People v Kalaki (2PG 14 of 2017) (30 March 2017) – ZambiaLII

• • IN THE SUBORDINATE COURT OF THE FIRST 2PG/014/17 CLASS FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (Criminal Jurisdiction) THE PEOPLE V • FREDRICK KALAKI For the state: KAKOMA AND MUKOMBWE. N For defence: IN PERSON Coram: HON MWANSAR JUDGEMENT The Accused in this matter stands charged with smuggling of persons Contrary to Section 9 (1) of the Anti-Human Trafficking Act NO.l1 of 2008 of the Laws of Zambia. The Particulars ofoffence are that Fredrick Kalakion unknown dates but in April, 2016 at Lusaka in the Lusaka District of the Lusaka province of the Republic of Zambia did smuggle a child namely Solomon Kulaki out of Zambia. , • When called upon to take plea, he pleaded guilty to the charge but the court entered unequivocal plea of nor guilty huving not satisfied itself '-1,'ithall elements of the offence charged and trial moved fon.vard. It is trite law in criminal proceedings that the burden of proof lies on the prosecution to prove its case against the accused beyond all reasonable doubt and that there is no onus on the accused to prove his innocence. The accused is entitled to call evidence, either swam or unsworn or may • indeed choose to remain silent. He is also entitled to call \\itnesses. Suffice to state that whichever option the accused chooses to launch his defence, the prosecution must still prove the case against him beyond all reasonable doubt. Turning to the count Section 9 (1) of Anti- Human Trafficking Act No, 11 of 2008 (hereinafter called the act) provides that; "Subject to subsection (2) a person who smuggles another person into Zambia, participates in smuggling or who consents to being smuggled commits an offence and is liable, upon conviction, to imprisonment for a tenn of not less than fifteen years and not exceeding twenty years,» Section 2, the interpretation section of the same Act defines smuggling to mean "the procurement, in order to obtain, directly or indirectly a , financial or other material bcncfit, of thc illcgal cntry of a person into a country of which thc pcrson is not a national or pcrmancnt residcnt. " Therefore, in order to estublish the guilt of the accused, the prosecution must prove each and every"ingredient of the offence above. It must be proved that; 1. That accused smuggled the victim into or outside Zambia • 2. That the accused procured the victim in order to obtain a financial gain or material directly or indirectly 3. That he facilitated the illegal entry of the victim outside or into Zambia 4. That the accused had no lawful jUstification for his action. The prosecution called only two v.itnesses and I shall not belabor to reproduce verbatim the testimonies suffice to state that I shall only dwell on the evidence which, in my considered view, is relevant to the • determination of this matter. PWI was Memory Kalaki Mwaba who testified that she is the spouse to the accused Fredrick Kalaki James who she married in 2014. She recounted that on unknown dates in 2016, she was cohabiting with him and that he said he wanted to make their son Solomon Kaliki a l't Birthday. Solomon was born on 12th. May2015. PWI told the court that after the accused said he waited to make the said party he went to town with their son and said he had gone to buy him clothes but decided to go for good, four days passed without shov.1ngup and PWI then got worried and started looking for the accused to no avail • and PW1only started crying and was helpless. PWI didn't have his contacts hence couldn't communicate with him hence decided to get in touch with his relatives and after some time the accused communicated through PW1's sister Mulenga Mwaba that she should inform her that he has gone with the child to his country of origin whilst using the Zambian line. PWI and the sister then managed to trace him through his Zambian number and found him in town around 22:00hrs and he kept on mentioning two countries that the child is in Nigeria and Uganda that is when PW1 reportcd the matter to City Market Police Post and hc was later transferrcd to Matero Police station and the police said thcy \\111 , trace the v,'ay-abouts of the child and the child was found in Uganda with the accused's father and the child had stayed there for 9 months, PWl told the court that she didn't allow the accused to take the child to Uganda. She brought the Under-five card, the birth record together with the child in court and the court had an opportunity to see the child who is still an infant under the age of two years old, • In XXNshe told the court that she didn't report the matter as she was confused because the child is too young and the matter was only reported in January 2017 and that she never agreed with the accused that she takes the baby however at the time he took the child they were still married. She was not aware why he took the child and that he was not the one who collected the birth record. In REXNshe s<:lidshe never consented, PW2 W<:IJSohn Miye1engewho told the court that he was the arresting officer in this matter and he received a complaint from PW1 that her husband had taken the child from home with a view of buying him clothes but went for good, The child's name is Solomon Kalaki. PW2 upon that receipt instituted investigation and the accused who ,,",'as already in custody was interviewed as why he took the child from the mother PWI and he said that he took the child to Uganda using under hand methods that is by taking the child through bribing people to help move the child across the borders. After the interview the officer was unsatisfied hence this prompted him to charge the accused with the • subject offence and under warn and caution statement administered in English the accused admitted the charge and he was detained pending court process. PW2 as the person in custody produced the under-five clinic and birth record as evidence and this was admitted as PI and P2 respectively. At the close of the slate's case the mother to the child PWI came to huve the matter with drawn ugain~t the accused for the reason that she didn't want the husband to go to prison and that she only reported the mattcr because the child was taken. The court however disallowed the application as this was a scrious offence which didn't fall in the perimeters of personal nature as espoused , by Section 8 of the criminal procedures code, Chapter 88 of the laws of Zambia. The prosecution rested their case and the accused was put on his defence and he elected to give sworn evidence and called I witness. OWl was Fredrick Kalaki who told the court that he was a business man • and a Ugandan national, he said the child who is alleged to have been smuggled to Uganda Solomo Kalaki his son, who he bore with PWI and that the said child stopped breast feeding at five months when PWI said she wanted to start work and after that the child started getting sickly and malnourished. OWl told the court that his family requested that he takes his wife to Uganda to have her introduced as well the baby so that the baby could be given a traditional name and tmdergo certain African rituals which arc done to the first born male child but PWI refused to go with him that she was scared to go to his country because he could kill her. OW1 then went to the PWI's mother and she agreed that the child could be taken and she allowed OWl to go \~ith the child, the said PWI's mother is Memory Mwaba. The child was two months and OWl started arranging , for the movements of the child and he first travelled alone to Uganda. OWl was in shock when the officers come to testify in court that he used underhand methods because he visited Chawama Police and he used a proper traveling document. OWl said the traveling documents had his names Fredrick James Kalaki, the name of his child, date stamp from Chawama Police, immigration stamps for Zambia, Tanzania and Uganda • and it was dated 12th Apri120l6 . OWl identified the document positively and v.':ishedto tender it in as part of evidence and there was no objection from the state consequently it was admitted in evidence as 01. OWl went on to say that on the day the child was going PWI even dressed the child and escorted OWl to the bus station and when OWl reached Uganda he communicated to PWl's sister to tell her they arrived safely at that time PWl had no cell phone and hence continued communicating on PWl 's sisters phone. OWl whilst in Uganda was asked by his relatives why he left the wife behind in that they needed to do some cultural practices which involved introducing PWl to the family, the Umbilical code for the child was also , needed so that the child can be cleansed and named by the grandfather and at that time PWI never complained anywhere until this year in January 2017. DW1 then come back to Zambia to pick the wife PW1 and he found that she had shifted to another place and DWl communicated through PW1's sister and agreed how they could meet and they met so that they could • discuss in town the issue concerning the child's umbilical code and PWl going with OWl to Uganda but to OWl's surprise he was apprehended and they almost charged him with killing his child at matero but the charge was reduced to smuggling. ow 1 got emotional in court and said that he was at pmns that he is accused of smuggling his own child as there was nothing he wanted to gain and that there was nothing sinister of him taking his child to his country in that even when the child was away the child was safe \\ith his family and he ",,'aseven the one providing mealic meal and all the basic needs for PWI and her family as he was sending money through out the month. , In Cross Examination OWl was laid by the state to look at 01 and he confirmed that it was the travel document for the child which was gotten for him after OW1was robbed of his passport including that of the baby. He agreed to have travelled with the child to Uganda and denied using any under hand methods and that the purpose as stated was only for tradition and there \,..as nothing sinister or any financial gain, the child • needed to be baptised traditionally and given a middle name that is Musowa the name which is for the grandfather. The child was brought back to Zambia by OWl's sister after he was arrested and that it come as a shock that the wife reported him to the police when the family sat down and allowed him. OWl concluded by saying he didn't smuggle his own child he was duly authorised by Zambia, Tanz.."lniaand Uganda. In REXN OW1 told the court that no underhand method where used. OW2was Ninakayi Ireen Nangai, who told the court on oath that she was a Ugandan national and that she worked as a secretary in Uganda and that OWl was the young brother. She recounted that somewhere in 2015 OWl went to visit Uganda with the baby so that the baby can be named and undergo cultural practices that included circumcision and cleansing the child in medicine, however the family observed that OWl came alone hence they told him to go hack to Zambia so that he could also introduce his wife PW1 to them and the tradition required the wife to be present and OWl came to Zambia but the family in Uganda just heard that he • was arrested for smuggling the child hence DW2 and the father Mr. Solomon Musowu KulikiSenior come with the baby. In Cross Examination DW2 told the court the baby was not taken to Uganda for sell and that she saw the travelling document which was used to take the child to Uganda and no money was paid to obtain it. The child only went to Uganda to undergo cultural practices which included circumcising him. This was the evidence before me. Having considered the evidence in this case, I must state my findings of fact. Facts are that the accused and PWl are husband and wife, they arc both parents to Solomon Kaliki the child herein alleged to have been smuggled by the accused. The child is currently 1year ten months. he was taken to Uganda and lived there for n j 9 months using a travelingdocument, PWIdidn't consent forthe child to travel abroad, the child was brought back to Zambia by DW2and the child was safe and sound and the court had an opportunity to see the healthy baby. The followingare the disputed facts, whether under hand methods were used to smugglethe child,whether the child was onlytaken forUgandan • cultural practices that is cleansing, naming and circumcision as first born. Havingfonnd the facts in this case I must apply the lawto these facts. I ask myselfifon these facts, whether the accused has in law committed the offencecharged. if the accused had committed the said offenceas charged then he would be guilty as charged. But has the prosecution established beyond reasonable doubt that the accused committed the said serious offence? What evidence is there? There was direct evidencefromthe state witnesses particularly PWI that her husband the accused herein took their child with a lie that he was going to make a birthday party for him as well as going to town to buy him clothes in April 2016, but the accused went for good and only communicated through Mable Mwaba (PWl's sister) that he was in Nigeria or Uganda due to the fact PWI at that moment didn't have a cell phone, upon that discovery PWI become distressed and helpless therefore she decided to report the matter to the police in January, 2017 and the baby was then brought back by thc accuscd's fathcr and his sistcr. PW2the last witness also told the court that the accused used under-hand methods to • transport the child to Uganda that IS by bribing people to help me transport the child on the boarders. If the accused story is to go by, hc told me that he didn't smuggle the child but only took the child legallywith a travelling document to Uganda he passed through the Zambian Immi!,'l"ation,Tanzanian Immigration and Ugandan Immigration legally and who all affIXedtheir visa stamps on the said document. • The accused tendered in the travelling document as part of his evidence and it was readily admitted as part of defence case. The accused went on to say that there was no financial gain CarrIcdfrom his child travelling \vith him to Uganda to undergo traditional practiccs of naming, cleansing and he needed to also take the umbilical code which n remained with PWI in Zambia, hi~ family needed the said umbilical code for cultural practices done with their first sons. The accused told the court further that he is still married to PWI and that he even asked her to accompany him to Uganda but she refused and said she was scared to go with him to his country with fear of been killed and that PW1 never reported the matter to the police for almost a year • until this year and PWI and her family continued getting support from the accused until this year when he came back to get her after his family rcquested for her to his surprise he got arrested and was almost charged 1,I,ithmurder. After coming back to Zambia the child remained with the accused family and DW2confirmed in court that yes she was the one who even brought the baby and they are the ones who told the accused to come and pick PW1 so that she meets them and so that the child could be circumcised. At thi~ point J shall apply the law to the above evidence, first and foremo~t, PWI IS the spouse as a result she is competent but not compellable henceforth I need to satisfy myself on whether she met the requirements of Section 151 (b)of the criminal Procedures Code, Chapter " 88 of the laws of Zambia, which provides that 4n any inquiry or trial, the wife or husband of the person charged shall be a competent witness for the state or defence without consent of such person in any case where the wife or husband of a person charged may under any law in force for the time being, be called as a witness without the consent of such person in any case where such person • in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them. The court had an opportunity to invoke the above law in Nalumino Nalungwana and Another v The people (1986) ZR 28 S.C that "it is a misdirection for the trial court to admit the appellant's evidence as it didn't meet the requirements of Section 151." • Indeed contrary to the above case, this instant case 1Sa proper one which qualifies PWI as a witness and us such the state was on firm ground to huve culled her as a witness, therefore her evidence has two legs to stand on. • Coming to the essential clements, it is not in dispute that the accused facilitated the entry of his son without the consent of the other parent PWI, however from the evidence at hand, 1am not satisfied that there was any procurement of the child from the accused to obtain any material benefit or financial gain in that there was no pecuniary advantage camcd which was demonstrated by the slale that the accused • gained from letting his O\\TIchild stay •.i•t•h his grandparents in Uganda, indeed the state has alleged he used under-hand methods but it is their word against his as no \\itness was called to confirm PW2's evidence that under-hand methods was indeed used, in fact the accused produced an original travelling document which was used to fiery the child to Uganda nonetheless the issue raised of cultural practices at defence has left questions unanswered as I am not privy to the Ugandan tradition thus, I needed some independent testimony to confinn the alleged cultural • practices other than from DW2 as I have taken into consideration that she is the sister hence prone to fabricate a story favourable to the brother. • • Furthermore on the prosecution's case Iam having a lot ofdoubts in that they even attempted to withdraw the matter by invoking Section 8 of the Criminal Procedures Code, Chapter 88 of Laws of Zambia, but I disallowed the application as this is a serious offence which is not of personal nature and as carlier alluded they never called any other independent witness to confirm that indeed under-hand methods where • used to fiery the child therefore this is raising doubts as to whether the child was taken to Uganda for mischievous purposes which needed to satisfy the elements of the offence at hand. J am persuaded by the judgement of the learned judge Baron Jp in Phiri and others v The People 11973) ZR 47 that "the courts are required to act on the evidenceplaced before them. If there are gaps in the evidence the courts are not pennitted to fill them by making assumptions aducrse to the accused. If there is insufficient evidence to Justify a conviction the courts have no alternate but to • acquit the accused... In this event I am guided by the above principle that there are so many lingering doubts which are automatically resolved in the accused favour. I further seek refuge in Woolmington V the DPP (1935) AC 462 that "Throughout the web of criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the " • • • accused guilt .... If at the end if and on the whole case, there is a reasonable doubt, created by the evidence given by either the prosecution or the accused. If the prosecution has not made out the case the accused is entitled to an acquittal. Invoking the above land marks I am not satisfied that the state has proved the case beyond reasonable doubt as they arc still lingering doubts in evidence which are resolved in the accused favour as stated above, consequently I find the accused NOT GUILTYfor the offence of • Smuggling of persons Contrary to Section 9 (1) of Anti- Human TraffickingAct No. 11 of 2008, I forthwith ac,quit and set him to his liberty. . ~i'i~' ,.~. ,':r. :"\"'/.'<~,~. -.?;;- :" R,\ch{ Mwansa ,?" \'". o;j..".•.•'. \ . ';,o,?J '/ MAGISTRATE CLASS II •