SCZ SELECTED JUDGMENT No. 35 OF 2017 P.

1207

IN THE SUPREME COURT OF ZAMBIA SCZ/9/99, 100/2013

HOLDEN AT KABWE Appeal No. 99/100/2015
(Criminal Jurisdiction)

BETWEEN:

ABEDINEGAL KAPESH 1ST APPELLANT

BEST KANYAKULA 2ND APPELLANT

AND

THE PEOPLE RESPONDENT

Coram: Mambiima CJ, Mwanamwambwa DCJ, Phiri,

Muyovwe and Malila, JJS on 11th August, 2015 and
6th September, 2017

For the Appellants: Mr. A. Ngulube, Director, Legal Aid Board

For the Respondent: Ms. N. T. Mumba, Deputy Chief State Advocate,

National Prosecutions Authority

JUDGMENT

Malila, JS delivered the judgment of the court.

Case referred to:

1. Haonga and Others v. The People (19 76) ZR 200
2. Mvula v. The People (1990-1992) ZR 54
3. Kambarage Mpundu Kaunda v. The People (1990-1992) ZR 215
4. George Wamundila v. The People (1978) ZR 151
5. Webster Kayi Lumbwe v. The People (1986) ZR 93
 J2

P. 1208
6. Katebe v. The People (1975) ZR 13
7. Kashenda Njunga and Others v. The People (1988-1989) ZR 1 Francis
8. Francis Mayaba v. The People (1999) ZR 44
9. Ernest Mwaba and Others v. The People (198 7) ZR 19
10. Dickson Sembauke and Another v. The People (1988-1989) ZR 144
11. Mwiba Mukela v. The People (2012)(2) ZR 387
12. Mutambo and 5 Others v. The People (1965) ZR 15
13. London Chisulo and 2 Others v. R(1961)R & N 116
14. Boniface Chanda Chola v. The People (1988-1989) ZR 163
15. Yokoniya Mwale v. The People (Appeal No. 205/2014)
16. Guardic Kameya Kavwana v. The People (Appeal No. 84/2015)
17. Patrick Mumba and Others v. The People (2004) ZR 202
18. Jack Chanda and Kennedy Chanda v. The People [SCZ Judgment No.
2 of 2002]
19. Chishimba v. The People (Appeal No. 17 of 1999)
20. Mbomena Moola v. The People [SCZ Judgment No. 35 of 2000]
21. Nelson Bwalya v. The People [SCZ Judgment No. 29 of 2010]
22. Steak Chibale v. The People (Appeal No. 62 of 2013)
23. Abel Banda v. The People (1980) ZR 105
24. Practice Statement (1966) 3 ALL ER 77
25. Paton v. Attorney General (1968) ZR 185
26. Match Corporation Limited v. Development Bank of Zambia and
Attorney General (SCJ Judgment No. 3 of 1999)
27. Edgington v. Fitzmaurice (1885)29 Ch.D 459
28. R. v. Fabian Kinene S/0 Mukye & Others (194 1) EACA 96
29. Mangomed Gasanalieu v. The People (2010) (2) ZR 132
30. Berejena v. the People (1984) ZR 23 (Reprint)

Legislation referred to:

1. Constitution of Zambia (Amendment) Act No. 2 of 2016
2. Penal Code, chapter 87 of the laws of Zambia
3. Witchcraft Act, chapter 90 of the laws of Zambia

Other works referred to:

1. UN Committee on the Rights of the Child (Reports submitted by States

parties under Article 44 of the Convention)
 J3

P. 1209

2. UN Committee on the Elimination of Discrimination against Women

(Concluding Comments; India, Papua New Guinea; Tanzania;
Mozambique; Ghana; South Africa)

October of 2011 was arguably a dark month for the people of

Mukunashi area, in Kasempa District of North-Western Province of

Zambia. Three tragic deaths occurred in quick succession. Winne

Kabinga's death on 27th October, 2011 drew public attention to a

phenomenon that has ensnared the belief system in Zambia among

traditional rural and modem non-rural communities alike and which

has effectively become a subcultural belief or ideation - witchcraft,

and the awe with which a suspected witch or wizard is viewed.

Although there was evidence given in the lower court that Winne

Kabinga died after consuming, the previous day, a sizeable quantity

of kachasu, an exceedingly potent local alcoholic brew, and also that

he had complained of, among other things, stomach pain prior to his

demise, the spotlight settled on ideas of the evil power of witchcraft

to explain the occurrence of his unfortunate death, particularly given

a set of other coincidences. This became the motivating force behind

the seemingly savage attacks on two other elderly villagers who were

identified as witchcraft practitioners - Pardon Munanga and Edson

 J4

P. 1210

Masonde (hereinafter called 'the deceased') - leading to their awful

deaths on or about the 30th October, 2011.

The specific witchcraft belief implicated in the present appeal

involves what in Kikaonde is known as kikondo, meaning a moving

coffin charged with some supernatural force. It is believed that a

coffin in which a body of a dead person is laid will, once appropriately

smeared with mumone, an indigenous charm or medical preparation,

and given commands by relatives of the dead person, assume

supernatural powers and effectively overpower the pall-bearers and

lead them to the person who killed, through witchcraft, the dead

person lying in it. The coffin is also believed to acquire the ability to

identify, isolate and hit the witch or wizard. At that stage, rough

justice and mob violence by members of the community are directed

at the identified witch or wizard who is made to suffer harassment

and assault, and in some cases, even death. In doing so, those

participating in the acts of violence against the alleged witch or

wizard believe that they are carrying out a praiseworthy act of

community duty. It is in such circumstances that the fate that

 J5

P. 1211

attended the two deceased persons, subject of this appeal, was

sealed.

The two appellants were indicted on two counts of the murder

of the two deceased persons contrary to section 200 of the Penal

Code, chapter 87 of the laws of Zambia. They were alleged to have,

at Kasempa in the North-Western Province of Zambia, on or about

the 30th October, 2011, jointly and whilst acting together with others

unknown, murdered the two deceased persons in separate but

related incidents. They, of course, pleaded not guilty.

As earlier intimated, the events that culminated in the murders

of the two deceased persons were characteristically unusual and

exceedingly dramatic. They were narrated to the trial court by

prosecution witnesses and the appellants themselves. In a spirited

attempt to prove its case against the two appellants, the prosecution

marshalled six witnesses of fact while the two appellants testified on

their own behalf and called no other witnesses. The narrative of

events given by those witnesses was that on 26th October, 2011 at

Shapawa's Village in Kasempa, the late Winne Kabinga, together with

 J6

P. 1212

others who included PW3, Mwaba Musonda, the deceased Pardon

Munanga, and one Namumbuma, were drinking alcohol. Winne

Kabinga then volunteered information to Munanga that people in the

village detested him owing to his witchcraft practices and were

planning to kill him. Kabinga advised Munanga to relocate from the

village. No unusual incident was recorded involving Pardon Munanga

and the late Kabinga following the latter's advice to the former.

However, Kabinga died the next day on the 27th October, 2011

following complaints of some abdominal pain.

The real drama, however, started to unfold on the day of the

burial of Kabinga. As is common in many village settings, some

explanation for his death had to be found before he was interred. The

second appellant, Best Kanyakula, together with others, prepared

some concoction or African charm, called in Kikaonde as mumone,

which included mealie meal powder. Relatives of the late Kabinga

then smeared the medicine on the coffin in which lay the body of the

late Kabinga. They thereafter hit the coffm with a stick and directed

the late Kabinga or his spirit to tell them who had killed him. Pall

bearers then lifted the coffin and ran with it across a village path to
 J7

P. 1213

Pardon Munanga's house. There, the coffin, while being carried by

pall-bearers, hit Munanga's house, damaging the door in the process.

It then came out and went to where Munanga was and hit him. A

mob of mourners thereupon descended on him, severely assaulting

him with stones and bricks. They made him go around a hut and let

him sit on a pounding mortar while leaning onto the wall of the hut.

He lost consciousness and fell off the mortar. The beating, however,

continued. He was later burnt with some plastic substances until he

died.

The party then shifted to Edson Masonde's house which was

about 75 meters away from Munanga's house. Upon seeing the pall

bearers, the coffin and the mob, Masonde tried to run away but the

mob caught up with him, assaulted him severely with stones and

sticks until he too was dead.

The two appellants were positively identified as having been in

the assaulting party. They were subsequently charged, arrested and

tried for murder.

After a painstaking evaluation of the evidence, the learned trial

judge was convinced that the prosecution had proved its case against
 J8

P. 1214

the two appellants beyond reasonable doubt. She convicted them

and sentenced them to life imprisonment as, in her view, the belief in

witchcraft, which animated the murder of the two deceased persons,

was an extenuating circumstance.

Disconsolate with the High Court judgment, the appellants

launched the present appeal against conviction and sentence,

fronting three grounds structured as follows:

Ground one
The trial court erred in fact and in law by finding that the prosecution
witnesses were consistent and articulate and did not contradict
themselves, yet the evidence shows contradictions and lack of
credibility.

Ground two
The trial court erred In law to convict the appellants of murder.

Ground three
The trial court erred in law to sentence the appellants to life
imprisonment as the sentences were excessive.

The appellants' learned counsel filed heads of argument on 29' Ju,

2015. Counsel for the respondent, upon obtaining leave, filed heads

of argument in open court on the 11th August, 2015. We also allowed

the appellants' learned counsel seven days from the date of hearing
 J9

P. 1215

to file heads of argument in rejoinder. These were filed on 14th

August, 2015.

In regard to ground one, Mr. Ngulube, learned Director of Legal

Aid, appearing for the appellants, submitted that PW1, Edward

Masonde, who was the son of the deceased Edson Masonde, and the

nephew of the deceased Pardon Munanga, was a witness after the

fact. He was in Soiwezi where he lived at the time of the fateful

incident and was merely called after the deaths in issue had

occurred. As regards PW2, Evelyn Munanga, the younger sister of

the deceased Pardon Munanga, counsel pointed out that she testified

that both appellants were present at the scene of the crime together

with others. Although she narrated that she saw how the deceased

were savagely assaulted, the witness did not say what role, if any, the

appellants played in the beating of the deceased (Munanga).

According to counsel, it was not sufficient that the witness merely

testified that the two appellants were part of the group that assaulted

the deceased. She ought to have particularized their involvement.

In regard to the deceased Masonde, counsel submitted that the

testimony of PW2 revealed that she did not witness his being beaten
 J10

P. 1216

but merely found him "lying down and half buried." Counsel

submitted that there was clearly a discrepancy in the evidence of this

witness. She testified in chief that she witnessed the beating and

saw the assailants using sticks to beat Masonde, yet in cross-

examination, she recanted this assertion. According to the learned

counsel, the weight to be attached to the evidence of this witness is

significantly diminished if not altogether eroded. Relying on the

principle we set out in Haonga and Others v. The Peoplel') which dealt

with the weight to be placed on the evidence of witnesses who had

been found untruthful on a material point, he submitted that the

evidence of PW2 ought to have been discounted.

The learned counsel did not leave matters there with respect to

this witness. He pointed to a portion of her testimony in conclusion

where she stated that she did not get on along well with the first

appellant. The learned counsel suggested that, that statement alone

revealed a clear basis or motivation that could have driven the

witness to falsely implicate the first appellant. Citing the case of

Mvula v. The People(2) as authority for his submission, he argued that

the lower court should have treated the evidence with caution.
 ill

P. 1217

As regards the second appellant, counsel contended that PW2

had mistakenly identified him as Saddam Kanyakula. We were

referred to the part of PW 1 's evidence in the record of appeal where

this mistake in identity is recorded. Counsel urged us to treat the

evidence of this witness as unreliable.

Regarding the evidence of PW3, Mwaba Musonda, grandson to

the deceased Pardon Munanga, the learned Director of Legal Aid

submitted that PW3 did not witness the beating or killing of both of

the deceased. All he gave was evidence as to who was present and

the commotion that ensued when the rowdy group of mourners went

to the deceased Munanga's house. According to counsel, this witness

had run away upon being chased, and yet in cross-examination and

re-examination, tie testified that he actually witnessed the assault of

Munanga by the appellants and others. The witness also said

nothing about the assault or killing of Masonde. In the submission

of the learned counsel, the testimony of this witness was not useful

at all in providing a basis for the conviction of the appellants.

Moving on to PW4, Boniface Kakeza, the younger brother of the

deceased Munanga and cousin to the deceased Masonde, it was

 J12

P. 1218

counsel's submission that this witness was not specific about who

participated in the actual beating of the deceased Munanga and did

not state what role, if any, the appellants or any other person played.

Even if he claimed to have witnessed the beating of the deceased

Masonde, this witness did not, according to Mr. Ngulube, state who

was present and who participated in the beating. The witness also

stated that it was difficult to say who did what in the commotion and

that he was not there when the deceased Masonde was assaulted.

PW5, was Onnie Kanyenda, the elder sister of the deceased

Munanga. According to counsel for the appellants, she was the only

witness who said she saw the appellants get sticks and beat

Iviunanga, out sne mci not go to wnere iviasoncie was assauiieu anu

subsequently killed. Counsel submitted that in cross-examination,

PW5's version of events changed when she said there was a mob and

she could not pin point who did what. Counsel also submitted that

i-W5 and Munanga were related and as such her evidence needed to

be corroborated. He cited the case of Kambarage Mpundu Kaunda v. The

People(3) and that of George Wamundila v. The People(4) in support of the

submission that relatives or friends of a victim may have a possible

 J13

P. 1219

bias against an accused person or an interest of their own to serve

and their evidence should thus be treated with utmost caution and

in the same way as evidence of suspect witnesses.

Concerning PW6, Detective Inspector Mulele Musonda, it was

submitted by Mr. Ngulube that he was a formal witness whose

investigations did not reveal anything that could be linked to the

appellants and the deaths of the deceased persons.

Counsel concluded that there was boundless suspicion

regarding the participation of the appellants in the beating and

murder of the two deceased persons, yet there was no tangible and

reliable evidence that could properly ground the conviction of the

appellants. We were beseeched to allow ground one of the appeal.

ni responding to the appellants' arguments under ground one,

Ms. Mumba, learned counsel for the respondent, supported the

conclusion of the trial court on the evidence of prosecution witnesses.

She submitted that PW2, PW3, PW4 and PW5 were all reliable

witnesses and the court was thus on firm ground when it placed

absolute reliance on their testimony. Their evidence, according to

the learned counsel, that both appellants were present at the scene
 J14

P. 1220

of the crime where the assault occurred, is confirmed by the

appellants themselves, both of whom testified that they were present

at the scene. She further submitted that it is clear from the evidence

of PW2 that he was standing 5 to 6 meters away from where the coffin

was picked and it was in the morning. He saw a mob of people who

included the appellants. In the learned counsel's view, PW2's

credibility was all the more enhanced when she testified that the

deceased Munanga was a wizard, and also when she revealed that

she did not get along well with the first appellant.

Concerning the evidence of PW3, the Deputy Chief State

Advocate submitted that the record reflects that this witness was

present when the assault on Munanga started and that he only ran

away after he was threatened by the appellants and others who were

jointly assaulting the deceased. The learned counsel submitted that

witness testified that he actually saw the appellants together with

others assaulting the deceased before he was chased. Counsel

referred us to the part of the lower court's judgment where PW3 was

described in glowing terms by the trial judge as "very alert and

explained all details very well"; that he was "sharp and articulate."
 J15

P. 1221

Relying on the case of Webster Kayi Lumbwe v. The People(s), the learned

counsel submitted that an appeal court will not interfere with a trial

court's findings of fact on the issue of credibility unless it is shown

that such finding was erroneous. There is, according to counsel,

nothing in the record of appeal which showed that the finding of the

lower court on the credibility of PW3 was erroneous.

As regards PW4 and PW5, Ms. Mumba observed that the record

unambiguously shows that both witnesses were present at the scene

and that this was also confirmed by the second appellant. PW4,

according to the respondent's counsel, plainly stated in his evidence

that he saw the deceased Munanga being beaten by a mob which

included the appellants. Equally PW5 testified that she was present

at the scene and saw the appellant actively participating in assaulting

the deceased.

The learned counsel for the respondent made one more point

under this ground of appeal, namely, that although the prosecution

witnesses fell within the category of witnesses we referred to in the

case of Kambarage Mpundu Kaunda v. The People(3) as witnesses with a

possible interest of their own to serve, there was sufficient

 J16

P. 1222

corroboration of their evidence, and equally there was no motive

established to falsely implicate the appellants, especially the second

appellant, who was related to the witnesses. She also cited the case

of Katebe v. The People(6) to support her submission on the absence of

a motive to falsely implicate the appellants. Counsel urged us to

dismiss ground one of the appeal.

On 14th August, 2015, the appellant filed their heads of

argument in reply. They effectively rehashed the arguments already

made on behalf of the appellant.

We have carefully considered the clashing arguments of counsel

on ground one of the appeal. To recap the appellants' grievance at

the risk of repetition, it is simply this: that the trial court made a

wrong assessment of the evidence of the witnesses and did not deal

with the pertinent issue of the credibility of those witnesses

appropriately. It was also the learned counsel's argument that the

prosecution evidence was riddled with fatal inconsistencies,

contradictions and gaps and was, according to counsel, founded on

mere suspicion. He submitted in a nutshell that none of the

prosecution witnesses, PW1, PW2, PW3, PW4 and PW6 gave cogent
 J17

P. 1223

evidence positively linking the appellants to the assault and

subsequent deaths of the deceased or either of them. He conceded

though that PW5 testified that she saw the appellants pick-up sticks

and assaulted the deceased. According to Mr. Ngulube, this witness

however, whittled down the value of her evidence when, in cross-

examination, she explained that she did not see for certain who did

what exactly. More poignantly, the learned counsel also raised the

issue of the relationship of the witnesses to the deceased and the

inherent likelihood that as witnesses with a possible bias or an

interest of their own to serve, they falsely implicated the appellants.

Ms. Mumba's reaction in a nutshell was that the evidence of the

prosecution witnesses was cogent and the court's assessment of it

cannot be faulted.

Regarding the complaint by the appellants that the trial court

did not perform appropriately its function when assessing the

witnesses' testimony, particularly as it touched on the credibility of

the witnesses, our immediate reaction is that this argument is

unavailing. We have time and again repeated the position of the law
 J18

P. 1224

which we have consistently upheld, that ascription of the probative

value to the evidence of witnesses is preeminently the business of the

trial judge who had the privilege to witness the drama in court. A

trial judge will have seen the witnesses, assessed their demeanour

and, therefore, stands to have a more creditable perception of the

credibility of those witnesses. As an appellate court, we are loath to

disturb any findings of fact made by a trial judge, more especially if

the issue turns on the credibility of witnesses. In Webster Kayi Lumbwe

v. The People(5) we stated thus:

An appeal court will not interfere with a trial court's finding of fact,
on the issue of credibility unless it is clearly shown that the finding
was erroneous.

From the submissions of the learned counsel for the appellants we

do not find any cogent basis upon which anchors his contention that

the trial court's assessment of the credibility of the witnesses was

flawed. To the contrary, our view is that the lower court made a

meticulous assessment of the credibility of the witnesses. It is not at

all apparent to us on any realistic view of the evidence before her,

that such assessment was so erroneous as to prompt us to disturb

it. We reject the arguments of the learned counsel for the appellants
 J19

P. 1225

on this point. This means ground one of the appeal is bound to fail,

and we dismiss it accordingly.

The appellants' counsel argued ground two in the alternative in

the event that we found that the appellants assaulted the deceased

and caused their deaths. Mr. Ngulube implored us to take into

account the fact that this was a cultural practice in North-Western

Province called kikondo during which chaos reigned, and mob justice

was meted out on the deceased persons in those circumstances.

Ground three of the appeal on the other hand, assigns error on

the part of the trial court in sentencing the appellants to life

imprisonment because these sentences were, in the view of the

appellant, excessive. We believe that the issues raised in grounds

two and three are integrally linked. We shall therefore, consider the

two grounds compositely.

Counsel argued, under ground two, that in circumstances such

as those involving kikondo, those persons who participate actively

and directly in the commission of any crime must take the blame.

Not everyone in the crowd, according to the learned counsel, can be

 J20

P. 1226

liable to the same extent and, indeed, some of the guilty parties in

fact get away with it and their crimes go unpunished. Our attention

was called to the case of Kashenda Njunga and Others v. The People(7)

where five accused persons were charged with manslaughter and

convicted following a trial. The evidence that emerged at the trial was

that the accused persons in that case had been investigating an

allegation of witchcraft against the deceased and another woman.

The deceased was together with other persons taken into the bush

and thoroughly beaten. It was established that one of the appellants

assaulted the deceased in the chest. We upheld the conviction for

manslaughter and not murder. Counsel also referred to the cases of

Francis Mayaba v. The People(8) and Ernest Mwaba and Others v. The

People(9 ). In each of these cases a death resulted from a mob assault

and we held that a conviction for manslaughter in either case was

appropriate. Counsel contended that in the present case the trial

court should have, at the most, found the appellants guilty of

manslaughter only.

In responding to the appellants' arguments under ground two,

the respondent's learned counsel submitted that the trial court

 J21

P. 1227

cannot be faulted as the evidence before her showed that the

assailants of the deceased persons intended to cause death or

grievous bodily harm. Counsel pointed out that in reaching her

conclusion, the trial judge considered the method and objects used

in assaulting the deceased which led to their deaths. Therefore, the

appellants knew or ought to have known that their assault of the

deceased would lead to death or cause grievous bodily harm to the

deceased and were thus liable for the full consequences of their

actions. He cited the case of Dickson Sembauke and Another v. The

People( 10) to support this proposition. Counsel also submitted that

there was evidence on record from the prosecution witnesses who

testified that the people that assaulted Munanga had also stated that

they would kill the 'hare' in reference to the deceased Edson Masonde

which, in his view, was confirmation that the same people who killed

Munanga had the intention of killing Masonde as well.

The learned Deputy Chief State Advocate also argued that it

does not follow that where a mob participates in assaulting a

deceased person, the participants can only be convicted of

 J22

P. 1228

manslaughter. She quoted a passage from the judgment in the case

of Francis Mayaba v. The People(8) that:

the facts of the case do not support the conviction of murder because
quite apart from the element of provocation and drunkenness
negativing intent to kill, this was a case of mob instance justice...
The learned counsel understood this passage as confirming that

where it is established that an intention to kill is evident, a court can

properly convict a participant in a mob assault for murder if a death

results. Ms. Mumba also quoted holdings from our judgment in

Ernest Mwaba and Others v. The People(9 ) that:

(i) where joint adventurers attack the same person then, unless
one of them suddenly does something which is out of line with
the common scheme and to which alone the resulting death is
attributable, they will all be liable.

(ii) where the evidence shows that each person actively

participated in an assault then they were all crimines
participes. The fact that other persons may have also assaulted
the deceased at one stage can make no difference where the
nature of the assaults was such that their cumulative effect
overcame the deceased.

We were urged to dismiss ground two of the appeal.

The argument advanced by the learned counsel for the

appellant under ground three is that having regard to precedents set

 J23

P. 1229

by this court in previously decided cases, the sentences of life

imprisonment meted out on each of the appellants was excessive.

Counsel again referred us to the case of Francis Mayaba v. The People(8)

where we agreed that 20 years imprisonment for murder under

extenuating circumstances was excessive and it came to us with a

sense of shock. We set aside the sentence and imposed instead a

sentence of 5 years imprisonment for manslaughter. In Mwiba Mukela

v. The People(11 ), we guided that in passing sentence on a convict the

presence or absence of aggravating circumstances have to be taken

into account. In that case the appellant took time to plan and hire

an assassin to gun down the deceased whom he believed was a

witchcraft practitioner. We considered, as an extenuating

circumstance, the appellant's belief in witchcraft and sentenced the

appellant to 30 years imprisonment.

We have paid the closest attention to the submissions of

counsel on grounds two and three of the appeal. Having already

found that ground one has no merit it follows that we can now deal

substantively with the issues and the arguments raised in ground

two as if it was not argued in the alternative.

 J24

P. 1230

Regarding the contention that the appellants were part only of

the mob that assaulted the deceased and that not a single witness

conclusively pointed to their actual role in assaulting the deceased,

we are not in any doubt whatsoever that the two appellants were

engaged in a joint unlawful enterprise with others within the

intendment of section 22 of the Penal Code, chapter 87 of the laws of

Zambia. That section reads as follows:

When two or more persons form a common intention to prosecute an

unlawful purpose in conjunction with one another, and in the
prosecution of such purpose an offence is committed of such a nature
that its commission was a probable consequence of the prosecution
of such purpose, each of them is deemed to have committed the
offence.

The question is whether, on the evidence before the trial court, the

two appellants could fairly be said to have had a common purpose

with others in the assaulting party. Useful guidance is perhaps to be

drawn from the judgment of Charles J, of the Court of Appeal

(predecessor to this Court) in Mutambo and 5 Others v. The People(12)

where he stated that:

[t]he formation of a common purpose does not have to be by express

agreement or otherwise premeditated; it is sufficient if two or more
persons join in the prosecution of a purpose which is common to him
 J25

P. 1231

and the others, and each does so with the intention of participating
in the prosecution with the other or others.

We are satisfied that in the present case, the design of the two

appellants, together with the others in the group, was to harm the

deceased persons who had been identified as witches responsible for

the death of the late Kabinga. Even if it could be inferred that they

did not actively participate in assaulting the deceased, they actively

assisted the assailants and in accordance with the dictum in the case

of London Chisulo and 2 Others v. R(13) they are guilty of the offence for

which they were charged as they did not disassociate themselves

from the malefactions of the rest of the assaulting mob. As long as

it was established that they were part of the gang that assaulted the

two deceased persons, the precise extent of their contribution

individually, to the death of the deceased, was in those

circumstances largely irrelevant in determining their guilt.

We agree with the submissions of the learned counsel for the

respondent that the design of the cadre of villagers who believed that

the two deceased persons had caused the death of the late Kabinga

was to mete out reprisals and thus pay the two deceased persons
 J26

P. 1232

back for their perceived witchcraft practices that allegedly caused

Kabinga's death, in a way that they believed was authorized by their

custom and the local community.

In regard to the issue of the relationship of the witnesses to the

deceased, we agree with Mr. Ngulube that there was, indeed,

indisputable consanguinity between the witnesses and the deceased

persons. We note in this respect that PW1 was the son of the

deceased Edson Masonde while PW2 was the younger sister of the

deceased Pardon Munanga. PW3 was the grandson of the deceased

Pardon Munanga while PW4 was his young brother and cousin to the

deceased Edson Masonde.

The learned counsel for the appellants quoted our judgment in

Kambarage Mpundu Kaunda v. The People(3) where we guided that as

relatives and friends of the deceased may be witnesses with an

interest to serve, it was incumbent upon a court considering evidence

from such witnesses to warn itself against the dangers of false

implication, and that the court must go further and exclude such

danger. In the earlier case of Boniface Chanda Chola v. The People(14)we

 J27

P. 1233
pointed out that the evidence of witnesses with an interest of their

own to serve falls to be approached on the same footing as for

accomplices and, therefore, requires corroboration.

We have made it quite plain in decisions subsequent to

Kambarage(3) that our guidance in the Kambarage(3) case is not without

qualification. In Yokoniya Mwale v. The People(15) we stated that:

We are of the firm view that insistence on the position that the
evidence of every friend or relative of the deceased or the victim must
be corroborated, is to take the principle in the case authorities on
this point out of context.

In the later appeal of Guardic Kameya Kavwana v. The People(16), we

observed that:

...there is no law which precludes a blood relation of the deceased

from testifying for the prosecution. Evidence of a blood relation can
be accepted if cogent enough to rule out any element of falsehood or
bias.

The lower court in the present case made, in our view, a proper

assessment of the evidence of the prosecution witnesses and found

that it was sufficiently cogent to support the convictions. That

evidence did not require corroboration in the way we envisaged it in

 J28

P. 1234

the Kambarag&3 case. We have no reason therefore to disturb the

finding of the court in this regard.

Turning now to the sentence meted out on the appellants, we

note that indeed, there is a long list of case authorities in which we

have held that a belief in witchcraft is an extenuating circumstance.

These include Kashenda Njunga and Others v. The People(7), Patrick

Mumba and Others v. The People(17) and Jack Chanda and Kennedy Chanda

v. The People(18). In the latter case we stated that a failed defence of

provocation, where there is evidence of witchcraft accusations, could

amount to an extenuating circumstance. We have however, for good

cause, not been consistent on the length of the term of imprisonment

we have imposed. For example, in Chishimba v. The People(19) the

deceased, who was suspected to be a witchcraft practitioner was

called out of his house by the appellant and severely beaten. He died

from the severe injuries he sustained from the beating. We imposed

a sentence of 10 years in lieu of death.

In Patrick Mumba and Others v. The People(17), we confirmed the

sentence of the 1st and 2d appellants of 20 years imprisonment with

 J29

P. 1235

hard labour and for the rest, the sentences of 15 years imprisonment

with hard labour on account of their belief in witchcraft as an

extenuating circumstance. In that case, as in the present, the

appellants jointly and whilst acting together with other persons

unknown, murdered a suspected witch [at Samfya in Luapula

Province]. They were convicted of murder by the High Court.

In Mbomena Moola v. The People(20), the appellant was convicted

on one count of murder. He caused the death of Kaumpe Moola of

Kaumpe Village in Kaoma in November, 1994. The High Court

sentenced him to death. On appeal, we agreed with the appellant

that a belief in witchcraft, though unreasonable, was prevalent in our

community and that such a belief is an extenuating factor. We set

aside the death sentence and in its place imposed a sentence of 15

years imprisonment with hard labour. In Nelson Bwalya v. The

People(2 1) we equally disturbed the sentence of death and imposed one

of 15 years imprisonment on the basis of an extenuating

circumstance, namely a belief in witchcraft.

 J30

P. 1236
More recently in Mwiba Mukela v. The People("), to which we have

already referred, we explained why a uniform term of imprisonment

cannot be imposed even if a belief in witchcraft is accepted as an

extenuating factor. That case, as we have already pointed out,

involved the shooting of a suspected wizard by a hired gun man, the

High Court, upon finding the appellant guilty of murder sentenced

him to death. On appeal, we substituted the death sentence with 30

years imprisonment with hard labour. We stated, among other

things, the following:

In passing sentence, however, we cannot ignore the aggravating

circumstances in this case. The appellant took time to plan and lure
an assassin to gun down the deceased, whom he believed was a wizard.
The belief in witchcraft, notwithstanding, we take the view that the
circumstances of this case, take it out of the realm of the other cases
we have dealt with previously.
We must also, however, point out that although the belief in

witchcraft has had considerable prima facie attraction as mitigatory

in murder cases, we have in some instances rejected the plea. Thus,

in Steak Chibale v. The People(22), we upheld the lower court's rejection

of a plea of belief in witchcraft as an extenuating circumstance. In

that case, the deceased was stabbed with a spear and axed to death
 J31

P. 1237

by the appellant, his own child. The appellant claimed that he

believed the deceased was a witch and that he had dreamt that the

deceased was attempting to kill him.

It is undeniable that a belief in witchcraft has been deeply

entrenched in the Zambian psyche. Perceived witches have in many

of our communities been treated with untold mob violence and rough

justice. Many of those accused of witchcraft have been ostracised by

their families and communities; subjected to life threatening

assaults; dehumanized; have had their property destroyed and in

extreme cases, brutally murdered, as was the case with the deceased

Pardon Munanga and Edson Masonde in this appeal. Startling

accounts of harassment, persecution, starvation, abandonment and

death of people suspected to be witches have also been documented.

To be labelled a witch is, in many instances, tantamount to being

declared liable to be killed - with impunity. Accusations of witchcraft

frequently lead people, especially elderly men and women, to forced

displacement or voluntary migration from their ancestral villages. In

 J32

P. 1238

fact, it is increasingly beginning to appear as if old age is synonymous

with being a witch in many communities in Zambia.

Although, as we have sought to show, we have in a plethora of

cases before us held that a belief in witchcraft is an extenuating

circumstance in a murder charge, we are in no doubt whatsoever that

accusations of witchcraft also present a very unsettling example of a

lesser - known form of violence and discrimination, to which elderly

people, especially, in our communities are subjected to daily. Witch

'trials' and the persecution and stigmatisation of people, particularly

older citizens, on preposterous charges of involvement in witchcraft,

even on the slimmest of evidence, is predicated on the widespread

belief in witchcraft.

We think that this is a very unsatisfactory state of affairs to

allow to continue unabated and yet, we are bound by the position

that we have consistently espoused, namely, that a belief in

witchcraft is an extenuating circumstance. This remains so unless

we can depart from those precedents without appearing to lose faith

in the doctrines of stare decisis and judicial precedents which are

intended to ensure certainty and stability in the decisions of courts.

 J33

P. 1239

As the apex appeal court, we are obliged to stand by our past

decisions even if they are erroneous (see Abel Banda v. The People(23)).

Article 125(3) of the Constitution of Zambia (Amendment) Act No. 2

of 2016 provides that:

The Supreme Court is bound by its decisions, except in the interest

of justice and development of jurisprudence.

The framers of our Constitution, in the fullness of their wisdom, were

no doubt alive to the fact that strict adherence to previous judicial

decisions could, in some cases, undermine justice, asphyxiate the

development of jurisprudence and perpetrate injustice. In England

the realization of this position led the House of Lords to issue the

Practice Statement(24) by which it stated that the House of Lords could

overrule or depart from its own previous decisions. Lord Gardiner on

behalf of the Court, stated among other things, as follows:

Their Lordships nevertheless recognize that too rigid adherence to

precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law. They propose therefore
to modify their present practice and while treating former decisions
of this House as normally binding, to depart from a previous decision
when it appears right to do so. In this connection they will bear in
mind the danger of disturbing retrospectively the basis on which
contracts settlements of property and fiscal arrangements have been
 J34

P. 1240

entered into and also the special need for certainty as to the criminal
law...
We adopted that Practice Statement(24) in this country. It thus applies

to this court as it applies to the apex court of England. In Paton v.

Attorney General(25) we stated that:

The relaxation of the rule [not to depart from previous decision] is not
abandonment and ordinarily the rule of stare decisis should be
followed. Abandonment of the rule would make the law an abyss of
uncertainty.

We reiterated this position in Match Corporation Limited v. Development

Bank of Zambia and Attorney General(26 ) when we stated as follows:
The Supreme Court being the final court of appeal in Zambia adopts
the Practice Statement of the House of Lords concerning previous
decisions of its own and will decide first whether in its view the
previous case was wrongly decided and secondly, if so, whether there
is sufficiently good reason to decline to follow it.

The broad policy question we have to answer as we deal with

the appeal against the sentence imposed on the appellants in the

present case is whether it is now appropriate to qualify or depart

altogether from the numerous precedents that we have set regarding

the belief in witchcraft being an extenuating circumstance.

 J35

P. 1241

To us, the validity of witchcraft beliefs is not in issue. There is

overwhelming acknowledgement from all strata of the Zambian

society that witchcraft is real, for those who believe in it, and in our

view, there is no use pretending that belief in witchcraft does not

exist, nor is there any useful purpose served in seeking some neutral

ground in a society where people generally believe in witchcraft. This

belief is in fact held by both the educated and the uneducated; the

wealthy and the poor; and the old and the young. And the belief in

witchcraft per se is not necessarily problematic; it is the actions taken

in consequence of that belief which are. These, as we have pointed

out already, violate a whole range of human rights including the right

to life, liberty and security; the right to privacy; the right to hold

property and in some cases the prohibition against torture. These

are all rights recognized in the bill of rights of our Constitution,

chapter 1 of the laws of Zambia. And if we take the liberty to veer

into the international human rights arena, we would immediately

note that social ostracism resulting from accusations of witchcraft

also violates the International Covenant on Civil and Political Rights

 J36

P. 1242

which Zambia has ratified. That covenant protects against "arbitrary

or unlawful interference with an individual's privacy, family, home

and correspondence and against unlawful attacks on an individual's

honour and reputation."

Still at the International human rights scene, we might add that

the United Nations Committee on the Rights of the Child has called

for protective measures to prevent witchcraft accusations against

children in some countries, while its counterpart, the United Nations

Committee on the Elimination of Discrimination against Women

(CEDAW Committee), equally categorises witch-hunts as a form of

violence against women and has urged States to take action on

witchcraft accusations.

The CEDAW Committee has recommended, among other things,

for states to "challenge traditional views" about older women and

witchcraft, requiring that states investigate the torture and killing of

suspected witches and prosecute perpetrators. Our view is that these

concerns set out under international human rights instruments to

 J37

P. 1243
which Zambia has subscribed, apply equally to men as they do to

women and children.

Besides implicating human rights in the way we have described

it above, a belief in witchcraft also has its own challenges at the level

of domestic criminal law itself. We have in Zambia the Witchcraft

Act, chapter 90 of the laws of Zambia, a relic of the British colonial

era, dating back to 1914. Indeed, the preamble to the Act is quite

categorical as to the purpose of the Act. It is to:

provide penalties for the practice of witchcraft: and to provide for

matters incidental to or connected therewith.

This Act, though it is not always enforced, makes practicing

witchcraft a criminal offence. Yet, the Act goes further than merely

criminalizing the practice of witchcraft. It also makes it an offence to

accuse someone of witchcraft or to represent oneself to be a witch.

Section 3 provides that:

(a) Whoever -
names or indicates or accuses or threatens to accuse any
person as being a wizard or witch; or
 J38

P. 1244

(b)imputes to any person the use of non-natural means in

causing any death, injury, damage or calamity; or
(c)asserts that any person has, by committing adultery,
caused in some non-natural way, death, injury, damage or
calamity;
shall be liable upon conviction to a fine not exceeding seven
hundred and fifty penalty units or to imprisonment with or
without hard labour for any term not exceeding one year, or to
both; provided that this section shall not apply to any person
who makes a report to a police officer of or above the rank of
Sub-Inspector or, where there is no such police officer, to a
District Secretary or an Assistant District Secretary.

Section 7 enacts that whoever employs or solicits any person

(a) to name or indicate any person as being a wizard or witch

shall be liable upon conviction to the punishment provided in
section three.

From the foregoing explanation and the statutory law position as

quoted, three points of predicament present themselves to us as we

reflect on the belief in witchcraft as an extenuating circumstance, so

that those who breach the law based on such a belief are exempted,

so to say, from suffering the full consequences of the law they have
 J39

P. 1245

contravened. The first is that a belief is simply what it is - a thought

process which may not be inspired by any tangible evidence.

A belief in witchcraft is a difficult matter to ascertain. There

can be no empirical evidence to determine a belief. Unlike other

mitigatory factors such as drunkenness or provocation, which can

easily be ascertainable either by observance, conduct or the use of

the reasonable man test, what a person says they believed in may not

be easy to establish, as it is highly subjective and dependent on one's

state of mind. And as Bowen LJ observed in a different context in

Edgington v. Fitzmaurice(27), "the state of a man's mind is as much a

fact as the state of his digestion..."

For a person convicted of murder to state in mitigation that he

or she was driven to commit the murder by his or her belief in

witchcraft - and particularly that he or she believed that the person

killed was involved in witchcraft - is a claim that is hardly open to

proof. The highly subjective nature of this mitigation factor calls for
 J40

P. 1246

maximum caution in considering it as it can easily be an escape route

from the deterrent effects of the mandatory sentence for murder.

In the case of R. v. Fabian Kinene S/0 Mukye & Others(28), objective

conditions existed to found the belief in witchcraft. In that case, the

accused persons appeared before a Ugandan court charged with

murdering an old man in their village. Their explanation was that

the victim was discovered in the middle of the night "naked, with

strange objects and acting surreptitiously." The court found that the

victim was caught performing an act which the accused genuinely

believed to be an act of witchcraft and they killed him in the way, in

the olden times, was considered proper for killing a wizard. Death

was caused by the forcible insertion of unripe bananas in the

deceased's bowel, through the anus. The court lowered the charge

from murder to manslaughter, reasoning that acts of attempted

witchcraft might constitute "grave and sudden provocation." We

shall revert to that case later in this judgment.

 J41

P. 1247
Secondly, a belief in witchcraft is positively inconsistent with

the spirit of the Witchcraft Act in the manner we have explained its

provisions earlier on in this judgment. The consequences of such

belief are the persecution and or murder of suspected wizards, which

violate not only the criminal laws of this country but amount to

multiple violation of human rights, both under our domestic Bill of

Rights and under international human rights law. The belief in

witchcraft and the offending conduct, premised as it is on that belief,

are both illegal in themselves. There is, in our view, a wider judicial

policy issue here, namely, whether the courts should, in sentencing

offenders, offer respite or relief for criminal conduct which was in the

first place inspired by an illegal act of belief? In other words, should

the courts, well knowing that a belief in witchcraft is outlawed under

the Witchcraft Act, offer as they sentence murder convicts, relief to

persons on the basis that they violated another law, that is to say,

they believe in witchcraft? In our view, such an approach, which has

hitherto seemingly been followed in this country as a general rule, is

inherently contradictory and in effect constitutes a condonation of

the commission of one offence to mitigate the full penalties of another

 J42

P. 1248
offence. It is, to us, resoundingly preposterous that a clear illegality

under one piece of legislation can be used to excuse, in part, a breach

of another piece of legislation. Our considered view is that it is

undesirable for the courts to continue to unqualifiedly hold a breach

of the Witchcraft Act, as a mitigation for breach of section 200 of the

Penal Code, or any other provision of the law for that matter.

In our estimation, the plea in murder cases that the deceased

had bewitched or threatened to bewitch the accused person, should

be rejected unless it is shown on the evidence that the accused

person had been put in such fear of immediate danger to his own life

that the defence of grave and sudden provocation could easily be

available on the facts. In other words, extenuation based on a belief

in witchcraft should, as a general rule, be unavailing though it could

in exceptional circumstance be considered. To adopt any other

approach or attitude towards cases of this nature is to encourage

persons aggrieved by alleged witchcraft practices, to be a law unto

themselves. In our opinion, no unlawful belief, no matter how deeply

entrenched in society it may be, should serve to licence the blatant

 J43

P. 1249
disregard of the law in a way that poses a danger to personal peace

and tranquility and the respect for individual human rights.

Thirdly, the issue of extenuating circumstances is all about the

sentencing policy of the courts. There is no doubt whatsoever that

one of the principle objectives of criminal law is the imposition of

adequate, and proportionate sentences, commensurate with the

nature and gravity of the crime and the manner in which the crime

was committed. It is, of course, well-understood that in the process

of sentencing offenders, courts have considerable latitude or

discretion. As we have intimated, in exercising such discretion,

however, courts are bound to take into account a number of

principles which include proportionality, deterrence and

rehabilitation. We must add that there is no straightjacket approach

to sentencing convicts. What sentence would meet the ends of justice

in a particular case will invariably be informed by the circumstances

of that case. The courts must always keep in mind the gravity of the

crime, the manner of commission of the crime, the motive for the

crime, the nature and prevalence of the offence and all other

attendant circumstances.
 J44

P. 1250

As we pointed out in Mangomed Gasanalieu v. The People(29) the

approach which, in our view, ought to be employed in sentencing is

that of balancing mitigating and aggravating factors when deciding

on an appropriate sentence for any offence. In doing so, it should be

borne in mind that the aggravating factors relate to the crime while

the mitigating circumstances relate to the criminal. In balancing the

aggravating factors and the mitigating circumstances, therefore, it is

significant for a court to determine the objective seriousness of the

offence, that is to say, the surrounding facts and the maximum

penalty for the offence in question, vis-ã-vis the mitigating factors,

that is to say, the personal circumstances of the offender - or the

subjective factors.

Turning to the case before us, the aggravating factors can be

easily identified. The deceased persons were killed in the most brutal

of circumstances by a mob whose frenzied hostility was generated by

nothing more than a mere belief that the deceased persons possessed

magical faculties by which they caused the death of the late Kabinga.

They were not found with any witchcraft paraphernalia, nor were

they in any manner engaged in conduct suggestive of wizardry at the

 J45

P. 1251

time they were lynched. The deceased persons were in consequence

subjected to brutal force, barbaric and sadistic treatment, leading

inevitably in to their deaths. They suffered a deliberate and

systematic infliction of severe pain. The assailants were a multitude

of irate villagers who, in their belief that they were carrying out a

praiseworthy act, took the law into their own hands. The deceased

were lonesome and defenceless. The appellants acted contrary to,

not one, but two statutory laws: the Witchcraft Act and the Penal

Code.

The mitigating factors on the other hand were merely that the

appellants had lost a fellow villager and believed that the deceased

were responsible for that death. As inhabitants of the village where

the deceased lived, they had the duty to protect the village from all

forms of dangerous forces that could bring misfortune, illness or even

death to any member of the community.

In Berejena v. the People(30) we held that an appellate court may

interfere with a lower court's sentence only for good cause. To

constitute good cause the sentence must be wrong in law, in fact or

in principle or it must be so manifestly excessive or so totally

 J46

P. 1252

inadequate that it induces a sense of shock, or there must be

exceptional circumstances justifying interference.

Weighing the mitigating circumstances against the aggravating

factors in the present case, and given all the concerns about beliefs

in witchcraft as we have explained them, leaves us in no doubt that

although, given the state of the law as we have been interpreting it,

the judge below cannot be faulted, the sentence meted out on the

appellants by the trial court was inappropriate and it comes to us

with a sense of shock. We say so because the sentence had the effect

of whittling down the deterrent effect of sentences for murder,

considering the brutal and savage attacks that the deceased were

subject to at the hands of the appellants and others.

In our view, consideration of every belief in witchcraft as an

extenuating circumstance threatens the whole purpose of

extenuation in the sentencing philosophy of the courts. For a belief

in witchcraft to be treated as an extenuating circumstance, it ought

to go further than merely someone's subjective thought process.

There has to be a verifiable set of circumstances that motivate such

a belief as happened in the Fabian(28) case.

 J47

P. 1253

We believe that taking into account the ghastly consequences

that have been documented as resulting from the deep rooted and

widely held belief in witchcraft, and considering also the three

concerns we have highlighted earlier in this judgment, adherence to

previous precedents on witchcraft belief as an extenuating

circumstance has the effect of both encouraging and perpetuating

criminality and injustice. We are convinced that it is now right to

depart from those precedents. Hence, we now hold that a belief in

witchcraft should reach the threshold required for provocation if it is

to serve as an extenuating factor to an accused person facing a

charge of murder. There is absolute need to protect victims of

witchcraft accusations from unprovable allegations leading

invariably to multiple violations of their rights, and in some cases

death.

It is for the reasons we have given that we think that although

a belief in witchcraft may in rare and appropriate circumstances still

be regarded as an extenuating circumstance, it generally should not

offer solace to perpetrators of violence that results in death by

 J49

P. 1254

allowing them to escape the ultimate sanction for proven murder -

death.

It is with the foregoing reasons that we set aside the sentence

of life imprisonment imposed on the appellants and in its place,

impose the death sentence on both appellants.

I, C. Mambilima
CHIEF JUSTICE

SUPREME COURT JUDGE

E. N. C. Muyovwe
SUPREME COURT JUDGE

r.r-Ma SC
-SU1REME COURT JUDGE