPEAL No. 20/2020) (4 March 2021) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA APPEAL No. 20/2020 HOLDEN AT NDOLA ( Criminal Jurisdiction) BETWEEN: TOBIAS TUMBELA APPELLANT AND THE PEOPLE RESPONDENT Coram: Muyovwe, Hamaundu and Chinyama, JJS. On 11th August, 2020, isr September, 2020, 6th October, 2020 and on 4th March, 2021. For the Appellants: Mr. J. Zulu, Messrs Japhet Zulu Advocates with Mr. M. C. Mulenga, Messrs Maybin and Partners. For the Respondent: Mrs. M. C. Chipanta-Mwansa, Deputy Chief State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Judgment of th e Cou rt. Statutes referred to: 1. The Anti-Human Trafficking Act No. 11 of 2008 2. The Immigration and Deportation Act No. 18 of 2010 3. The Criminal Procedure Code, Chapter 88, Laws of Zambia Jl 1. At the hearing of this case, we sat with Lady Justice E. N. C. Muyovwe, who regrettably, recently passed away. This judgment is, therefore, that of the majority. 2. The appellant was convicted by Mr Chiluba P. Kalutwa, Magistrate Class II at Serenje Subordinate Court, along with a Zimbabwean national named Aaron Samuel and 36 Ethiopians for the offence of smuggling persons contrary to section 9( 1) of the Anti-Human Trafficking Act No. 11 of 2008. He was also convicted together with Aaron Samuel of the offence of aiding illegal immigrants to remain in Zambia contrary to section 46(1)(4) of the Immigration and Deportation Act No. 18 of 2010. 3. The Magistrate remitted the case to the High Court at Kabwe for sentencing on the two offences pursuant to section 217 of the Criminal Procedure Code (CPC). 4. The High Court, D. Y. Sichinga J , as he then was, presiding, sentenced the appellant to 15 years imprisonment with hard labour being the minimum sentence for the offence of smuggling persons provided under the section. The appellant was also J2 fined K36,000 payable within 90 days in default 2 years simple imprisonment for the offence of aiding illegal immigrants to remain in Zambia. 5. The appeal is against the conviction only for the offence of smuggling persons and the arguments in this appeal were directed to that matter. 6. The evidence upon which the appellant was convicted was that on 4th December, 2014 around 03:00 hours, the appellant was apprehended at Pensulo Police Check Point in Serenje for driving his containerised truck registration number ACZ 1191 in which 37 illegal immigrants were found. When asked by the police officer on duty what was in the container, the appellant replied that it was charcoal but when the officer checked he found the human cargo of illegal immigrants. 7. Two accounts were given how the illegal immigrants found themselves in the appellant's truck. J3 8. The first account is that given by police and immigration officers based on what they gathered from interviewing the appellant, his lorry mate (Francis Hachanga) and Aaron Samuel. This account went like this: A couple of days or so earlier the appellant and his lorry mate had travelled to Mpika from Mkushi with some women that had hired the truck to transport caterpillars from Serenje to Lusaka. In Mpika they found that another truck had already been hired to carry the caterpillars by other women. The appellant and his lorry mate thus tarried at Mpika trying to find loads to ferry back on the return journey. The next day Aaron Samuel, the Zimbabwean national, approached the appellant asking for a lift to Lusaka. He was offered only a lift to Chalata in Mkushi. The appellant was then approached by a man named Steve, through Aaron Samuel with a proposal to transport the 36 Ethiopians to Lusaka from Mpika. The appellant agreed to carry them only up to his Mubalashi Farm in Kapiri Mposhi and he was paid K2000 as the fare. The lorry mate did not participate in the transaction. The appellant and Aaron Samuel went to collect the 36 Ethiopians from a house some 10 kilometres outside the Mpika J4 Central Business District (CBD) before picking up the lorry mate whom they had left waiting at a filling station. Thereafter, they embarked on the fated journey up to the police check point. 9. The second account was given by one of the illegal immigrants who was discharged after his case was withdrawn by the State. This was 15 years old Abaycoje Anshebo (PW4) who testified that Aaron Samuel picked up the 36 Ethiopians including himself in the appellant's truck in Tunduma. They entered Zambia without passing through Immigration Office. He did not know which country Tunduma was in but he heard from people at the place they were staying that they were in Tunduma and when being picked they were told that they were being taken to Lusaka. He stated that they used one truck from Tunduma to where they were stopped by police (at Pensulo Police Check Point). 10. The appellant's own defence advanced the first account save for a few minor differences. JS 11. The two accounts clearly highlight a discrepancy in the prosecution's evidence. 12. The trial Magistrate, after analysing the ingredients of the offences charged and the evidence, made findings of fact based on the first account gathered by the police and immigration witnesses. He clearly did not give any weight to the evidence of PW4. It is, however, notable that PW4 was part of the illegal immigrants and he was quite emphatic about where he and the others were picked from by the appellant and Aaron Samuel, stating repeatedly that it was Tunduma. He was not challenged about this evidence by the appellant or any of his accomplices. 13. We think that PW4's evidence was crucial to resolving whether the offence of Smuggling Persons was made out. From the definition of the term "smuggling" referred to by the Magistrate taken from section 2 of the Anti-Human Trafficking Act, the offence consists in procuring the illegal entry of a person into a country of which he/she is not a national or permanent resident for financial or other material benefit. JG 14. If the Ethiopians were picked up at Mpika which is in Zambia, by the appellant, the offence of smuggling is not established because at that point there was no "illegal entry'', the Ethiopians having already entered the country, from Tunduma which we take judicial notice of, as being a place or town in the sovereign country of Tanzania. At best the charge that could be sustained is that of Aiding Illegal Immigrants to Remain in Zambia which was the situation when the appellant and his co-accused were apprehended at Pensulo Check Point. 15. Having accepted the account given by the police and immigration officers, the Magistrate should not have convicted the appellant for smuggling the illegal immigrants because he did not procure their entry into Zambia. 16. There is, therefore, merit in the appeal against conviction for the offence of smuggling which we accordingly set aside. Consequently, the sentence imposed in respect of that offence is equally set aside and the appellant is set at liberty with respect to that offence J7 17. In the result, there only remains the conviction for the offence of Aiding Illegal Immigrants to Remain in Zambia for which the appellant was fined and he is not appealing against that. E.M. HAMAUNDU SUPREME COURT JUDGE SUPREME COURT JUDGE JS