IN THE COURT OF APPEAL OF ZAMBIA Appeal No .

09/2024
HOLDEN AT LU$AKA
(Criminal Jurisdiction)

BETWEEN:

THE PEOPLE APPELLANT

AND 14 MAY 2024

INALREGIS
ABRAHAM PHIRI RESPONDENT
'X50067. t;

CORAM: Mchenga DJP , Muzenga and Chembe JJA

ON : 29 t h April 2024 and 14 t h May 2024

For the Appellant: A . Kennedy-Mwanza G. Zimba, Principal State

Advocate, National Prosecution Authority
For the Respondent: M. Makinka, Senior Legal Aid Counsel, Legal
Aid Board

JUDGMENT

Mchenga DJP, delivered the judgment of the court

Cases referred to:

1 . Abedi n ego Kapeshi and another v . The People , SCJ

No. 35 of 2017
2 . Nkole and Two Others v . The People , SCJ No 8 of 2019
3 . Syakalonga v . The People [1977] Z . R . 61
4 . R. V. Hughes [2013]4 All ER 613
5 . Pepper (Inspector of Taxes) v. Hart [1993] A . C . 593
6 . R . v . Hughes [2013]4 All ER 613
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Legislation referred to:

1 . The Penal Code , Chapter 87 of the Laws of Zambia

2 . The Juveniles Act , Chapter 57 of the Laws of Zambia
3 . The Children ' s Code Act No . 12 of 2022

Other works:

1. The United Nations Convent on the Rights of the

Child
2. Journal of National Assembly proceedings of
Thursday 28 th July 2022

INTRODUCTION

c11 The respondent appeared before the High Court (Bowa ,

J . ) , charged wi th the offences of murder and aggravated

robbery , contr a ry to Sections 200 and 2 94 (1) of the

Penal Code, respectively .

c21 He denied both charges and the matter proceeded to

trial . At the end of the trial , he was found guilty of

committing both offences .

[ 3J The trial Judge p laced him on probation for a peri od

of 1 year , in l i ne with Section 87(4) of the Children ' s

Code, because he was 17 years old at the time he

committed both offences .

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C4J The Director of Public Prosecutions has appeale d

against the imposition of the probation order, instead

of a term of imprisonment .

CASE BEFORE THE TRIAL COURT

cs1 On 19 t h January 2022 , in the morning , Miriam Malunga

of Chamanika Village in Petauke , was found dead in

her house . Visible , were injuries to her neck and

her property that was strewn all over the house . In

addition , a cash box containing money , was missing .

cGJ The police where informed of the finding . They were

also informed that the previous night , Miriam Malunga

had repo rted that the respondent had attacked , and

attempted to rape her . On the b as is of this

information , the respondent was treated as a suspect

and apprehended .

[7J On being interrogated , the respondent led the police

to a thicket , about 130 meters from Miriam Malunga 's

house , where the missing cash box was recovered ; it

was empty . The respondent was subsequently arrested

and charged , for robbing and murdering Miriam

Malunga .
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ca 1 On 22 nd January 2022 , a post - mortem was conducted on

the body of Miriam Malunga . The cause of her death

was found to be asphyxia due to manual

strangulation .

C9J The respondent ' s defence was a bare denial .

c1 01 The trial Judge found that even if there was no

direct evidence incriminating the respondent , the

circumstantial evidence laid before him , established

that the respondent robbed and murdered Miriam

Malunga . Consequently , he found him guilty of

committing both offences.

c11 1 Following the finding of guilty , a Child Welfare

Inspector produced a social welfare report which

recommendation that the respondent be placed on

probation . The trial Judge accepted the

recommendation , and placed the respondent on

probation for a period of 1 year .

GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT

c1 2 1 The Director of Public Prosecution has advanced two

grounds in support of his appeal against the placing

of the respondent on probation. The thrust of the

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two grounds of appeal are that had the trial Judge

taken into account the gravity of the offences

committed by the respondent and the relevant

principles of sentencing , he would have sentenced

the res p ondent to a te r m of imprisonment and not

placed him on probation .

Cl3J Mrs Kennedy- Mwanza submitted that although Section

79(1) of the Children's Code , does no t specifically

list impr isonment as one of the ways that a court

can deploy to deal with a child who has been found

guilty of committing an offence , the Code does not

prohibit the imprisonment of children .

c14 1 She submitted that by virtue of Section 79 (1) (i) of

the Children ' s Code , where circumstances of a case

warrant it , a court can impose a term of imprisonment

on a child who has committed an offence .

c1s1 On the basis of the case of Abedinego Kapeshi and

Another v . The People 1 , Mrs . Kennedy- Mwanza urged us

to consider having recourse to best practices for

dealing with children who commit very serious

offences , as proposed by international human rights

instruments .
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c1G1 Particular reference was made to Article 37 of the

United Nations Convention on the Rights of the Child,

and it was submitted that under the convention ,

imprisonment of a child , in circumstances like the

one at hand , is permitted .

c1? 1 Finally , we were referred to the cases of Nkole and

Two Others v. The People 2 , Syakalonga v. The People 3

and Abedinego Kapeshi and Another v. The People 1 , and

urged to consider the gravity of the circumstances

in which the respondent committed the two offences .

It was argued that the circumstances of this case

warranted the imposition of a term of imprisonment

as the sentence . This would have in turn deterred

others from committing similar offences .

RESPONDENT'S ARGUMENTS AGAINST THE APPEAL

c1a1 Mr . Makinka ' s response , on behalf of the respondent ,

was concise and to the point. He submitted that in

the Children's Code, unlike under the Juvenile's Act ,

there is no provision that allows a court to impose

a term of imprisonment as a sentence on a child .

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COURTS CONSIDERATION OF THE APPEAL

[ 19 1 It is common cause that under Section 79 (1) of the

Children's Code , imprisonment , is not listed as one

of the ways for dealing with a child who has been

found guilty of committing an offence . Even if this

is the case , Mrs . Kennedy-Mwanza has argued Section

79 (1) (i) of the Children ' s Code , permits the

sentencing of a child to a term of imprisonment .

(201 She argued that Section 7 9 ( 1) ( i) of the Children ' s

Code , which allows a court to deal with a child "in

any other manner that the Juvenile Court or

Children's Court determines in the administration of

justice" (sic) , permits the imprisoning of children .

[ 21 1 In effect , we are be i ng called upon to pronounce that

imprisonment is a sanction that can fall within the

"any other manner " in which a court can deal with a

child, if it determines that it is in the interests

of justice .

( 221 In the case of R . v . Hughes 4 , at page 619 , the

following was set out as the approach a court should

take when faced with a situation like what is at

hand :
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"The duty of a court faced with legislation is

faithfully to construe its meaning. It is not to impose
upon it a judicial view of what it ought to have said".

1231 We have e x amined Sub-section (1) (i) of Section 79 of

the Children's Code, in conjunction with other

provision s of the Code , and it is our view that the

provision is unclear ; the only way it can be

construed is by looking beyond the Children's Code.

124 1 It is accepted that in certain circumstances , it is

permissible to look outside an Act when construing

its provisions . It is on this understanding that Mrs .

Kennedy- Mwanza has propo s ed that we hav e recourse to

Article 37 of the United Nations Convention on the

Rights of the Child. We will revert to convention in

due course .

12s1 In the ca s e of Pepper (Inspector of Taxes) v. Hart5 ,

one of the issues that arose during consideration of

the import of a statutory provision , was whether

recourse could be had to Parliamenta r y material . At

page 634 o f that case , Lord Borne-Wilkinson state d

as follows :
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"In my judgment, subject to the questions of the

privileges of the House of Commons , reference to
Parliamentary material should be permitted as an aid to
the construction of legislation which is ambiguous or the
literal meaning of which leads to absurdity. Even in such
cases reference in court to Parliamentary material should
only be permitted where such material clearly discloses
the mischief aimed at or the legislative intention lying
behind the ambiguous or obscure words ."

c2G1 On the strength of the holding in case of Pepper

(Inspector of Taxes) v. Hart 5 , we did e x amine the

speech of the Minister of Community Development and

Social Service s , when she was introducing t he

Children ' s Code Bill in Parliament , on Thursday 28 Lh

July 2022 .

c211 The Minister indicated that the bill was for the

consolidation of the Legitimacy Act of 1929 , the

child Adoption Act of 1956 , the Juveniles Act of 1956

and the Affiliation and Maintenance of Children Act

of 1989 .

r2a1 The Minister also indicated that the bill was going

to domesticate some listed international conventions

dealing with the rights of children .

r291 Finall y , the Mi n ister set out t h e principles on which

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the bill was anchored . She itemised them as , the

best interests of the child ; the observance of the

right to life , survival and development of the

child ; non - discrimination of children ; and respect

of the views of the child in all spheres of life .

c301 In our examination of the proceedings before

Parliament , we have not been able to come across

deliberations that considered specific provisions of

the Code , and in particular Section 79 (1) (i) .

c311 This being the case , it is our view that the question

whether Section 79(1) (i) of the Children ' s Code , was

al so intended to allow the courts to imprison

children , cannot be discerned from the proc eedings

in Parliament .

C32J Notwiths tan ding , it i s our view that the import of

Section 79(1) (i) of the Children ' s Code , can sti ll

be resolved from examining the law , as it stood ,

before the enactment of the Children ' s Code and as

it appears to be now .

C33J Prior to the enactment of the Children's Code , the

relevant law was set out in the Juvenile's Act .

Section 73 (1) of the Juveniles Act , laid out the

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options for dealing with a juvenile o f fender , persons

we now only refer to as children , as follows :

(a) by dismissing the charge ;

(b) by making a probation order in respect of
the offender ;
(c) by sending the offender to an approved
school;
(d) by sending the offender to a reformatory ;

(f)by ordering the offender to pay a fine ,

damages or costs ;
(g)by ordering the parent or guardian of the
offender to pay a fine, damages or costs ;

(h) by ordering the parent or guardian of the

offender to give security for the good
behaviour of the offender ;
(i) where the offender is a young person, by
sentencing him to imprisonment ;

(j) by dealing with the case in any other manner

in which i t may legally be dealt with .
134 1 The methods of dealing with a child , in the

Children's Code, are set out in Section 79 (1) It

reads as follows :

(a)dismiss the case against the child or

discharge the child ;
(b) make a probation order in respect of the
child;
(c) send the child to a child approved centre
or child reformatory centre;
(d)commit the child to the care of a fit person
or child care facility;
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(e) in the case of a child who is a young person,

order the young person to pay a fine, damages
or costs ;
(f) order the child's parent, guardian or person
having parental responsibility for the child to
pay a fine, damages or costs ;
(g) order the child's parent, guardian or person
having parental responsibility for the child to
give security for the good behaviour of the
child ;
(h) make a restorative justice order in
accordance with programmes established under
section 84; or
(i) in any other manner that the juvenile court
or Children's Court determines in the
administration of justice.

c3s1 The methods for dealing with a child of fender under

Section 79 of the Children's Code, are essentially

the same as those that were available under Section

73 of the Juveniles Act, but for three maJor

variations .

C36J The first important variation is that Section

73(1) (i) of the Juveniles Act, expressly specified

that an offender who was a young person , could be

imprisoned . Under that Act , a " young person " was

defined as a " person who has attained the age of

sixteen years , but has not attained the age of

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nineteen years " . A similar provision does not exist

in the Children's Code.

t311 The other variations are that under Section 79 (1) of

the Children's Code, are that a child can be

committed into a child care facility or a restorative

justice order can be made .

t3 BJ From the foregoing , it is clear that with the

enactment of the Children's Code , the power of the

court to imprison children of certain ages , which

was expressly set out in the Juvenile's Act, was

omitted .

(39J The question that fol lows , i s , can it be said that

the courts still have the power to imprison children ,

but that this time around , that power is not express

but implied , through Section 79 (1) (i) of the

Children' s Code?

(4oJ We do not think it is the case . In taking this

position , we are inspired by the following

pronouncement in the case R . v. Hughes, at page 624 :

"A penal statute falls to be construed with

a degree of strictness 1.n favour of the
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accused. It is undoubtedly open to Parliament

to legislate to create a harsh offence or
penalty, just as it is open to it to take
away any fundamental rights, but it is not
to be assumed to have done so unless that
interpretation of its statute is compelled,
and compelled by the language of the statute
itself".

c411 It is our view that had Parliament intended that the

' '
courts should still have the power to imprison

children , the Children's Code would have retained a

provision that clearly and expressly provided for

it , as was the case in the repealed Juvenile's Act .

C42J We are aware that Section 23 (2) of the Children's

Code, which is under Part II of the Code , tiled the

" Rights and Responsibilities of a Child", provides

that "a person shall not subject a child to capital

punishment or life imprisonment". Can it be said that

since the law only prohibits l ife imprisonment , any

other form of imprisonment is permitted?

C43 J Our view is that the mere fact that only life

imprisonment is proscribed , cannot lead to a

conclusion that the courts have the power to imprison

for a shorter period .
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[441 Currently , imprisonment is the most severe sanction

that an offender can be subjected to in Zambia. We

take the view that the power to impose such a severe

sanction , especially on a child , must expressly be

provided for . The existence of such power cannot be

assumed or inferred .

c4s1 In the absence of such an express provision , it is

our conclusion that neither Section 79 (1) (i) of the

Children's Code, nor any other provision in the Code

empowers the courts to imprison children .

C46J In our view , Section 79 (1) (i) of the Children ' s Code,

is intended to prevent the need to amendment the

Code , every time a new method or way of dealing with

child offenders , is developed or approved . It is also

intended to cover methods of dealing with children

that appear negligible in importance and for

convenience , do not warrant specific listing in the

Code .

£47J In any case , Section 79 (1) (i) of the Children's Code,

is similar to Section 73(1) (j) of the Juveniles Act,

which allowed a court that had found a child guilty

of committing an offence , to deal "with the case in

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any other manner in which it may legally be dealt

with". That provision , just like Section 79(1) (i) of

the Children's Code, allowed the courts to impose a

sanction other than those listed .

C4 BJ This being the case , it cannot be said that

Parliament probably removed the express power of the

court to imprison children , and rendered it

discretionary , through Section 79 (1) (i) of the

Children's Code, because even under Section 73(1) (i)

of the Juveniles Act, which e xp ressly provided for

imprisonment of children , the courts had the power

to impose sanctions other t han those that were

listed .

[ 49J In the circumstances , it is our view that an

interpretation of Section 79(1) (i) of the Children's

Code, as allowing the courts to imprison chi ldren ,

will , in ef feet , be reintroducing a sanction that

was express and unequivocal in the repealed Juveniles

Act, but is not provided for in the Children's Code.

We think tha t , that will go beyond interpreting , it

will amount to legislating , a power that we do not

have .
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c501 Mrs . Kennedy- Mwanza invited us to consider Article

37 of the United Nations Convention on the Rights of

the Child, as we determine the question whether a

child can be imprisoned . We did not find it necessary

to do so because in the absence of provisions in the

Children's Code , which has e xpress ly ''domesticatedu

that provision , it cannot be the basis of imprisoning

children .

c51 1 All in all , we find no merits in this appeal and

dismiss it . The probation order imposed by the t r ial

Judge is upheld .

VERDICT

t521 Al though we have dismissed this appeal f or having no

merits , we understand the Director of Public

Prosecutions ' concerns over the inadequacy of the

sentence i mposed on the respondent . However , it is

our view that the courts are not the right forum for

the resolution of sentencing problem this case has

exposed .

t53J While there is no doubt that the enactment of the

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Children ' s Code was an important milestone in

Zambia ' s criminal justice system , because of several

futuristic provisions it postulates , it is also

apparent that the Code , has , in some instances , made

the sentencing of delinquent children and young

persons , a nightmare . This case is a clear expose of

the problem .

cs41 Unlike the repealed Juveniles Act , which allowed

imprisonment of children in exceptional situations ,

like it appears to have been warranted in this case ,

the Children's Code does not allow it at all .

css1 The Children's Code has also prohibited the committal

or holding of persons above the age of 19 years in

reformatories ; under the repealed Juveniles Act,

offenders could be held in those institution s until

their 2 3 rd birthday. Had it not been for the

prohibition introduced by the Children ' s Code , the

trial Judge in this ca se , would have had the option

of either imprisoning the respondent ; or committing

him to a reformatory ; or p lac ing him on probation ,

because he was 17 years old at the time he of

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committed the offence and 19 years old , at the time

of sentencing .

[56J As it has turned out , because of the limitations in

the law as it currently stands , the respondent was

too young to be sent to prison and too old to be

placed in a reformatory , at the time of sentencing .

Unsatisfactory as it has turned out , the imposit ion

of the probation order was the only viable option

available to the trial Judge .

cs11 Further , following the enactment of the Penal Code

(Amendment) Act, 23 of 2022, the courts lost the

power to order children , found guilty of committing

murder where there are no extenuating circumstances ,

to be detained during the President ' s pleasure . This

follows the repeal of Section 25 of the Penal Code

csa1 Prior to the repeal of that provision , the trial

Judge could have ordered that the respondent in this

case , be detained during the President ' s pleasure

for murdering Miriam Malunga .

C59J The limited sentencing options that we have just

outlined , are by no means the only challenges that

have come with the enactment of the Children's Code.

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But they are of significant importance and it is our

view that they warrant the immediate review of the

Code and any other legislation concerned with the

sentencing of children and young persons .

DEPUTY JUDGE PRESIDENT

..•.........................................................
K. Muzenga Y . Chernbe
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE