CRIMINAL PROCEDURE - 2018

JURISDICTION OF THE COURTS

Anchored on the Criminal Procedure Code. Jurisdiction means two things: - the court to receive a
case presented before it and to decide on the matters presented before it. If the court has no
jurisdiction, it can neither convict nor acquit a person presented before it. The People v Dauti 1985
ZR

THE PEOPLE v DAUTI TIYESANJE PHIRI (1985) Z.R. 201 (H.C.)

Flynote

Criminal Law and Procedure - Acquittal - Whether court can acquit where it has no jurisdiction to try
a case.

Criminal Law and Procedure - Acquittal - Circumstances where court may acquit.

Criminal Law and Procedure - Subordinate court - Procedure - Alternatives in dealing with cases
triable by the High Court.

Headnote

The accused was charged before a Subordinate Court with aggravated robbery, an offence triable by
the High Court. On twenty-four separate occasions stretching over a period of one year the accused
appeared before a subordinate court and on each occasion an adjournment was made at the instance
of the prosecution because the Director of Public Prosecutions had not issued certificate to enable
the court to commit the accused to the High Court for summary trial. On the twenty-fifth occasion
the court refused to grant the prosecution any further adjournment and acquitted the accused for
want of prosecution. The prosecution applied to the High Court for review of the order of acquittal.

Held:

(i) A court cannot acquit or convict in a case which it has no jurisdiction to try.

(ii) An acquittal can only be entered where evidence has been led or if not led where the
prosecution has offered no evidence.

(iii) In dealing with cases triable by the High Court, if it thinks that waiting for a certificate
of committal for summary trial would occasion injustice to an accused person, a subordinate
court may either order the immediate holding of a preliminary inquiry or order the summary
discharge of the accused person for want of prosecution.

The legislation establishing the court determines the jurisdiction of the court. The legislation also
sets out the law that will be applied in the court.

Miyanda v The High Court 1984 ZR 62

GODFREY MIYANDA v THE HIGH COURT (1984) Z.R. 62 (S.C.)

Flynote

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Civil Procedure - Mandamus - Judges - Whether available against.

Jurisdiction - Supreme Court - Original jurisdiction - Whether available.

Headnote

A civil case in which the applicant was a plaintiff had been pending before a High Court judge for
over eight months. Being dissatisfied with this delay, the applicant applied to the Supreme Court for
leave to apply for an Order of Mandamus to compel the judge seized of the suit to determine else
action and deliver a judgment.

Held:

(i) The Supreme Court of Zambia is basically an appellate Court. It has no jurisdiction to
entertain an application for mandamus at first instance.

(ii) The remedy of mandamus is not available against the judges of the superior courts of
Zambia in the event of an alleged failure to perform their judicial functions.

Section 2 (a) of the Penal Code recognises that it is possible to have a common law offence in this
country. (This is contrary to Article 18 (8) of the Constitution). Section 3 (1) and (2) of the CPC
provides that offences in the Penal Code and other pieces of legislation will be tried in line with the
CPC except in cases were special procedure has been laid out.

Our courts have jurisdiction to deal with cases committed either in the country or outside the
country.

EXTRA TERRITORIAL JURISDICTION

This is the jurisdiction to deal with offences committed outside the country. Section 5 of the PC
provides that our courts have jurisdiction for offences committed anywhere within the country. There
are limitations to this general rule especially when dealing with the subordinate court whose
jurisdiction is tied to the district. However, the High Court has unlimited jurisdiction.

Extra territorial jurisdiction – section 6 of the PC provides that in a case of a Zambian who does an
act outside the country, can be tried in this country as if the offence was committed in this country.

Ngati and Others v The People 2003 ZR 100

SAMMY KAMBILIMA NGATI MUMBA CHISHIMBA EDWARD AND DAVY MUSONDA CHANDA v THE
PEOPLE

Flynote

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Criminal Law – Crime – Origin – Effect

Evidence – Corroboration – Whether court competent to convict on the testimony of a single witness.

Headnote

The offences for which the appellants were tried and convicted on were all committed in the
Democratic Republic of Congo and the first and second appellants are said to be Congolese. The trial
took place at Ndola in Zambia. Thus, the question of jurisdiction of the Zambian courts arose. This
question of jurisdiction although not raised at trial, was raised at the hearing of the appeal.

Held:

1. Crime has ceased to be largely local in origin and effect. Crime is now established on an
international scale and common law must face this new reality.

2. The appellants are Zambians and although the offence was committed out of Zambia, the
Penal Code applies to the appellants by virtue of Section 6 (1) of the Penal Code.

3. It is settled law that a court is competent to convict on a single identifying witness

provided the possibility of an honest mistaken identity is eliminated.

Dual criminality or double jeopardy.

In relation to foreigners, section 6 (2) of the PC provides that the courts will only have jurisdiction
to try a foreigner for an offence committed outside the country if it is partially committed in this
country.

The People v Roxburgh 1972 ZR 31

THE PEOPLE v ROXBURGH (1972) Z.R. 31 (H.C.)

Flynote

Court - Jurisdiction - Extra-territoriality - Limited to citizens of Zambia - Penal Code (Amendment)

Act of 1970, S. 7 construed.

Criminal law - Bigamy - Offence committed by second bigamous marriage.

Criminal procedure - Jurisdiction - Effect of s. 10 of Criminal Procedure Code - High Court's exclusive
Jurisdiction to try bigamy offence - Magistrate must take judicial notice of own jurisdiction and
orders under s. 10 of Criminal Procedure Code.

Headnote

The accused was convicted of the offence of bigamy contrary to' s. 145 of the Penal Code, Cap. 6 in
the Subordinate Court of the First Class, Lusaka. The case came before the High Court on review.

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Held :

(i) A court does not have unlimited jurisdiction to try offences committed outside the
territorial boundaries of Zambia (page 33, lines 1-7).

(ii) The Penal Code (Amendment) Act 1970, s. 7 gives courts jurisdiction to try Zambian
citizens for offences committed outside Zambia and to try non - Zambian citizens if the offence
is partly committed in Zambia (page 34, lines 1-6).

(iii) The offence of bigamy is committed by second marriage and the first marriage is not part
of the offence, merely creating the necessary status (page 34, lines 10-15).

(iv) A magistrate must take judicial notice of his own jurisdiction and of orders made under
the Criminal Procedure Code, s. 10 which reserve trial of certain offences to the High Court
(page 34 lines 27-34).

Legislation can confer extra-territorial jurisdiction on courts for offences no matter where they are
committed:

1. Anti-terrorism Act No. 21 of 2007;

2. Section 91 of the Anti- Corruption Act No. 3 of 2012;
3. Section 53 of the Financial Intelligence Act No. 46 of 2010.

Connected with jurisdiction is the aid of criminal responsibility. Section 14 of the PC provides that
a person below the age of 8 cannot commit a crime. It deals with people of ages 8 – 12. A person will
only be liable if it is shown that they knew what they were doing. This is a rebuttable presumption.

R v FC (Juvenile) 2 NRLR 185

Child- evidence of guilty knowledge

- time of animus furandi is time of conversion- not time of taking

If accused is under age 12- pros must show (from evidence led by crown) that accused knew he was
doing a wrongful act. Once prima facie case has been established, child can then be asked for his
version of the offence

Second: difference between English law and northern Rhodesia law with regard to the time at
which the animus furandi applies- in NR- it is the time of conversion, C/F UK- at the time of taking.
Facts:
Child aged 10- appeal on convictions and sentence- charged of theft- s.243 of PC
- Wristwatch- came into possession of the child without authority at Nkana swimming baths
- Next morning- child went to store with the watch
- Said he had had been given watch as a present
o But because he had 2, wished to sell this one

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o Smith- told him to get a note if he wished to sell it

o Child went away, returned with a note- mr smith bought the watch
- Q: did the magistrate have reasonable grounds for letting it appear to him that a prima facie
case of theft had been made out- ANSWER: he had.
o Explanation is called for- would appear to be “recent possession”
o Child’s criminal responsibility and his capacity to know he was doing a wrongful act:
- Proof can only come from all the circumstances of the case- it is my opinion that it is sufficient
proof, looking at the crown’s case alone, that the child made up quite an ingenious and
perfectly untrue story when trying to sell the watch to mr smith
- If he had said to mr smith: “I found this and now I want to sell it”- would be clear that he did
not know that he had done anything wrong.
- But concocting the story which he did- clear that he had the capacity to know that what he was
doing was wrong
- He had got friend, 14, to forge the note
- Kept watch and disobeyed his mother
- Sitting of juvenile court: must re-sit as juvenile court, to remove from the proceedings the
atmosphere of an ordinary criminal court- whenever practicable a juvenile court should not be
held in a court at all- but in some other room.
- Sometimes, lack of alternative accommodation may make this impossible- but in those cases, a
different atmosphere should be created by the magistrate not sitting on the bench, but at
solicitors’ table, and proceedings should be somewhat informal.
- Appeal against conviction dismissed.

Section 14 (3) of the PC also provides that a person below the age of 12 years is incapable of having
carnal knowledge. This is not applicable to indecent assault; thus, a child can be charged with
indecent assault.

Section 22 of the PC deals with the parties to the crime. A person who aids, abets or encourages
another person can be prosecuted as if he committed the offence.

Winfred Sakala v The People 1987 ZR 23

WINFRED SAKALA v THE PEOPLE (1987) Z.R. 23 (S.C.)

Flynote

Criminal Law and Procedure - Common unlawful purpose - Meaning thereof:

Headnote

The appellant was convicted of aggravated robbery whilst acting together with two other
conspirators. In the process of the robbery a night watchman was hacked with an axe. On appeal the

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appellant told the court that the conspirators had specifically agreed that the night watchman would
not be harmed and that the appellant had been assured that there would be no resistance from the
watchman. It was therefore the appellants position that he had agreed to participate in a simple
store breaking and theft in which there would be no resistance from, and no violence to the
watchman.

Held:

Section 22 of the Penal Code clearly contemplates that liability will attach to an adventurer for
the criminal acts of his confederates, which will be considered to be his acts also, if what those
confederates have done is a probable consequence of the prosecution of the unlawful common
design.

Section 41 (1) of the Interpretation and General Provisions Act, Chapter 2 provides that where an
offence is created in more than one piece of legislation, the prosecutor has an option to choose which
legislation to use for the prosecution.

Section 20 of the PC provides that a person cannot be prosecuted twice, however, it allows
prosecution if the act results in death. Section 20 of the PC offers an exception to the rule of double
jeopardy.

Procedure of the following courts: - subordinate Courts, High Court, Court of Appeal, Constitutional
Court and Supreme Court.

SUBORDINATE COURTS

Article 120 (1) (a) of the Constitution makes provision for the creation of the subordinate courts.
Section 3 of the Subordinate Courts Act provides that there will be a magistrate court in each
district.

Subordinate Courts are in three classes, namely:

• Subordinate Court of the 1st Class presided over by either a Chief Resident Magistrate,
Principal Resident Magistrate, Senior Resident Magistrate, A Resident Magistrate and
Magistrate of the 1st Class;
• Subordinate Court of the 2nd Class presided over by a magistrate of the 2nd Class;
• Subordinate Court of the 3rd Class presided over by a magistrate of the 3rd Class.

From a resident magistrate going up, it means those who have been admitted to the bar. Even if
magistrates are in different classes, the jurisdictions are at par, meaning an appeal from one
Magistrate cannot go to another magistrate. Section 7 of the SCA provides that magistrates are at
par but they have different sentencing powers.

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No magistrate can impose a sentence above 9 years of imprisonment. A Senior Resident Magistrate,
Principal Resident Magistrate and a Chief Resident Magistrate can impose a sentence up to 9 years.
A resident magistrate can impose a sentence up to 7 years whilst a magistrate of the 1st class can
impose up to 5 years. Magistrates Class 2 and 3 magistrates can impose a sentence up to 3 years
imprisonment.

Section 9 of the CPC deals with sentences that require confirmation by the HC. A case is committed
to the HC when the Subordinate Court has not imposed any sentence. However, confirmation means
the sentence has been imposed and referred to the HC.

Any sentence imposed by the Resident Magistrate does not require confirmation. However, a sentence
imposed by Class 1 magistrate which is above 2 years require confirmation by the HC. So does a fine
exceeding Three thousand penalty units (K900).

Understand the distinction between section 7 and 9 of the CPC.

Any sentence imposed by a class 2 magistrate above 1 year such a sentence must be referred to the
HC for confirmation. Any sentence imposed by a class 3 magistrate above 6 months requires
confirmation.

Section 217 of the CPC deals with committal of sentences.

THE PEOPLE V KOMBELWA 2010 ZR 468 UNREPORTED – any magistrate can try any case even where
there is a mandatory minimum sentence. Where the mandatory minimum is above the courts
sentencing power the case must be committed to the high court for sentencing.

Section 19 of the SCA provides for the procedure when the court is exercising its criminal
jurisdiction. If the procedure is not laid out in the CPC and other legislation, section 12 of the SCA
provides that you follow the procedure of the county courts in England.

Section 69 of the CPC provides for the general rule. Section 4 of the SCA provides that the powers
of the magistrate lies in the district. Read together with section 69 of the CPC. There are however
exceptions;

1. Section 70 of the CPC: an offence can be tried where the consequences were felt;
2. Section 71 of the CPC: deals with offences that are committed in one district but are connected
with offences in another district.

Section 73 of the CPC deals with offences committed near the boundary of the district. Section 352
of the CPC makes it very clear that a conviction cannot be nullified because you were tried in a
wrong district.

All criminal cases enter the court system through the subordinate court, however, the decisions on
whether they will be tried in the subordinate court or HC is dependent on section 11 of the CPC.
Through this section, the Chief Justice issues Statutory Instruments that stipulate which offences will

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be tried in the High Court. Section 11 (2) of the CPC states that murder shall be tried by the High
Court. Any offence that does not appear in the schedule can be tried in the subordinate court.

The subordinate court by virtue of Part VIII of the CPC holds a preliminary inquiry in cases tried in
the HC. In addition, section 63 of the Juveniles Act provides that a subordinate Court can constitute
itself as a juvenile’s court.

NOTE: The High Court can never constitute itself as a juvenile’s court.

Section 3 of the Inquest Act provides that an inquest is a hearing to determine the circumstances in
which a person lost his life. A magistrate sits to conduct an inquest, he is called a coroner.

THE COURTS MARTIAL

The courts Martial is a court created to deal with people in the army pursuant to the Defence Act,
chapter 106 of the laws of Zambia.

Section 86 of the Defence Act provides that this is the court to try persons subject to military law.
It only applies to ZAF and Zambia Army personnel. It does not apply to ZNS. The court martial are
constituted on an ad hoc basis.

THE HIGH COURT

Article 133 of the Constitution provides that there shall be a HC which shall be divided into divisions.
The CJ may by a statutory instrument can constitute a division: Children’s court, Family division, etc.

The Chief Justice is an ex-officio judge of the HC. The number of judges who sit in the HC is
prescribed in the Superior Courts Number of Judges Act No. 9 of 2016. Currently, we have 60
positions of judges in the HC.

According to Article 134 of the Constitution, the HC has unlimited and original jurisdiction in civil
and criminal matters. The term unlimited was defined in Zambia National Holdings Ltd and UNIP v
The Attorney General 1994 ZR 22.

ZAMBIA NATIONAL HOLDINGS LIMITED AND UNITED NATIONAL INDEPENDENCE PARTY (UNIP) v. THE
ATTORNEY-GENERAL (1994) S.J. 22 (S.C.)

Flynote

High Court - Jurisdiction of - Article 94 of the Constitution - How it should be construed in relation
to other laws governing the exercise of the jurisdiction of the High Court

Compulsory acquisition - Constitutionality of - Compensation under the Lands Acquisition Act -

Compensation postponed till after determination of the case

Statutory instruments - Force of - Procedure for enactment of - Cap 2 and Article 80 of Constitution

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Headnote

The appellants brought a petition in the High Court to challenge the decision for the respondent to
acquire compulsorily under the Lands Acquisition Act the appellants' land being Stand number 10934
Lusaka which is also known as the New UNIP Headquarters. The President resolved that it was
desirable or expedient in the interests of the Republic to acquire this property whereupon the
appropriate Minister gave notice to the appellants of the Government's intention in that behalf and
the steps and formalities under the Act for such acquisition were commenced. The appellants wrote
to the respondent suggesting a sum of money to be paid as compensation but as it turned out, and
as the parties specifically informed the learned trial judge, they wished the question of compensation
to be postponed until the court had disposed of the challenge to the legality and constitutionality of
the compulsory acquisition. The petition was unsuccessful and the appellants appealed.

Held:

(i) Although Article 94 of the constitution gives the High Court unlimited jurisdiction that court
is bound by all the laws which govern the exercise of such jurisdiction

(ii) Statutory instruments only come into force in when made in accordance with the relevant
section of Cap 2 and Article 80 of the Constitution

(iii) The Lands Acquisition Act did not contravene the spirit and intent of Article 16(1) of the
Constitution

(iv) The appellants did not discharge the burden which was on them to demonstrate mala fides
on the part of the President

(v) The acquisition here was not unlawful for want of a prior tender of compensation

Unlimited jurisdiction of the HC should be understood that it can impose any sentence and its
jurisdiction is not limited to a district.

The jurisdiction is defined by legislation.

Section 11 of the CPC sets out the offences that the HC can impose.

The HC has both original jurisdiction and appellate or supervisory jurisdiction.

Part XI of the CPC sets out the supervisory, revisory or case stated.

Mwanza v The People 1976 ZR

MWANZA v THE PEOPLE (1976) Z.R. 154 (H.C.)

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Flynote

Criminal procedure - High Court - Powers on revision - Effect of section 12 of Supreme Court Act, No.
41 of 1973.

Criminal law - Indecent assault on a female - Meaning of "indecent".

Headnote

The accused was charged before the Subordinate Court in Kitwe with indecent assault on a female
contrary to section 139 (1) of the Penal Code, Cap. 146 and sentenced to twenty months'
imprisonment with hard labour. The record came before the High Court for the purpose of
confirmation of sentence.

The judge considered the effect of section 12 of the Supreme Court Act, No. 41 of 1973, on the
powers of the High Court on revision. He also considered the meaning of the word "indecent".

Held:

(i) Section 12 of the Supreme Court Act, No. 41 of 1973, has removed only the appellate
jurisdiction of the High Court. Hence the power of the High Court to exercise its revisionary
jurisdiction remains unaffected. The People v Chikuta not followed.

(ii) "Indecency" in this context has a wider meaning than pure sexual indecency. To construe
the word "indecency" so narrowly that an offence under this section cannot be made out unless
there is explicit evidence of what we would call "sexual desire" is to construe the section wrongly
in Zambia today.

(iii) Where a man vested with authority to search, deliberately strips a suspect of the other
sex naked when everybody knows and the common practice is known that men do not search
women just as women do not search men and thereby breaks the custom in Zambia, his conduct
is indecent.

Golden Daka v The People 2011 1 ZR 350

GOLDEN DAKA v THE PEOPLE

Flynote

[1] Criminal Procedure - Supervision of the Magistrate Courts - Modes thereof.

[2] Criminal law - Sentencing - Principles thereof.

Headnote

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The appellant appeared before the Subordinate Court of the First Class of Chipata District charged
of the offence of causing grievous harm contrary to section 299 of the Penal Code. After the trial,
the appellant was convicted of the subject offence and sentenced to three years imprisonment with
hard labour. The appellant appealed against both the conviction and sentence.

Held:

1. There are four ways in which the decision of a Magistrate Court can be supervised.
Namely: by appeal or case stated; committal to the High Court for sentence; review and
confirmation of sentence.

2. Although the record was not formally referred to the High Court for confirmation under
section 9(3) of the Criminal Procedure Code, the High Court is still vested under section 338 of
the Criminal Procedure Code with the power of review.

3. In dealing with the question of sentence, or review, the following questions ought to be
asked: is the sentence wrong in principle; is it manifestly excessive so that it induces a sense of
shock; and are they any exceptional circumstances that would render it an injustice if the
sentence was not reduced.

4. Where the health of convict is to be taken into account in sentencing, there must be
adequate medical evidence.

5. A first offender deserves leniency when it comes to the imposition of a sentence.

6. While mitigating factors are taken into account, it is also essential that the sentencing
Court takes into account the aggravating factors of the crime committed.

7. Cases of stabbing are still prevalent, and it is therefore necessary to impose deterrent
sentences.

Section 80 of the CPC allows the HC to change the venue of the hearing in the subordinate court
(from one subordinate court to another or subordinate court to HC)

Chiluba v The People 2004 ZR 11 – sets out the conditions that an applicant must meet before
applying for change of venue.

1. Fair and impartial hearing cannot take place;

2. The question of law of unusual difficult is likely to arise;
3. Change of venue would be convenient for the witness and parties;
4. During the trial, it would be important that the court moves to the scene; and
5. It is expedient to meet the ends of justice.

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DR. FREDERICK JACOB TITUS CHILUBA Vs THE PEOPLE (2004) Z.R. 11 (S.C.)

Flynote:

Criminal Procedure - Application for change of venue - Conditions to be satisfied.

Constitutional Law - Right to a fair hearing guaranteed by the Constitution.

Headnote:

This is an appeal against the ruling of the High Court refusing the appellant's application for an order
to change venue of hearing in a criminal matter in which he was appearing before the Subordinate
Court, so that the case could be tried by the High Court for Zambia sitting at Lusaka.

HELD:

(i) The High Court has a discretion to change venue, whenever it has been established to
the satisfaction of the High Court.

(ii) Article 18 (1) of the Constitution guarantees a right to a fair hearing in all the courts of
the Judicature to any person charged with any criminal offence,

According to Article 135 of Constitution, the HC is constituted by one judge or such number as the
CJ may constitute.

Section 4 of the HCA provides that HC judges have equal power, authority and jurisdiction. This
means when one HC judge determines an issue, you cannot apply to another.

RAHIM OBAID v THE PEOPLE (2) NADEHIM QUASMI v THE PEOPLE (1977) Z.R. 119 (H.C.)

Flynote

Criminal Procedure - Laws of Zambia silent on particular issue -Practice and procedure to be followed
- High Court Act, Cap. 50, section 10.

Criminal Law - Bail - Bail refused by judge of High Court - De novo application before another judge
of same court- Whether jurisdiction to entertain.

Headnote

The applicants were convicted in the subordinate court and sentenced to imprisonment. They lodged
appeals to the High Court; they then applied to the High Court for bail pending appeal. The judge
refused bail. The applicants then made a fresh bail application to another judge of the High Court.

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Held:

(i) In the absence of any practice and procedure in our laws on the issue, our courts will in
terms of section 10 of the High Court Act, Cap.50, follow the practice and procedure in the High
Court in England.

(ii) Once an applicant has been refused bail by a judge of the High Court another judge of
that court has no jurisdiction to entertain a fresh application for bail.

Mundia Sikatana v The Attorney General 1982 ZR 109

IN THE MATTER OF PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

AND IN THE MATTER OF ARTS 20(6) AND 29 OF THE CONSTITUTION OF ZAMBIA MUNDIA SIKATANA
v THE ATTORNEY-GENERAL (1982) Z.R. 109 (H.C.)

Flynote

Civil procedure - Jurisdiction - Whether a High Court judge has the power to review as a civil matter
a case determined by another High Court judge of equal jurisdiction, as a criminal matter.

Headnote

The petitioner with others was charged with treason. At the trial and before pleading to the charge
he raised a plea of pardon. The plea was heard and dismissed by the trial court. He then filed a notice
of appeal to the Supreme Court, which court held that it had no jurisdiction to determine the matter.
Consequently the petitioner filed a petition claiming that his rights under Art. 20 (6) of the
Constitution had been contravened by the High Courts dismissal of his plea.

Held:

(i) A judge of the High Court has no jurisdiction to reopen and reconsider and interfere with and
comment upon a matter already determined by another judge of equal jurisdiction.

(ii) The fact that the case was first determined as a criminal matter and is then subsequently
raised as a civil matter is irrelevant as long as it arises from the same facts and evidence.

(iii) Principle of res judicata applies.109

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Section 6 of the CPC provides that the HC can pass any sentence authorised by law. In terms of
practice and procedure, section 10 of the HC will follow that set out in the code or the procedure
in England of the court with similar jurisdiction.

Section 19 of the HCA, for criminal cases, the HC seats in sessions that is monthly hearing. The Chief
Justice issues a statutory order each year.

The HC seats in Lusaka, Ndola, Kitwe, Mongu, Livingstone, Chipata, Mansa, Kasama, Solwezi and
Mazabuka.

It is possible under section 22 of the HCA for a case to be transferred from one HC judge to another.

Sections 23 and 24 of the HCA deals with the transfer of cases from one judge to another.

THE COURT OF APPEAL

The CA has been established by Article 130 of the Constitution. According to the Superior Courts
Number of Judges Act, section 4, the CA has 16 positions for judges (currently there are only 8
judges).

The jurisdiction of the CA has been set out in Article 131 (1) of the Constitution. Article 131 (2) of
the Constitution allows appealing to the Supreme Court with leave of the CA.

Article 132 of the Constitution provides that whenever the Court of Appeal is sitting, it will be
constituted by uneven number of judges who are not less than 3.

Interlocutory applications can be heard by one judge e.g an application for bail or leave to appeal.

THE CONSTITUTIONAL COURT

Established by Article 127 of the Constitution which provides that the court will have the president,
the Deputy President or 11 judges.

Article 128 of the Constitution enacts that the Constitutional Court has original and final jurisdiction
to deal with a matter relating to the constitution and also original and final jurisdiction on issues
whether the court has jurisdiction.

Article 28 of the CPC deals with the jurisdiction of the HC which is under the HC.

The Constitutional Court has jurisdiction with all constitutional matters except the Bill of rights.

Article 129 (1) of the Constitution provides that constitutional court has uneven number of judges
of not less than 3 in interlocutory hearing. A full bench is an uneven number of not less than 5 judges.

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THE SUPREME COURT

It is established by Article 124 of the Constitution.

It comprises the chief justice, the Deputy Chief Justice and 11 judges.

Article 125 (1) of the Constitutional provides that the SC hears appeals from the Court of Appeal.

Article 126 of the Constitution deals with hearing – an uneven number of not less than 3. The full
bench is 5.

In terms of procedure, there are rules in the SCA to be followed or the Court of England procedure.

THE DIRECTOR OF PUBLIC PROSECUTION

This is established by Article 180 of the Constitution. The DPP is appointed by the President subject
to the ratification by the National Assembly.

For a person to be appointed as DPP, he must qualify as a judge. For a person to be appointed as a
judge, he should have 10 years of practice and must have experience in dealing with criminal trials.

The DPP is a chief prosecutor and head of the National Prosecutions Authority. The powers of the
DPP can be classified into 3, namely:

1. To institute and undertake criminal proceedings against any person for any offence other than
before courts martial;

The DPP cannot receive instructions from anyone.

Kambarange Kaunda v The People 1990 – 1992 ZR 215

KAMBARANGE MPUNDU KAUNDA v THE PEOPLE (1992) S.J. 1 (S.C.)

Flynote

Evidence - Affidavit evidence on a contentious matter - Rule 39(1)

of the Supreme Court of Zambia Rules - Court's power.

Bail - Extenuating circumstances - Whether bail can be granted on appeal to a person convicted of
murder - Order 45 (2) of the Supreme Court Rules - Section 123 of the Criminal Procedure Code.

Criminal Procedure - Coroner's order - Whether it is in conformity with the law.

Criminal Procedure - D.P.P.’s initial decision not to prosecute the appellant - Whether it was made
by a mistake of fact or law on some obscure issue.

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Amendment of charge - Necessary when initial charge is defective.

Evidence - Witnesses with an interest to serve - Court's need to warn itself-

Exclusion of danger of false implication.

Witnesses - Proper test for assessing credibility of.

Headnote

The appellant, with a passenger, was driving through Kamanga Compound in Lusaka around midnight.
He drove past a group of people who were walking in the same direction on the road as he himself
was traveling; he did so at speed and stopped immediately after them. One of the passengers in his
car then alighted and fired a shotgun in the air. The appellant also alighted and fired four shots in
the air with a pistol. He then lowered the aim of his pistol and fired three more shots close over the
heads of the people in the group so that one shot killed the deceased by striking her in the back of
the head. Upon the appellant's arrest, the Director of Public Prosecutions announced that the
appellant would not be prosecuted. However, the coroner at the inquest ruled that the appellant be
prosecuted. The appellant was accordingly prosecuted and convicted of murder. On appeal it was

Held:

(i) That in view of the D.P.P.'s public statement that the appellant would not be prosecuted
for homicide on the ground of self-defence, the right to prosecute thereafter was lost for the
reasons already given;

(ii) That as the prosecution eye witnesses were relatives or friends of the deceased and
could, therefore, well have had a possible bias against the appellant; and as they were the
subject of the initial complaint by the appellant are having attacked him and his friends and,
therefore, had a possible interest of their own to serve, failure by the learned trial judge to warn
himself and specifically to deal with this issue was a misdirection;

(iii) That the learned trial judge misdirected himself by applying improper test in his
assessment of the credibility of the prosecution eye witnesses most of whom were found to have
told lies on certain issues including as to the amount of alcohol they had consumed;

(iv) That the appellant acted in self-defence and was, therefore, not guilty of murder

Mumba v The People 2006 ZR 93 – The DPP has no power to prosecute before the court’s marshall.

F/SGT JOHN EZEKIAL MUMBA v THE PEOPLE (2006) Z.R. 93

Flynote

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Criminal Law and Procedure – Defence Act – Court Martial – Propriety of an Investigator to sit on Court
Martial.

Criminal Law and Procedure Criminal Procedure Code Act Public Prosecutor Propriety of a Public
Prosecutor to be part of the prosecution team before a Court Martial.

Headnote

The appellant and two others were charged in a Court Martial under the Defence Act. After the trial
the appellant was convicted on the first, second and fourth accounts and acquitted on the third
count. The appellant was sentenced to two years imprisonment with hard labour and ordered to be
reduced in rank. He appealed against both conviction and sentence, arguing that the Court Marital
was not properly constituted because it included an officer who was involved in and led the
investigations of the allegations made against the appellant and a public prosecutor in the
prosecution team.

Held:

1. An officer who has investigated the charge against an accused person cannot be President
or sit as a member of the Court Martial.

2. The Court Martial was not properly constituted in that the Director of the Public
Prosecutions has no locus standi in proceedings before a Court Martial.

The Attorney General handles appeals from the courts martial – section 143 of the Defence Act

2. To take over and continue criminal proceedings instituted by any person; and
3. To discontinue any criminal proceedings at any stage before judgment.

The discontinuance is in two ways, namely:

a) Nolle Prosequi – section 81 of the CPC

b) Withdrawal – section 88 of the CPC

NOLLE PROSEQUI

A Nolle is either filed into court or by way of mouth. A state advocate informs the court that they
are entering a nolle. When the DPP withdraws through the Nolle the decision cannot be questioned.

DPP v Mbayo

DIRECTOR OF PUBLIC PROSECUTIONS v MBAYO MUTWALA AUGUSTINO (1977) Z.R. 287 (S.C.)

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Flynote

Criminal procedure - Nolle prosequi - Whether court can question exercise of power of D.P.P. to
enter.

Headnote

The respondent was charged with aggravated robbery. When the matter came before the High Court
the state advocate appearing for the prosecution informed the trial judge that the relevant police
docket was missing and untraceable and asked for an adjournment; the judge granted an
adjournment of two days only. On the adjourned hearing the state advocate informed the judge that
in terms of sections 81 and 82 of the Criminal Procedure Code he was entering a nolle prosequi. The
judge asked on what grounds the State wished to enter a nolle prosequi and an exchange ensued
which is set out in detail in the judgment, after which the judge ruled that the position of the State
amounted to offering no evidence and he consequently acquitted the respondent. The Director of
Public Prosecutions appealed.

Held:

(i) On the facts the ruling that the State was offering no evidence was unwarranted.

(ii) There is no power in the court to require reasons to be furnished as to why the D.P.P.
proposes to enter a nolle prosequi, nor may a court refuse the exercise of that power by the
D.P.P.

A Nolle can only be entered in the subordinate court or HC. In the HC, the only way a DPP can is
through the Nolle.

R v Train Viyuwi 5 NRLR 76

A Nolle is entered even when the accused person is withdrawn.

When the case is withdrawn through a Nolle, the person is discharged and can be rearrested.

Under section 88 of the CPC, the case can be withdrawn by way of an application. Thus, needs
consent from the DPP or the magistrate. The Defence is asked whether they have objections.

If the withdraw is on the instruction of the DPP, it cannot be questioned. If not, the magistrate must
give consent and the application is only allowed if the prosecutor gives reasons.

Ngoma v The People 1974 ZR 194

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NGOMA v THE PEOPLE (1974) Z.R. 194 (S.C.)

Flynote

Criminal Procedure - Application to withdraw without good reason - Whether magistrate should allow
- Easy giving of withdrawals and adjournments - Undesirability.

Headnote

The appellant was originally charged with rape. Having gone through most of the evidence the
prosecution decided that they did not have enough evidence and that two of their witnesses were
not present. The prosecutor then applied to withdraw the case.

Held:

(i) An application by a prosecutor to withdraw a case must not be allowed by a magistrate

without good and sufficient reason. The easy giving of withdrawals and adjournments adds to the
expense of trials, the time they take and clutters up the courts.

Section 82 of the CPC allows the DPP to delegate her powers to the solicitors and state advocates.
Any state advocate can enter a Nolle under the instructions of the DPP.

If the public prosecutor withdraws after the accused has been put on his defence, it results in an
acquittal.

R v Khanyisi 1957 R&NLR 155 - You cannot acquit and discharge.

Discharge: The case terminated without the merits of the case being considered.

Acquittal: The merits of the case have been considered and found that he is not guilt.

The DPP will not be subject to control or direction of any other person.

Section 82 of the CPC allows the DPP to delegate her powers relating to criminal proceedings.

Section 86 of the CPC allows the DPP to delegate her prosecutorial functions through the
appointment of public prosecutors.

The powers of the DPP are further found in the National Prosecutions Authority Act, section 8 (2) of
the NPAA empowers the DPP to set qualifications for the appointment of prosecutors and works with
the Attorney General on mutual and extradition.

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The DPP has the power to grant offenders immunity from prosecutions under section 68 (1) of the
Anti- Corruption and Section 4 of the Plea Negotiations and Agreements Act.

There are certain offences which require the consent of the DPP before prosecution can be started.
– Section 177 of the PC.

Section 177 (5) of the PC provides that a person cannot be prosecuted without the confirmation of
the DPP.

Section 46 of the Anti-Corruption Act;

Section 14 of the State Security Act; and

Section 13 of the Chiefs Act.

Section 8 (3) of the NPAA allows the DPP to delegate the issuance of a FIAT consent (FIAT).

Clark v The People 1973 ZR 179 – The case deals with section 85 of the CPC which deals with
offences that require the DPP’s consent and provides that when dealing with offences that require
the DPP’s consent, the suspect may be arrested even if the consent has not been obtained but the
court will take no further action, meaning not even plea can be taken.

Should you have a plea taken and the proceedings go ahead, the proceedings is a nullity. Where the
DPP’s consent is required, the proceedings are a nullity if the consent is not obtained. The consent
is what gives the court the jurisdiction to try the case.

CLARKE v THE PEOPLE (1973) Z.R. 179 (C.A.)

Flynote

Criminal procedure - Authority in writing of D.P.P. - Absence of - State Security Act, cap. 110, s. 14.

Criminal law - Sentence - Suspension - Consecutive sentences - Whether suspension of portion of total
proper.

Headnote

The appellant was convicted on a number of counts of espionage, sodomy and possessing a firearm
and ammunition without the necessary licences. He was sentenced to six consecutive terms of
imprisonment totalling nine years, three years of such total being suspended. He appealed against
conviction on the three counts of espionage on the grounds that the necessary consent of the
Director of Public Prosecutions had not been obtained.

Held:

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(i) S. 14 of the State Security Act, Cap. 100, is mandatory and the matter goes to jurisdiction.

(ii) The purpose of the section is to ensure that no one is brought before the court on a
charge under the State Security Act without it being shown that the Director of Public
Prosecutions has personally applied his mind to the case and authorised the further proceedings.

(iii) Where the Director of Public Prosecutions has personally signed the charge sheet it is
clear that he has applied his mind to the matter and the objectives of the section have been met.

(iv) Where consecutive sentences are imposed and it is the intention of the court to suspend
portions of such sentences the periods of suspension must be related to each individual sentence.

Section 321A of the CPC gives the DPP the power to appeal on a point of law and not a question of
fact. The question of fact that is not supported by evidence is a point of law.

Section 90 of the CPC: A private individual can institute criminal proceedings.

TOPIC: ARREST

An arrest on a warrant or an arrest without a warrant. A person can also turn up in court because
there is a complaint that has been made.

In criminal matters, cases begin either by a complaint or through arrest either with a warrant or
without a warrant.

ARREST WITHOUT WARRANT

Section 26 of the CPC allows a police officer to arrest without a warrant a person who has committed
a cognisable offence.

Section 31 of the CPC allows a private citizen to arrest who has cognisable offence.

Section 2 of the CPC defines a cognisable offence as that which has been listed in the 2 nd schedule.

Cognisable offences are those that a person can be arrested without a warrant.

Various Acts also define what amounts to cognisable offence.

The law requires that such a person must be presented before court within a reasonable time (section
32 and 33 of the CPC)

M. Mutemwa v The Attorney General 1979 ZR 251

M. MUTEMWA v ATTORNEY-GENERAL (1979) Z.R. 251 (H.C.)

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Flynote

Criminal law and procedure - Arrests - Arrest without warrant - Detention of person without trial for
three days - Whether appropriate - Criminal Procedure Code, Cap. 160, s. 33.

Damages - False imprisonment - Award of damages.

Headnote

The plaintiff was arrested without a warrant for having behaved in a disorderly behaviour at police
station. She was detained at the police station for three days. She claimed damages for false
imprisonment, malicious prosecution and inhuman treatment. The court rejected the last two claims
and proceeded to award damages for false imprisonment.

Held:

(i) Under s. 33 of the Criminal Procedure Code if a person is taken into custody without
warrant for an offence other than one punishable with death she must be brought before court
within twenty-four hours or else be released on bond.

(ii) An awtard of K450 for false imprisonment would be given.

Judge’s understanding is that section 24 is only applicable when you are not dealing with a serious
offence.

Section 35 and 36 of the CPC allows a magistrate to arrest a person who has committed an offence.
The magistrate only has power to arrest a person who has committed an offence in their presence.

Section 18 of the CPC states that an arrest is touching and confining.

Silungwe v The People 1974 ZR 130

SILUNGWE v THE PEOPLE (1974) Z.R. 130 (H.C.)

Flynote

Roads and Road Traffic Act - Arrest of a person driving a vehicle under the influence of drink -
Requirements of effecting arrest.

Criminal law - Evidence - Whether prosecution obliged to produce every possible witness.

Headnote

The appellant was convicted of driving a motor vehicle under the influence of drink, contrary to s.
198 (1) of the Roads and Road Traffic Act, Cap. 766. The appellant appealed against his conviction

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and his grounds of appeal, inter alia, were as follows: (a) the expert medical evidence led was
inadmissible as the appellant had not been arrested for the offence before being subjected to a
medical examination, which is contrary to s. 3 of Act No. 42 of 1971 which amended the Roads and
Road Traffic Act, Cap. 766; (b) in the absence of medical evidence, the testimony of P.W.3 is
insufficient to prove the guilt of the appellant beyond reasonable doubt as it is unsupported and (c)
the prosecution did not produce available evidence to corroborate the testimony of P.W.3, which
was available to the prosecution, and it must therefore be assumed that such evidence was in fact
favourable to the appellant.

Held, dismissing the appeal:

(i) That the elements of arrest were physical restraint and a sufficiently stated reason for
such restraint and there was nothing to prevent a person arrested from being re-arrested.

(ii) That there was no set formula to use on arrest and the purpose behind the elements of
a valid arrest is to ensure that a person arrested without a warrant, and therefore deprived of
his freedom of movement, must know why he is being so deprived.

(iii) That the evidence of a non-medical witness is admissible to show whether the appellant
had or had not taken alcohol and how, or in what manner, he drove or conducted himself at the
material time, but not as to whether in the witness' opinion he was fit to drive; and that it is for
the court to draw an inference as to whether an accused person was fit to drive from that
evidence and, accordingly, in the absence of medical evidence, a court could properly come to
the conclusion that an accused person had consumed alcohol to such an extent as being incapable
of having proper control of his vehicle.

(iv) That although there was no obligation on the part of the prosecution to produce every
possible witness at a trial, it was of paramount importance that the conduct of a trial must in all
circumstances be fair, and, if evidence was not available due to insufficient investigation, or a
statement has not been taken from a vital witness who subsequently becomes unavailable, then
these were matters which might cause serious doubt upon the fairness of the trial to such an
extent that it would be unsafe to convict.

The court spells out the elements of arresting. In that arrest was said to have two components;

1. Physical constraints;
2. Informing the person that they have been arrested.

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Being charged with an offence is different from the person being arrested. Being charged goes beyond
being arrested.

Once a person has been charged, the charges can only be dropped at court. For an arrest to be lawful,
there must be a reasonable cause. An arrest does not require proof beyond reasonable doubt but that
there is a reason to commit an offence.

In Re Siuluta 1979 ZR 14

IN RE SIULUTA AND THREE OTHERS (1979) Z.R. 14 (H.C.)

Flynote

Criminal law and procedure - Arrests - Arresting person for purposes of investigations about him -
Impropriety of.

Headnote

The applicants were detained while further inquiries were being made by the police. They had not
been charged with any offence. During the application for bail counsel for the applicants submitted
that it was improper for the police to detain persons while investigations were being carried out and
that it was unreasonable to refuse bail to persons against whom no charge had been preferred.

Held:

(i) The police could only arrest for offences and has no power to arrest persons for the
purposes of making inquiries.

(ii) Having, made an arrest for a specific offence, then the police could hold the arrested
person in custody while the inquiries were being made, but if there was enough evidence to
prefer a charge, they should do so without delay.

(iii) On the evidence available, the reasons for the applicants not having been charged were
unjustified and there was a flagrant abuse of the powers contained in s. 33 of the Criminal
Procedure Code.

(iv) Bail was granted on the ground that the applicants had not been charged with any offence
when this should have been done soon after their arrest.

Editorial Note

Although the body of the judgment does not say so specifically, the court granted bail under s.
123 of the Criminal Procedure Code.

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A person should never be arrested for the purposes of facilitating investigations. You don’t confine
for no reason.

The test is whether a reasonable person can believe that an offence has been committed.

Daniel Chizoka Mbandangoma v The Attorney General 1979 ZR 45

DANIEL CHIZOKA MBANDANGOMA v THE ATTORNEY-GENERAL (1979) Z.R. 45 (H.C.)

Flynote

Damages - Quantum - False imprisonment - Plaintiff detained, released on police bond and required
to report to police on four subsequent occasions.

Criminal law and procedure - Arrests - When can be effected .

Criminal law and procedure - Police bond - Use of for investigations Impropriety of.

Headnote

The plaintiff was detained on the 24th December 1973, and released shortly thereafter on police
bond. He was however required to and did report to the police and at court on at least four
subsequent occasions when he was eventually told that further proceedings were being discontinued.
The attendance to the police had been arranged to coincide with the occasions when the police
wished to see the plaintiff for purposes of investigations.

Held:

(i) In order to justify the arrest of the plaintiff the defendant must show that at the time of
the arrest, the arresting officer had reasonable suspicion that the plaintiff had committed the
offence with which he was charged.

(ii) The arrest of the plaintiff was unlawful. The police can only arrest persons for offences
and have no power to arrest anyone in order to make inquiries about him.

(iii) It is improper for the police to detain persons pending further investigations without
bringing them before court as soon as practicable, but it is equally improper to require persons
released on bond to present themselves at the police station for the same purpose.

(iv) An award of K750 for unlawful imprisonment would be given.

An arrest can be on the basis of hearsay evidence.

The reason for arrest must be communicated immediately or within reasonable period.

Attorney General v Sam Amos Mumba 1984 ZR 14

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THE ATTORNEY-GENERAL v SAM AMOS MUMBA (1984) Z.R. 14 (S.C.)

Flynote

Civil Procedure - Damages - Nominal damages - Loss of business as.

Tort - False imprisonment - Arrest - Grounds of - Failure to furnish grounds - Effect of - Furnishing of
untrue grounds - Effect of.

Headnote

The respondent was arrested without warrant by the Police. He was not told of the grounds of his
arrest until after about six hours after his arrest.

In claim for false imprisonment, the High Court upheld his claim, and an awarded the respondent a
total sum of K7,700.00 damages, K1,200.00 of which being nominal damages for loss of business. The
Attorney-General appealed to the Supreme Court.

Held:

(i) Where a Police Officer makes an arrest without warrant, it is incumbent upon him to inform
the person so arrested of the grounds for his arrest unless he himself produces a situation which
makes it practically impossible to inform him.

(ii) Failure to inform the arrested person as soon as is reasonably practicable to do so of the true
reason of his arrest will, in a proper case, constitute false imprisonment.

(iii) It is not enough where a Police Officer makes an arrest without warrant, that a Police Officer
has reasons for effecting an arrest without a warrant if such reasons are kept to himself, or if
the reasons given are not true. In either situation, such a Police Officer may be held liable for
false imprisonment.

(iv) Where loss of business forms part of the claim, it must be pleaded as special damages and
strictly proved.

The law requires the person to be taken to the police station as soon as possible after the arrest.

Section 22 of the CPC allows a person effecting an arrest to search the person being arrested and
take away anything he may have except necessary clothing.

Section 24 of the CPC talks about what happens if the person being searched is a woman. A woman
must be searched by another woman.

ARREST WITH A WARRANT

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For a person to get a warrant, he needs to lodge a complaint using section 90 of the CPC and section
91 of the CPC.

Public prosecution (normal channel)

Private prosecution is provided for by section 90 of the CPC.

A complaint can either be oral or written.

Section 91 of the CPC provides that you can get a warrant by lodging a complaint on oath.

A magistrate can issue a warrant of arrest. If the complaint is not on oath, the magistrate issues a
summons (given a date to appear in court).

Bulayisho v The People 1969

MULAISHO v THE PEOPLE (1969) Z.R. 90 (H.C.)

Flynote and Headnote

[1] Criminal procedure - Warrant of arrest - Service of summons - Evidence of, essential -
Under Criminal procedure code, section 91.

No warrant of arrest should be issued by a magistrate until he is satisfied, by viva voce or affidavit
evidence, as to the service of a summons.

[2] Contempt of court summons - Failure of accused to obey summons.

The failure of an accused to obey a summons is not, as with a witness, specifically a contempt of
court because a warrant of arrest can always be issued after that failure.

If a person ignores the summons after being served, the court can issue a warrant of arrest.

Something associated with a warrant of arrest is a search warrant provided for in section 118 of the
CPC. It permits the police to search the premises where they believe there is evidence that proves
that an offence was committed.

Liswaniso v The People 1979 ZR 277 – Illegally obtained evidence

LISWANISO v THE PEOPLE (1976) Z.R. 277 (S.C.)

Flynote

Criminal law - Evidence - Evidence obtained as a result of an illegal search and seizure - Admissibility
of.

Headnote

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The applicant, an Inspector of Police, was convicted of official corruption, the allegation being that
he corruptly received a sum of K80 in cash as consideration for the release of an impounded motor
car belonging to the complainant. The evidence on which the applicant was convicted was obtained
by means of a trap; the handing over of the currency notes in question by the complainant was pre-
arranged with the police, and they were recovered from the complainant's house during a search
conducted pursuant to a search warrant. It was common cause that at the time the police officer in
question applied for the search warrant to be issued he swore that the money in question was in the
applicant's house when in fact it was in that officer's possession. It was argued on behalf of the
applicant that the search warrant was invalid and the resultant search illegal, and that any thing
found as a result of such a search was inadmissible in evidence.

Held:

(i) Apart from the rule of law relating to the admissibility of in voluntary confessions,
evidence illegally obtained, e.g. as a result of an illegal search and seizure or as a result of an in
admissible confession is, if relevant, admissible on the ground that such evidence is a fact
regardless of whether or not it violates a provision of the Constitution (or some other law).

(ii) The evidence of search and seizure of the currency in the case under consideration,
although based upon an irregular search warrant, was rightly admitted by the trial court because
that evidence was a relevant fact. (Per curiam) Any illegal or irregular invasions by the police or
anyone else are not to be condoned and anyone guilty of such an invasion may be visited by
criminal or civil sanctions.

Section 19 of the CPC provides that if there are pursuing a suspect, there is no need for a search
warrant.

Paul Jeremiah Lungu v The People – in that case, where the case is instituted by a complaint, the
complainant can prosecute an offence personally or can engage a legal practitioner.

TOPIC: BAIL

Section 33 of the CPC provides that a person arrested without a warrant can be detained for a
reasonable time pending that person being taken to court. If not, that person should be released on
bail.

The law also provides that certain offences are non-bailable.

There are 5 types of bail.

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1. Police Bail (Police Bond)

2. Bail Pending Trial;
3. Bail pending confirmation of sentence;
4. Bail pending appeal;
5. Constitutional Bail.

Section 123 of the CPC lists all offences that are non-bailable.

• Treason
• Murder
• All offences that carry mandatory capital punishment (death)
• Misprision of treason;
• Aggravated robbery;
• Theft of motor vehicle for a person previously convicted of theft of motor vehicle
• Espionage (an offence under the State Securities Act – it is spy related)

Espionage is bailable unless the DPP places a certificate admitting that the accused person is likely
to prejudice the safety or interest of a country.

• Drug trafficking and manufacturing of drugs under the Narcotic and Psychotropic Act - NPSA,
section 43 and 23 (1) of the NPSA

Section 43 of the NPSA says that cognisable offences are not bailable.

Section 123 (2) of the CPC provides that a person admitted on bail must execute a bond by himself
or by sureties or by both. They undertake to appear in court on the required day.

People to execute bond;

1. Suspect;
2. Suspect + sureties;
3. Sureties only.

The amount for bail is left to the court section 126 (1) of the CPC. The amount should not be
exclusive.

Bail can be gotten either by a person’s own recognizance or the pledge of property or cash (deposit
of money).

In an event of default, the money deposited or property pledged may be forfeited (section 126 (2)
of the CPC)

Hiteta v The People 1976 ZR 21 – The court must find out why the person did not turn up before
forfeiting.

HITETA v THE PEOPLE (1976) Z.R. 21 (H.C.)

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Flynote

Criminal procedure - Bail - Failure of accused to surrender on specified date - Whether very fact of
failure warrants penalty of forfeiture - Discretion of court to order forfeiture - Criminal Procedure
Code, s. 131 (1).

Criminal procedure - Bail - Forfeiture - Misdirection by magistrate - Procedure to be followed before

order of forfeiture.

Criminal procedure - Bail - Where breach of conditions of recogizance alleged - What prosecution
must prove - Standard of proof.

Headnote

The appellant appealed against an order of forfeiture made by a magistrate at Kasempa. He had
bound himself as a surety on behalf of an accused person in a sum of K400.00. On the 3rd November,
1975, which was the trial date, when the case was called up neither the accused nor the appellant
were in court. Thereafter the magistrate ordered that the surety be called up to explain to the court
as to the whereabouts of the accused. The appellant who was a civil servant was not in his office at
the relevant time and the public prosecutor applied for bench warrants to be issued against the
accused and the appellant. The bench warrants were duly executed on the same day and both the
accused and the appellant were brought before the magistrate. The accused was asked why he did
not attend court that morning and he replied that on the day the case came up for plea he had heard
that the trial would be held on the 4th November, 1975, and that he did not check the actual date
on the recognizance form. The appellant explained that he did not know when the case was to come
up for trial. The magistrate rejected the explanations given by the accused and the appellant and
ordered that the sums of K400 in respect of which the accused and the appellant had bound
themselves by way of recognizances be forfeited under section 131 (1) of the Criminal Procedure
Code, Cap. 160. Further the magistrate ordered that the accused end his surety were to undergo a
term of simple imprisonment for three months unless and until the money mentioned in the
recognizances be sooner paid or levied.

Held:

(i) The very fact that an accused person who was on bail does not surrender himself on the
date stated in the recognizance form does not of itself warrant a trial court to penalise a surety
or an accused person by ordering the forfeiture of any recognizance.

(ii) Section 131 (1) of the Criminal Procedure Code, Cap. 160, gives the court a discretion to
order such a forfeiture.

(iii) As there was neither evidence to show that the accused had absconded or did not intend
to surrender himself for trial nor that the appellant was in any way negligent as a surety or that

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he had connived at the accused's absence from court that morning, the breach of the conditions
of the recognizance did not warrant an extreme penalty.

(iv) The magistrate misdirected himself in proceeding the way he did before he made the
order of forfeiture.

(v) The appellant should have been informed of the breach that was alleged against him and
the breach should have been proved by precise evidence. He should have been asked whether
he desired to give evidence or to make a statement from the dock with regard to the breach
alleged and whether he had any witnesses whom he wished to call.

(vi) A surety must be given an opportunity to explain his conduct in relation to the alleged
breach.

(vii) Where a breach of the conditions of a recognizance is alleged, the prosecution must prove
beyond reasonable doubt that the surety was negligent in or that he had deliberately refrained
from exercising his responsibilities in order to secure the attendance of an accused person at
court.

POLICE BAIL

This bail is granted by the officer in charge at the police station. It does not involve lodging
documents. Section 33 of the CPC. You approach the authorities simply.

A bond is executed that sets out the condition and state the date when the suspect must appear in
court. This is given when the person has been charged although in practice that rarely happens.

It also has conditions such as turning up at the police station. When the police have granted bail,
even if they require the person to appear before the police, they can cancel it. Bail can either be
cancelled or increased by the court.

Benjamin Sikwiti Chitungu and Others v The People 1990 – 1992 ZR 190 – looks at section 127 of
the CPC. It discusses what happens when a person appears in court. Section 124 of the CPC deals
with reduction or increment of the conditions of bail.

THE PEOPLE v BENJAMIN SIKWITI CHITUNGU, JUSEPH ANTONIO ARTHUR AND DAVID MUZUMA
(1992) S.J.

Flynote

Bail - Whether the Police have powers to cancel a Police Bond - Whether a Court has a duty, where
a bond has been cancelled by Police, to inquire into the reasons for the cancellation when considering
an application for bail - Whether a Police Bond automatically ceased on an accused person appearing
in Court to answer a charge upon which the bond was granted

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Headnote

The accused were charged with motor vehicle theft. On an application for bail, it was alleged by the
prosecution that the accused were arrested in Botswana and could therefore not be granted bail. The
defence counsel however stated that the accused were arrested in Zambia and were of fixed abode,
therefore deserving of bail. The trial court denied the bail application and the accused have
appealed.

Held:

(i) The police have powers to cancel bond if it appears to the police that the accused is
about to leave the country or disappear or is interfering with or likely to interfere with witnesses
or about to commit a similar offence the police may arrest the accused, cancel the bond and
detain him in custody pending appearance in Court

(ii) The Court has a duty, where it has come to its attention that the accused's bond was
cancelled by the police, to inquire into the reasons for the cancellation when considering bail
application and where it is not satisfied with the reasons for cancellation to grant bail to the
accused on the same conditions as the bond

(iii) A police bond does not automatically cease upon an accused person appearing in Court
to answer a charge on which he was granted the bond

BAIL PENDING TRIAL

Bail obtained by a person undergoing trial in either the subordinate court or the High Court. The
application is by summons + affidavit or on the floor of the court (stand up and say that you are
applying for a bail).

Section 123 of the CPC. There are two types under section 123.

Considerations: The consideration or test for bail pending trial is the likelihood of that person
attending court at subsequent hearings.

John Oliver Erwin v The People 1993 – 1994 ZR 54 – sets out the factors that the court will look
at, namely:

• Nature of the offence;

• Severity of the punishment;
• Nature of evidence;
• The prejudice that the applicant will suffer if not granted bail or what the state will suffer
if granted bail.

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Section 123 (1) and (3) of the CPC.

Section 123 (1) is a provision used for bail pending trial in the High Court or the subordinate court.

Section 123 (3) is used in the HC but only when an application was originally made in the subordinate
court and the subordinate court declined to grant bail. You then renew the application for bail in
the HC.

Section 123 creates an interesting provision as it is considered to be an interlocutory application.

When denied an application for bail in the subordinate court, you can go to the HC to renew despite
the matter still being before the subordinate court.

This cannot happen in a situation where the matter is in the HC as there is no provision to go to the
Court of Appeal.

The People v Benjamin Sikwiti Chitungu and Others 1990 – 1992 ZR 190

THE PEOPLE v BENJAMIN SIKWITI CHITUNGU, JUSEPH ANTONIO ARTHUR AND DAVID MUZUMA
(1992) S.J.

Flynote

Bail - Whether the Police have powers to cancel a Police Bond - Whether a Court has a duty, where
a bond has been cancelled by Police, to inquire into the reasons for the cancellation when considering
an application for bail - Whether a Police Bond automatically ceased on an accused person appearing
in Court to answer a charge upon which the bond was granted

Headnote

The accused were charged with motor vehicle theft. On an application for bail, it was alleged by the
prosecution that the accused were arrested in Botswana and could therefore not be granted bail. The
defence counsel however stated that the accused were arrested in Zambia and were of fixed abode,
therefore deserving of bail. The trial court denied the bail application and the accused have
appealed.

Held:

(i) The police have powers to cancel bond if it appears to the police that the accused is
about to leave the country or disappear or is interfering with or likely to interfere with witnesses
or about to commit a similar offence the police may arrest the accused, cancel the bond and
detain him in custody pending appearance in Court

(ii) The Court has a duty, where it has come to its attention that the accused's bond was
cancelled by the police, to inquire into the reasons for the cancellation when considering bail

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application and where it is not satisfied with the reasons for cancellation to grant bail to the
accused on the same conditions as the bond

(iii) A police bond does not automatically cease upon an accused person appearing in Court
to answer a charge on which he was granted the bond

Section 126 (3) of the CPC provides for variation of bail conditions.

You can still go to the HC where you think the conditions are onerous.

Faustin Kabwe and Another v The People 2011 ZR 186 – The law allows the court that has granted
bail to demand additional conditions if the original conditions are found to be insufficient by reason
of mistake or fraud.

The High Court has no power to vary its own bail conditions unless the conditions were subject to
fraud or mistake.

FAUSTIN KABWE AARON CHUNGU v THE PEOPLE

Flynote

[1] Criminal procedure - Application for variation of bail conditions -Conditions to be satisfied.

Headnote

This was an application by an applicant to vary bail conditions and for leave to travel out of the
jurisdiction.

Held:

1. The provisions for governing applications for bail are contained in section 123 to 133 of
the Criminal Procedure Code.

2. Section 123 in particular gives the Courts the discretion to grant, or not to grant bail.
The considerations that are taken into account in the exercise of the discretion whether or not
to grant bail; depends on the stage of the proceedings the application has been made.

3. In general, the threshold for bail pending trial tends to be lower because in terms of
Article 18(2) of the Constitution, every person who is charged with criminal offence is presumed
innocent until he is proved or has pleaded guilty.

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4. In deciding whether or not to grant bail pending trial, the primary concern for the Court
is to satisfy itself that if an accused is granted bail, is he or she likely to attend Court at the
resumed hearing.

5. Unlike bail pending trial, bail pending appeal is granted with reserve because the
applicant is a convicted person and the conviction is good unless and until an appellate Court
quashes the conviction.

6. A convicted person should not be released on bail pending appeal, unless exceptional
circumstances are disclosed.

7. Applications for variation of bail conditions are governed by section 126(3) of the Criminal
Procedure Code.

8. The status of the applicant is that of a convict. As a convict, the applicant does not enjoy
the same status as that of a free or innocent person.

9. A convict does not also enjoy the same status as a person who is facing criminal charges.
But he is nonetheless deemed or presumed by the Constitution to be innocent unless and until
proved guilty in criminal proceedings. It is for that reason that bail pending appeal ought to be
granted with utmost circumspection and in exceptional circumstances.

10. In cases of this nature, there exists the obvious tension between the health concerns of
an applicant and the potential risk of flight; especially where an applicant has to travel outside
the country. A reasonable balance therefore needs to be struck between these two competing
interests.

Section 128 of the CPC provides for withdraw of surety. The surety notifies the court that they would
like to be discharged of the responsibility. Then the court should demand that the accused is brought
to court.

Bail is cancelled because the surety has withdrawn, however, an accused may be remanded until he
finds a surety.

Section 131 of the CPC provides for the forfeiture of the money or property that pledged in the
event of breach.

R v John Ritayi 2 NRLR 57

BAIL PENDING CONFIRMATION OF SENTENCE

Section 13 (1) of the CPC

Confirmation of sentence will not arise if there is an appeal.

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BAIL PENDING APPEAL

Bail pending appeal from the Subordinate Court, High Court and Court of Appeal.

The initial application for bail pending appeal must be made before the convicting court.

Section 332 of the CPC provides for bail pending appeal from the subordinate court.

An application for bail pending appeal must be made after lodging an intention to appeal.

Mayonde v The People 1976

MAYONDE v THE PEOPLE (1976) Z.R. 129 (H.C.)

Flynote

Criminal procedure - Adjournment sought by accused to engage advocate - Requirement that all
reasonable adjournments must be granted - Constitution of Zambia, Art. 20 (2).

Criminal procedure - Charge - Fraudulent false accounting connected with theft - Bringing separate
charges - Whether good practice.

Criminal procedure - Bail before entering of an appeal - Power to grant - Criminal Procedure Code,
Cap. 160, s. 123 (5).

Headnote

The appellant was convicted by the Subordinate Court of the First Class in Ndola on four counts of
theft by public servant and three counts of fraudulent false accounting.

When the appellant appeared first before the senior resident magistrate, the appellant sought an
adjournment on the grounds of his wife's serious illness and also for time to engage an advocate. The
senior resident magistrate requested the prosecutor to verify the illness and to report to court. After
verification by the prosecutor the case was adjourned for some three weeks. At the adjourned hearing
the appellant was represented by an advocate. The latter applied for an adjournment on the basis
that he had been instructed only that morning and was also due to appear before the High Court. The
senior resident magistrate granted a thirty-minute adjournment. The advocate withdrew and the
trial continued. After some four prosecution witnesses had given their evidence, the prosecutor
applied for an adjournment, as a prosecution witness was not in attendance. The appellant also
applied for an adjournment for his lawyer to be present and to conduct his defence on the next date.
The court adjourned for eleven days. At the adjourned hearing, the advocate was not present. The
court adjourned hearing for thirty minutes. The appellant informed the court at the resumed hearing
that the advocate was ill but the trial continued. After some six further prosecution witnesses gave

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evidence the prosecutor applied for an adjournment for some further documents to be produced and
identified. The application was granted.

The charges of fraudulent false accounting were connected with three of the charges of theft. One
continuing transaction was involved in the alleged conversion of moneys received by the appellant in
the execution by him as Under - Sheriff of a Writ of Fieri Facias and the omission to make the
appropriate entries in his books.

After the appellant was convicted he applied for bail pending his appeal. The senior resident
magistrate observed that he had "no power to release the accused on bail, now that he has been
convicted and sentenced . . . The accused is advised to move the High Court."

Held:

(i) Once an accused seeks time to engage an advocate the provisions of Article 20 (2) of the
Constitution indicate that he must be granted all reasonable adjournments.

(ii) While it can be said that the appellant should have instructed his advocate before the
trial date, nonetheless the advocate's application for an adjournment was a perfectly reasonable
one.

(iii) To bring a charge against an accused person for failing to make a record which would
have the effect of disclosing his crime, while it may be possible to do so, is not good practice.

(iv) Section 123 (5) of the Criminal Procedure Code, Cap. 160, in effect provides that neither
the Subordinate Court nor the High Court has power to grant bail before the entering of an
appeal.

Valentine Chula Musakanya v The People 1983 ZR 96

VALENTINE SHULA MUSAKANYA AND ANOR v THE PEOPLE (1983) Z.R. 96 (S.C.)

Flynote

Criminal Law and Procedure - Capital offence - Conviction of - Application to be treated as an

unconvicted prisoner and granted bail - Possibility of.

Criminal Law and Procedure - Capital offence - Conviction of - Application for stay of execution -
Necessity.

Criminal Law and Procedure - Capital offence - Conviction of - Filing of notice of appeal - Possibility
of before sentence.

Criminal Law and Procedure - Appeal - Filing notice - Mandatory nature of - s. 123 (5) of the Criminal
Procedure Code.

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Courts - Supreme Courts - Jurisdiction - s. 336 of the Criminal Procedure Code read with s. 22 of the
Supreme Court Act - Procedure there-under.

Headnote

The two applicants appealed against the trial court's refusal to hear their applications to be treated
as unconvicted prisoners pending appeal against conviction on the grounds that, the first applicant's
notice of appeal was filed before sentence while the latter had filed no notice at all. The first
applicant also made a submission for a stay of execution pending appeal. The actions arose out of ss.
336 of the Criminal Procedure Code and 22 of the Supreme Court Act.

Held:

(i) The provisions of s. 336 of the Criminal Procedure Code must be read as a whole and
since a person convicted of a capital offence cannot reasonably be admitted to bail he also cannot
independently be treated as an unconvicted prisoner.

(ii) An application for an order of a stay of execution is unnecessary since s. 18 (7) (b) of the
Supreme Court Act effectively protects the party until such time as his appeal has been
determined or abandoned.

(iii) An applicant can in open court and without a written summons file a notice of appeal
after conviction but before sentence since the sentence is mandatory and an appeal can only lie
with regard to conviction; however, it is procedurally proper for the court to decline to hear the
application until after pronouncing sentence.

(iv) Under s. 123 (5) of the Criminal Procedure Code, the trial court is not obliged to hear an
application under s. 336 of the same code unless a notice of appeal has been filed.

(v) The Supreme Court has jurisdiction to hear an application under s. 22 of the Supreme
Court Act only where the trial court has effectively refused an application under s. 336 of the
Criminal Procedure Code.

If the Subordinate Court refuses to grant bail, you renew in the HC using the same provision. If the
HC refuses, you cannot go to the Court of Appeal as there is no appeal before the court of appeal.

In the HC, there are two types of convicts, namely:

a) Those tried in the HC and convicted;

b) Tried by the magistrate and their appeal was rejected by the HC.

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They can appeal to the Court of Appeal using section 336 of the CPC.

If a person was convicted in the magistrate court and their appeal was rejected by the HC. For them
to appeal to the court of appeal, they will need leave for them to appeal to the court of appeal.

However, if convicted by the HC, their appeal to the court of appeal is automatic. (no need for
leave).

Section 18 (1) (a) of the Court of Appeal Act.

The Court of Appeal will only hear if the convicting court (HC) has refused the bail.

Order 9, rule 21 of the Court of Appeal Rules allows a person to apply for bail pending appeal.

Where the appeal is denied, you can renew in the Supreme Court using section 22 of the Supreme
Court Act.

Katenga Jamu v The People 1981 ZR 99

MALYOTI KATENGA JAMU v THE PEOPLE (1981) Z.R. 99 (S.C.)

Flynote

Criminal law and procedure - Bail - Application to be granted - Whether discretionary - Whether
Supreme Court can deal with bail applications.

Criminal law and procedure - Appeal - Application for leave to appeal before the Supreme Court -
Refusal by a Supreme Court Judge.

Whether Applicant entitled to have his application determined by the full court.

Headnote

This is an application for bail pending appeal under s. 22 of the Supreme Court of Zambia Act. The
applicant was convicted of unlawfully doing grievous harm by the subordinate court and was
sentenced to one year's imprisonment with hard labour. On appeal to the High Court, the learned
Appellate Judge dismissed the appeal increasing the sentence to two year's imprisonment with hard
labour. The applicant applied for leave to appeal to the Supreme Court; but his application was
refused by a judge of the Supreme Court. Application was then made on the same day to the full
court for leave to appeal. The issue before the court was whether or not the learned appellate judge
had exercised his powers under s. 336 of the Criminal Procedure Code.

Held:

(i) The High Court may admit the appellant to bail, or if it does not so admit him, direct him
to be treated as an unconvicted prisoner pending the determination of his appeal or his
application for leave to appeal as the case may be.

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(ii) In criminal matters if any judge of the Supreme Court refuses an application, the person
making the application shall be entitled to have his application determined by the full court.

(iii) The applicant's application to the full court for leave to appeal therefore is an application
ex debits justitiae. The determination of his application for leave to appeal to the court is
therefore pending.

(iv) The Supreme Court may deal with a bail application only where the High Court has
refused to admit an appellant to bail under s. 336 of the Criminal Procedure Code.99

(v) The power to admit an applicant to bail under s. 336 of the Criminal Procedure Code is
clearly discretionary. Therefore the learned appellate judge's decision left no room for any such
discretion as he decided that the application was not properly before him.

Kambarange Mpundu Kaunda v The People 1990 – 1992 ZR – You cannot get bail for non-bailable
offences on appeal.

The consideration for bail pending appeal are different from those of pending trial. The
considerations are strenuous.

Stoddart v The Queen No. 1 1954 NRLR 288 – Bail pending appeal can only be granted in exceptional
circumstances.

The test is that there is a likelihood that the appellant would have served a substantial portion of
the sentence by the time the appeal is heard or there is a likelihood of the appeal succeeding.
Therefore, it is easier to get this bail when the sentence is shorter.

Titus Zulu and Another v The People 2010 1 ZR 450

Rathi v The People 2011 ZR 3 21

ANUJ KUMAR RATHI KRISHNA V THE PEOPLE

Flynote

[1] Criminal law - Bail pending appeal - Conditions to be satisfied.

Headnote

This was an appeal by the appellant against the refusal of the application by a single judge of the
Supreme Court to admit the appellant to bail pending appeal.

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Held:

1. An application for bail pending appeal before the Supreme Court ought to be brought
under section 332(1) of the Criminal Procedure Code and not section 123 of the said Code.

2. It is settled law that bail is granted at the discretion of the Court.

3. For bail pending appeal to be granted, the Court must be satisfied that there are
exceptional circumstances that are disclosed in the application.

4. The fact that the appellant due to delay in determining his appeal May, have served a
substantial part of his sentence by the time his appeal is heard, is one such exceptional
circumstance. Each case is considered on its merits, depending on what May, be presented as
exceptional circumstances.

5. It is important to bear in mind that in an application for bail pending appeal, the Court is
dealing with a convict and sufficient reasons must therefore exist before such a convict can be
released on bail pending appeal.

6. The decision in Stoddart v The Queen is still good law and is quite instructive as to the
principles applicable in applications for bail pending appeal.

7. It is not for the Court to delve into the merits of each ground. But it suffices that all the
grounds are examined, and a conclusion is made that prima facie the prospects of success of the
appeal are dim.

8. The fact that an applicant did not breach the bail conditions in the Court below, is not
an exceptional circumstance which can warrant to admit an applicant to bail pending appeal.

9. While it is a fact that the Supreme Court has a heavy work load in civil and criminal cases,
it is possible for the appellant's case to be heard within a reasonable time.

10. Taking into consideration that criminal appeals are being disposed of at a fast rate by the
Supreme Court, it is unlikely that the appellant would serve a substantial remainder of his
sentence, and that he would serve the full sentence before his appeal is determined.

11. In terms of section 332(1) of the Criminal Procedure Code, the option therefore for a
person who has not been released on bail pending appeal is to make a request to have the
execution of his sentence suspended pending the hearing of his appeal. In fact, the provision
makes it clear that refusal of bail precedes the request for suspension of execution of a sentence.

12. Section 332(1) of the Criminal Procedure Code states that upon refusal of the application
for bail, a request for suspension of a sentence should be made by the appellant.

CONSTITUTIONAL BAIL

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This only made in the HC.

Article 28 (2) of the Constitution. The application is concerned with a delayed trial.

Article 13 (3) of the Constitution provides that a person charged with a criminal offence should be
tried within reasonable time otherwise released on bail.

Parekh v The People ZR 1995 – 1997 78 – Constitutional bail is available for cases but only in
circumstances where there is unreasonable delay occasioned by the Defendant. Unreasonable delay
is a question of fact.

The application for constitutional bail is by way of summons and no appeal lies against the HC decision
to refuse bail.

CHETANKUMAR SHANTKAL PAREKH v THE PEOPLE (1995) S.J. (S.C.)

Flynote

Bail - Cognisable offence - s.23(1) of Criminal Procedure Code - Article 94(5) of the Constitution -
Constitutional bail

Headnote

The appellant appeared before the subordinate court on a charge of unlawful possession of drugs,
contrary to Section 8 of the Narcotic Drugs and Psychotropic Substances Act, (no. 37 of 1993). the
learned trial magistrate refused to grant bail and, in terms of the Criminal Procedure Code and the
supervisory jurisdiction of the High Court under that law and under Article 94(5) of the Constitution,
the appellant renewed his application for bail before a High Court judge and raised a constitutional
argument

Held:

(i) Where any trial is unreasonably delayed through no fault or stratagem of the accused,
the arrested person must be released on what one might call "constitutional bail". Such bail is
available and clearly overrides any prohibitions in the lesser laws so that Article 13(3) would
apply to any unreasonably delayed case, whatever the charge and whatever s.43 of the Act., or
s.123 of the C.P.C. or any other similar law may say

(ii) There is nothing in the Constitution which invalidates a law imposing a total prohibition
on the release on bail of a person reasonably suspected of having committed a criminal offence,
provided that he is brought to trial within a reasonable time after he has been arrested and
detained

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(iii) Before the stage when a trial becomes unreasonably delayed, it is constitutionally
permissible to authorise deprivation of liberty, if authorised by law, and without making any
provision for bail under any circumstances

TOPIC: CHARGES AND INFORMATION

The charge sheet in the subordinate court or an information the HC. The documents set out the
offences by which the accused is charged.

We do not have an indictment in Zambia. It is either a charge sheet or information.

There are rules for drawing charges and information. Some cases start with a complaint whilst others
start with a deposition.

Section 134 – 137 of the CPC provides rules of drawing the document:

• Commencement;
• Statement of offence;
• Particulars of offence.

COMMENCEMENT

It has information of the court in which the accused is being tried.

The charge sheet has details such as age, sex.

Date of arrest and whether the person is on bail or not.

STATEMENT OF OFFENCE

• Nature or title of the offence

• Section 137 (a) (i) provides that statement of the offence should indicate the nature of the
offence.
• Section 137 (a) (ii): after the offence , have the section creating the offence e.g Theft
contrary to section 272 (NOT 265 as that only defines)
• There are situations were the offences are created by more than one section. For example,
Aggravated Robbery in section 294; attempted aggravated robbery sections 391 and 294.
• The offence of theft is in section 272 whereas stealing of a motor vehicle is in section 271A.

Effect of a Wrong section:

Joseph Nkole v The People 1971 ZR 351 – When a wrong section has been placed in the charge
sheet, the charge sheet is defective and not bad.

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JOSEPH NKOLE v THE PEOPLE (1977) Z.R. 351 (S.C.)

Flynote

Criminal law - Charge - Reference to incorrect section in statement of offence - Whether charge bad
or defective - Effect of defective charge.

Headnote

The appellant pleaded guilty to and was convicted of forgery and uttering; his appeal was against
sentence only. The court's attention was however drawn to the fact that the statement of offence in
respect of the first count wrongly referred to section 348 of the Penal Code instead of section 347.

Held :

(i) The statement of offence was clear and so were the particulars of the offence; what was
wrong was the inaccurate reference to the section of the enactment that created the offence.

(ii) This error did not make the charge bad but simply defective, and in the absence of
embarrassment or prejudice to the accused the proviso to section 15 (1) of the Supreme Court
of Zambia Act will be applied.

(iii) The question of whether or not the accused is prejudiced by the defect must be
considered on the facts of each particular case.

PARTICULARS

There is a schedule in the CPC1 – section 137 (familiarise yourself with this schedule)

• Name or names of accused persons;

• Don’t use titles e.g Reverend
• Where a person has another name, you use ‘alias’ – section 137 (d) of the CPC
• When the accused is a body corporate, you charge it by name but if it is a firm, you use one
of the partners then indicate ‘Trading As’.

R V MUSANGO BROTHERS AND 5 OTHERS NRLR 599

• Dates or dates on which the offence was created when the exact date is not known, you use
“on or about…”
“on a date unknown between 3rd January 2018 and 12 February 2018”

1
2nd Schedule

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On an unknown date.
• In an offence like defilement, each incident forms a separate offence.
• Traffic offence is only committed on a Gazetted road; thus, you need to indicate the exact
gazetted road.

Check for further notes

6 March 2018

OBJECTIONS TO A CHARGE

Section 138 of the CPC

Article 18 (5) of the Constitution allows a retrial of a person where he was previously tried and
acquitted if an appellate court has ordered that such a person be tried again.

Section of the CPC allows a person to be tried again if at the time of the trial the consequences are
not known again. For example, a person charged with receiving a stolen vehicle. The Penal Code also
allows a person who injures another person and convicted to be tried again for the murder if the
person dies.

The Plea Negotiation and Agreement Act No. 20 of 2010 allows a person who breaches the terms of
the plea agreement to be tried again. For example, a person is killed and a decision is made to turn
the person who lent a firearm into a witness but later changes his mind.

The People v Petrol Za 2002 ZR 45

It was held that an acquittal is only effective if the court was competent to acquit. Therefore, if a
person is acquitted by an incompetent court, it is no acquittal at all.

THE PEOPLE v PETROL ZAMBWELA

Flynote

Criminal Procedure – Acquittal – Whether the Subordinate Court is empowered to acquit after
conducting an inquiry.

Headnote

The accused appeared before the Subordinate Court of the First Class for the Kalomo District on a
charge of murder contrary to section 200 of the Penal Code, Cap. 87 of the Laws of Zambia. The
matter was before the Magistrate for a Preliminary Inquiry as the case is triable by the High Court.
The prosecutor applied for the withdrawal of the case. The learned magistrate in allowing the

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application invoked the provisions of Section 88 (b) of the Criminal Procedure Code, Chapter 88 of
the Laws of Zambia and acquitted the accused. The matter was reviewed through the monthly
returns.

Held:

Section 280 of the Criminal Procedure Code empowers a Subordinate Court to discharge an
accused person if at the close of the inquiry the evidence is insufficient to commit the accused
for trial. There is no provision for an acquittal before a Subordinate Court.

Other grounds for which one can object to a charge is that they enjoy immunity from prosecution.
Article 98 (4) of the Constitution provides that a person performing the functions of the president
is immune from prosecution even after the end of his tenure of office. Article 109 (1) of the
Constitution provides that where the Vice President performing the functions of the president
commits a criminal offence, the Vice President cannot be prosecuted for the criminal offences. The
law allows the removal of the immunity.

Further, section 14 of the Penal Code provides for immunity.

Also immunity founded on diplomatic immunity. The Diplomatic Immunity and Privileges Act makes
provision in Section 3 for the immunity of persons who enjoy diplomatic status.

When there is an objection to a charge, the court will allow the prosecution to respond to the
objection and the court can dismiss the objection. The court can either quash the charge or allow
the prosecutor to amend it when the objection has merit. On the other hand, the objection can be
dismissed.

Where there is an objection on the basis of lack of jurisdiction and the court accepts the objection,
it will quash the charge and discharge the person. It cannot acquit as it has no power to do so.

A charge will be dismissed where it cannot be amended.

Amendment of Charges or Information

Section 273 of the CPC allows for the amendment of an information, that is for a trial in the High
Court. Section 213 of the CPC provides for amendment of the charge before the Subordinate Court.
You can object to a charge at a time of a plea or during the course of trial but before the defence.
However, this provision cannot be used to apply to amend the charge after the close of the
prosecution even though the court can amend when delivering judgment. For example a person
charged with manslaughter can have a charge upgraded to murder.

Kambarange Mpundu Kaunda v The People 1990-92 ZR 215

KAMBARANGE MPUNDU KAUNDA v THE PEOPLE (1992) S.J. 1 (S.C.)

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Flynote

Evidence - Affidavit evidence on a contentious matter - Rule 39(1)

of the Supreme Court of Zambia Rules - Court's power.

Bail - Extenuating circumstances - Whether bail can be granted on appeal to a person convicted of
murder - Order 45 (2) of the Supreme Court Rules - Section 123 of the Criminal Procedure Code.

Criminal Procedure - Coroner's order - Whether it is in conformity with the law.

Criminal Procedure - D.P.P.’s initial decision not to prosecute the appellant - Whether it was made
by a mistake of fact or law on some obscure issue.

Amendment of charge - Necessary when initial charge is defective.

Evidence - Witnesses with an interest to serve - Court's need to warn itself-

Exclusion of danger of false implication.

Witnesses - Proper test for assessing credibility of.

Headnote

The appellant, with a passenger, was driving through Kamanga Compound in Lusaka around midnight.
He drove past a group of people who were walking in the same direction on the road as he himself
was traveling; he did so at speed and stopped immediately after them. One of the passengers in his
car then alighted and fired a shotgun in the air. The appellant also alighted and fired four shots in
the air with a pistol. He then lowered the aim of his pistol and fired three more shots close over the
heads of the people in the group so that one shot killed the deceased by striking her in the back of
the head. Upon the appellant's arrest, the Director of Public Prosecutions announced that the
appellant would not be prosecuted. However, the coroner at the inquest ruled that the appellant be
prosecuted. The appellant was accordingly prosecuted and convicted of murder. On appeal it was

Held:

(i) That in view of the D.P.P.'s public statement that the appellant would not be prosecuted
for homicide on the ground of self-defence, the right to prosecute thereafter was lost for the
reasons already given;

(ii) That as the prosecution eye witnesses were relatives or friends of the deceased and
could, therefore, well have had a possible bias against the appellant; and as they were the
subject of the initial complaint by the appellant are having attacked him and his friends and,
therefore, had a possible interest of their own to serve, failure by the learned trial judge to warn
himself and specifically to deal with this issue was a misdirection;

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(iii) That the learned trial judge misdirected himself by applying improper test in his
assessment of the credibility of the prosecution eye witnesses most of whom were found to have
told lies on certain issues including as to the amount of alcohol they had consumed;

(iv) That the appellant acted in self-defence and was, therefore, not guilty of murder

Shamwana and Other v The People 1985 ZR 41 (must read)

The law allows an amendment to be made to bring the charge in line with the evidence.

SHAMWANA AND 7 OTHERS v THE PEOPLE (1985) Z.R. 41 (S.C.)

Flynote

Criminal Law and Procedure - Autrefois acquit - Treason - Overt acts - Applicability to.

Criminal Law and Procedure - Charges - Amendment - Amendment by court on its own motion -
Misdescription in overt act amended in ruling on no case without opportunity for accused person to
argue - Whether injustice caused - Whether permissible.

Criminal Law and Procedure - charges - Amendment - Lateness of - Public interest - Consideration
of.

Criminal Law and Procedure - Charges - Duplicity - Treason - Two or more conspiracy overt acts laid
- Allegation in court was that the accused prepared to do something - Overt act was that the accused
endeavoured to do something - Whether charge open to the objection of duplicity.

Criminal Law and Procedure - Charges - Uncertainty - Treason - Overt act of conspiracy - Particulars
not set out - Whether charge uncertain.

Criminal Law and Procedure - Minor offence - Treason - Reduction to misprison in ruling on no case -
Application of s.181C.P.C. - stage of trial when permissible.

Criminal Law and Procedure - Trial - Attorney-General as prosecutor - Whether entitled.41

Criminal Law and Procedure - Trial - Credibility - Final Finding on credibility of witness made in ruling
on no case to answer - Propriety of.

Criminal Law and Procedure - Trial - Trial within a trial - Cross-examination by accused of prosecution
witnesses relating to confession statement of co-accused - Whether permissible.

Criminal Law and Procedure - Trial - Unfair trial - Adverse pre-trial publicity - Whether trial unfair.

Criminal Law and Procedure -Trial - Unfair trial - Basis by court -audience granted to prosecutor and
one member of defence team in absence of other accused or their advocates - Prosecutor obtains
adjournment - Whether trial unfair.

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Criminal Law and Procedure - Trial - Unfair trial - Executive has indicated a desire to secure
convictions - Whether trial unfair.

Criminal Law and Procedure - Trial - Unfair trial - Improper conduct by police before trial - Whether
unfair trial.

Criminal Law and Procedure - Trial - Unfair trial - Prosecutor also potential witness -Propriety of.

Evidence - Accomplice - Bargaining with Prosecution by - Whether evidence admissible.

Evidence - Accomplice - Ethical or legal grounds for exclusion of - Basis for exclusion or admission.

Evidence - Accomplice - Corroboration - Mutual corroboration - When possible.

Evidence - Confessions - Breach of Judges rules - Effect of.

Evidence - Corroboration - Evidence of accused implicating co-accused - Whether corroboration

required.

Evidence - Hearsay - Documentary evidence - Incriminating documents found on farm previously

occupied by some of the accused and their confederates - Whether contents hearsay - Whether
documents admissible.

Evidence - Interrogation notes - Notes of interview taken in aid of police investigations - Not read
over to or signed by suspect - Whether admissible in evidence - What use permissible at trial.

Evidence - Judicial notice - record of another court - Competency of trial court to take judicial notice
of.

Evidence - Overt act of conspiracy - Evidence of distinct acts not laid as overt acts - When admissible.

Evidence - Overt acts - Evidence tendered in support of overt acts not made out applied to other
overt acts - Whether permissible.42

Headnote

Seven of the appellants were convicted of treason while one was convicted of misprision of treason.
Originally, all of them were charged with one count of treason alleging that they prepared to
overthrow the lawful Government. At the close of the prosecution case the trial court ruled that
some of the overt acts had not been made out; the court amended the particulars of one of the
remaining overt acts; it placed one of the accused on his defence on the lesser charge of misprision.
On appeal, numerous grounds were argued alleging, inter alia, that the charge was bad for duplicity
because two or more conspiracy overt acts were laid and because the evidence disclosed two
different subplots for executing the coup plot; that the charge was bad for duplicity because while
the court used the word "prepared", one overt act used the word "endeavoured". It was also argued
that certain overt acts were bad for uncertainty; the conspiracy overt act was bad for uncertainty
because detailed particulars of the acts of omissions of each accused were not given, the overt act

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alleging that one of the appellants was in command of "the said illegal army stationed at Chilanga",
was bad for uncertainty because the illegal army was first mentioned in an overt act not alleged
against the particular accused. Other complaints were directed against the amendments to the
information effected at the close of the prosecution case. It was also argued that the trial was unfair;
that the evidence of an accomplice who testified after bargaining with the prosecution should have
been excluded; that certain documents were wrongly admitted and in any case their contents were
hearsay evidence. Other misdirections were alleged concerning the admission of confessions and
interrogation notes; and the talking of judicial notice of another court's case record. The learned
trial judge made use of evidence tendered ostensibly in support of overt acts not made out; and he
also relied in certain respects on the uncorroborated evidence of a co-accused. A key accomplice
witness told certain lies but a, final finding was made in the ruling on no case submissions that he
was credible. There were a number of accomplice witnesses and the question arose whether there
was corroboration for their evidence and whether they could mutually corroborate each other.

Held:

(i) Duplicity is a matter of form, not of evidence and, as such, it must be gathered from the
count itself. Overt acts cannot render a count which is not double bad for duplicity. Although
preparing is different act from endeavouring, the count could not be said to be double because
it only alleged preparation to overthrow the Government. The allegation in the particulars of
overt act that certain of the appellants endeavoured to persuade a witness to do certain things
could not be transported into the count so as to make it allege a preparation as well as an
endeavour to overthrow the Government and so make the count double;

(ii) An overt act of conspiracy to overthrow the Government need not set out detailed
particulars of the acts or omissions of each accused person; such details and particulars are
matters of evidence and their absence does not result uncertainty;43

(iii) Under section 273 of the Criminal Procedure Code, the trial court had power to amend of
its own motion the particulars of an overt act in line with the evidence given. Since the
amendment did not alter the substance of the allegation and merely corrected misdescription,
the trial court had properly exercised that power. The accused suffered no injustice where they
were offered an adjournment and a chance to recall witnesses;

(iv) It is competent for trial court, in a ruling at the close of the case for the prosecution, to
place an accused on his defence on a lesser charge - the application of section 181 of the Criminal

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Procedure Code may arise either before or at the no case to answer stage, or even at the
judgment stage;

(v) The trial was neither unfair nor was the verdict rendered unsafe or unsatisfactory where the
executive expressed a desire to secure convictions and there was adverse pre-trial publicity
since none of these factors was shown to have influenced the trial judge;

(vi) On the facts of the case, there was no bias on the part of the court when the triad judge
granted audience in chambers to state prosecutor and one member of defence team and when
the only business transacted was the granting of an adjournment to the prosecutor. Because one
of the advocates in the defence team was present, no prejudice was suffered by the accused
represented by other advocates or those representing themselves when they did not attend the
brief transaction;

(vii) Since an extra curial statement is evidence only against the maker, unless it has been
adopted by the co-accused, it was unnecessary for the non-makers of the confession statement
to be accorded the opportunity of cross-examining witnesses in a trial within a trial. As it was
competent for the court to exclude the non-makers of the confession from participating in the
trial within trial, their complaints that this was evidence of bias on the part of the court or that
they were prejudiced could not be entertained; the trial was not thereby rendered unfair;

(viii) (a) Allegations of unfair and improper conduct on the part of the police during
investigations had no bearing on the unfairness or otherwise of the trial itself, and did not render
the trial unfair;

(b) The Attorney-General, who also happens to be the Minister of Legal Affairs, is allowed
to prosecute; he is a Public Prosecutor by virtue of section 2 of the Criminal Procedure Code,
and since he is also a legal practitioner, it was lawful for him to represent the Director of Public
Prosecutions in that character;44

(c) Since the Attorney-General was potential witness for the defence, and in every case
where prosecutor or defence counsel is given notice that he would be called as a witness for
either side to give evidence other than formal evidence, it is desirable for such prosecutor or
defence counsel to withdraw, though failure to do so is not illegal; because the Attorney General

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did not infact play the dual role of prosecutor and witness, there was no irregularity and no
cause for complaint;

(ix) (a) An accomplice who has been charged, either jointly or alone, should not be called as a
witness by the prosecution unless he is omitted frown the indictment or his plea of guilty is
taken, or before calling him the prosecution either offers no evidence against him and secures
his acquittal or enters a nolle prosequi. An accomplice who testifies after bargaining with the
prosecution is still a competent witness;

(b) Though the practice of calling accomplices as prosecution witnesses has received
condemnation on ethical grounds, it is unnecessary for the court to add to the weight of such
condemnation or to dissipate it. If there remains a very powerful inducement, the court may
decide to exercise its discretion in favour of exclusion of the accomplice evidence;

(c) In exercising its discretion, the covert must take into account all the factors, including
those affecting the public; it is in the interest of the public that criminals, especially in serious
crimes, should be brought to justice;

(x) (a) Documents found on a farm previously occupied by some of the appellants were
admissible, and their contents not hearsay because they were published maps which are
admissible as public documents. In any case, the maps had markings on them made by a
prosecution witness who was at the form;

(b) Documents containing the names of the persons at the farm were admissible though the
author was not called; because witness familiar with the author's handwriting had recognised
them and lead made tracings on one of the documents. The requirements of proving private
documents were met,;

(c) The rule against hearsay applies equally to documents found at the farm. However, the
documents were admissible, and not hearsay, because the documents, as things, were real
evidence and also because documents which are, or have been in the possession of a party are
admissible as original circumstantial evidence to show his knowledge of their contents, his
connection with, or complicity in the transactions to which they relate, or his state of mind with
reference thereto;

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(xi) On a charge of treason no evidence is admissible of any distinct or independent overt act
not laid in the indictment unless it amounts to a direct proof of the overt acts that are laid; the
evidence of distinct overt acts of the appellants in45 furtherance of the coup plot afforded direct
proof of the overt act of conspiracy to overthrow the Government and was properly admitted;

(xii) Although statement made in breach of the Judges' Rules is admissible the breach raises
rebuttable presumption of involuntariness and unfairness. Where a breach of the Judges' Rules
has been admitted or established, it is for the prosecution to advance an explanation acceptable
to the court for such breach: Chilufya v The People (1975) Z.R. 138 explained.

(xiii) Interrogation notes recorded by the police during an interview with a suspect who was
not warned and cautioned, and who did not have the notes read over to him, or signed by him,
and who was not even shown the notes which were recorded in aid of police investigations,
cannot be the equivalent of confession and as such cannot be produced in court. Interrogation
notes may at best be used only to refresh a witness's memory;

(xiv) In an appropriate case, particularly where facts may be judicially noticed after an inquiry
has been made, a judge has power not only to look at his own records, but also those of another
judge and to take judicial notice of their contents: Fatyela v The People (1966) Z.R. 135
overruled on this subject; Evidence tendered ostensibly in support of allegations of overt acts
not made out is, if relevant, admissible in proof of the other overt acts which were made out;

(xvi) The evidence of an accused person who testifies on oath in his own defence which is
against the co-accused should only be taken into account as against the co-accused if it is
corroborated or supported by something more.

(xvii) Finality of assessment as to a witness's credibility, especially as to his truthfulness, should

be reserved until the final judgment stage, after both sides have been heard; it was wrong to
make final assessment in the ruling on no case to answer submissions;

(xviii) In some cases accomplices of a class may be mutually corroborative where they give
independent evidence of separate incidents and where the circumstances are such as to exclude
the danger of jointly fabricated story.

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A charge can be amended for any of the following reasons:

1. To bring the charge in line with the evidence;

2. To correct a formal defect;

The court will only allow an amendment if no injustice will be caused on the accused person. The
deeper you get into trial the higher the chances that the person will suffer an injustice.

The procedure for the amendment of a charge after objection:

Whenever the charge is amended, it must be read back to the accused person.

13 March, 2018

When a charge is amended, the plea is taken.

John Banda v The People 1970 ZR

JOHN BANDA v THE PEOPLE (1970) Z.R. 14 (C.A.)

Flynote

Criminal law and procedure - Plea - Charge amended after plea has been taken and trial commenced
- Appellant not asked to plead to amended charge - Trial complete nullity.

Criminal law and procedure - Charge - Amendment of - Procedure to be followed where amendment
made during course of trial.14

Headnote

The appellant was charged with attempted rape but after the evidence of the first prosecution
witness the prosecution applied to amend the charge to one of rape. The trial magistrate granted
the application and proceeded with the trial without taking a plea to the amended charge from the
appellant.

Held:

(i) The trial without a plea was a complete nullity. The trial magistrate should have asked
the appellant to plead to the amended charge and informed him of his right to recall the witness
for cross-examination.

After the plea is retaken, if the amendment is substantial, the accused is informed that they have
the right to have witnesses recalled for cross-examination. Whether it is substantial or not, it is a

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matter of fact thus it is always safer to notify the accused that they have a right to have the witnesses
recalled for cross examination.

In Zambia, we do not have a law limiting the number of counts that can be placed in an information.

Mulwanda and the People 1976 ZR 133

In that case, the court held that an accused person who was facing 37 counts and 87 witnesses were
called, 89 exhibits were produced. They held that the accused person was unlikely to receive a fair
trial. Fair in the sense that it makes the accused not to manage the case.

MULWANDA v THE PEOPLE (1976) Z.R. 133 (S.C.)

Flynote

Criminal procedure - Charge - Charge containing thirty - seven counts necessitating the calling of
eight - seven witnesses and the production of eight - nine exhibits - Propriety of.

Criminal procedure - Magistrate called upon to hear complicated case - Duty to arrange work so that
he can sit from day to day.

Constitutional law - Detention - When regulation 33 (a) of the Preservation of Public Security
Regulations, Cap. 106, may be used.

Constitutional law - Detention of witness for the purpose of coercing them into giving information -
Even if offence being investigated impinges on the security of the State - Gross misuse of power.

Criminal law - Evidence - Uncovered in illegal fashion - Admissibility.

Headnote

The applicant was charged in the Subordinate Court with eighteen counts of corrupt practice contrary
to section 385 of the Penal Code, Cap. 146, and seventeen counts of making a document without
lawful authority or excuse contrary to section 356 (a) of the Penal Code, Cap.146. He was convicted
on six counts of corrupt practice and sentenced to pay fine of Kl,000 on each count. He noted an
appeal against conviction but thereafter withdrew it, whereupon the then Chief Justice in his
capacity as a Judge of the High Court called for the record for the purpose of reviewing the sentence.
The review took place in open court and the appellant was present and represented. The sentence
was altered to the extent that in addition to the fines a sentence of fifteen months' imprisonment on
each count was imposed, all sentences to run concurrently. The applicant applied for leave to appeal
to the Supreme Court against both conviction and sentence.

The case necessitated the calling of eighty-seven witnesses and the production of eighty-nine
exhibits. The methods employed by the Senior Superintendent who was in charge of the investigation
in this case were unlawful. Witnesses were detained for the purpose of coercing them to give
information and were released as soon as theft had given this information.

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Held:

(i) To charge an accused with thirty-five counts necessitating the calling of eighty-seven
witnesses and the production of eighty nine exhibits is fair neither to the accused nor to the
court.

(ii) When a magistrate is called upon to hear a case which, either because of the number of
witnesses or because of other complexities, will obviously occupy very many court days it is
essential that he so arrange his work that he can sit from day to day to bring the case to an early
conclusion. To sit at infrequent intervals between lengthy adjournments only adds to the
difficulties inherent in a complex case, and adds a further strain not only on the court itself but
also on the accused.

(iii) There can be no doubt that the methods employed by the Senior Superintendent who
was in charge of the investigation in this case were unlawful.

(iv) Regulation 33 (6) of the Preservation of Public Security Regulations, Cap. 106, may be
used only where the police officer has reason to believe that there are grounds which would
justify the detention of the person in question "under this regulation"; such detention would be
justified only where in terms of sub-regulation (1), the President was satisfied "that for the
purpose of preserving public security it is necessary to exercise control" over that person.

(v) Even if it could be said that the offence being investigated was one which impinged on
the security of the State, detention of witnesses purely for the purpose of coercing them into
giving information concerning such offence is a gross misuse of the powers given by the
legislation.

(vi) Our law following the law of England, does not necessarily render inadmissible, evidence
uncovered in an illegal fashion.

(vii) The magistrate approached the question of sentence on the basis of a course of conduct.
The approach was correct.

THE ADMISSION OF GUILT PROCEDURE

This is so because an accused or offender can admit guilt outside the court.

Section 221 of the CPC makes provision for a person to admit their guilt at a place other than a
court. This procedure is not applicable to all offences, section 221 makes provision for the type of
offences for which it is applicable. It is 4 types of offences:

• Offences that attract a fine not exceeding 1,500 penalty units; or

• Imprisonment not exceeding 6 months;

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• Fine not exceeding 1,500 penalty units, Imprisonment not exceeding 6 months or both;
• An offence specified by the CJ in a statutory notice to section 221.

It is in the discretion of the police officer to subject the accused to the admission of guilt procedure.
It is not a right.

You can withdraw the admission of guilt by either turning up at court or writing to the clerk of the
court.

Nkubesa and the People 1976 ZR 78

Held that where the admission of guilt is employed, the procedure that will be followed is like a
normal trial.

MUKUBESA v THE PEOPLE (1976) Z.R. 78 (H.C.)

Flynote

Criminal procedure - Admission of guilt - Right of appeal - Whether hearing must be conducted in
open court - Requirement that finding of guilty be recorded - Criminal Procedure Code, Cap. 160, ss.
169 and 221 (5).

Headnote

The appellant was convicted by the Subordinate Court of the Third Class in Kabwe of being drunk and
disorderly contrary to section 180 (2) of the Penal Code and was fined K10. The appellant had signed
an Admission of Guilt Form and deposited K10 with the police. On the fixed day he was convicted by
the Subordinate Court.

At the hearing of the appeal the question arose as to whether there was a right of appeal in as much
as an Admission of Guilt Form had been signed. Counsel for the appellant also submitted that the
statement of facts did not disclose a prima facie case in that it did not allege that the Senior Police
Club, where the offence was alleged to have been committed, was a public place or any premises
licensed under the Liquor Licensing Act, as required by section 180 (2) of the Penal Code, Cap. 146.
He submitted further that the statement of facts was not read out in open court, but that proceedings
were conducted in chambers.

Held:

(i) A person convicted under the admission of guilt procedure stands convicted as surely as
if he had pleaded guilty in open court or indeed where under section 99 of the Criminal Procedure
Code he had pleaded guilty in writing. A right of appeal therefore exists.

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(ii) The statement of facts should have alleged that the Senior Police Club, Kabwe, where
the offence was committed was either a public place or any premises licensed under the Liquor
Licensing Act, as required by the provisions of section 180 (2) of the Penal Code, Cap. 146.

(iii) Section 221 5 (a) of the Criminal Procedure Code, Cap. 160, clearly indicates that the
hearing must, as in the case of any Criminal trial, except in the circumstances mentioned under
section 76 of the Criminal Procedure Code, be conducted in open court.

(iv) The provisions of sections 169 and 221 (a) of the Criminal Procedure Code are not
sufficiently complied with when no finding of guilty is recorded and the magistrate merely enters
his initials on the form.

There is one advantage of this procedure: if you subject yourself to the admission of guilt
procedure, you can never be imprisoned.

The admission of guilt procedure is not available to juveniles and it is discretion of the charging
office.

Duplicity and Insanity questions are always asked

TRIAL BEFORE THE SUBORDINATE COURT

Unlike in the High Court, in the Subordinate court, there is a summary trial because the Subordinate
court there is no preliminary hearing. Soon after the person takes a plea, trial starts.2 The case is
presided over by a magistrate sitting alone or with assessors. Although the law still provides for
assessors.

The starting point is the calling of the case, criminal trials take place in open court (section 76 of
the CPC). However, there are exceptions, that is, when the court is hearing an interlocutory matter.
The other exception is when the person being tried is a juvenile and when you have a case that may
prejudice public safety or security.

Section 121 of the Juveniles Act excludes members of the public when you have a juvenile witness
in a case involving morality.

Section 120 of the Juveniles Act excludes children from sitting in court except babies.

Section 15 of the State Securities Act members of the public can be excluded if evidence will come
out which will expose the state security.

2
In the High Court, the person goes to the Subordinate Court for a preliminary hearing.

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Ordinarily, trial will not take place without the accused person but the law allows the accused to be
dispensed with in certain circumstances. Section 99 and 191 of the CPC

R V MELLOWS 5 NRLR 695

R V WILSON 1957 R&N 621

R V SUNCHI 152

Section 203 of the CPC allows the court to go ahead with the trial in a case where the accused has
absconded and the offence is not a felony. However, if the accused gives convincing reasons why he
absconded, the judgment can be set aside.

Section 203 of the CPC should be understood in consent with Article 18 (12) (d) (i) of the
Constitution.

A lay man cannot represent an accused even though an accused can represent himself.

R V MUSANGO BROTHERS 599

- ‘Warning to appear’- ambiguity

- def: firm of bus proprietors- charged and convicted- Mag. Class III- charge: carrying goods in
space other than that allowed by law
- Charged as “MUSANGO BROTHERS OF NDOLA”- no intimation on charge sheet as to how the
firm was constituted i.e. as to whether it was a one man firm or contained partners
- Some representative of the firm was “warned to appear” by police constable
- Person named Stanley gutwe (not qualified legal practitioner) appeared to represent
Accused- was given a hearing
- No summons or complains was attached to the charge sheet- particulars of the 2 counts were
set out in one heading only of the statement of the offence, instead of according to the usual
practice- whereby each count contains a separate statement of offence as well as separate
particulars of offence
- Magistrate entered plea of not guilty on both counts-proceeded to try the case
- No evidence as to who was in fact warned to appear- whether it was one of the brothers
comprising this business p/ship, or all of them
- There are 2 methods open to a police officer instituting proceedings before a sub court:
o 1) by way of arrest and charge which is not applicable in casu,
o 2) by a complaint before the magistrate who draws up a charge or causes one to be
so drawn up and the issue of a summons (s.83 & 84 of CPC apply)
- furthermore: summons with the endorsement of service thereon, the original complaint must
always be attached to the charge sheet. Neither of the above processes were invoked in this
case, but someone was warned to appear, whatever that may mean.

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- If Musango Bros is a one-man concern- he should have been so summoned in his own name
and charged as such i.e. “John Musango trading as Musango Brother (Addresss) Ndola”. And
the summons should have been served upon him at Ndola
- If the firm is a partnership- one partner could be summoned and charged in his own name-
the endorsement- “John Musango, a partner in the firm of Musango Brothers”
- If accused is not represented by advocate, he undertakes his own defence and has the right
to cross examine the witnesses called by the prosecution, and address the court after the
evidence has been called.
- Mr. Gutwe- no locus standi to appear for the defence and cross examine the prosecution
witnesses.
- Also: magistrate should not cross-examine when a public prosecutor is conducting the case;
he can ask a witness questions to remove ambiguities, but that is all.”
- “I have observed a tendency of late with public prosecutors in framing a charge where there
is more than one count, of setting down all the various counts together under “statement of
offence” then the respective “particulars of offence”- this is incorrect.
o The statement of offence in the first count must be set out, followed by the
particulars of offence on that count and so on…see precedent in Form 6 of the
Appendix to the 2nd Schedule of the CPC
o Preparation of the charge sheet falls upon the public prosecutor- but it is the
magistrate’s duty to see that the charges are in order before calling upon an accused
to plea.
o Court cannot allow the conviction and sentences to stand in this case.
o Conviction on both counts quashed.

Paul Jeremiah Lungu and People 1978 ZR

THE PEOPLE v PAUL JEREMIAH LUNGU (1978) Z.R. 298 (H.C.)

Flynote

Criminal law and procedure - Magistrate taking active interest an private prosecution - Necessity for
impartiality.

Criminal law and procedure - Private prosecution - Conduct of by member of public other than an
advocate - Whether permissible.

Headnote

The accused was convicted of assault occasioning actual bodily harm. Prosecution was undertaken by
a private prosecutor on the basis of a complaint sworn by the complainant. The complaint was
originally registered with the police but after the complainant had reluctantly agreed to withdraw
his case against the accused who was a police officer, the magistrate permitted the complainant to
swear out a private complaint and gave him permission to conduct the prosecution since the State

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had declined to do so. He then granted permission to a member of the public to prosecute on behalf
of the complainant and at some stage of the trial, that prosecutor was absent. The magistrate
permitted another member of the public to continue the prosecution on behalf of the complainant.
On review -

Held:

(i) The learned magistrate should have considered the fact that as a judicial officer, he was
only required to adjudicate impartially in any matter before him. He should not have given the
impression by conduct or otherwise that he was taking sides in the matter.

(ii) A complainant is not permitted to engage the services of members of the public other
than an advocate, to prosecute an action on his behalf.

Complainant generally means a person who goes and lodges the complaint under section 90.

Section 202 of the CPC allows cases to be adjourned if not ready for trial. It cannot be adjourned
for more than 30 days. If the accused is in custody, it cannot be adjourned for more than 15 days. It
is from this provision that the word mention comes from.

The People v Nawa Muyedekwa 1977 ZR 232

The accused person is asked what language he intends to use. If he is not speaking English, an
interpreter should be provided. It is desirable that the interpreter is an independent person but at
times you will have a person with an interest.

THE PEOPLE v NAWA MUYEDEKWA AND ANOTHER (1977) Z.R. 232 (H.C.)

Flynote

Criminal procedure - Remand - Subordinate court - Remand in custody for period exceeding fifteen
days - Impropriety of.

Criminal procedure - Remand - Subordinate court - Necessity for remand warrant.

Headnote

The accused were detained in custody on the 15th April, 1976, for the offence of murder. They first
appeared in court on the 20th April. The dates of their subsequent appearances in court and of the
signing of the warrants on remand or adjournment appear in the judgment.

Held:

(i) In proceedings before a subordinate court an accused person may not be remanded in
custody for a period exceeding 15 days at any one time.

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(ii) An accused person may not be held in custody without a warrant authorising his
detention.

Sakala and Other v R 1959 1 R&N 268

The accused is asked to confirm the age, name, and residential address.

20 March 2018

Section 356 of the CPC - The understanding is that when a person is appearing in a representative
capacity, you don’t sit in the accused dock but on the bar.

Section 8 of the CPC deals with reconciliation

THE PLEA

In the subordinate court, the magistrate reads out the charge.

Section 85 (1) of the CPC indicates that a charge will be read out to the accused person but he will
not be required to respond to it where the consent of the DPP has not being obtained. However,
where it is a plea, you have a charge read out and the accused person responds to a charge. He is
asked whether he admits or denies the charge.

Section 204 of the CPC provides that where there is more than one count, the accused person shall
be asked to plead to each and every count. An accused person who faces more than one charge is
allowed to admit either none of them, all of them or some of them. However, it does happen that
the accused person has neither denied nor accepted, in which case the court enters a ‘plea of not
guilty’.

Section 160 of the CPC provides that where there is no response after the charge has been read out,
the trial magistrate must find out why he is not responding. The court enquires into why the accused
person has not responded. The court must find out whether the decision is deliberate or due to a
health condition. The basis is that the accused person may be of unsound mind. If the suspicion is
that the accused is of unsound mind, the inquiry must go medical. You need a doctor to find out if
the accused is of unsound mind.

Section 161 of the CPC deals with that issue. It talks about the court finding out if a person is not
able to make a defence. Meaning an accused person being of unsound mind to the extent that he
cannot defend himself in court. Even if the report from the doctor says he is insane, trial will still go
on, only that the magistrate will still enter a plea of “not guilty”.

The People v Musitini 1975 ZR 73

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THE PEOPLE v MUSITINI (1975) Z.R. 53 (H.C.)

Flynote

Criminal procedure - Court informed that accused person is a deaf mute - Obligation on court to
inquire whether accused capable of making defence - Where no such determination - Effect - Criminal
Procedure Code, section 161(2).

Headnote

The accused was charged before a subordinate court of the third class in Kabwe. When the accused
was called upon to plead his father had informed the court that the accused had been a deaf mute
since birth. The court recorded that it was satisfied that the accused was a deaf mute since birth
and was incapable of pleading to the charge. It was recorded further that a plea was not taken and
that section 161 of the Criminal Procedure Code had been complied with. The matter was adjourned
to a subsequent date when the court ordered the accused to be examined by a Government medical
officer to confirm whether the accused was a deaf mute.

Later, the accused was found guilty and convicted and the court ordered that the accused be detained
during the President's pleasure. The case came before the High Court for review.

Held:

(i) When it is brought to the notice of the court that an accused person is a deaf mute then
the question of the accused's ability to make a proper defence arises and the court is obliged to
inquire into the matter.

(ii) Where no determination as to capability of making a defence has been made a conviction
is a nullity.

(iii) The procedure under section 161 (2) (a) of the Criminal Procedure Code can be regarded
as a complete trial inasmuch as it results in an acquittal; but the procedure under section 161
(2) (b) however can in no way be regarded as a complete trial.

R v Wolomosi Phiri No.2 5 NRLR 187

The People v Mwaba 1973 ZR 271

THE PEOPLE v MWABA (1973) Z.R. 271 (H.C.)

Flynote

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Criminal procedure - Insanity - Procedure for making order that accused be detained daring the
President's pleasure.

Headnote

Accused was charged with assault and pleaded guilty. The magistrate thereupon proceeded to take
evidence. After the close of the prosecution's case he made a finding that the accused was incapable
of making his defence by reason of insanity. A plea of not guilty was entered and an order made to
the effect that the accused be detained during the President's pleasure. The case was sent to the
High Court for confirmation of order.

Held:

(i) The question whether the accused was insane at the time of the commission of the
offence may arise regardless of whether or not the accused is capable of making his defence

(ii) If a question arises whether the accused is capable of making his defence at the time he
appears before the court it should be examined as soon as it arises by way of evidence of persons
who can testify as to the mental condition of the accused, including at least one qualified medical
practitioner who has examined the accused. The magistrate may also take into account his own
observations of the accused.

(iii) The magistrate was wrong in that he did not make his determination as to whether the
accused was or was not capable of making his defence until after the close of the prosecution
case.

(iv) If it is found that the accused is unfit to make his defence it is not sufficient only to hear
the prosecution witnesses - the accused must also be given the opportunity of making a defence
to the charge as well as to his sanity.

(v) The magistrate must then decide either to acquit or make a finding on the sanity of the
accused. He cannot convict and find the accused insane.

(vi) As the magistrate had not followed the correct procedure his order could not be
confirmed.

The People v Banda 1972 ZR

THE PEOPLE v BANDA (1972) Z.R. 307 (H.C.)

Flynote

Criminal procedure - Insanity - Defence of insanity - Procedure or plea of insanity.

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Criminal Procedure - Evidence - Child witness - Voire dire.

Headnote

The case came up to the High Court for confirmation of the order made by a magistrate of the third
class detaining the accused during the President's pleasure.

Held:

(i) Where a question of insanity arises it is essential for a magistrate to decide (a) whether
the accused is capable of making his defence at the time he appears before the court, and (b)
whether the accused was insane at the time of the commission of the offence.

(ii) It is the duty of the court when faced with a child witness to inquire as to the age of the
child and if necessary assess its age, to investigate whether it understands the meaning of an
oath and if it does not understand the meaning of an oath to investigate whether the child
understands the difference between truth and falsehood and the need to speak the truth. The
court should always show these inquiries and the conclusions reached.

After a report showing that the accused is insane, the court will enter a plea of not guilty and trial
starts. The accused is cross-examined and at the close of the prosecution evidence, he is asked to
say something in his defence or mitigation. Where an insane person appears before court without
being represented, the magistrate has power to order that legal aid be appointed.

Section 161 (2) (a) of the CPC provides that if the evidence does not prove the charge the accused
person is acquitted. But if the evidence would have proved the charge, the court will order that he
be detained during the President’s Pleasure. (section 161 (2) (b) of the CPC)

Section 162 of the CPC provides that whenever the magistrate makes an order for an accused to be
detained during the President’s pleasure such an order must be confirmed by the High court.

Where the inability is that he is dumb and deaf, the procedure is the same only that detention at the
President’s Pleasure is only for those who suffer at the President’s Pleasure. The People v Mwewa
1971 ZR 171

THE PEOPLE v MWILA MWEWA (1971) Z.R. 171 (H.C.)

Flynote

Criminal law and procedure - Persons suffering from mental illness - Procedure for detention during
the President's pleasure - Whether applicable to an accused who understands the nature of the

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offence but is incapable of making a normal defence because of an impediment in speech.

Headnote

The accused stood mute during his trial on a charge of theft involving property worth K9. The trial
magistrate had him examined by a psychiatrist who reported that the accused was aware of the
offence but was handicapped in making a defence due to a congenital defect in speech. The
magistrate proceeded to convict the accused. Having done so, he then ordered the accused to be
detained during the President's pleasure under s.154 (1) of the Criminal Procedure Code. The case
came before the High Court for confirmation of the order of detention.

On a review of the case:

Held:

(i) The procedure under s. 154 (1) of the Criminal Procedure Code is applicable only to
persons who suffer from mental illness.

(ii) A deaf and dumb person who, like the accused, is criminally liable and can be made to
understand proceedings by the employment of a special language, should, for the purpose of
punishment, be treated as if he was a normal person, that is, a person who had no impediment
in speech and can hear.

The People v Josphat Kapaipi 2015 Volume 1 ZR 236: In that case, a deaf person was detained
during the President’s pleasure. Judge’s view is that the Kapaipi case was wrongly decided and the
Mwewa case rightly decided.

The purpose of the procedure under section 161 is to determine whether there is evidence proving
that that the accused person committed the offence. That is why at the end of trial it does not end
up with a conviction but a detention. There is a prison called Chainama East, where people detained
during the president’s pleasure are detained.

The person is detained so that he can receive medication and goes through by-annual reviews, if it is
discovered that he has now recovered, section 165 of the CPC provides that he is brought back to
court for a trial and the trial will start de novo.

The first trial is not in the strict sense of it a trial, it is an inquiry that is why it ends up in a detention.

If a person was insane at the time he committed the offence, he can raise the defence of insanity
which is section 167 of the CPC.

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Where a person was insane at the time of commission of offence but was sane at trial, he can raise
a defence of insanity under section 12 of the Penal Code. When the defence of insanity is
established, that is there is proof that the accused person murdered, at which time the accused was
insane, section 167 of the CPC provides that the court will make a special finding called not guilty
by reason of insanity, the court orders that the accused be detained at the president’s pleasure.

Thus, both people are detained under the President’s pleasure but there is distinction with what
happens afterwards. The person found not guilty by reason of insanity, he is taken the the hospital
and once the doctors are satisfied that the person is okay, he is discharged by virtue of section 164
of the CPC. However, under section 165 of the CPC provides for resumption of trial for persons who
were detained under the President’s pleasure due to their inability to plea at trial.

Section 161 with section 165 and section 164 with section 167 of the CPC.

The Mental Disorder’s Act section 161 (3) provides that a person can go to court to get an order so
that he can be admitted and receive medication.

If a charge is not proved, you cannot have detention during the president’s pleasure.

Section 165 – Mbaye v The People 1975 ZR 74 and Chabala v The People 1975 ZR 128

MBAYE v THE PEOPLE (1975) Z.R. 74 (S.C.)

Flynote

Criminal procedure - Insanity or other incapacity of accused' person Mandatory obligation on court to
inquire as soon as question arises Criminal Procedure Code, s. 160.

Criminal procedure - Fitness to plead - Medical report stating accused unfit to plead - Whether court
can send accused back to hospital for treatment - Criminal Procedure Code, s. 161.

Criminal procedure - Special findings of not guilty by reason of insanity - Determination that accused
unit to plead recorded - Whether court has power to make finding - Criminal Procedure Code, s. 167.

Headnote

The appellant appealed against a special finding under section 167 of the Criminal Procedure Code.
He had been charged with murder and originally came before the High Court on the 7th of February,
1972, when a plea of not guilty was entered. He was remanded in custody for trial on the 3rd of
March, 1972. On that day defence counsel made an application under section 17 (1) of the Criminal
Procedure Code for the appellant to be medically examined in order to establish whether he could
understand the nature of the proceedings and also to ascertain his mental condition at the time of
the alleged offence. The court ordered that the appellant be medically examined accordingly. On
the 9th of May, 1973, defence counsel in the light of the psychiatrist's report that the accused was

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unfit to plead and on the basis that an attempt was being made to treat him in order to make him fit
to stand trial, applied for an adjournment. The application was allowed.

On the 7th of October, 1974, the matter came up before another judge, when a further plea of not
guilty was entered and the matter was adjourned to the 9th of October for trial. The trial proceeded
on that day and at the conclusion the court made a special finding under section 167 of the Criminal
Procedure Code, namely, that the appellant was not guilty by reason of insanity.

Held:

(i) Section 160 of the Criminal Procedure Code imposes a mandatory obligation on the court
not only to inquire into the question of the ability of an accused person to make a proper defence
but also to determine that question as soon as it arises.

(ii) Where a person is sent for examination as to his fitness to plead and the medical report
is that he is not so fit he cannot be sent back to hospital for treatment. Section 161 of the
Criminal Procedure Code requires the court after having recorded the determination that the
accused was unfit to plead, to proceed to hear the evidence for the prosecution and (if any) for
the defence.

(iii) A court has no power to make a special finding that an accused person is not guilty by
reason of insanity in cases where there has been a determination that the accused was unfit to
plead.

CHABALA v THE PEOPLE (1975) Z.R. 128 (S.C.)

Flynote

Criminal law - Mental capacity of accused - Distinction between mental capacity at time of trial and
mental condition at time of offence - Defence of insanity not raised by accused - Whether competent
for court to raise of its own motion.

Headnote

The appellant was charged with criminal trespass contrary to section 306 (a) of the Penal Code. At
the conclusion of the evidence for the prosecution, when the appellant went into the witness box,
the magistrate almost immediately had doubts as to the appellant's mental condition and ordered
that he be examined by a psychiatrist. The psychiatrist gave evidence and thereafter the appellant
concluded his evidence. The magistrate then made a special finding under section 167 of the Criminal
Procedure Code, namely that the appellant was not guilty by reason of insanity, and ordered that he
be detained during the President's pleasure in terms of that section.

Held:

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(i) There is a fundamental difference between a decision as to an accused person's mental

capacity at the time of the trial and his mental condition at the time of the offence; the one
relates to a fair trial, while the other relates to criminal responsibility.

(ii) Unless an accused person is mentally in a condition which enables him to make a proper
defence he will not have a fair trial, and it is in order to protect him that sections 160 et seq. of
the Criminal Procedure Code exist; but where he is able to make a proper defence and the only
issue is what was his mental condition at the time of the offence it is for him to decide what
defence he wishes to put forward and generally how he wishes to run his case. If he wishes to
defend the matter entirely on the merits without raising the question of insanity this is his
privilege.

A special finding is only made but for the insanity he would have been convicted.

A defence of insanity must be raised Khupe Kafunda v The People 2005.

KHUPE KAFUNDA Vs THE PEOPLE (2005) Z.R. 31 (S.C.)

Flynote

Criminal law - Mental capacity of accused - Distinction between mental condition at time of offence
and at trial.

Criminal law Unsoundness of mind at time of commission of offence - Onus to plead

Headnote

The appellant was sentenced to death following upon his conviction for the offence of murder
contrary to section 200 of the Penal Code, Cap 87 of the laws of Zambia. The court found that
circumstantial evidence against the appellant was so overwhelming that he had the opportunity and
the time to commit the offence. The court was satisfied that the appellant unlawfully, with malice
aforethought, caused the death of the deceased by shooting him at close range. The court convicted
the appellant accordingly. He appealed adducing evidence of unsoundness of mind sometime prior
to the incident.

Held:

1. There was no direct evidence and no eye witness to the incident that led to the death of
the deceased. However, the circumstantial evidence was so overwhelming and strongly
connected the appellant to commission of the offence.

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2. There is fundamental difference between a decision as to an accused person’s mental

capacity at the time of the trial and his mental condition at the time of the offence; the one
relates to a fair trial, while the other relates to criminal responsibility.

3. The onus of establishing unsoundness of mind at the time of the commission of the
offence is on the accused.31

4. Unless an accused is mentally in a condition which enable him to make a proper defence,
he will not have a fair trial, and it is in order to protect him that section 160 of the Criminal
Procedure Code exist; but where he is able to make a proper defence and the only issue is what
was his mental condition at the time of the offence, it is for him to deide what the defence he
wishes to put forward and generally how he wishes to defend the matter entirely on the merits,
without raising the question of insanity, because this is his privilege.

Section 161 is only applicable to the person insane at the time of trial.

Section 167 is applicable to the person who committed the offence but was sane at trial.

The consequences of the defence of insanity are far reaching.

The first time the person is detained at the president’s pleasure, the court is not concerned whether
the accused has fully recovered but that he is able to make his defence. However, for the

CONTINUATION ON PLEA

Where the accused accepts the charge, the court records a plea of guilty however where he denies
the charge the court records a plea of not guilty.

27 March 2018

A lawyer does not plead, only the client does.

A PLEA OF GUILTY.

When the accused is represented, the court sometimes will ask if the plea is in line with the
instructions and the court records a plea of guilty.

However, when dealing with an unrepresented person and he indicates that he is pleading guilty, the
court must confirm with him that he understands what the charge is all about. Gideaon Millard v
The People 1998 ZR 52

GIDEON HAMMOND MILLARD v THE PEOPLE (1998) S.J. 34 (S.C.)

Flynote

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Appeal - Sentence from a lower court - When an appellate court should interfere .

Plea of guilty - When it should be withdrawn.

Headnote

The appellant was charged with three counts of trafficking hashis cakes and marijuana. He was
convicted on all counts and sentenced to 5 years, 2 years and 5 years respectively. He appealed
against both convictions and sentence. The Supreme Court dismissed the appeals against convictions
on both counts. It also dismissed the appeal against sentence on count two but allowed the appeal
against a sentence of five year imprisonment with hard labour on the first count, set aside that
sentence and substituted it with a sentence of two years imprisonment with hard labour to run
concurrently with the sentence of two years on the second count.

Held:

(i) An appellate court should not lightly interfere with the discretion of the trial court on
question of sentence but that for the appellate court to decide to interfere with the sentence,
it must come to it with a sense of shock.

R v Windasi 1963 R & N 10

Because you are dealing with the lay man, the court will go through the ingredients of the offence
and give an opportunity to the accused to confirm each element before recording a plea of guilt.

The procedure in the subordinate court is in section 204 of the CPC. This shows what happens after
there has been a plea of guilt. If the plea is unequivocal, the court records a plea of guilt.

When the person has pleaded guilty, a statement of facts will be read out by the prosecutor. A
statement of fact should be understood in the context that it is a summary supporting the evidence.
You need a statement of fact because where there is a plea of guilt witnesses will not be called. It
is prepared and read to the court, they prosecutor reads it out to the court and the magistrate will
ask the accused person who has pleaded guilty whether the statement of facts is true and correct.

Even if you have more than one accused person, there is only one statement of fact.

You may have a situation where the statement of fact discloses an offence triable by the High Court.

The court is supposed to invoke the provisions of section 220 and it relates to the court holding a
preliminary inquiry. All cases triable in the High court must go through a preliminary inquiry. The
subordinate court does not acquit from holding a trial into holding a preliminary inquiry. The
subordinate court cannot acquit where it has not heard the evidence if at plea the statement of facts
does not disclose the offence.

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If the accused admits, the court will say on your admission of the charge and the statement of
facts, I find you guilty and convicts you

When the accused person pleads guilty, he is not convicted. When a person admits a statement of
fact, no witnesses will be called. It is possible that in a case where a person has pleaded guilty. A
classic example is where you are dealing with an assault.

In the case of Sitwala v R 1962 R & N 714 it is possible for a person to plead guilty to murder except
that the court will satisfy itself that the accused knows the consequences.

Whether a person has a conviction or has no previous conviction, the lawyer is then invited to mitigate
and the person who is unrepresented he can mitigate on his own.

Your family and children, poor health or congestion is not mitigatory

After mitigation, the court will impose a sentence. Ordinarily, where a person has pleaded guilty to
some offences and not guilty to some other offences. The court should not impose guilty on those he
has admitted. Instead, trial should commence on those things that he has not admitted then
conviction must be at the same time.

A plea of guilty is mitigatory.

A person who has pleaded guilty can change his mind (withdraw a plea of guilt) at any time before a
sentence is imposed. Where a sentence is imposed, the court is said to be functus officio. The People
v Chotoo Lala 1974 ZR 201; TITO MANYIKA TEKULA V THE PEOPLE 1981 ZR 304

THE PEOPLE v CHOTOO LALA (1974) Z.R. 201 (H.C.)

Flynote

Criminal Procedure - Plea of guilty - Charge to plea of not guilty - When possible - Magistrate's
discretion to allow withdrawal - Position after sentence.

Headnote

The defendant was charged with the offence of being in self-employment without permit, contrary
to sections 19 (2) and 30 of the Immigration and Deportation Act, Cap. 122, and was convicted and
sentenced by the subordinate court of the first class. The defendant pleaded guilty to the charge and
admitted the facts and was convicted on his plea and admission in the forenoon and the case was
adjourned to the afternoon for sentence. Before sentence in the afternoon the magistrate received
a letter from the solicitors for the defendant asking the court to substitute a plea of not guilty. The
trial magistrate refused the request of the solicitors and gave as his reasons that since the letter was
received after a conviction had been entered, it was not within his powers "to alter the verdict". The
solicitors subsequently saw the trial magistrate in chambers and insisted that the court had the power
to change the plea to that of not guilty. It seems as a result of this interview the trial magistrate has
forwarded the record to the High Court for review.

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Held:

(i) That a trial magistrate has a discretion to allow a plea of guilty to be withdrawn before
sentence is passed.

(ii) If after considering the application the trial magistrate refuses the change of plea and
proceeds to sentence, he becomes functus officio and cannot subsequently be asked to enter a
plea of not guilty. The remedy which then could be available to a prisoner would be to appeal.

TITO MANYIKA TEPULA v THE PEOPLE (1981) Z.R. 304 (S.C.)

Flynote

Criminal law and procedure - Plea - Retraction - When accused can retract plea.304

Headnote

The appellant pleaded guilty to a charge of stock theft. He accepted as correct a statement of facts
as read out by the public prosecutor and was convicted as charged. The case was adjourned to
another date for production of a record of previous convictions, if any and for sentence. On the
adjourned date, the appellant expressed a wish to change his plea. The court refused to allow him
to change his plea and sentenced him. His appeal to the High Court against sentence only was also
dismissed. He appealed to the Supreme Court against Conviction.

Held:

(i) A trial judge has a discretion to allow an accused person to retract his plea of guilty at
any time before sentence is passed on him.

(ii) The discretion can only be exercised on good and font growth.

There is also a plea of guilty that comes under the Plea Negotiations and Agreements Act No. 20 of
2010. Section 4 of the Act allows a public prosecutor and the accused person to enter into an
agreement in which the accused person undertakes to plead offence to an agreed offence and meet
other obligations. The obligations of the prosecutor and offender are set out in sections 5,6 and 9 of
the Act. There are negotiations and a plea agreement is drawn out pursuant to section 7 of the Act.
It includes the original charge, the new charge and the statement of fact and a statement indicating
that the accused person has been informed of his rights under the agreement.

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Section 10 of the Act provides that even if you agree, the court may refuse to accept a plea
agreement if it is contrary to the interest of justice. A plea of guilty may come either as a result of
a person pleading guilty of his own volition or as a result of a plea negotiations agreement act.

The People v Kanguya 1979 ZR 288 in that case it was stated that a plea of guilt must not be
equivocal. It is equivocal If in his admission the accused person says things that raise doubt as to the
commission of the offence. The equivocal comes in stages, it may be at the time of a plea or when
he contests essential ingredient in a statement of fact as it is read out. The duty of the court is
to find out what exactly the party is contesting.

THE PEOPLE V MASISANI 1977 ZR 324 ;

DPP V LAMECK STEPHEN TEMBO 1989 ZR 34;

STANLEY KASUNGANI V THE PEOPLE 1978 ZR 260 In a case where a vital element of a charge is
disputed, the court must enter a plea of not guilty.

A statutory defence in a case where the accused is not defended. When a charge is read out, case
law says where there is a statutory defence, before a plea is taken, statutory defence must be
explained. MWABA V THE PEOPLE 1974 ZR 264. A good example of an offence that has a statutory
defence is defilement. The effect of not explaining the statutory defence is that if the accused person
suffers prejudice as a result, the conviction is set aside.

PLEA OF NOT GUILTY

03 April 2018

Bail and drafting a charge sheet are a must

This means the accused person has disputed having committed the offence. Thus, everything must
be proved. This is done by a prosecutor calling witness. The prosecutor will call the first witness after
a plea of not guilty.

Section 195 of the CPC provides that evidence must be given in a language in which the accused
person understands. Where the language is not understood it must be translated.

Section 143 of the CPC provides for the summoning of the witnesses. Section 144 - 145 of the CPC
provides that were the witness fails to turn up, a warrant can be issued for the apprehension of the
witness. Section 148 of the CPC provides for a fine for failing to turn up as a witness. There are
times when the competence of the witness comes up. Section 151 of the CPC provides for objection
on the competence of a spouse. You cannot object to a witness testifying on the basis that the witness
is insane but you can object to the testimony of a witness on the basis that they are a spouse. There
are exceptions. Section 128 of the Juveniles Act makes provisions for offences for which a spouse
is a competent witness for the prosecution.

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We have a situation where the witness is below the age of 14 years. Section 122 of the Juveniles
Act requires that before such a child gives evidence, the court must conduct an inquiry into the
competence of that child to give evidence. That inquiry is called a voir dire. A voir dire refers to
an inquiry where the child gives evidence. In other jurisdiction it may mean a trial within a trial.
This test is carried out by the magistrate or the judge. The law has not prescribed what kind of
questions those ones are. However, whatever the questions, they are directed into establishing 2
things:

1. That the child is intelligent enough;

2. The child understands the duty of telling the truth.

In the case of The People v Patrick Mulala 2015 ZR 358. It states that there must be a coincidence
of the two. Possession of sufficient evidence and the duty to speak the truth. If one of them is
lacking, the child will not be allowed to testify.

The law has changed, a child can no longer give unsworn evidence. In the case of Chibwe v The
People 1972 ZR 239. In that case the court stated that the questions and answers during a voir dire
should be recorded by a trial judge.

Therefore, there is no age limit, a child of 5 years having sufficient intelligence and the duty to speak
the truth can be allowed to testify. That is a test.

After a voir dire, a child starts giving evidence.

Witnesses should not sit in and listen when another witness is giving evidence. Mwaba v The People
1969 ZR AND Happy Mbewe v The People 1983 ZR 59. The mere fact that a witnesses sat in court
during the court of a trial is not enough to disqualify the witnesses from giving evidence. The best
the judge can do is to decide on the weight to give to such a witness. In the past there used to be
rules.

The witnesses take a stand goes into a witness box. There is an option of the witness being sworn or
affirmed. Swearing is where you are saying in God’s name you will tell the truth. There are others
who don’t believe in swearing, thus, they will be allowed to affirm. Phiri v The People 1975 ZR 30.

The court will get the details of the witness starting with the full names, age, the residential address
and the occupation. After the details have been given, the prosecutor will lead the witness into giving
what is called evidence is in chief. There are no leading questions at this point. It is made up of
either evidence by word of mouth or exhibits. They are also allowed to identify the accused person.
It has been a practice over the years to touch the accused person.

The practice is before they point at the accused person, they will give a description of the same. A
witness normally gives evidence by recollection but they are allowed to use notes that were taken
contemporaneously to refresh their memory. Shamwana and Others v The People 1935 ZR 41

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Examination in Chief is followed by cross examination by an accused person or his counsel. Where
there are a lot of lawyers, they will cross examine in order of their seniority. Where there are a lot
of accused persons, the first person to cross examine is the one who represents the first accused
person Sikota v The People 1968 ZR 42.

In cross examination, you can ask leading questions. The golden rule is that if you as a lawyer you
don’t know the answer then don’t answer. The purpose of cross examinations is to discredit the
witness, clarify the explanation or act as a defence for the accused person. You can also cross
examine using previous inconsistent statements. Inconsistent statement is not evidence, it is just
used to examine the witness. Evidence is what is said in court. Miyoba v The People 1977 ZR 218;
Nkonde v The People 1975 ZR 99

When dealing with cross examination in the case of Garden and 4 Others v R 1961 R & N 366 when
it comes to cross examination of a witness, even an accused person against whom no incriminating
evidence has a right to cross examine.

The questions asked in cross examination are not evidence. Masi v R 1961 R & N 601. Cross
examinations are just questions, the answers given by the party are the evidence.

After cross examination, there is re-examination. This is done by the prosecutor. In our system, re-
examination is only on issues that came up in the cross examination. It is not advisable to let the
party answer YES or NO in cross examination as the Prosecutor can in re-examination allow the party
to explain his answer and you won’t have the opportunity to deny challenge the answer.

In our system, a judge or magistrate is not allowed to ask the questions. The adjudicator can only
ask questions to clarify. Practice is even when you want to clarify, it is best to wait until re-
examination has been done as you may pre-empt the cross examination.

The adjudicator can after asking for the clarification, allow the prosecutor to ask the follow up
questions and the defence counsel to ask the follow up questions as well.

After examination in chief, cross examination and re-examination, the next witness is called and the
process begins again.

There is no rule in which order the witnesses must be called. However, you might run into problems.
For example, if you start with a police officer, his evidence might be hearsay.

There are situations where a witness totally refuses to give evidence or says something else. The first
type of witness is called a refractory witness. According to section 150 of the CPC, this is the
witness who either refuses to be sworn, to answer questions or produce documents. Therefore, a
refractory witness either refuses to be sworn or after being sworn refuses to give evidence. When a
person becomes a refractory witness, the court must adjourn for 8 days, and the refractory witness
detained for 8 days.

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The second type of a witness is called a hostile witness. The bulk of a law is in the case of Jeffrey
Munalula and the People 1982 ZR 58. A hostile witness is a witness who essentially gives evidence
that is contradictory to the evidence that he was intended to give. A hostile is not hostile merely
because some of the evidence departs from what he gave at the police station but rather that he has
departed because he does not want to say the truth. The procedure in dealing with a hostile witness
is complicated, the starting point is bringing it to the attention of the court by stating that the witness
is giving contrary evidence. This is done by the court examining his statement and hearing his
statement. Once the court accepts that he is hostile, the court declares him as hostile and you as a
prosecutor can examine him. At the end of it all is that the evidence of the witness is expunged from
the record. However, if he is your only witness, you cannot cherry pick as all his evidence is expunged.

The third type of witness is called an Expert Witness e.g handwriting expert, medical doctors,
psychiatrists, etc. The rule is that all experts should give evidence in person. However, there are
two exceptions, The first one is a medical practitioner. Section 191A of the CPC allows a report
produced by a medical doctor to be produced in court without calling a medical doctor. Further,
section 192 of the CPC deals with an affidavit produced by a public analyst. A public analyst is a
government official who examines chemicals. In the case of a public analyst, it must be an affidavit
whereas for a medical doctor, it is just a report. We also have affidavit evidence being admitted
under the Mutual Legal Assistance Act. This deals with evidence outside the jurisdiction. Wilson
Funjika and the Attorney 2005 ZR 95

LT. GENERAL WILFORD JOSEPH FUNJIKA vs THE ATTORNEY GENEARL (2005) Z.R. 97 (S.C.)

Flynote

Constitution-Mutual Legal Assistance in Criminal Matters Act-Whether Act in Conflict with the
Constitution.

Headnote

The appellant, who was at the material time the Commander of the Zambia National Service,
appeared before the Principal Resident Magistrate, Lusaka, charged with one count of corrupt
practices by a public officer and one account of abuse of authority of office. The particulars of these
offences alleged some corrupt practices and abuse of authority of office in the purchase of some
uniforms for the Zambia National Service from a company called Semyon Holdings Limited and in the
dealings the appellant had with one Anuj Kumar Rathi Krishina, the executive officer of Semyon
Holdings Limited. A prosecution witness after his investigations, and with assistance of the Home
office and the serious crimes office in London, caused a deposition to be sworn by one Syed Itrat
Hussein, before Magistrate. The Magistrate certified the deposition and the exhibits annexed to the
deposition. The deposition and the exhibits referred to bank transactions concerning the allegations
against the appellant.

The prosecution then sought to produce the deposition and exhibits attached theretore. The defence
objected to their production contending that section 38(1) of the Mutual Legal Assistant in Criminal

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Matters Act, Chapter 98 of the laws of Zambia, under which the documents were to be produced, is
in serious conflict with Article 18(2) (e) of the Constitution of Zambia. Further, counsel for the
appellant contended that what had arisen was a question of constitutional important affecting the
rights of the appellant and requested the learned trial. Magistrate to refer the issue to the High
Court for determination. The learned appellate judge held that the production of the deposition
under section 38(1) of the Mutual Legal Assistance in Criminal Matters Act is not in conflict with the
provision of Article 18(2) (e) of the Constitution of Zambia. The learned appellate Judge
97rationalized that the impugned provisions, the Mutual Legal Assistance in Criminal matters Act, are
in fact a domestication of international instruments in the fight against transactional crime.
According to the learned appellate Judge, this is a noble cause which Zambia must join and contribute
to. Consequently, the learned appellate Judge found no merit in the reference and refused to strike
down section 38(1) of the Mutual Legal Assistance in Criminal Matters Act and referred the case back
to the Subordinate Court for continued trial. The appellant appealed against the Judgment of the
appellant Judge.

Held

1. The Constitution is the supreme law of Zambia and if any other law is inconsistent with the
Constitution, that other law is to the extent of the inconsistency void.

2. Article 18 of the Constitution provides for the accused individual’s rights to protection by
law. It protects as fair trial of a personal charged with a criminal offence

3. Section 38(1) of the Mutual Legal Assistance in Criminal Matters Act, deals only with the mode
of gathering evidence, but does not take away the trial court’s discretion in deciding whether
conditions for obtaining the evidence were met and what weight to attach to the evidence in each
particular case.

4. Article 18(2) (e) provides that a person accused of a criminal offence shall be afforded
facilities to, inter alia, examine either by himself or his legal representative, the witnesses called by
the prosecution. There is no evidence that the appellant or his legal representative were stopped
from cross-examining any witness called by the prosecution before the court.

5. It is trite law that the primary rule of interpretation is that words should be given their
ordinary grammatical and natural meaning. It is only if there is ambiguity in the natural meaning of
the words and the intention of the legislature cannot be ascertained from the words used by
legislature interpretation.98

6. As court whose duty is to interpret the law, we have not right to introduce glosses and
interpolations in the clear provisions of Article 18(2) (e). Doing so will not be giving effect to the
intention of the legislature.

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04 Apr. 18

CONFESSIONS STATEMENTS

Confession statements may either be oral or written. Now we even have them in video e.g a scene
reconstruction. When a police officer gives evidence, which points at the accused person
incriminating himself, the court should ask the accused person whether he has any objection to the
police officer giving that evidence. If there is an objection, the court depending on the objection
decides on the admissibility of that evidence.

Connected with the admission of these confession statements are what are called the Judges Rules.
In the case of Chileshe v The People 1972 ZR 48, in that case it was held that the Judges Rules
applicable to this country are the pre-1964 Judges Rules. Judges Rules are rules drawn in England on
the interrogation of witness, however, the queen revised them.

The Judges Rules state that when a suspect is taken into custody, whether charged with an offence
or not, must be cautioned3 before being interrogated. Therefore, a person on the streets need not
be cautioned as he is not in custody. The case of Kasuba v The People 1975 ZR 274 is the authority
for the proposition that when a police officer starts giving incriminating evidence emanating from
the accused person the court must find out whether there is any objection. Further, in Hamfuti v
The People 1972 ZR 420 it was held that even where the accused has been represented by counsel,
the court must find out whether there is any objection from the accused.

The response of the lawyer may be categorised into two, namely:

1. The lawyer may object on the ground that his client did not make a statement; or
2. That the statement was made but he was forced into making the statement. In other words,
it was not made freely and voluntarily.

In the case where the objection is on the ground that the statement was not made, the court will
admit the statement and resolve the question whether the confession was made or not as it does the
final assessment of the evidence. However, in a case where the ground is that the statement was not
made freely and voluntarily, the court will hold an inquiry into the circumstances in which the
statement was made. That inquiry is called a trial within a trial. This is so because the main trial
stops and you get a hearing on the matter that has arose. In some jurisdiction this is called a Voir
Dire. (but don’t confuse the two).

In the case of Mate and 2 Others v The People 1995 – 1997 ZR 135, the appellants alleged that
they were beaten but they never confessed. The court held that there was no need to hold a trial
within a trial.

3
You have the right to remain silent….

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In the case of Vilongo v The Peole 1977 ZR 423 the complaint was that the offenders confessed out
of fear, but the court held that being scared is not enough, there must be evidence that the fear is
for the purpose of making the confession statement.

In the case of Morgan Ngosa v The People 2010 3 ZR 191 the argument was that the appellant did
not understand the language in which he was been interviewed, the court held that there was no
need to hold a trial within a trial.

WHAT HAPPENS IN A TRIAL WITHIN A TRIAL

When there is an objection, and the court has ruled that a trial within a trial must be held, there is
an obligation on the prosecution to prove beyond reasonable doubt that the confession was made
freely and voluntarily. The prosecution calls the witnesses to give the circumstances in which the
confession was given. Witness are not allowed to state what the witness told them. After the witness
has given this evidence, there is cross examination and re-examination and a second witness is called.

At the end of the prosecution witness, the prosecutor will close his case in a trial within a trial. After
this, the accused person is allowed to call evidence, he may either give evidence on his own or decide
to call witnesses.

The accused person can only be cross examined on the circumstances surrounding the making of that
statement. He cannot be cross examined on the circumstances in which the offence was committed.
It is at that point that submissions are made, that is, when all the evidence has been made (prosecutor
submitting that they have proved beyond reasonable doubt that the statement was made free and
voluntary and the defence makes the submission disputing the same).

After the Defence’s submission, the court must make a ruling as to whether the statement was made
freely and voluntarily. If the court’s ruling is that it was not free and voluntary then the statement
will not be admitted, however, if the ruling is that it was freely and voluntarily made then the court
will admit it into evidence.

NOTE: a trial within a trial does not take place whenever there is an objection but when the
voluntariness of that objection is challenged. Further note that the lack of voluntariness of a
confession made to a person who is not an investigator does not lead to a trial within a trial.

Abel Banda v The People 1986 ZR 105

ABEL BANDA v THE PEOPLE (1986) Z.R. 105 (S.C.)

Flynote

Courts - stare Decisis - Power of Supreme Court to overrule itself Considerations.

Evidence - Confession - Administration of warn and caution - Person in authority - Village headmen -
whether included.

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Evidence - Witness - Duty of prosecutor with knowledge of evidence favourable to the defence.

Headnote

The appellant was convicted of murder by administering a pesticide contained in a drink of Kachasu.
The Prosecution evidence included, inter alia, an interrogation conducted without administering a
warn and caution by the village headman.

Held:

(i) In order to have certainty in the law, the Supreme Court should105 stand by its past
decisions even if they are erroneous unless there is a sufficiently strong reason requiring that
such decisions should be overruled. Chibozu and Anor v The People overruled.

(ii) A village headman is not a person in authority for purposes of administering a warn and
caution before interrogating a suspect, since his normal duties do not pertain to investigating
crime.

(iii) A prosecutor is under no duty to place before the court all the evidence known to him,
however where he knows of a credible witness whose evidence supports the accused's
innocence, he should inform the defence about him .

Lumangwe Wakilaba v The People 1979 ZR 74 it was held that were the voluntariness of a
statement arises even where the prosecution has closed its case, the court must hold a trial within
a trial.

This is problematic as it gives the accused person a second opportunity at objecting to the statement.
Other people argue that it might have been correct on its own view as the accused were not
represented.

LUMANGWE WAKILABA v THE PEOPLE (1979) Z.R. 74 (S.C.)

Flynote

Evidence - Confession statement - Duty of court to inquire as to objection.

Evidence - Confession statement - Voluntariness to be determined by conducting trial within a trial

notwithstanding that issue raised after close of prosecution case.

Headnote

The appellant was convicted of theft of a motor vehicle. The prosecution in its evidence tendered
two confession statements and neither the appellant nor his counsel made any objection. The
prosecution then closed its case. When giving evidence the appellant alleged that the statements

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were made involuntarily. The trial magistrate refused to conduct a trial within a trial on the ground
that it was not possible since the prosecution had already closed its case. In convicting the appellant
the trial magistrate relied on these statements and there was no other evidence to connect, the
appellant with the offence.

Held:

(i) It is the duty of a court to inquire, where a point is reached at which a witness is about
to depose as to the contents of a statement, whether the defence has any objection to that
evidence being led;

Hamfuti, v The People (1), followed.

(ii) It was mandatory for the trial magistrate after the issue of voluntariness had been raised
to conduct a trial within a trial notwithstanding that the prosecution had already closed its case.

SUBMISSION OF NO CASE TO ANSWER

When the prosecution closes its case, there is what is called a submission of no case to answer. In
the case of Ngoma v The People 1972 ZR 42 it was held that it is the defence who must address
the court first and the prosecutor should not be allowed first.

NGOMA v THE PEOPLE (1972) Z.R. 47 (H.C.)

Flynote

Criminal procedure - Irregularities - Addressing the covert - Prosecution address to court at close of
prosecutor in absence of submission of no case to answer - Defence not accorded right of reply at
close.

Headnote

The accused was convicted of the offence of theft contrary to s. 243 of the Penal Code, Cap. 6, in
the Subordinate Court of the First Class at Isoka. The accused appealed.

Held:

(i) A trial magistrate ought not to allow the prosecution at the close of its case to address
the court in the absence of a submission of no case to answer (page 47, lines 37-42).

(ii) The accused should be accorded the right of reply to prosecutor's closing address (page
48, lines 2-4).

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This is so because the defence tries to persuade the court to find the accused with no case to answer.
The prosecutor responds and the defence has a right to reply.

When the defence has closed its case and the court has started considering the submission of no case
to answer, the prosecutor cannot bring in new evidence. Moyo and 5 Others v The People 1966 ZR
100

MOYO AND FIVE OTHERS v THE PEOPLE (1966) Z.R. 100 (H.C.)

Flynote and Headnote

[1] Criminal procedure - Prosecution's case - Point after which no further evidence may be
given.

No further evidence (other than evidence in rebuttal) may be given by the prosecution after the court
has reached the stage of considering whether to put the accused on his defence.

[2] Evidence - Prosecution's case - Point after which no further evidence may be given.

See [1] above.

[3] Criminal procedure - Defence - Close of defence case at time of judgment.

The defence is closed only when it has no more evidence to over; further evidence may be brought
at any time before Judgment.

[4] Evidence - Defence - Close of defence case at time of judgment.

See [3] above.

From the time the accused takes the plea to the time the prosecutor closes the case, the accused
person can demand that he retakes the plea. Therefore, he can change a plea. However, the court
cannot on its motion ask the accused to take a plea again. The People v Banda 2014 2 ZR 97

Depending on the complexity of the case, the court can make a ruling right there and then, however,
for some cases the court adjourns and makes a ruling later on.

RULING OF A CASE TO ANSWER.

This is provided for in the Subordinate Court under Section 206 of the CPC

The court looks for whether the evidence proves that:

1. an offence was committed; and

2. that the accused person committed the offence.

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The court looks beyond the offence for which the person was charged. After assessing the evidence,
the court can rule that the accused person has a case to answer for the offence for which he is
charged. It can also rule that the evidence points to a more serious offence. Indeed, it can also find
that the evidence established a lesser offence. Thus, a person will not be acquitted merely because
the evidence proves an offence different from the one they were charged with.

An accused can even be found with a case to answer for an additional offence. At case to answer
stage, the magistrate is not required to give a detailed ruling of the assessment of the evidence. The
People v The Principal Resident Magistrate Ex parte Faustine Kabwe and Aaron Chuungu 2009 ZR
170 No appeal lies to a ruling at case to answer. This is a general principle. When the accused is not
found with a case to answer it becomes final and appealable however, where it puts an accused on
his defence it becomes interlocutory thus not appealable.

THE PEOPLE v THE PRINCIPAL RESIDENT MAGISTRATE EX PARTE, FAUSTINE KABWE AND AARON
CHUNGU

Civil Procedure – Judicial review – Whether decisions of the Subordinate Court are subject to judicial
review.

This is an appeal against the Ruling of the High Court dated 27th April, 2009, refusing the application
by Messrs Faustin Mwenya Kabwe, and Aaron Chungu (the applicants in the Court below) for leave to
apply for judicial review. The facts leading to this appeal are that the applicants were on trial in a
criminal matter before the Subordinate Court, on several counts of corruption. In the trial, the
prosecution closed its case.

By a ruling dated 15th April, 2009, the Principal Resident Magistrate ruled that the applicants had a
case to answer. Aggrieved by the Ruling, the applicants applied to the High Court for leave to apply
for judicial review; seeking a relief in the form of an order for mandamus to compel the Principal
Resident Magistrate to give his reasons for finding that the applicants had a case to answer.

The trial judge considered Order 53/12/28 of the Rules of the Supreme Court. The trial judge held
that the decisions of the Principal Magistrate are subject to appeal under the provisions of the
Criminal Procedure Code; and that therefore judicial review cannot lie against that Court. Leave to
apply for judicial review was refused and hence this appeal.

Held:

1. By virtue of the English law (Extent of Application) (Amendment) Act No. 14 of 2002, the
Supreme Court Practice Rules of England in force until 1999, now apply in Zambia. This means
that judicial review procedure in Zambia is no longer a default procedure but is part of the
procedure and practice.

2. There is no provision for interlocutory appeals against decisions of the Subordinate Court
made pursuant to the provisions of s. 206 (170) of the Criminal Procedure Code; and that the
right to appeal to the High Court against the decision of the Subordinate Court arises, and

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following upon a conviction of an accused person pursuant to the provisions of s. 321 of the
Criminal Procedure Code.

3. There is no requirement under section 206 of the Criminal Procedure Code that the Court
must give reasons for acquitting an accused person; that it must merely appear to the Court. The
converse, therefore, must also be true that where the Court finds an accused with a case to
answer, it must merely appear to the Court that a case has been made out against the accused.

4. A finding of a case to answer is based on the Court’s feeling or impressions, and

appearance of the evidence. Above all, the finding of prima facie case is not a final verdict.

5. Magistrates are not obliged to give reasons for rejecting a submission of no case to
answer.

Where a person is charged with robbery and after the submission of the case to answer, the evidence
proves that the offence is that of aggravated robbery 4, the Subordinate Court cannot put the person
on his defence. Section 220 of the CPC provides that in such circumstances, the court should commit
the person to the High Court for trial. Alex Mwewa v The People 1970 ZR 63

ALEX MWEWA v THE PEOPLE (1970) Z.R. 63 (C.A.)

Flynote

Criminal law and procedure - Aggravated robbery - Accused charged of lesser offence of robbery
whereas apparent, crime was aggravated robbery - Procedure to be taken by magistrate in such
circumstances - Duty of police.

Headnote

The appellant was charged with robbery whereas he should have been charged with aggravated
robbery. The magistrate recognised this but continued with the charge as laid. The police had laid a
lesser offence in order to give the magistrate jurisdiction.

Held:

(i) Where the crime is aggravated robbery the magistrate should transform the trial into
committal proceedings and the summary proceedings should cease.

(ii) It is improper of the police to lay a lesser charge in order to give jurisdiction to a
subordinate court. Facts which amount to aggravated robbery should be so charged.

When the court makes a ruling on the case to answer, you cannot appeal against such a ruling.

4
The Subordinate Court has no power to try Aggravated Robbery

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NOTE: At case to answer stage, the prosecution does not need to prove the case beyond reasonable
doubt, all it is required to do is to show a prima facie case.

WHEN WILL THE COURT FIND THAT THE ACCUSED HAS NO CASE TO ANSWER

There are two celebrated cases on this matter. The People v Winter Makowela and Another 1979
ZR 290 AND The People v Japau 1967 ZR 95. These cases state that the court should find the
accused with a no case to answer where it finds that the essential elements of the case were not
proved. For example, you may prove that there was a murder but there is nothing linking the accused
to the offence.The cases further state that if the evidence before the court show that no reasonable
tribunal would convict then the accused has no case no answer. In essence, if the accused did not
give in any evidence, would you convict?

THE PEOPLE v WINTER MAKOWELA AND ROBBY TAYABUNGA (1979) Z.R. 290 (H.C.)

Flynote

Criminal law and procedure - No case to answer - When made.

Headnote

The two accused were charged with two counts of aggravated robbery contrary to s. 294 (1) of the
Penal Code. At the close of the prosecution case, counsel for both accused submitted that there was
no case for both accused to answer. The contention was that the prosecution had not adduced
sufficient evidence to link the two accused with the commission of the offences alleged against them.

Held:

A submission of no case to answer may be properly made and upheld where there has been no
evidence to prove an essential element in the alleged offence and when the evidence of the
prosecution has been so discredited as a result of cross examination or so manifestly unreliable
that no reasonable tribunal could safely convict on it.

THE PEOPLE v JAPAU (1967) Z.R. 95 (H.C.)

Flynote and Headnote

[1] Criminal procedure - Case to answer - When present

There is a case to answer if the prosecution evidence is such that a reasonable tribunal might
convict upon it if no explanation were offered by the defence.95

[2] Criminal procedure - No case to answer - When applicable

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A submission of no case to answer may properly be upheld if an essential element of the

alleged offence has not been proved, or when the prosecution evidence has been so discredited by
cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on
it.

[3] Criminal procedure - Witnesses - Hostile - Leave to treat prosecution witness as hostile.

When the material evidence of a prosecution witness at trial varies substantially from his testimony
at the preliminary inquiry, leave may be granted to the Director of Public Prosecutions to treat such
witness as hostile.

[4] Evidence - Weight - Unreliable and false evidence.

Negligible weight can be given to evidence which is unreliable and, in parts, patently false.

[5] Evidence - Accomplice testimony - Corroboration.

One accomplice cannot corroborate the evidence of another.

[6] Evidence - Corroboration - Accomplice testimony.

See [5] above.

Mwewa Murono v The People 2004 ZR 206 Even if the accused has confessed, but if at case to
answer there were no elements proving the charge, the accused must be acquitted.

MWEWA MURONO v THE PEOPLE (2004) Z.R. 207 (S.C.)

Flynote:

Criminal Law and Procedure – No case to answer - Consideration for guidance.

Criminal Law and Procedure - Res Gastae - Conditions to be satisfied. Legal burden of proof - on
whom onus lies – degree to which prosecution must prove case – accused’s evidential burden once
found with a case to answer - case to answer – Sections 206 and 291(1) Criminal Procedure Code
construed - test for consideration of no case to answer at the close of prosecution case - erroneously
finding of a prima facie case and conviction of accused – course open to appellate court.

Headnote:

The Appellant was convicted of murder contrary to section 200 of the Penal Code Cap 87 of the Laws
of Zambia. He was sentenced to suffer the penalty of death. The Appellant appealed both the
conviction and sentence.

Held:

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1. In criminal cases, the rule is that the legal burden of proving every element of the offence
charged, and consequently the guilt of the accused lies from beginning to end on the
prosecution.

2. The standard of proof must be beyond all reasonable doubt.

3. A submission of no case to answer may properly be and upheld:-

(a) When there has been no evidence to prove the essential element of the alleged offence; and

(b) When evidence adduced by the prosecution has been so discredited that no reasonable
tribunal could safely convict on it.

4. The accused bears the burden of adducing evidence in support of any defence after he has
been found with a case to answer.

1. The application of Sections 206 and 291 of the Criminal Procedure Code Chapter 88 of
the Laws of Zambia does not depend on the defence making a no case to answer submission. The
Court has of its own motion to consider whether a prima facie case has been made out.

2. If an accused person is convicted as a result of an error of the trial Court in thinking that
there is a prima facie case, the conviction cannot stand. It must be quashed. An appellate Court
has no discretion.

5. The statements made by the deceased were not contemporaneous of spontaneous with the
event. The possibility of concoction or distortion was very high in the circumstance of the case.

Section 206 of the CPC makes it mandatory for the court to acquit if the essential elements of the
offence have not been proved. For example, there is an offence of rape but there is no evidence that
there was penetration and the only witness is the one who needs corroboration. Section 213 of the
CPC provides that at any stage of the proceedings the court can amend the charge to reflect the
evidence on record.

CASE FOR THE DEFENCE

The starting point in the subordinate court is Section 207 of the CPC.

Sakala v The People 1969 ZR 167 It was held that when a trial magistrate finds more evidence than
the offence charged, the magistrate must draw up a new charge and read it out for the accused
person. The accused person can either maintain his plea of not guilty or plead guilty. Where he
pleads guilty, the magistrate will say on your own admission of the new charge I convict you.

SAKALA v THE PEOPLE (1969) Z.R. 124 (H.C.)

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Flynote and Headnote

[1] Criminal procedure - Minor offences - Procedure to follow when minor offence substituted.

When putting the accused to his defence on a substituted and "minor" charge, the magistrate should
frame the new charge, put it to the accused, call upon him to plead, and allow him to recall
prosecution witnesses.

Where the accused pleads guilty, the court convicts him on his own admission. However, where there
is a plea of not guilty, two routes are possible. There is a plea of not guilty for a ‘lesser’ offence. 5 In
cases where the “lesser offence” is a “minor charge” for the offence the accused person was facing,
after a plea of not guilty the accused person goes through the normal trial.

The court begins by explaining the accused person’s right. The accused person has a right to remain
silent, to give unsworn evidence6 or give evidence7. The distinction between sworn evidence and
unsworn evidence is that unsworn evidence, the accused is not cross examined.

The court explains these options, it has also been the practice of the courts to explain the distinction
between sworn and unsworn evidence and states that sworn evidence carries more weight. It is wrong
for the court to explain that one of those options is advantageous to the accused. Mundivoni v R
1963 R & N 168

Whichever of the three routes the accused person takes, he has a right to call witnesses.

After the rights have been explained, if the accused decides to call witnesses, he must give evidence
before the witnesses are called8 - Japhet v R 1960 R & N 738. In addition to the court telling him
options, if the accused is unrepresented, the court must explain any statutory defences available,
the prominent one being defence in the proviso to Section 138 of the Penal Code - defilement9

The People v Kombe Joseph Champako 2010 it was held in that case that a prima facie case does
not mean that all elements of the offence must be proved, proving one element is sufficient Judge
Mchenga’s position is that this decision in this case is not correct.

THE PEOPLE V KOMBE JOSEPH CHAMPAKO

5
Lesser offence means any offence attracting a lower sentence than the one previously charged. Offences can be of the
same generic offence such as theft and robbery. Theft is a lesser offence of robbery. However, if you have aggravated robbery
and assault, those offences are not of the same kind. Therefore, if you end up with a lesser offence not of the same generic
kind, the court has a duty to inform the accused that he can recall witnesses. A right to recall witnesses is for the accused
person and not the prosecutor. Thus, he is given an opportunity to correctly cross examine them with questions relating to
the new charge. After this cross examination, the prosecutor is allowed to re-examine and the case goes into DEFENCE.
6
This is also called ‘make a statement’
7
This is also called sworn evidence
8
Prosecution witnesses can be called in any order but for the accused he must first give evidence before calling any of the
witnesses.
9
Section 138 of the Penal Code has been repealed and replaced

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Flynote

[1] Criminal Law and Procedure – No case to answer-What is required to be proved.

Headnote

The accused stood charged with the offence of aggravated robbery contrary to section 294 of the
Penal Code. The particulars of the offence are that the accused on 11th October, 2009, at Ndola in
the Ndola District of the Copperbelt Province of the Republic of Zamba, whilst armed with a metal
bar did steal from Patricia Chapewa one Sonny radio cassette valued at K2,650,000.00, the property
of the said Patricia Chapewa, and or immediately before or immediately after the time of such
robbery, did use or threatened to use violence to the said Patricia Chapewa in order to obtain the
property.

Held:

1. The Court’s understanding of the words “sufficiently to require him to make a defence”
in section 206 of the Penal Code is that at the stage of the close of the case for the prosecution
has proved its case beyond reasonable doubt; neither is it supposed to determine the issue of
the reliability of the witnesses. These are matters to be determined by the Court in its composite
role both as a trier of fact and of law, after a careful evaluation of the evidence at the conclusion
of the trial.

2. The Court’s obligation to stop a case is an obligation which is concerned primarily with
those cases where the necessary minimum evidence to establish the facts of the crime has not
been called.

3. It is not the Court’s task to weigh the evidence, to decide who is telling the truth, and to
stop the case merely because the Court thinks that the witness is lying.

4. A prima facie case does not mean proving each and every ingredient of the offence
charged, if there is evidence to prove one element then there is a prima facie case.

MID YEAR EXAMINATIONS

There are two drafting questions one of them will be on bail and another on a charge sheet or
information.

On bail: expect that there will be summons and an affidavit. The facts deposed to are those which
you need to obtain the kind of bail being applied for. The marks come from the title. Figure out
before which court the application is made. There is only an Applicant and Respondent. Bail pending

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trial may only be in the Subordinate Court and High Court.It cannot be in the Court of Appeal or
Supreme Court. There is no need for certificate of urgency or exhibits.

There is a question on Insanity.

See the schedule to section 11. Once you figure out the offence, go to the second schedule and if it
is there then draft an Information. If it is a then it is an information. Be careful when determining
the court.

There is a question on Jurisdiction and duplicity.

There will be a trial process, therefore, be familiar with a voir dire and a trial within a trial.

cfrmchenga@gmail.com

MID-YEAR REVISION

QUESTION 1

You were required to draft an information.

Murder is in the section 11 of the CPC.

QUESTION 2

a) Section 6 of the Penal Code. Subsection 1 deals with Zambians. For a Zambia it is immaterial
whether what was done in Zambia is an offence – Ngati and Others v The People. Subsection 2
provides that the Zambian court will only have jurisdiction if it was partially committed in this
country – The People v Roxburgh.
b) Parties to a crime – section 21 of the CPC. The wife can be charged with the offence as well. The
second part deals with jurisdiction. Section 66 and section 69 allows the person to be taken to
court just to appear and then they can be taken to Kafue.

QUESTION 3

a) a plea of not guilty for tilyenenji; Even in Maiwase it is a plea of not guilty.
b) A charge sheet is not bad for duplicity because there are two counts in a charge but if there are
two offences in the same count. Section 135 (1) and (2) of the CPC. The offences were properly
placed in different counts.

QUESTION 4

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a) Causing death by dangerous driving. It is in the High Court. Section 123 (1) of the CPC is used for
all bail applications. When it is a renewal, meaning it was made in the subordinate court and
then renewed in the HC you use 123 (3) of the CPC.
The things to mention in the affidavit: Full names, applicant, he is at the prison, offence is
bailable and the person will meet the conditions.

QUESTION 5

Blind

Drunk person – no special procedure it is up to him to raise a defence of intoxication.

Dumb and Deaf – The court should look for the interpreter and trial will proceed in a normal way.

Person Insane at the Commission of Trial – The procedure followed is normal, the person will raise a
defence of insanity.

Person Insane at Trial – Section 161 applies. The court will not make a special finding, it is only made
when the person raises a defence of insanity.

QUESTION 6

a) There is amendment of a charge and sentencing power of the court. Section 213 of the CPC and
Section 217 of the CPC – The case of John Banda. After an amendment, a right to recall witnesses
exists. Also Shamwana Case. Section 217 of the CPC allows the court to commit the case to the
HC for sentencing.
b) The admission of guilty procedure. Find the sections for drunk and disorderly and drunk and
incapable. This is an offence in section 180 (2) of the Penal Code. For a drunk and incapable, the
admission of guilty procedure is available. However, because he is a juvenile, section 221 (10) of
the CPC says it is not available. For the theft the admission of guilty procedure is not available.
In summation, the admission of guilty procedure is not available for this offender in totality.

QUESTION 7

a) Nolle cannot be question – section 80. However, for the withdraw under section 88, if it is not on
the instruction of the DPP, the court will object to the withdraw. If it is from a prosecutor,
reasons must be advanced and they must be acceptable to the court.
b) If they are charged with manslaughter, they apply for bail pending trial BUT if they have been
charged with murder they will need to satisfy the court if there is an inordinate delay.
You Can get constitutional bail even if the trial had started provided there is inordinate delay.

QUESTION 8

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a) There was no need for a voire dire for a 14 year old and not the the 7 years old. The test proposed
was not right, it was supposed to be sufficient knowledge + the duty to tell the truth.
b) When a trial within a trial is conducted. In relation to the headman, the issue of conducting a
trial within a trial does not arise – Abel Banda v The People. As regards the first statement where
he was forced to sign – Nyambe v The People, a trial within a trial was required to be held. The
second statement to a police officer, Mate and Others v The People, there is no need to hold a
trial within a trial.

15 May 2018

CONTINUATION OF THE CASE FOR THE DEFENCE

During the defence, all the accused persons remain in court. In cases where the accused persons have
elected to call witnesses, the accused must give evidence before the witnesses10 - Section 208 and
209 of the CPC. Shaw v The Queen 1963-1964 ZR 167 and Barrow and Young v The People 1966
ZR 43.

In the case where you have more than one accused person, the accused persons give evidence in the
order in which they are accused. If they are calling witnesses, the first accused will testify and then
his witnesses before the second accused can testify. Sikota and The People 1968 ZR 42 – This case
sets out the order in which witnesses appear.

SIKOTA v THE PEOPLE (1968) Z.R. 42 (H.C.)

Flynote and Headnote

[1] Criminal procedure - Witnesses - Accused's right to call a witness present in court.

Trial magistrate's refusal to call a witness desired by accused and present in court was erroneous
even though the witness had previously failed to comply with an order that all witnesses withdraw
from the court room.

[2] Criminal procedure - Witnesses - Right of accused to re-examine himself.

Accused has a right to say anything further after cross-examination upon matters arising from such
examination.

[3] Evidence - Medical evidence - Necessity to call doctor as witness.

10
This is not so in the civil case

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Examining doctor has to be summoned to prove injuries of complainant; doctor's report on police
form Z.P. Form 32 not admissible.

[4] Criminal procedure - Witnesses - Order in which prosecution witness and accused to be
examined when more than one.

Prosecution witness is examined by the prosecutor, cross-examined by each accused in turn in the
order in which named in the charge-sheet, finally re-examined by prosecution. Accused who gives
evidence to be examined in turn, cross-examined by their co- accused and then by the prosecutor,
and finally re-examined.42

[5] Evidence - Burden of proof - Accused need not explain testimony adverse to him.

There is no onus on accused to give reasons for the manner in which prosecution witnesses testify
against him.

Where there are two accused, the first accused will give evidence in chief, the second accused will
cross examine the first and the public prosecutor will cross examine. Then there will be examine in
chief.

R v Yambayamba and Sampa 1 NRLR 51

Cross examination is limited to evidence relevant to the proceedings before court except in limited
circumstances, the accused person cannot be cross examined on previous convictions Melody Chibuye
and the People 1970 ZR 34

The order in which witnesses are called. Sibale and The People 2009 ZR 46

The defence close their case with the last witness. There is a provision for the prosecutor to call
evidence in reply. There are circumstances in which the prosecutor can be allowed to call witnesses
after the defence have closed their case. Section 210 of the CPC. Simwanza and the People 1985
ZR 15

Evidence in reply11 is only allowed in cases where in the course of the defence, the accused person
raises a new issue that the prosecutor could not have anticipated or foreseen. The evidence in reply
is simply to rebut the new issue that was raised. The condition is before calling evidence in reply in
that it should be a new issue that could not have been anticipated.

As a defence counsel, you cannot bring evidence to counter the evidence in reply but you can cross
examine the evidence in reply. However, you cannot open matters that had been closed before the
prosecution’s case. After the evidence in reply, the case is closed and the parties make submissions.

11
Or evidence in rebuttal

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There is an order in which submissions are made. Sections 208, 209 and 212 of the CPC. At the close
of the whole case, the order of submission is different. Section 212 shows that where the accused
does not give evidence or call witnesses the prosecutor submits first. Where the accused person gives
evidence but does not call witnesses, the prosecutor submits first – section 209 of the CPC. The
accused person or his lawyer will submit first where the accused has called witnesses. Put simply,
the defence submits first where the accused has given evidence and called witnesses.12

What comes after the submissions is the Judgment. In its judgment, the court can either convict or
acquit the accused persons. Section 214 of the CPC. The court can convict either on the original
charge or on the minor offence. Therefore, if a person is charged with robbery, the court can convict
with theft. The court cannot convict a person for an offence than that on which he was put on his
offence. For example, if a person is charged with manslaughter and the evidence points to murder,
the court cannot convict him of murder. However, if he was put on his charge for murder, the court
can convict him with manslaughter.

R v. Tipesenje 1960 R & N 51 – He was charged with manslaughter but the evidence pointed to
murder. The court had no choice but to sentence him with manslaughter.

The magistrate finds out if the accused has any previous convictions, this is directed at the prosecutor
cause he ought to know. A previous conviction will come either through a certificate of previous
conviction or a clerk of court informing the court that you have a previous conviction. The reason the
court should know is that there are some sentences that have a mandatory minimum sentences for
previous convictions. Further, if the person has no previous convictions, that in itself is mitigatory.
In a case of a juvenile, a probation officer must give a report. This report gives the court the
circumstances surrounding the offence and the attitude of the parents towards the offence. After
the report has been presented, you have an advocate submitting in evidence. Please note that your
family circumstances are not mitigatory. Traditionally, the prosecutor does not respond to the
mitigation, however, where it is misleading or untruthful, the prosecution can stand up and inform
the court of the correct position. After a mitigation, the court imposes a sentence.

Section 214 of the CPC provides that a sentence must be imposed for each count that a person is
being convicted. R v Nyalongo 2 NRLR 136

Ordinarily, it is the trial court that imposes a sentence. BUT in the subordinate court we have
situations where the mandatory minimum sentence is above the sentencing power of the trial court.
For example, incest has a mandatory minimum sentence of 20 years.

Section 217 of the CPC provides that where the mandatory minimum sentence is above the sentencing
power of the trial court, the trial court upon conviction should commit the trial to the HC. This
provision does not only deal with cases where the mandatory minimum is above the sentencing power,

12
When a lawyer says they will rely on the evidence on record, they basically mean they will not make the submissions

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it also deals with situations where the court is of the view that the sentence that should be imposed
is one that is higher than its sentencing power.

Therefore, section 217 works in two ways. The first limb is where the minimum sentence is above
the sentencing power of the court. The second limb is where the sentence the court feels must be
given is beyond the sentencing power that the court has to sentence. Therefore, committal is not
only for minimum mandatory sentence but also in situations where the court feels a more stringent
sentence should be imposed.

At the end of the trial, there is provision in section 172 (2) of the CPC for the magistrate court to
order reasonable costs in a case where it acquits or discharges an accused person. Essentially, this is
a situation where the court feels like this is a prosecution which should not have been undertaken in
the first place. If the case was through a public prosecution 13, the costs will come from the public
revenue. However, if it was a private prosecution, the private prosecutor pays the costs. For example,
where one goes and lodges and a complaint or prosecutions by statutory bodies. Costs in a criminal
case must be applied for. R v Guy 5 NRLR 47 – in a criminal case there is no assessment. You must
keep the log of what the costs are. The court cannot adjourn for assessment but may adjourn to
allow the other party to respond.

Section 174 of the CPC deals with compensation. In criminal cases, costs and compensation is about
what is reasonable. You do not get what you really deserve. As for compensation, you are awarded
for trouble that you went through.

In the next lesson, we will discuss the courts marshall.

21 May 2018

THE TRIAL BEFORE THE COURT’S MARTIAL

The court’s martial is an ad hoc court that is set up when the circumstances demand to try persons
who are subject to military law. It is set up and procedures are set out in the Defence Act, Chapter
106 of the laws of Zambia. Section 86 of the Defence Act sets out to whom it applies and, in this
country, it has generally been applied to persons in the Zambia Army and Zambia Airforce. 14 Section
121 of the Defence Act deals with the jurisdiction of the court. It can only try offences within three
years of their commission or not more than 3 months after the person has seized to be subject of the
military law.

A civilian who is called as a witness or attending can be tried for contempt of court which is
committed before the court’s martial.

13
This is where an agent of the state prosecuted the matter e.g a Public Prosecutor.
14
State Counsel is not aware whether it applies to the Zambia National Service.

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Section 87 of the Defence Act provides for persons who can set up the court, that is, people who
can convene a courts martial are officers who rank the officer of colonel or above or a major acting
under the instructions of a major.15

Section 88 of the Defence Act sets out the composition of the court. The court will constitute of a
minimum of three, a president and two members. Where the accused person is an officer or faces a
charge that attracts a death penalty, there will be a president and four members. 16 A person cannot
be a member of the court’s martial unless they have served for not less than two years. The president
must always be above the rank of major. In exceptional circumstances, the president can be of a
lower rank but not below the rank of a captain.

Section 127 of the Defence Act allows the commander of the army or air force to request the Chief
Justice to appoint the judge advocate. The role of the judge advocate was spelt out in the case of
Alfred Chamanga and the People 1970 ZR 18. The judge advocate is usually the magistrate from
the conventional courts, the minimum being a resident magistrate. The role of the judge advocate is
to advise the court on the point of law and to sum up. He does not take part in the deliberations of
the court, he only advises when the circumstances demand.

Section 89 gives two categories of people who are disqualified from presiding over the court’s
martial. The first one is the person who convened the court. The second person who is disqualified
is the person who investigated the case. Mumba and the People 2006 ZR 93

Procedure Before the Court’s Martial

Preliminaries are done before the constitution of the court. At the first sitting, the members are
introduced. The first right that the accused has is set out in section 91 of the Defence Act. This is
the right to object either to the president or the membership of any official. They must be reasonable
grounds such as the member was involved in an investigation or that the member is a possible witness.
If the president is challenged and the challenge is successful, the convening officer must appoint a
new president. If you challenge a member, the court can continue without the new member being
appointed if the number does not go below the legal minimum which is 3.

After the challenges, all the members of the court must take an oath as provided for in section 92.
This includes the judge advocate. Like the ordinary court, the sittings are generally in open court but
they can be held in camera when it is expedient in the interest of justice. Section 93. The
proceedings in terms of calling witnesses is the same as in the ordinary court. The charges are read
out and the accused take a plea. If there is a plea of not guilty, you have witnesses being called, who
are then examined in chief, cross examined and re-examined. The court will also find a case to
answer and they are put on their defence.

15
Colonel, Major, Captain etc
16
An officer is a person who is commissioned, that is, specifically appointed by the president.

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It is possible that the sittings of the court’s martial before the verdict. Section 94 provides for the
dissolution of the court before it renders a verdict. One of the grounds for its dissolution is where a
convening officer comes to the conclusion that it is not in the interest of the institution to go ahead
with the hearing. The other reason for the dissolution is where the death of a member reduces the
number of membership to below the minimum. The court can also be dissolved where the accused
person cannot be tried within reasonable time due to sickness or incapacity. Where the proceedings
go ahead, the decisions of the court are by a majority. Section 95 of the Defence Act. If at the end
of the trial, where you have an even number and they are evenly split, the accused person is
acquitted. However, where the person is charged with an offence which attracts a death penalty,
there can only be a decision where all of them agree (unanimous decision).

In the course of the trial, there may be issues that may arise such as issues to do with an adjournment,
other than the verdict, if there is tie, the president has a casting vote on procedural issues or
interlocutory. That is, the president votes twice.

Section 97 of the Act allows the court to convict the offender for an offence for which he was not
charged. The same rules apply, that is, it should be a lesser offence or an offence that is not at par.
Once the verdict has been passed, there is a requirement for that decision to be confirmed. Section
102 of the Act provides for confirmation.17 Section 106 spells out who the confirming officer can
be, that is, the officer who convened the court or his successor. It also extends to the person who is
superior to the convening officer.

Section 105 of the Defence Act allows the convening officer to withhold the confirmation of the
officer. The circumstances are where the convening officer thinks it was wrong in law, or
unreasonable and not supported by evidence or where it is his view that there was a miscarriage of
justice. The law allows the convening officer to substitute the charge or finding with a lesser finding.
That is, one can reduce the charge. In addition, under section 104 of the Act, the confirming officer
can ask the court to review his decisions where the findings is against the weight of evidence or there
was a wrong determination of the law.

The Defence Act has offences; however, the jurisdiction of the court’s marshal is not limited to the
offences under the Act. Section 73 of the Act allows the courts marshal to try for civil offences. The
mere fact that there is an offence under the Defence Act does not stop the defence authorities from
reporting the person to the authorities. This is provided for under section 122 of the Act. Section 123
of the Defence Act provides that a person who is tried before a civil court or another court’s martial
cannot be tried again for the same offence.

There is also a defence of condonation, that is, if an officer has been known for misconduct, he
cannot be prosecuted for the same.

17
In practice, an appeal is lodged there and then however, it should not be that way because the sentence is only effective
after it has been confirmed.

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Appeals from the courts martial lie in the Supreme Court in accordance with the Defence Act.
However, due to consequential amendment, appeals to the courts martial now lie to the Court of
Appeal. The appeal is prosecuted by the Attorney General.

Much as the court’s martial can prosecute civil proceedings, an offence that requires the consent of
the DPP cannot be prosecuted before the court’s martial as the DPP has not jurisdiction before the
courts martial. Thus, presenting consenting from the DPP before the courts martial means you are
bringing the DPP before the court’s martial.

29 May 2018

TRIAL BEFORE THE HIGH COURT

Unlike in the Subordinate Court where you have a summary trial (once a person is apprehended, he
takes a plea there and then), in the High Court, before you have a trial, there is a preliminary hearing
in a subordinate court. For all criminal cases, their cases start in the HC. There are two routes that
a case can take from the sub. Court to the HC, either through a preliminary inquiry or by way of
summary committal.

PRELIMINARY ENQUIRY

Section 222 of the CPC provides that any subordinate court can sit to hold a preliminary enquiry.
Section 223 of the CPC is to the effect that whenever a person is brought before the Sub. Court
charged with an offence triable in the HC, the Sub Court will conduct a preliminary enquiry. A
preliminary enquiry takes the route of a trial. The charge is read out to the accused person but he
does not take plea. Then prosecution witnesses are called one by one examined in chief, cross
examined and re-examined. The procedure is essentially in section 224 of the CPC.

There is a slight difference in that in a preliminary enquiry, when a witness is called, after
examination in chief, cross examination and re-examination, after the prosecution’s case, the
magistrate reads out what the witness said and the witness will confirm that what has been recorded
is what was said and the witness signs what was recorded.

In practice, preliminary enquiries are taken in a route of a normal trial but this is wrong.

At the close of the prosecution’s evidence, the defence submits and there is a response by the
prosecutor. Section 228 of the CPC provides that where the court finds that the evidence discloses
an offence the accused person is invited to make a statement. He can opt to make a sworn or unsworn
statement. He is also allowed to call witnesses. However, he can opt not to call witnesses and bring
evidence and reserve that right for the trial. The parties will then be allowed to address the court –

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section 229 of the CPC. The Court will then assess the evidence and if it comes to a conclusion that
the evidence discloses an offence triable in the HC, the test is set out in section 231 of the CPC. The
test is there sufficient to warrant the accused person being tried in the HC. If the court comes to this
conclusion, the accused is committed to the HC for trial. Committal is not dependent on the case
being proved beyond reasonable doubt as it is not a trial but a preliminary enquiry (a hearing to find
out whether the accused can be sent to trial).

In a case where the court finds that the evidence is not sufficient for the accused person to be on
trial for the offence charged or any other offence, section 230 of the CPC provides that the accused
person should be discharged. The People and Petrol Zambwela 2002 ZR 145 – This case talked about
the person being discharged and not acquitted in a preliminary enquiry as the court has no
jurisdiction to acquit.

Issues of insanity cannot be raised during a preliminary enquiry, even if there is evidence that you
were of unsound mind, section 166 of the CPC provides that that cannot derail the holding of a
preliminary enquiry. The position that the court will adopt is that the accused is of sound mind and
can make a defence.

A person may appear for a preliminary enquiry on a charge of murder and at the end the offence
disclosed is aggravated robbery, the person can still be committed to the HC. Section 232 of the
CPC allows for summary adjudication where the evidence discloses a lesser offence triable in a
subordinate court. In such situations, the court will then amend the charge and the accused person
will takes plea. If he pleads guilty, the court convicts him. There will be no need for a statement of
fact as the evidence is already before the court. However, where the accused person denies the
charge, a plea of not guilty will be entered and the accused person will be informed of a right to
have witnesses recalled for cross examination. What will follow is that the accused person gives his
defence. At that point, it will proceed like a normal trial in a subordinate court. R v Kafungwa 2
NRLR 60

The People v Dauti Tiyesenji Phiri 1985 ZR 201 – This case discusses what should happen when a
case triable in the HC comes before the Subordinate Court during a preliminary enquiry.

NOTE: There can neither be a conviction not acquittal in a preliminary enquiry. Once a plea is
retaken, it seizes to be a preliminary enquiry and becomes a trial and the magistrate can convict or
acquit in such a case.

SUMMARY COMMITTAL PROCEDURE

Whenever a case triable by the HC goes to the Subordinate court, it goes for a preliminary enquiry.
It is up to the prosecutor to decide whether to go by way of preliminary enquiry or summary committal
procedure. The prosecutor can send the docket18 to the DPP instead of calling witnesses. If the DPP

18
A file containing evidence

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comes to a conclusion that there is evidence suitable for a trial, the DPP certifies that the case is fit
for being committed to the HC. The DPP does not commit the case to the HC but only issues a
certificate. The person who commits the case to the HC is the Magistrate. Therefore, a case that has
gone through the summary committal procedure has two certificates, one from the DPP and another
from the magistrate.

The mere fact that a preliminary enquiry has commenced does not stop the DPP from certifying that
the case is fit for committal to the HC. Section 255 of the CPC provides that where the DPP issues a
certificate, preliminary enquiry should be abandoned or not take place. The Attorney General v
Edward Jack Shamwana and Others 1981 ZR 12

THE TRIAL IN THE HIGH COURT

Section 272 of the CPC provides that arraignment is by information. That is, that document by which
the person is brought before the HC. Section 223 of the CPC allows a person who was committed
separately to be joined. In the case of Henry Kunda 1977 ZR 22319.

Section 257 (2) of the CPC allows the DPP to include additional charges to the ones on which the
accused person was committed to the HC. The additional charge is only one that is disclosed by the
same evidence. This section allows the substitution or inclusion of new charges.

The procedure is the same as that one in the subordinate court. Sections 276 and 277 of the CPC
talks about a plea in bar, that is, a plea that should bar a trial.20 An example is a plea in bar and must
be raised at a plea stage. Section 278 of the CPC provides for a refusal to plea.

Section 258 of the CPC requires a prosecutor to serve a list of witnesses and the evidence they will
give 14 days before the date of the plea. The advantage of trial in a HC is that the court is given
witness statement. A witness who does not appear on the list of witnesses cannot be allowed to give
evidence. Esther Mwiimbe v The People 1986. Section 286 allows the prosecutor to apply to call
additional witnesses. The mere fact that there is a list of witnesses does not compel the prosecutor
to call all the witnesses. The prosecutor can dispense with some witnesses on the list of witnesses.
That indication comes after the last prosecution witnesses has been called. Where a person was listed
as a witness and the prosecutor fails to call a witness, defence counsel can call him at the close of
the prosecution’s case.

The defence can either call the listed witness at the close of the prosecution’s case at the State’s
expense or during the defence at the defence expense. Chipango and Others v The People 1978 ZR
304. Section 240 allows a statement taken during a preliminary enquiry to be used at trial because
the maker of the statement is dead or is unable to make the statement.

19
The case appears not be saying the correct thing. Judge said just ignore the case as it is NO good law
20
Tender age is a plea in bar

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Section 291 of the CPC deals with the close of the prosecution’s case and that the court should
acquit if a prima facie case has not been made out. Mwewa Murono v The People 2004. Section 292
deals with the defence and 294 deals with evidence in reply. The conditions are the same as in the
subordinate court. Section 296 highlights the procedure to be followed when the accused person
does not give evidence. R v Train Viyuyi 5 NRLR 76 – This case is authority for the proposition that
you can only withdraw a case through a nolle prosequi. If the prosecutor for some reason cannot go
ahead, a nolle must be entered. In the Subordinate Court, you can withdraw a case by way of section
88 by in the HC the only way is by way of a nolle. The submissions are made and the case awaits
judgment.

Section 188.

05 June 2018

Section 168 of the CPC provides that the judgment must be delivered in open court and the whole
judgment must be read out in the presence of the accused person. However, the absence of the party
will not invalidate the judgment – section 353 of the CPC. This provision is to the effect that the
failure to observe procedure during the course of a trial cannot invalidate the findings or verdict of
the court unless it results in a substantial miscarriage of justice. 21

Section 169 of the CPC sets out the contents of the judgment. Lee Habansonda Case

The judgment must contain what the summary is for what the witnesses said in the proceedings.
Further, it must have issues for determination, the decisions and reasons for the decision. Finally, it
should have the offence for which the accused was convicted and the sentence.

It is rare that you are going to have a sentence in the judgment as it is at the discretion of the court.
However, for certain offences such as armed robbery, the judgment comes with a sentence.

Nkumbula v R 1961 R & N 589 – The court stated that it is not fatal for the court not to use the
words “I convict”, it is sufficient that the judgment indicates that particular charges were proved.

Section 169 of the CPC provides that in a case where there is an acquittal, the court should indicate
the offences for which an accused person was acquitted and words directing that the accused person
be sent at liberty.

Where a person has been charged with murder but only manslaughter has been proved. The court
cannot acquit of murder and convict of manslaughter. Instead, it must state that the offence of
murder was not proved but manslaughter was proved, therefore, it convicts the person of
manslaughter.

21
There is case law to the effect that the court may ignore submissions (it is not bound by the submissions)

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Dashooni v The People 1966 ZR 58 – The failure to sign a judgment was an irregularity but it was
curable because it did not lead to a miscarriage of justice.

A judgment must be prepared by the person who presided over the case. If half way through the case
the judge dies, it must start de novo. However, when it comes to delivery, it may be delivered by a
person other than who wrote it. Section 169A of the CPC.

Where a judgment was not completed, it cannot be completed by another person. However, there
are circumstances where a draft judgment has been delivered by another person.

Where a judgment was not done or partially done, it cannot be delivered. Trial has to start again.

Section 302 of the CPC allows the court to receive such evidence as can help it pass the sentence. 22
The court can call a witness to come and give evidence that can help it arrive at a decision. For
example, when there is an assault or unlawful wounding and in the course of trial, the medical
practitioner who examined the person was not called, the report may be allowed without the medical
practitioner. The law allows the court to call a doctor to come and give the consequences of the
assault after trial for the purposes of sentencing. Luwishi v R 1960 R & N 782 – When a witness is
called for the purposes of sentencing, the court will ask the questions. After that the prosecutor is
given an opportunity to ask the questions. Similarly, the defence counsel is given an opportunity to
ask questions. It is possible for the defence to state that what the witness has said is not true and
they can call an expert. All in all, a witness called by the court is the court’s witness and is examined
and cross examined.

NOTE: This is applicable to judgments of the subordinate court and the High Court.

MOTION FOR ARREST OF JUDGMENT

A person can make an application to arrest the passing of the judgment. - Section 298 of the CPC.
This deals with a situation where the HC has passed a judgment and before it has passed a sentence,
you can move the court to arrest its judgment on the ground that the information on which you were
charged does not disclosed an offence and the court did not make an amendment to the charge so
that it discloses an offence which it had power to try.

NOTE: This motion is limited to the HC

A person who has pleaded guilty can move the court. The court cannot be moved on the ground that
the evidence does not prove the charge. Further, you cannot move the court to arrest its judgment
on the ground that there was a procedural irregularity.

22
Mitigation is only by the accused, there is no mitigation to the prosecution.

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When you move the court, the court can hear the application there and then. If the case is proved,
the accused is discharged and not acquitted. The reason is that the person is tried for an offence
which the court had no jurisdiction to try.

Where a person was arrested pursuant to a certain law which subsequently is repealed, he can still
be tried pursuant to that repealed law. However, where the law was repealed and replaced, the
court must amend the charge and allow the accused to re-take the plea. Failure to which the accused
can make an application for arrest of judgment.

PROCEEDINGS WITH RESPECT TO JUVENILES

A juvenile, whether in an ordinary court or juveniles court, there are certain procedures that will
apply to the juveniles. Section 2 of the Juveniles Act defines a juvenile as a person who has not
attained the age of 19. There is also a child who is below the age of 16 in accordance with the Penal
Code. All children all juveniles but not all juveniles are children.

Section 14 of the Penal Code deals with the age of criminal responsibility (dolli incapaux). A person
who is above the age of 8 can be tried for a criminal offence with the exception that a person below
the age of 12 cannot be tried for an offence involving canal knowledge. Therefore, a juvenile is any
person between 8 to 18.

ESTABLISHMENT OF THE JUVENILES COURT

Section 63 of the Juveniles Act makes provision for the constitution of a juvenile’s court. A juvenile
court is a subordinate court sitting for the purposes of hearing a charge against a juvenile or juveniles.
In the case of Siwale and Another v The People 1973 ZR 182 – It was held that the HC cannot hear
a case where the accused person must be tried before the juvenile’s court. Therefore, a juvenile
who is charged with aggravated robbery, he is going to tried in the juvenile’s court. The exception is
that the juvenile court will not try homicide – section 64 of the Penal Code (murder, manslaughter,
infanticide and causing death by dangerous driving) and attempted murder (section 215 of the Penal
Code). In this country, infanticide is limited to a mother killing his own child who is below the age of
1 year because of the disturbance of the mind or lactation. – Section 65 of the CPC.

The first exception is where a juvenile is jointly charged with the person who has attained 19 years
or is not a juvenile. Therefore, if you have an 18 year old and 19 year old jointly charged with armed
aggravated robbery, they will be appear in the HC.

The second exception is where a person way into the trial, it becomes known that he is not a juvenile,
the court may decide to continue in the HC. However, where the matter has not advanced fully, the
court can transfer to the juvenile’s court.

PROCEDURE IN THE JUVENILE’S COURT

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The first thing is that when the court is sitting, there will be a declaration that the court is sitting as
a juvenile’s court and there is a duty if a person appears like a juvenile for the court to inquire into
the age of the accused person. Section 118 of the Juveniles Act.

Chipendeka and The People 1969 ZR 82

Musonda and Another v The People 1976 ZR 218

This enquiry can be by ocular observation. – Davis Mwape v The People 1979 ZR 54

The first thing is the court to ask the age of the accused. Section 119 of the Juveniles Act requires
that a juvenile’s courts should sit in the court other than where the ordinary courts sit.

Juveniles courts are actually allowed to sit in chambers. The reason is that a juvenile court is not an
open court (This is a court which members of the public are allowed to come in and sit to hear the
matter).23

12 June 2018

Where a juvenile is being tried with adults, the court may exclude the public for the sake of the
juvenile.

Section 76 of the CPC provides that trials take place in an open court. However, section 119 (2) of
the Juveniles Act places limitations on who can attend trial in either a Juvenile’s Court. The court
is open to members (magistrates) and officers of the court (ushers, marshals etc), parties (victim and
accused), counsel witness and other persons directly connected to the case. It is also open to
representatives of newspapers and news agencies (press).

There is also a provision for a court to allow any other persons as it deems fit.

A trial in the juvenile’s court is the same as in the ordinary court. However, there are variations>

Firstly, section 127 of the Juveniles Act requires the presence of a parent or guardian throughout
the juvenile’s trial. A parent is a one who usually stays or resides with the juvenile. The People v
Nephat Dimeni 1980 ZR 234

Clevor Chalimbana v The People 1977 ZR 282

The requirement for a parent to be present throughout trial is not limited to a juvenile’s court, it
applies even in situations where the Juvenile appears in an ordinary court charged with adults. The
People v Alfred Mumba 1978 ZR 4

The attendance of a guardian or parent can be dispensed with in two circumstances:

23
All criminal matters are held in open court except in interlocutory matters.

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1. that they cannot be found and do not reside within reasonable distance and the court is
satisfied that it will be unreasonable to require their attendance;24 and
2. where the child was moved from the parent and is in the care of an institution of the state.

The whole idea of the parent being present is that the parent gives emotional support. It is an offence
if a guardian or parent fail to attend in court after having being informed. This offence attracts a
fine not exceeding 300 penalty units – Section 27 of the Juvenile’s Act.

Where a guardian is not the father, the father may still be required to appear.

Once that is taken care of, a charge is read out as provided for in section 64 (2) of the Juvenile’s
Act. Section 64 (3) of the Juveniles Act relates to an admission of a charge. 25 All magistrates can
now accept a plea of guilty. If the juvenile does not admit the charge, you proceed to trial. The
proceed followed is the same in relation to the calling of witnesses, examination in chief, cross
examination and re-examination. In a case where the juvenile is not represented, after the
prosecution gives evidence, his guardian or parent can cross examine even if he is not a lawyer, then
the juvenile can cross examine as well. Thereafter you have re-examination. However, where a
juvenile is represented, that is not allowed. – Section 64 (4) of the Juveniles Act.

Further, in a case of a juvenile, if it turns out that the juvenile is not asking questions but putting
across statements, the judge or trial magistrate is allowed to convert those statements into
questions.

Section 64 (6) of the Juveniles Act provides that if a prima facie case is made out, the juvenile shall
be allowed to give evidence26 or make statements27. At the end of the trial, if the case is not made
out, the juvenile is acquitted. Where the case is made out or the charge is proved, section 68 of the
Juvenile’s Act provides that the court will find that the Juvenile is guilty. The term conviction is not
used in relation to a juvenile. After the mitigation, the court will pass an order (it will not sentence
the juvenile). In other words, where a juvenile is found to have committed an offence, whatever
punishment follows him is said to be an order and not a sentence.

After the court has found that he is guilty, before an order is made section 64 (7) of the Juveniles
Act requires the presentation of a report. This report is represented by either a social welfare officer
or a probation officer. The information provided is school record, the child’s medical history and it
is practice that the social welfare officer will recommend a possible order but it is not binding on a
trial magistrate or judge.

24
The court is required to make an inquiry from the arresting officer or the prosecutor. If the finding is not made, the
proceedings become a nullity.
25
For a juvenile it is not called a plea of not guilty.
26
Where you give sworn evidence
27
Where the evidence is unsworn

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Section 67 of the Juveniles Act - after the finding that the juvenile committed an offence allows
the High Court to refer the case to the place where the juvenile state for the purposes of recognising
the appropriate order.

Section 72 of the Juveniles Act limits the types of punishment that can be imposed on juveniles.
The first point is that a child cannot be imprisoned. 28 When it comes to imposing a sentence, what
the court looks at is the sentence that was available at the time when the offence was committed.
Where a person commits an offence at age 15 and he is arrested at age 20, he cannot be sent to
prison because at the time when the offence was committed, he was still a child. 29

The first limitation is that a child cannot be sent to prison. The second limitation is that a juvenile
can only be sent to prison if there is no other way of suitably dealing with him. Therefore, before a
prison term is imposed, the court should consider what other terms can be imposed. However, there
are certain circumstances when the court can consider that the only way is prison. Mvula v The
People 1976 ZR 80

Where a court decides to send a juvenile to prison, a court is bound by mandatory minimum sentences
Chisala v The Peolple 1975 ZR 239

There are other ways in which a juvenile can be dealt with such as a probation order. The court can
also send a juvenile to an approved school. There is an approved school in Mazabuka (a school under
supervision). The court can also make a reformatory order and send a child to the reformatory such
as kamfinsa and kotongola. The court can also order a juvenile to pay a fine, damages, fine or costs.
The court can also order a guardian and a parent to give security that a juvenile will be of good
behaviour.

There is also a provision under section 73 of the Juveniles Act which creates an offence called
conducing the commission of an offence by neglecting to exercise due care of a child. John
Mkandawire and Others V The People 1978 ZR 46 – This is an offence where when the police are
investigating an offence and it turns out that he committed an offence because as a parent you failed
to look after the child, you can be charge, tried and convicted. For example, your child turns up with
a good phone and instead of raising an alarm you ignore OR sending an unlicensed child on an errand
alone. Therefore, it is the parent who creates an environment for the commission of the offence.

Section 73 of the Juveniles Act gives the court discretion that when the juvenile is found guilty, it
can deal with the case in any manner that it can legally be dealt with. Therefore, the court can send
the child for counselling.

NOTE: A person in one category cannot corroborate another person in the same category. Therefore,
a child cannot corroborate a child and an accomplice cannot corroborate another accomplice but an

28
All children are juveniles but not all juveniles are children.
29
This might come in the Exam.

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accomplice can corroborate the child. A juvenile does not sick in the dock, he sits in next to counsel
or on a chair outside the court.

A juvenile can in certain circumstances be sentenced to death. The only Juvenile who cannot be
sentenced to death is the one who is below the age of 18. The court will detain him during the
president’s pleasure.

A juvenile adult is one who is above 21 but below 23.

INQUEST

An inquest is basically a judicial investigation into the death of a person conducted by a magistrate
called a coroner.

18 June 2018

INQUEST

An inquest is a judicial investigation into the death of a person conducted by the magistrate called a
coroner. An inquest will be conducted pursuant to the Inquests Act, Chapter 36 of the Laws of
Zambia.

Section 4 of the Inquest Act sets out the circumstances in which an inquest may or should be held.
The starting point is the coroner is informed that there is a body of a person lying within their
jurisdiction and there is reasonable ground to suspect that there was a violent or unnatural death.

The second situation where an inquest should be held is where a person has died in prison. This is
mandatory according to section 8 of the Inquest Act.

An inquest may also be held where a person dies in the custody of the police. This is not mandatory.

A person has died in circumstances that necessitate or make it desirable for an inquest to be
conducted.

The purposes for an inquest are set out in section 28 of the Inquest Act. The coroner sets out to do
the following:

1. The identity of the deceased person;

2. The coroner will ascertain how, when and where the person died;
3. Whether any person can be charged with an offence.

The charging of a criminal offence by a coroner is limited to a death, and the following circumstances:

a Murder;
b Manslaughter;
c Infanticide; and
d Causing death by dangerous driving.

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An inquest can also be conducted where the law requires that the cause of a person’s death should
be ascertained, that is, in the Births and Deaths Registration Act

WHO CAN HOLD AN INQUEST?

Notes missing

Section 9 of the Inquest Act provides that an inquest takes place in a place where the body is found.
In the case of a plane or vessel, it is where the vessel lands first. In some circumstances, no body is
found. In those circumstances, the inquest may take place in a place where the death may have
occurred. In the Matter of the Inquest Ordinance and in the Matter of Native Female Malinde NRLR
225 – it is also possible for the inquest to take place in a place where the body might have occurred.
– Section 10 of the Inquest Act

POSTPONEMENT OR DISPENSING WITH AN INQUEST

Section 5 of the Inquest Act provides that an inquest shall be dispensed with when a doctor indicates
that death was due to natural causes and that there is no sign that it was accelerated by any violent
or negligent conduct.30 You may have an inquest postponed or suspended because someone has been
charged in relation to that death. The charging should be associated with the killing of the person,
therefore, someone has to be charged with murder, manslaughter, infanticide or causing death by
dangerous driving. – John Oliver Irwin v The People 1993 – 1994 ZR 7 – In this case, it was ruled
that you cannot have an inquest where a person has been charged with the offence.

The inquest can only resume if it will be of public interest for it to go ahead. The coroner will only
resume the interest if it is of public interest. Where it is decided that it is of public interest and the
inquest resume, the verdict should not be inconsistent with the findings of the trial court. The reason
is that if a person has been acquitted, he cannot be convicted again.31

After investigation, the coroner refers the matter back to the DPP.

PROCEDURE IN AN INQUEST OR PROECUDURE BEFORE THE CORONER

The inquest starts with a proclamation 32. Section 17 of the Inquest Act requires a coroner to view
the body, however, it is not necessary where a medical practitioner, police officer or another trust
worthy person has seen the body. Section 18 of the Inquest Act provides that a coroner summons
witnesses to give evidence. In practice what happens is that the police would have done preliminaries
and provided the court with names of witnesses. The witnesses are summoned by the coroner. You
have a hearing date. On the hearing date, section 16 of the Inquest Act provides that witnesses give

30
It is because of this section 5 of the Inquest Act that an inquest was not held in the death of Chiluba
31
Autrefois Acquit or Autrefois Convict. An inquest is an investigation and not a trial, it cannot result in a conviction or
acquittal.
32
This is an inquest into the body of ABC whose body was found in….

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evidence on oath and they are examined by the coroner. This means, in an inquest, it is the
magistrate who asks the witnesses and not the prosecutor.

After the witnesses have given details or evidence, if the witness has a lawyer (it is possible as a
witness to go with a lawyer), he can be examined by his lawyer (the lawyer leads the witness).
Section 22 of the Inquest Act provides for properly interest persons or persons properly interested.
These are also allowed or entitled to examine the witness. These are persons who have an interest
in the outcome. For example, trade unionist or an employer.

Section 19 of the Inquest Act provides that the proceedings of an inquest are not bound by the rules
of evidence. This means that you can given hearsay evidence and produce photocopied evidence.
Further, a person can refuse to give evidence that is incriminating.

The questions that should be asked during an inquest are questions that are relevant. An inquest does
not have an inquest person. The main player is the coroner, the two most important players in order
of importance:

a A person whose conduct is likely to be brought in question – section 28 (2) of Inquest Act
b Properly interested persons; and
c Witnesses (the police are treated as witnesses)

The coroner also has power to direct the conduct of a post mortem – section 14 of the Inquest Act.
This is notwithstanding that the medical practitioner has certified. Section 14 of the Inquest Act
also allows for the exhumation of a body that has already been buried.

After the examination, the coroner will read out the evidence and the witnesses will then sign the
statement -Section 20 of the Inquest Act. There is a provision under section 23 of the Inquest Act
for a coroner to issue a commission. The coroner can ask another person to ask questions on his
behalf.

When the evidence has come to an end, the interested parties can address the coroner (it is like
submissions but not on the facts, its just on the law) – Section 22 (6) of the Inquest Act. The coroner
will then tally the evidence and come up with a verdict and that verdict is limited to who was the
deceased, how did he die, when did he die and where did he die. A coroner can also indicate whether
any person should be charged and with what offence. The order on who should be charged is directed
at the police and not the Director of Public Prosecution. Kambarange Mpundu Kaunda 1992 – 1993
ZR 215 – The coroner was of the view that a person whose conduct became subject of that request
should be charged with murder. The DPP charged him with manslaughter. The court held that the
DPP was not subject to the control of anyone and the order from the coroner was not binding on the
DPP.

19 June 2018

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The verdict should not appear to determine any civil liability. The verdict can also be death by natural
causes or death by accident or misadventure, death by suicide or death by culpable homicide,
justifiable homicide eg robbers robbing a shop and the police comes to rescue the hostage, death by
accusable homicide, death by self-neglect33 or lack of care34, death by judicial hanging, open
verdict35.

TOPIC: SENTENCING

Outline of the various sentences

Section 24 of the Penal Code sets out some sentences that the court can impose following the
conviction of an offender. Where a court convicts an offender, it is mandatory that some punishment
of some sort must be imposed, that is, a sentence must be imposed. The Penal Code has listed
possible penalties that can be imposed upon the conviction of a person and that list was held only to
be introductory and not conclusive. This means that it is possible for penalties (other than those
listed in section 24 of the Penal Code to be listed in other legislation and the court to impose such
sentences. The People v Jefferson and Monks 1965 ZR 123

THE PEOPLE v JEFFERSON AND MONKS (1965) Z.R. 123 (H.C.)

Flynote and Headnote

[1] Criminal law - Sentences - in general - section 24 of Penal Code construed:

Section 24 of the Penal Code, which lists nine punishments which may be inflicted by a court, was
intended only to be a general introductory statement of recognised punishments and, accordingly,
cannot be used as the basis for punishment of offences for which the Code sets forth no specific
punishment.

[2] Criminal procedure - Juvenile reformatories - juvenile adults not eligible - Juveniles
Ordinance construed generally:

A juvenile adult cannot be committed to a juvenile reformatory.

[3] Statutes - Interpretation of statutes - implying a provision into a statute:

A provision cannot be implied into a statute from supposition or conjecture as to the legislative
intent; in order to imply a provision into a statute, (1) the statute must clearly manifest an intention
to achieve an object or purpose for which express provision has not been made; (2) the scope of the
object or purpose must appear unequivocally; and (3) the implication must be the least that is
necessary to achieve the object or purpose.

33
Where a person chooses not to eat and starve
34
This is where there is a person who is required to be assisted to be eat or a person who is required to take medicine and he
is so not given.
35
There is insufficient evidence to determine the cause of death

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The sentence is ordinarily imposed by the trial court. The magistrate or judge who convicts the
offender is the one who imposes a sentence. However, there are circumstances where the sentence
is imposed by a person who did not try the case, the following are the circumstances:

1. Section 217 of the CPC – where a case is committed to the High Court for sentencing. 36
2. The adjudicator ceases to hold office or he is incapacitated.

There is also a practice that where a person is convicted of more than one count, a sentence should
be imposed in respect of each count - R v Shemu Nyalongo 2 NRLR 136.

The sentence that the court can impose is the sentence that was available or applicable at the time
when the offence was committed. – Katembele v The People 1977 ZR 90.

PAUL WATSON KATEMBELE v THE PEOPLE (1977) Z.R. 90 (S.C.)

Flynote

Criminal Law -Theft - What amounts to - Comparison with pre - 1968 law in England.

Criminal Procedure - Sentence - Legislation increasing maximum penalty enacted after commission
of offence.

Headnote

The applicant was convicted of theft by public servant. He had been given a cheque by his employer
made out in his name which he was presumed to have paid into his own account, out of which he
then drew the equivalent amount; the evidence, which was accepted by the trial magistrate,
revealed that the applicant was intended to cash the cheque and to use the proceeds for the payment
of his co-employees who were working under his supervision, and that instead of using the proceeds
for the intended purpose he converted them to his own use. It was argued that the cash drawn by
the applicant out of his account belonged to him and not to his employer.

In sentencing the applicant the magistrate made reference to the change in legislation, after the
offence was committed, increasing the maximum sentence from seven years to fifteen years, and
sentenced the applicant on that basis.

Held:

36
The case is committed to the HC for sentencing either where the mandatory minimum sentence is beyond the powers of the
trial court or the trial court is of the view that the sentence required to be imposed is higher that the one it can give

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(i) The distinctions which prior to the Theft Act, 1968, existed in England between larceny,
embezzlement and fraudulent conversion do not exist in Zambia, where all three cases are
covered by sections 265 et seq of the Penal Code which deal with theft.

(ii) The facts found amounted to embezzlement in England and theft under our law.

(iii) The applicant should have been sentenced on the basis of the law as it stood at the time
the offence was committed.

a Death Penalty

This is provided for in section 25 of the PC. This is also referred to as capital punishment. It can be
imposed for the following offences:

• Treason – section 43 of the Penal Code;

• Murder and there are no extenuating circumstances – section 200 of the Penal Code. Section
201 of the PC sets out the penalties that are available to a person convicted of the offence
of murder. – Section 201 (1) (a) and Section 201 (2) of the Penal Code. According to
subsection 2, an extenuating circumstance is a fact that diminishes the moral degree of guilt.
This fact is dependant on the place where it was committed. Jack Chanda and Another v
The People 2002 ZR 13437

JACK CHANDA AND KENNEDY CHANDA v THE PEOPLE

Flynote

Evidence – Absence of expert evidence – Whether fatal

Sentence – Death Penalty – Extenuating circumstances – What constitutes.

Headnote

The two appellants were sentenced to death upon being convicted of murder by the High
Court sitting at Kasama. The appellants appealed against the conviction, arguing that there
was no postmortem conducted to establish the cause of death; the learned Judge erred in
convicting the appellants in the absence of mens rea and in failing to find that there was an
extenuating circumstance.

Held:

(i) Lack of expert evidence of a doctor as to the cause of death is not fatal where
the evidence is so cogent that no rational hypothesis can be advanced to account for the
death of the deceased.

37
This case lays the ground that failed defences can act as extenuating circumstances

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(ii) Failed defence of provocation; evidence of witchcraft accusation; and evidence

of drinking can amount to extenuating circumstances.

Mbomena Moola v The People 2002 ZR

MBOMENA MOOLA v THE PEOPLE

Flynote

Criminal law – Murder – Cause of death – Medical evidence – whether necessary in all cases.

Criminal law – Judges rules – Headman – Whether person in authority.

Criminal law – Witchcraft – whether extenuating circumstances.

Headnote

The appellant Mbomena Moola, was convicted on one account of murder, contrary to Section 200 of
the Penal Code, Cap 87. The particulars of the offence were that the appellant on 24th November
1994, at Kaumpe Village, in the Kaoma District of the Western Province of the Republic of Zambia
did murder one Kaumpe Moola. Upon his conviction, he was sentenced to death. He appealed against
both conviction and sentence.

(i) It is not necessary in all cases for medical evidence to be called to support a conviction for
causing death. Where there is evidence of assault followed by a death without the opportunity
for a novus actus interveniens, a court is entitled to accept such evidence as an indication that
the assault caused the death.

(ii) Judge’s rules do not contemplate, as persons who should administer the warn and caution
to suspects persons like village headmen because it is not their normal responsibility to
investigate criminal cases.

(iii) Belief in witchcraft by many communities in Zambia is very prevalent and is held to be an
extenuating circumstance.

Justin Mumbi v The People 2004 ZR 106. An extenuating circumstance does not go to an acquittal,
it prevents the court from making a sentence of death.

JUSTIN MUMBI Vs THE PEOPLE (2004) Z.R. 106 (S.C.)

Flynote

Criminal law – Murder – Sentence – Mandatory death penalty – whether evidence of the appellant’s
drunkness amounted to extenuating circumstances.

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Headnote

The appellant was tried and convicted for the offence of murder, contrary to section 200 of the Penal
Code, Chapter 87 of the Laws of Zambia. The particulars of the offence alleged that, the appellant,
on 14th May 2002, at Mufulira, in Mufulira District of the Copperbelt Province, of the Republic of
Zambia, murdered Elias Kapolowe. Consequently, he was sentenced to suffer the mandatory penalt
of death. The appellant appealed against the sentence and urged the Supreme Court to consider
extenuating circumstances and impose an appropriate sentence.

HELD:

1. Drunken circumstances generally attending upon the occasion, sufficiently reduce the
amount of moral , so that there is extenuation.

2. On the facts of this case there was no extenuation.

Jack Chanda Case lays a foundation that that failed defences can act as an extenuating
circumstance. The person must commit murder believing that the victim was a witch. The test is the
belief in the community. In the Mbomena Case the Supreme Court held that belief in witchcraft can
be an extenuating circumstance.

The defence of self-induced intoxication is not available in murder.

In the case of Ziko Kasweka and Another v The People 2007 ZR 37 – The court held that age cannot
be an extenuating circumstance, neither can a young person avoid a death penalty because they are
young.

ZICO KASHWEKA LAWRENCE MUNGUNDA CHIMBINDE v THE PEOPLE

Flynote

Criminal Law – Murder – Extenuating circumstance – Whether age of an accused can amount to an
extenuating circumstance.

Evidence of a hostile witness – Whether it can be considered as evidence by the court.

Evidence – Corroboration – hostile witness evidence – Whether it could be corroborated testimony.

Headnote
The appellant were convicted of murder contrary to section 200 of the Penal Code, Chapter 87 of the
Laws of Zambia. The particulars of the offence alleged that the appellants on 8th September, 1996,

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at Samungu Harbour in the Kalabo District of the Western Province of Zambia, jointly and whilst
acting together did murder Shadrick Mooka Mushoke. On account of their ages, 26 years and 30 years
respectively, at the time they committed the offence; and on account that some people involved in
the murder had gone scot free, the court considered the two factors as extenuating circumstances
and sentenced each appellant to 25 years imprisonment with hard labour. The appellants appealed
against both convictions and sentences.

HELD:
(1) Sworn evidence of a witness declared hostile at trial is not evidence per se and it can not
be considered by the court.

(2) The conduct of the appellants which the court found as corroborative evidence could not
be corroboration because the conduct was testified to by a hostile witness whose evidence had
no value and also testified to by an accomplice witness.

(3) The age of an accused per se, can never amount to an extenuating circumstance. Equally,
the acquittal of a co-accused is never an extenuating circumstances.

There is proviso to section 201 (1) of the PC to the effect that where a person is killed during the
course of an armed aggravated robbery, the court shall not find that there are extenuating
circumstances. Murder without extenuating circumstances attracts death.38

Section 25 (1) of the Penal Code provides that where a death penalty is imposed, it shall be by
hanging. Section 303 of the CPC provides that when the judge pronounces a death penalty, he should
direct that the offender be hanged by the neck.

Section 25 (2) of the Penal Code provides that the death penalty shall not be pronounced on a
person who was below the age of 18 years at the time when the offence was committed. The court
will order that he be detained during the president’s pleasure. This means he will be detained for an
indefinite period and there will be a review of his conduct and if it is determined that his conduct is
not a danger to society, he can be released. However, where his conduct is beyond redemption he
can be detained for the rest of his life. This means a juvenile (a person below the age of 19 years)
can be sentenced to death.

38
Armed Aggravated Robbery – section 294 (2) of the PC. Section 294 (1) talks about aggravated robbery in general. One
scenario is where you have got more than one robber or where there is one with an offensive weapon. The penalty is life
imprisonment or not less than 15 years. The penalty is imposed by section 294 (2) of the Penal Code. Section 294 (2) (a) refers
to armed aggravated robbery. Armed in the sense that there is a fire arm capable of discharging. Where a fire arm is used,
the penalty is death unless the person shows that he did not know that the colleagues were carrying a fire arm. Section 294
(2) (b) talks about the death penalty being available where the robbers where carrying an offensive weapon and, in the course,
inflicted grievous harm unless they satisfy the court that they did not contemplate that such harm could not have been
inflicted. The distinction between the two is that where they are carrying a firearm, it is immaterial whether it was fired or
not, however, for a person carrying an offensive weapon, it must be proved that grievous harm was caused. For example, A
person with a panga can be sentenced to death on condition that there is proof that grievous harm was caused. It is how you
steal and not what you steal that attracts a death penalty.

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Section 25 (4) of the Penal Code provides that a pregnant woman cannot be sentenced to death.
Section 306 of the CPC provides for the procedure for sentencing pregnant women. It provides that
where a pregnant woman is convicted of murder and there are no extenuating circumstances, the
court has to follow the procedure and impose life imprisonment and not death and it does not change
even when the child is born. This is connected with the condition of a woman at the time when he is
convicted and not at the time of commission of the offence.

b Imprisonment

Section 26 of the Penal Code makes provision for the punishment of imprisonment. 39 Section 26 (1)
of the PC provides that the imprisonment can either be simple imprisonment or with hard labour. In
the case of females, it is always simple imprisonment. The court does not imprison women to hard
labour. Patrick Mumba and Others 2004 ZR 202 – The whole idea is that it is distasteful for them to
be imprisoned with hard labour.

PATRICK MUMBA, PAMELA MUMBA MWANSA, ANNET SEMUSHI, JONAS KUNDA, EMMANUEL
CHIMENSE, MWILA FELESHANO, FRIDA FELESHANO, MARY FELESHANO, MONICA FELESHANO,
JENIPHER MWANSA and THE PEOPLE (2004) Z.R. 202 (S.C.)

Flynote:

Criminal Law - Murder - Sentencing female convicts – whether should be sentenced to simple
imprisonment - legality thereof - Section 26 of the Penal Code Cap 87 and Section 75 of the Prisons
Act Cap 97 construed - witch finder naming a person a witch leading to a fatal attack by a gang on
such person - severity of sentence therefore.

Headnote:

The appellants were jointly charged with one count of murder contrary to section 200 of the Penal
Code, Cap 87 of the Laws of Zambia. The particulars of the offence were that all the appellants, on
20th day of April, 2002, at Samfya, in the Samfya District of the Luapula Province of the Republic of
Zambia, jointly whilst acting together with other persons unknown murdered one Paul Chitomondo.
They all pleaded not guilty but after trial, they were all found guilty of the offence. However, when
it came to sentencing, the appellants were not sentenced to the mandatory death sentence, The 1st
and 2nd appellants were sentenced to 20 years imprisonment with hard labour each and the rest
were sentenced to 15 years imprisonment with hard labour each. The Judge having found that there
were extenuating circumstances in the matter, namely witchcraft. The appellants appealed against
sentences

39
The idea behind the PC was that all criminal offences were supposed to be in the Penal Code

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Held:

1. Courts should not pass sentences that cannot be enforced therefore Courts should
impose sentences with simple imprisonment for women.

2. A message must sent to witch finder when they conducts their business of pointing at
people as responsible for death or other calamities they are committing an offence under the
Witchcraft Act and when the offence is followed by an assault, by a deterrent sentence must be
imposed.

Section 72 (1) of the Juveniles Act provides that a child cannot be imprisoned.40 Therefore, a court
cannot send a child to serve a term of imprisonment. Even men can get simple imprisonment.

Other than in cases where there is a mandatory minimum sentence, section 26 (2) of the Penal Code
allows the court to exercise its jurisdiction to impose a sentence that the court thinks are
appropriate. The court cannot impose a sentence above the maximum sentence. Much as the court
has discretion to sentence, the sentencing is to a greater extent determined by the offence. The
court has a discretion on the sentence to impose which should not be less than the mandatory
minimum or above the sentence prescribed.

Section 26 (3) of the PC provides that a person who has been convicted of a felony can in addition
to a term of imprisonment be fined. For example, section 79 of the Penal Code provides for rioting
after proclamation only provides for imprisonment of 7 years, however a person convicted of a felony
of rioting can in addition to imprisonment be fined. – The People v Benson Chibawe 1979 ZR 150 –
Section 26 (3) of the PC does not give the court the option of fining instead of imprisonment, the
imprisonment has to come with a fine.

THE PEOPLE v BENSON CHIBAWE (1979) Z.R. 150 (H.C.)

Flynote

Sentence - Felony - Imposition of fine only - Impropriety.

Headnote

The accused was constricted of unlawfully doing grievous harm contrary to s. 229 of the Penal Code,
Cap. 146. He was sentenced to a fine of K30 or one month's simple imprisonment in default of
payment of the fine.

40
Section 2 of the JA defines a child as a person who has not attained the age of 16

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Held:

Section 26 (3) of the Penal Code requires the imposition of imprisonment in addition to a fine
where the offence is a felony. A sentence of a fine only should not have been imposed.

Section 26 (4) of the PC - A person convicted of manslaughter or a misdemeanour may be fined

instead of being imprisonment or may be fined in addition to imprisonment. Section 76 of the Penal
Code has a punishment for the offence of rioting, since it is a misdemeanour, the court can decide
just to impose a fine instead of imprisonment or in addition to imprisonment fine the person.

NOTE: It is possible for a person convicted of manslaughter to be fined only. Where an offence only
attracts imprisonment and the offender is a body corporate, it shall be fined.

Where the offence is a misdemeanour and the penalty are not provided for, section 38 of the PC
provides that it will be a maximum of 2 years with or without a fine. Kasanga v The People 1978 ZR
3141

There are situations where imprisonment cannot arise because of the failure to pay a fine. This is
governed by section 28 of the Penal Code. In this case, the maximum imprisonment is 9 months.
Section 28 (e) of the PC has a graduation which states if you fail to pay the penalty. The graduation
only tells you the maximum of imprisonment, therefore, the court can impose anything less than
what is stated in section 28 of the Penal Code.

You may have a situation where legislation provides that a person convicted is liable to 2 years or a
fine of 500 penalty units in default of which you will be imprisoned for 2 years.

It is also possible that where a term of imprisonment has been imposed, a sentence is suspended. A
court can suspend a term of imprisonment – Section 16 of the CPC. This means a person does not
serve the sentence. Section 16 of the CPC does not allow the suspension of sentences for offences
punishable by death or mandatory minimum sentence, arson, robbery and offences under section
226 of the Penal Code. In addition, conspiring, attempting or inciting to commit the foregoing
offences, the court cannot suspend their punishment.

Section 28 (d) The People v Silva & Freitis 1969 ZR 121 – The case deals with how long a person can
be imprisoned for failing to pay a fine.

Section 160 of the Penal Code provides for weekend imprisonment. The duration shall be not less
than 30 weeks. The duration shall be between 30 and 52 weeks. The next condition is that it is only
available to offences under section 156 and 157 of the Road Traffic Act. S. 156 is being in charge of
a motor vehicle under influence while section 157 is driving the motor vehicle under the the

41
All felonies have penalties, however, there are misdemeanours that do not have penalty.

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influence. For the purposes of this section, weekend imprisonment means reporting at the prison at
18:30 on Friday and he is released on Sunday 18:30. The whole idea is not to disrupt life.

FINES

In terms of fines, the law will usually provide for a fine that can be imposed when a person is
convicted of a particular offence in terms of penalty units. However, where the law does not make
provision of what the fine is, the court should not impose a fine that is excessive. 42

The fine must be the one that is payable. R v Vice 1958 R& N 691 – it is not expected that after
convicting the court will make an inquiry, what is expected however is that the court will take judicial
notice of what is generally known.

Section 28 of the PC also provides that the practice is that a court imposes a fine, it should indicate
that in default of paying the fine, there will be imprisonment. 43 Where the court does not say that,
a warrant of distress will issue, section 308 of the CPC comes into play.

Section 310 of the CPC provides that where a person is fined, the court can give a person time within
which to pay or can immediately he is fined or commit him to prison. However, the law allows a
person to be given time within which to pay.

Section 311 of the CPC provides that where there is nothing to seize or where the seizure will ruin
the life of the offender, he can be imprisoned. Section 316 of the CPC provides that such
imprisonment shall not be for a period of more than 9 months.

26 June 2018

STATUTORY JUDGMENTS

This is an order that is provided for under the CPC under section 171. This is an order that the court
makes after convicting the person employed in the public service of prescribed theft related
offences. These offences are found under Chapter 16, 17, 30, 31 and 33 of the Penal Code of
Zambia.44

It is called a statutory judgment because it is in addition to the judgment that was entered. You
cannot appeal against a statutory judgment only. However, you can appeal against the conviction
and if it is successful, the statutory judgment falls off. – Kumuyo v The People 1974 ZR 50

Where there is only one person, it is simple to enter a statutory judgment. However, where there
are more than one, a statutory judgment is entered against all the accused persons jointly for the

42
The idea behind a fine is that the legislator does not want the person to go to prison. Therefore, much as you impose fines,
impose the fine that a person can pay.
43
In default of paying the fine, there will be imprisonment
44
Public servants extends to parastatals. Where a person stole K50,000 and is convicted of theft by public servant. The law
requires that he enters a statutory judgment in the amount that was stolen in which case it can be claimed as if it was entered
in a civil suit.

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full amount, that is, the execution of that judgment is not going to be apportioned, it can be claimed
wholly from one person if need be. The People v John Ibwenku and Another 1971 ZR 162

COMMUNITY SERVICE

This is provided for in section 306A of the CPC. Under subsection 1 of 306A, there are conditions
that are set out of the offences and circumstances to which the order may be imposed:

1. The offender must be an adult; - The word adult has not been defined in the Penal Code,
however, in the Juveniles Act, there is a juvenile adult who is between 19 to 21, therefore,
an adult is above 21;
2. The offence must be a misdemeanour: - Whether an offence is a misdemeanour or not is
dependant on how it has been described in the PC or any other legislation.
3. The offence must be punishable by imprisonment: This means that if you have an offence
that only attracts a fine then the court cannot impose a community service order.

What ought to happen is that following the conviction of an adult for a misdemeanour punishable by
imprisonment the court must impose a sentence of imprisonment. Thereafter, the court must inform
the offender that there is an intention to impose a community sentence order.

Section 306A (3) of the CPC allows the court to ask the court if he would like to have community
service order imposed on him. After obtaining the consent from the offender, the court must inform
him that upon breach of the community service order, the original prison term will kick in. if he
agrees and he is ready to undergo community service order, section 306A (2) requires the court to
extract a specified official…45 The report from the officer contains the character of the offender, his
antecedents, where he stays, his health and mental condition and if there is any other information
that is going to be helpful to the court. It is after obtaining and looking at that information that the
court will issue a community service order and section 306B sets out the conditions that the order
will include. The first thing is that the order will contain the number of hours to be worked, the days
on which the work should be performed, the period or duration of the community service order, the
place on which the work should be performed and who should supervise it. The supervision is by an
authorised officer and this is a person appointed by a minister in accordance with section 135 of the
Prisons Act.

The other condition is found in section 306C and the condition is that the work should be conducted
in the community where the offender lives. There is a schedule which shows how the persons works.

Section 306D provides that the failure to abide by the order will result in the issue of a summons or
a warrant of arrest issuing. The person is brought back to court and required to give an explanation
as to why he was not in attendance or why he failed to comply with any provisions of the order. The
law allows the court to vary the order to suit the circumstances. It can also penalise the offender

45
The official is usually from the social welfare officer.

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with a maximum penalty of 300 penalty units. The third option is for the court to cancel the order
and send the order to prison to serve the original sentence.

Where the court decides to send him to prison to serve the original sentence, it is allowed to reduce
the sentence in consideration of the community service that the person has been served. It is purely
in the discretion of the court.

This is one sentence that has been seriously misapplied. A community service order is not imposed
for a felony and it is only imposed after a sentence and that is a sentence which should be served in
the event of default. Further, this is a community service order is a sentence that can only be served
by a person who is willing to go through it.

DETENTION DURING PRESIDENT’S PLEASURE

Section 25 (2) of the Penal Code relates to a person below the age of 19 who has been convicted of
a capital offence, the court can order detention of that person during the president’s pleasure. There
is a general assumption that detention during president’s pleasure is related to insanity. However, it
can also be imposed on a person below the age of 18 who has been convicted and sentenced to death.

Where a person successfully raises the defence of insanity and is found to be not guilty by reason of
insanity, the court can then order that he be detained during the president’s pleasure. – Section 167
(3) of the CPC.

The other limb is where a person being detained during the president’s pleasure because he is
incapable of making a defence at the time of the trial. This is provided for under section 161 (2) (b)
of the CPC. Abyuti Phiri v The People 1977 ZR 250 – in relation to detention during the president’s
pleasure, you cannot go to court to have the person released. Therefore, an order for detention
during the president’s pleasure is non-appealable. You cannot appeal against the special finding but
you can appeal against the procedure that was followed.

NOTE: Section 161 is made at the beginning of the trial, section 167 is made at the end of the trial.

ORDERS AND SENTENCES

Reformatory Order

This is provided under section 92 of the Juveniles Act. This provision allows the court to impose a
reformatory order on a juvenile convicted of any offence other than one attracting capital
punishment.46 The duration for a reformatory order is 4 years – section 93 of the JA. Though the
duration is 4 years, section 102 of the Juveniles Act allows for its extension for a period of not more
than 6 months. Further note that a person cannot remain under a reformatory order beyond their

46
You can have a reformatory order for aggravated robbery and not murder

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23rd birthday. In the case of Gideon Musonda and Another v The People 1979 ZR 53 – It was held
that a reformatory order should only be imposed if other methods of dealing with a juvenile are found
to be inappropriate or have previously failed. This is an extreme way of dealing with a juvenile.

A reformatory order can be extended for a period of 6 months, it can also be reduced under section
103 by the inspector of reformatories but for a period of not less than 9 months. Therefore, it is
standard for 4 years, extended for 6 months or reduced by 9 months.

There is also a provision under section 93 of Juveniles Act for a minister to commute a reformatory
order and order than the juvenile be released. The minister under section 101 can order that a person
who has been placed under a reformatory order is removed from a reformatory and sent to a prison
if that juvenile is found to be a bad influence on others or not benefiting from his time in the
reformatory.

Section 99 of the JA provides for a grant of leave of absence from the reformatory, meaning, he can
be allowed to go home for a period prescribed by the chief of reformatories which are in his
discretion.

In cases where the subordinate court issues a reformatory order, section 94 (1) of the JA requires
that such reformatory orders be confirmed by the HC before a juvenile is moved into the reformatory.
The difficult with the reformatory order is that it starts running from the date of confirmation.
Therefore, a person can spend 2 years in trial, 6 months waiting for confirmation and then 4 years
for the reformatory order.

17 July 2018

Approved School Order

This is provided for under section 7 of the Juveniles Act. It allows a court that has found a juvenile
guilty of committing an offence to commit the juvenile to an approved school. Section 78 of the
Juveniles Act provides that a juvenile shall be sent to an approved school for a period of 3 years but
not beyond the age of 19 years. In the case where an approved school order is made by the
subordinate or juveniles court, section 79 of the Juveniles Act requires that it must be confirmed by
the High Court before the juvenile is placed in the approved school. 47

If they were to be ranked, a reformatory is harsher that an approved school and the law (section 85)
allows the removal of a juvenile from an approved school to a reformatory if the juvenile is found to
be of a bad influence on others.

47
The HC judge goes through the order and confirms whether the circumstances warranted the finding that the juvenile
committed an offence

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Section 88 (1) of the JA provides that where a juvenile has been sent to a reformatory and he is
released before he reaches the age of 15, he shall remain under supervision until he reaches the age
of 18. Section 87 of the JA requires a juvenile in an approved school to be released on licence by the
commissioner for a set period. An example of an approved school is the one at Nakambala.

Probation Order

This is provided for under the Probation of Offenders Act, Chapter 93 of the laws of Zambia. Under
section 3 of Probation Act, the court that has convicted an offender and is satisfied that due to the
following factors: - the youth, the character, the antecedents, the health, or mental condition of the
offender or any other extenuating circumstances the court is satisfied that it must make a probation
order instead of sentencing the person to prison.

The duration of a probation order is between 1 and 3 years and the probation order can be imposed
on a juvenile or an adult. BUT in the case of a person above the age of 19, a probation order will only
be imposed if the convict is ready to comply with it or shows willingness to comply with it. This means
that when you are dealing with a juvenile, the court can decide to impose the probation order… To
this end, before the probation order is imposed, the convict will be informed that in the event that
they do not comply with the order they commit an offence whilst on probation, they will end up
being sentenced for the offence.48

The whole idea of a probation order is that the offender avoids going to prison but to ensure that he
does not commit an offence again. Section 5 of the Probation Act provides that it is lawful that one
of the conditions being placed on probation is that the probationer undergoes medical treatment
with the period he is on probation.

The

Failure to comply will result in the court passing a sentence. This is difference from a community
service order. Section 8 of the Probation Act, the court can issue a warrant or summons where there
is information that the probationer has committed an offence. Even if the person is not under custody
he is deemed to be sentenced.

Cancellation or Suspension of a Driver’s Licence

In a traffic offence, the court can cancel or suspend a licence.

Section 72 of the Road Traffic Act provides that a court may, in addition to a sentence that that
the court may impose for convicting a person under that Act, the court may suspend his licence for
a period it thinks fit. Suspension may be limited to categories of licences or classes of licences. The
court can also cancel a licence and declare that you will never be issued with a licence. A declaration

48
In practice, a probation order is not imposed for offences that attract mandatory minimum sentences

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that a person should never be issued with a licence can even be made where the offender does not
have a licence.

Where a person is convicted of the offence of causing death by dangerous, suspension is mandatory. 49

A person convicted of theft of motor vehicle has his licence suspended and if convicted for the third
time he is banned for life.50

Police Supervision

This is provided for under section 317 of the CPC and is to the effect that a person who has been
previously being convicted of an offence attracting a minimum of 3 years imprisonment who is
convicted of another offence with a minimum of 3 years can in addition to the sentence that has
been imposed be placed under police supervision for a period not exceeding 5 years.

In terms of section 318 of the CPC, this is done through a log or book that sets out the place and
intervals at which the person should report at the police station. Section 319 of the CPC provides
that the failure to report can result in imprisonment for a period not exceeding 6 months. This is an
order that is generally issued to habitual offenders so that they are kept under watch.

Giving Security to Keep the Peace

Section 41 of the PC provides that a person convicted of an offence not punishable by death may in
addition to being imprisoned or instead of being imprisoned sign a bond to be of good behaviour and
will keep the peace. This is a provision that is used when dealing with the people who are habitually
violent or troubled… This can result in imprisonment of not more than one year.

An Order for Compensation

Section 30 of the PC makes provision for a court in addition to or in substitution of a sentence to

order that a person who was injured during the commission of the offence be compensated subject
to section 175 of the CPC. Therefore, injury is either personal injury or material loss. In the case of
R v Valenje 4 NRLR 1 –

Section 175 of the PC provides that you cannot claim compensation if offence is punishable by death
and that the maximum amount claimable is not more than fifty kwacha but there are two exceptions:

1. When dealing with vandalism you can claim the actual amount – proviso to section 30 of the
PC; and
2. Theft of motor vehicle under section 281 of the PC –

Where you are dealing with the assessment of the compensation, it is the actual amount of the
damage or the injury occasioned. The court cannot extend it to consequential damages.

49
Look at the schedules of the Road Traffic Act
50
Look at the provisions relating to theft of motor vehicles in the Penal Code

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Where an order of compensation has been made, the court should indicate how the compensation
should be recovered. It can be recovered by distress. Section 73 (1) (f) and (g) of the Juveniles Act
provides that a guardian can be order to pay damages. Section 177 (1) of the CPC allows the court
that has imposed a fine to order that the part of the fine be paid to the victim as compensation and
there is no limit if the compensation is being paid for as a fine. The law requires that is should not
be excessive. In the case of R v Everisto 1958 R & N – it was held that excessive fining should not be
imposed for the purposes of using the fines to pay compensation.

There is compensation that comes to or in addition to imprisonment (section 30 or 175 of the Penal
Code). Then there is compensation that is paid out of a fine (section 177). The first type of
compensation when failed to be paid, the maximum punishment is 3 months. The latter that is paid
out of a fine (section 177) is dependent on the definition of section 28 of the Penal Code and the
maximum is 9 months.

Discharge

Section 41 of the CPC allows a court that has convicted an offender in circumstances in which the
court thinks its inappropriate to impose a sentence or place the offender on probation, the court is
allowed to discharge the offender. The discharge can be absolute or conditional.

The first qualification is that where the offence attracts a mandatory minimum sentence, the court
cannot discharge the accused person neither can the court discharge where the offence attracts a
death penalty. An absolute discharge is not a conviction when you are considering whether a person
has a conviction or not. However, if a person is arguing that the person was tried and convicted and
was discharged absolutely, he can discharge is regarded as a conviction.

A conditional discharge is where the court does not raise any sentence but indicates that a person
should not commit any offence with 12 months of him being discharged. If he does so, he will then
be brought back and sentenced. A person can appeal against a discharge because for purposes of
appeals a discharge is considered as a sentence.

Deportation

There are two kinds of deportation can follow a conviction in a criminal case. A person can be
deported outside the country or to any other part of Zambia outside his home district. Section 33 of
the Penal Code that upon recommendation, a minister can deport a person who has been convicted
of a criminal offence and this provision applies to non-Zambians. It is a provision which allows a
minister to deport a person who has been convicted of a criminal offence. It is not up to the court to
order the minister; the provision leaves it to the prosecutor to notify the minister that a foreigner
has been convicted.

Nebukadnezar Occo v The People 1979 ZR 112 – The court does not order the deportation, it is
upto the prosecutor to notify the minister who is then duty bound to deport.

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Section 34 of the PC provides for deportation within Zambia for a person convicted of a felony. In
this case, the court recommends to the president that a person who has been convicted of a felony
is deported to such district other than his home district. The reasoning is found in the case of R v
Paison Chungu 5 NRLR 682 in this case, the judge stated that …

When such order is made by a subordinate court it is subject to review and approval by the HC.

Restitution

Section 179 of the CPC provides that property that was confiscated when the offender was
apprehended can be returned to you at the end of the trial or applied in the payment of a fine. The
return is the restitution.

24 July 2018

Restoration

Section 180 of the CPC provides for the return of the property in a theft related offence upon
conviction of the offender.

Arnold Sondoyi and the People 1977 ZR 148

Restoration in a criminal case is concerned with property associated with the offence for which the
accused person is appearing in court.51

NOTE: Restoration is either stolen property or the proceeds of the stolen property.

Forfeiture

Forfeiture refers to the seizure and appropriation to the state of property used for committing an
offence or property earned out of committing an offence. Forfeiture may either be mandatory
(depending on the legislation upon conviction) while in some cases it is discretionary. Section 29 of
the Penal Code has set out situations when it is mandatory. There are also provisions under section
54 of the Fire Arms Act and Section 75 of the Anti-Corruption Act.

The general principle whether forfeiture is discretionary or mandatory is that where the convict is
not the owner before the forfeiture order is made the owner must be heard – Jonathan Mwiinga v
The People 1981 ZR 423 – whatever the situation whether there is an indication in a legislation, the
owner of property must be heard before a forfeiture order is made.52 The forfeiture extends to
premises.

51
If a TV is stolen and sold and the accused is found with the money of the proceeds the money can be trestored to the owner
52
A situation where you own a truck and send it to North Western and the driver decides to transport Mukula and the law
requires that the vehicle is liable for forfeiture, that would be unfair to the owner if the truck is forfeited without the owner
being heard. The rationale is that you may be an innocent owner whose worker commits an offence.

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The Forfeiture of Proceeds of Crime No. 19 of 2010

Section 80 of the Act is to the effect that the Act does not affect the procedure set out in the various
pieces of legislation – Vivian Monoloka and the Anti-Corruption Commission 2015 Vol 3 ZR 207.
Section 4 of this Act provides that it will only deal with or applicable to serious offences. These are
offences that have a minimum of 12 months imprisonment. Under this Act, there is what is called
tainted property which is property used to commit the crime. Section 15 of the Act deals with a
situation where the offender can be ordered to pay if it is discovered that the property was conveyed
to a bona fide purchaser or that the property cannot be found. In lieu of the seizure, the offender
can be order to make the payment. Section 5 of the Act provides that the forfeiture order must be
made by the trial court. It is for the prosecution to make the application and you cannot make an
application in the appellate court however where an application was made in the trial court, you can
appeal in the appellate court. Section 6 provides that notice be given to a person who may have an
interest in the property before the order is made. Section 13 of the Act provides that the forfeiture
order will be discharged when there is a successful appeal against the conviction.

An Order for Disposal of Exhibits

This is provided for in section 355 of the CPC. Section 355 provides that property that was tendered
in the course of trial is not claimed within 12 months, the court can dispose of it on its own motion.
This disposal is either by selling, destroying or disposing of it in a manner that the court sees fit.
There is provision that allows disposal to be done before 12 months or even before trial if the subject
matter is something that is perishable (things that are subject to speedy and natural decay).5354

This provision is only applicable to articles that are produced in evidence during the trial. It does not
apply to articles that the police seize in investigation and decide to lose at the police station or
dispose of – African Beverages Ltd v The People 2015 Vol. 3 ZR 273

After the trial, the court waits for the appeal period to lapse. In an event that there is an appeal,
the disposal order cannot be made because.

After the sale, the money is held by the clerk of court, if he is acquitted the money is given back to
him and if he is convicted the money is taken by the state. It is good practice to hear persons who
may have a claim to the exhibits before it is released. It is also allowed to release an exhibit
conditionally that is before the end of the trial.

An Order for Costs

53
If there is a fish ban and a fisher man is caught and taken to court, the subject matter may be disposed of even before trial.
54
The preferred manner is to sale the property as sometimes the person may be acquitted.

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Section 32 of the PC and Section 172 (1) of the CPC allows a judge who has convicted a person to
order a convict to pay reasonable costs. Where it is a state prosecution or public prosecution, the
costs are paid to the state.55 Where it is a private prosecution it is paid to the individual prosecuting
or his counsel. These costs are not an extra punishment but are intended to reimburse the prosecution
for the costs incurred to prosecute the case. This is not an actual amount but what should have been
reasonable expended - R v C.J Broodryk 4 NRLR 87. It is the prosecutor after the conviction who
akes an application for costs – The People v Upton 1965 ZR 70 in that case it was held that the party
against whom the order is being made must be heard before it is made.

The application for costs must be made before the cost rises.56 This is general. You can also get costs
when the prosecution is found to be..

The application must be accompanied by a Bill of Cost which must indicate the actual amount being
claimed – Lighton Simbeye v The People 2015 Vol 3 ZR 129

Section 176 of the CPC provides that the order for costs must have a specific amount specified. The
court must specify a specific amount and in default whether there will be distress or imprisonment
for a period not exceeding 3 months.57

PRINCIPLES OF SENTENCING

This refers to what the court has said about sentencing.

The courts have the discretion on the sentence that they can impose in a particular case except
where there are mandatory minimum sentence.58 In the exercise of this discretion, the court is guided
by principles of sentencing. It is for the court to have particular regard of the case before imposing
the sentence. There are two case to read. Silungwe and the People 2008 ZR Vol 2 123 and Alubisho
v The people 1976 ZR 11

55
Control 99
56
After conviction and sentencing.
57
Ideally costs were for small offences and the rationale was that a person had no defence but decided to let the prosecution
go through the trial process and as a result expended money for the state
58
Except Trason, Murder with no extenuating circumstances and aggravated robbery.

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In situations where there is mandatory minimum sentence, the court is predominantly guided by the
circumstances.59

Principle 1 - One of the principles is that when imposing the sentence the court must impose the
sentence that the offence attracted when the offence was committed – Katembele and The People
1977

Section 8 of the PC deals with the penalties that can be imposed when you have a misdemeanour
for which no punishment is provided. This provision only relates to misdemeanours which have no
sentences. Where a fine is not indicated, it must be reasonable. Reasonable has something to do with
the capacity of the offender. Connected with principles of sentence is mitigation.

Mitigation

Mitigation is a practice. Section 302 of the CPC provides for the receipt of evidence for the purposes
of arriving at an appropriate sentence. 60 Mitigation is usually given by counsel at the bar or the
accused person.

Generally, what is mitigatory is the age of the offender, to the large extent we are dealing with
youth, when you are young and inexperienced, that is mitigatory.61 The other mitigatory factor is the
plea62, where the offender has shown remorse 63 (remorse is seen usually by admission or the person
after causing injury runs around to help or a person who assists during investigation by helping with
the finding of the investigation), it is also mitigatory that the offender has not benefited from the
crime.

There are also non-mitigatory factors such as the fact that the prisons are congested or there are
poor conditions – Vanzyl v The People 1965 ZR 140. The courts are not supposed to be concerned
with the conditions of the prisons. Further, hardship on the family is not a mitigating factor – Malichi
v The People 1967 ZR 137. The fact that lies are told in mitigation cannot result in a hard sentence.

Another non-mitigatory factor is the health of the accused – Zulu and The People 1974 ZR 58 in this
case the lawyer said he had high BP. The court said that it is only in exceptional circumstances that
the court would consider.

In the case of The People v Tenson Chipeta 1970 ZR 73 sets out the general things to look out for
when dealing with mitigation.

Effective Date of a Sentence

59
This is a reason why a person who inflicts an injury can end up with a 20 years sentence and a person with manslaughter
end up with a 3 year sentence
60
SC states that this provision goes beyond mitigation
61
Therefore, where the accused is old, it is not mitigatory
62
The offender pleaded guilty
63
remorse is seen usually by admission or the person after causing injury runs around to help or a person who assists during
investigation by helping with the finding of the investigation

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Section 37 of the PC provides that a sentence should run from the date on which it is imposed.
However, in Emmanuel Chimfwembe and The People 1998 ZR 32, the court has a discretion of
making the sentence run from the date on which the person was taken into custody or the date of
arrest.

Section 39 of the PC provides that when a subsequent sentence (new sentence) is imposed on a
prisoner, it starts running on the date that his current sentence expires unless the court has directed
the sentences should run concurrently.

Section 40 of the PC provides that where a prisoner has escaped, if he is convicted for escaping, the
prison term will start running at the end of the unexpired term he had run away from. 64

64
A person is serving a 2year sentence and after 1 year he is caught and sentenced another 2 years. He must firstly serve the
remaining 1 year and after that he can then serve the imposed 2 years.

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