The People v Israel Zulu (HPS/45/2024) (5 September 2025) – ZambiaLII

I IN THE HIGH COURT FOR ZAMBIA HPS/45/2024 FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: - f: : ..... ':iARY THE PEOPLE '-.,J. j Sc.? 2925 ~ l, V INAL REGISTR' ISRAEL ZULU BEFORE HONOURABLE. MR. JUSTICE C KAFUNDA IN OPEN COURT THIS DAY OF SEPTEMBER, 2025 S TH For the state: Mrs. Susan Bwalya Besa, Senior State Advocate - National Prosecution Authority. For the Convict: Mr. P. Chavula, Deputy Chief Legal Aid Counsel-Legal Aid Board. RULING Cases referred to: 1. Nathan Hakagolo v The People Judgment No 7 of 2016 2. Bright Kaweme v The People Appeal No 140 of 2015 3. Ministry of Home Affairs, Attorney General v Lee Habasonda (on his own behalf and on behalf of SACCORD) (2007) Z.R 207 Legislation referred to: 1. Penal Code Act Chapter 87 of the Laws of Zambia 2. Criminal Procedure Code Act Chapter 88 of the Laws of Zambia 3. Children's Code Act No 12 of 2022 Scanned with CamScanner· The convict stood charged with one count of the offence of defilement of an imbecile contrary to Section 139 of the Penal Code Act Chapter 87 of the Laws of Zambia. The convict appeared before the Subordinate Court for the Lusaka District where he was found guilty and convicted of the offence. He was subsequently committed to the High Court for sentencing pursuant to Section 217 of the Criminal Procedure Code Act Chapter 88 of the Laws of Zambia as the provisions of Section 139 of the Penal Code Act prescribe a minimum sentence of fourteen years for the offence, which is beyond the jurisdiction of the Subordinate Court. When the matter came up for sentencing on 27th August, 2025, learned defence counsel informed the Court that the defence did not support the conviction of the lower Court because of glaring procedural irregularities noted on the record. Learned defence counsel submitted that Section 218(3) of the Criminal Procedure Code Act, requires the Court to satisfy itself as to the correctness of the conviction before proceeding to sentence the convict. The case of Nathan Hakagolo v The People1 was cited as authority and wherein the Supreme Court held that, when R2 Scanned with CamScanne( sentencing, the Court had a duty to satisfy itself as to the propriety of the conviction. Learned counsel brought to the attention of the Court the following irregularities noted on the record; i. That on page 7 of the record, the trial Court erroneously proceeded to swear in a witness who Jailed to pass a voire dire test. n. That on page 11 of the record, the trial Court proceeded to place the convict on his defence without a ruling on a case to answer and that the ruling was made after the convict had .finished giving his defence. Based on the foregoing, it was submitted by counsel for the defence that the Court cannot proceed to sentence the convict with such glaring errors and irregularities noted on the record. In response, it was submitted by counsel for the prosecution that the Court was sitting as a sentencing Court as established in the case of Bright Kaweme v The People2 wherein the Supreme Court held that a sentencing Court, seized with a matter for sentence referred to it under Section 217 of the Criminal Procedure Code Act, takes the place of the trial Court. With reference to the aforesaid position, it was submitted that the Court should proceed to sentence the convict in accordance with the guidelines laid down by the Supreme Court in the Bright Kaweme case supra. That the invitation by the defence R3 Scanned with CamScanner- for the Court to quash a conviction on account of procedural impropriety would amount to the Court sitting as an appellate Court. I have considered the viva vorce submissions by counsel and I have also perused through the judgment and the record of the trial Court. It is indeed the position that the Supreme Court in both the Bright Kaweme and Nathan Hakagolo cases affirmed the position that, when sentencing in cases referred to it under Section 217 of the Criminal Procedure Code Act, the High Court takes the place of the trial Court. That is why a party does not have the right to invoke the Court's power to exercise it's revisionary power when a matter is before the Court for sentencing. Notwithstanding the foregoing, the Supreme Court in both the Bright Kaweme and Nathan Hakagolo cases did acknowledge the duty of the Court to satisfy itself of the propriety of the conviction before proceeding to sentence. The aforesaid is especially explicated at JlS and J16 of the Nathan Hakagolo case. The Supreme Court held that; "It is, therefore, an error on the part of a High Court Judge to merely proceed to sentence an accused without satisfying oneself as to the propriety of the conviction. However, coming to this case specifically, we hasten to point out that Counsel's application inviting the High Court to review the matter before sentencing was misconceived and that the learned judge was on firm ground when R4 Scanned with CamScanne( he refused to review the matter. As we have earlier stated, the matter was not before the learned Judge for review but for sentencing only. Perhaps, it is the word "review" that may have confused learned Counsel. We take the view that the learned Judge understood counsel to be inviting him to review the cases under Section 337, 338 or 339. There is a difference between a case under review and a case for sentencing. Having said that, we must emphasize that in accordance with Section 218(3), the High Court as a trial court must satisfy itself as to whether the conviction was proper before sentencing the convict. Justice demands that this be done at this stage because there may be some deserving cases where the Subordinate Court may have erred in its judgment and the convict could either be acquitted or the case sent back for retrial. We must point out that, at this stage the Court is at liberty to invite Counsel to address it on the propriety of the conviction by the lower Court. Counsel may request to address the Court on the issue, if not called upon by the Court. We find nothing wrong for a High Court Judge who is satisfied that the conviction is safe to proceed to sentence the accused after mitigation. We also dealt with the issue in Grey Servan vs. The People." Thus, where errors and irregularities are noted on the record, the Court cannot gloss over such errors and irregularities and press the matter further because that may result in compounding the prejudice already occasioned to the convict as a result of such errors or irregularities. It is, therefore, immaterial that it is defence counsel who raised the issue pertaining to alleged errors or irregularities. In such circumstances, the Court has to be deliberate and correct such errors or irregularities. In doing so, the Court can properly RS Scanned with ~ CamScanner- revert to it's revisionary powers provided for by Section 338 of the Criminal Procedure Code Act which empowers the Court to invoke a myriad of corrective action with respect to a matter before or emanating from the Subordinale Court. Having examined the judgmenl of lhe trial Court, what is immediately striking is that there is no review of the prosecution and defence evidence in the judgment. Il is apparent at J2 and J3 that the learned Magistrate went directly into lhe findings of fact without reviewing the evidence which was the basis of the said findings of fact. The Supreme Court had occasion to pronounce itself on the structure and framework of a judgment in the case of Ministry of Home Affairs, Attorney General v Lee Habasonda (on his own behalf and on behalf of SACCORD)3 The Supreme Court guided that a . judgment must include a review of the evidence presented, the legal submissions made by the parties and the Court's own analysis of how the law applies to the specific facts of the case. A consideration of the learned Magistrate's judgment shows that as the judgment begins to address the findings of fact at J2, there is no reference whatsoever to the number of witnesses who were called by RG Scanned with i} CamScanner· the prosecution, in this cas four (4) witnesses, what they said and the fact that the accused person testified on oath. The aforesaid onuss1ons ere a grave error on the part of the learned Magistrate. A judgment must demonstrate a logical flow from the evidence to the conclusion. Therefore, a review of the evidence in a judgment ensures that the parties and the general public are able to appreciate the Court's reasoning in arriving at it's findings because the findings are always anchored on evidence. Further, the record at page 7, reveals that the learned Magistrate conducted a voire dire in relation to the third prosecution witness (PW3), a child witness, as prescribed by the law. The learned Magistrate concluded that the child witness did not have sufficient intelligence or did not understand the duty to speak the truth. Surprisingly, the learned Magistrate proceeded to direct that the child witness gives sworn evidence. The provisions of Section 78 (1) and (2) of the Children's Code Act No 12 of 2022 are instructive as to the procedure for rece1vmg evidence of a child witness. The law provides as follows; R7 Scanned with CamScanner· "78(1) Where, in any criminal or civil proceedings against a person, a child is called as a witness, the juvenile Court or Children's Court shall receive the evidence, on oath, of the child if, in the opinion of the juvenile Court or Children's Court, the child possesses sufficient intelligence to justify the reception of the child's evidence, on oath, and understands the duty of speaking the truth. (2) If, in the opinion of the juvenile Court or Children's Court, the child does not possess sufficient intelligence to justify the reception of the child's evidence, on oath, and does not understand the duty of speaking the truth, the child may give- (a)unsworn evidence that may be received as evidence in ajuvenile Court or Children's Court; or (b)evidence through a child welfare inspector responsible for the child's case." It is clear from the foregoing provisions of the law that where the opinion of the Court is that the child witness possesses sufficient intelligence to justify receipt of the evidence on oath, and understands the duty of speaking the truth, such a child witness shall give sworn evidence. On the other hand, where the Court is of the opinion that the child witness does not possess sufficient intelligence to justify receipt of evidence on oath nor does the child witness appreciate the duty of speaking the truth, the child witness may either give unsworn evidence or may give evidence through a child welfare inspector responsible for the child's case. RB Scanned with CamScanner" Thus, after the learned Magistrate arrived at a conclusion that the child witness did not possess sufficient intelligence nor did she understand the duty to speak the truth to justify receipt of her evidence on oath, the child witness ought to have been directed to give unsworn evidence or to give evidence through a child welfare inspector responsible for her case. Proceeding to direct the child witness to give sworn evidence was a serious misdirection on the part of the learned Magistrate and obviously prejudicial to the convict. A further scrutiny of the record shows that the prosecution closed it's case on 7th February, 2024, after which the learned Magistrate adjourned the matter to 14th February, 2024, for a ruling on a case to answer. What is startling, however, is that on 14th February, 2024, the accused person proceeded to give his evidence on oath before the Court could establish by ruling, weather the accused person had a case to answer or not. The accused person was, therefore, made to answer to a case that had not been established on a primafacie basis as is required by law. To make things worse, the learned Magistrate, acting retrospectively, delivered a ruling wherein R9 Scanned with I} CamScanner· the accused person was found with a case to answer and put on his defence. The provisions of Section 206 and 207 of the Criminal Procedure Code Act provide as follows; "206. If, at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case, and shall forthwith acquit him. (As amended by No. 2 of 1960) 207(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused person sufficiently to require him to make a defence, the Court shall again explain the substance of the charge to the accused and shall inform him that he has the right to give evidence on his own behalf and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the Court shall then hear the accused and his witnesses and other evidence, if any." The aforesaid provisions of the law are couched in mandatory terms and hence the Court has a duty to strictly comply with the provisions when conducting trial because the provisions go to the core of due process which has an impact on a person's liberty. It is, therefore, a requirement that, at the close of the prosecution's case, a ruling on a case to answer ought to be given in order to formally pronounce, whether or not, a prima facie case has been established against the RlO Scanned with Ci CamScanner· accused person. Therefore, it is a misdirection to deliver a ruling on a case to answer after the accused person has already given his evidence as the lower Court did. The glaring irregularities and errors referred in the foregoing obviously bring into question the propriety of the conviction entered by the trial Court. I am, therefore, of the view that this is a rightful case in which to exercise my revisionary powers as set out in Sections 338 of the Criminal Procedure Code Act. In so doing, I hereby set aside the conviction imposed by the lower Court and refer the matter back to the Subordinate Court for a before another Magistrate of competent jurisdiction. DELIVERED THIS DAY 5TH Rll Scanned with ~ CamScanner·