The People v Gloria Tembo (HP/ 281/2023) [2023] ZMHC 35 (8 December 2023)

.. IN THE HIGH COURT FOR ZAMBIA HP/ 281/2023 HOLDEN AT LUSAKA (Criminal jurisdiction) BETWEEN: THE PEOPLE V GLORIA TEMBO Before Hon. Mrs. Justice Mwaaka Chigali Mikalile this Sth day of December, 2023 For the State: Mrs. G. Mwiinga Mhambi, State Advocate - National Prosecutions Authority For the Accused: Mr. B. Banda, Legal Aid Counsel - Legal Aid Board Legislation referred to 1. The Penal Code Chapter 87 of the Laws of Zambia Cases referred to: 1. Christopher Nonde, Lushinga v. The People, S. C. Z Judgment No. 15 of 2. Soko v. The People, Appeal No. 31 of 2017 3. Shawaza Fawaz & Prosper Chelelwa v. The People (1995-1997) ZR 36 4. Nyambe v. The People, S. C. Z Judgment No. 5 of 2011 5. David Zulu v. the People (1971) ZR 151 6. Emeldah Mwanza v. The People, Appeal No. 39 of 2018 Introduction 1. The accused, Gloria Tembo, stands charged with one count of Murder contrary to section 200 of the Penal Code Chapter 87. Particulars of the offence allege that accused on the 24th day of February, 2023 at Chongwe in the Chongwe District of the Lusaka Province of the Republic of Zambia did murder an unnamed infant. 2. The accused pleaded not guilty to the charge. 3. Section 200 of the Penal Code provides: "Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder." 4. Malice aforethought is described as follows in section 204 and quoting the relevant subsections only: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances a. An intention to cause the death of or to do grievous harm to any person whether such person is the person actually killed or not; b. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused S. Thus to prove murder, the following ingredients have to be established: 1. Th.at death occurred J2 2. That the cause of such death was an unlawful act or omission 3. That the accused caused the death of the deceased 4. That the death was caused with malice aforetlwught 6. I will now consider the evidence in this case. To prove the charge, the prosecution called seven witnesses. The accused opted to give evidence on oath and called no other witness. Prosecution's case 7. The first prosecution witness (PWl) was 52-year-old Charles Chitewo, a security guard. He testified that he reported for his night shift on Friday, 24th Febrnary, 2023 and knocked off the following morning. When he got home, his 15-year-old son, Charles Chitewo junior, informed him that he heard a baby crying behind the house. PW 1 did not think much about it as he reckoned that it could have been someone passing by since they live near a road. 8. On Sunday, 26th February, 2023 around 15h00, he was taking a bath in preparation for work when he heard people calling him and alleging that there was blood near the borehole. PWl went to the scene and observed that there was indeed a lot blood. He also observed a freshly dug ditch about 5 metres away. He told the people present not to tamper with the scene as there was no indication as to what animal had been killed. He then called the neighborhood Chairman (PW2 herein) to the scene as it was time for him to go for work. On his way to work, PWl met PW2 and left the issue in his hands. J3 k 9. Whilst at work, he received information from PW2 that a baby was found at the scene. The witness was not cross examined. 10. PW2 was 68-year-old Peter Sakala, a farmer of Shisholeka Village in Chongwe and Chairman of the neighbourhood watch. His testimony was that on 26th February, 2023 around 16h00, he received a call from PW 1 asking him to go to his residence. He met PW 1 on the way who explained that there was a lot of blood at his place and that he was not sure what had happened. Upon arrival, PW2 interviewed the child that discovered the blood before proceeding to the scene where he met some women. He found that a hole had been dug and that a block was placed on top of it, PW2 asked for a hoe and prayed before he began digging. As he was digging, he saw something white and the women present pointed out that it was a placenta. He then asked how many women were pregnant in that area. He decided to stop digging and called the headman, Mr. Bernard Mumba, who apparently, had already called the police. The police came and retrieved the body of the baby. The baby was a boy. 11. It was PW2's evidence that he was tasked by the headman to visit Boniface Kaseba, the now accused's husband and brother to PWl. The headman wanted to know the whereabouts of the accused. Apparently, there were only two pregnant women in the vicinity and the accused was one of them and was nowhere to be seen. According to PW2, he met Boniface Kaseba as he was driving out of his work place. When asked about his wife's whereabouts, Boniface stated that she was on maternity leave. He further J4 expressed ignorance regarding the baby incident at the village. He was then picked up and taken to Chongwe police station. 12. The police asked them to look for the accused and they found her at her grandmother's house which was about 5 kilometres away from her house. According to PW2, the accused was no longer pregnant. She was surrendered to the police. 13. When cross examined by Mr. Banda, senior legal aid counsel, PW2 denied the assertion that the accused gave birth to a still born baby. He was, however, not sure if she had a miscarriage. He stated that he was not aware that the accused suffered serious mental anguish prior to the alleged still birth. He was also unaware if the blood at the scene belonged to the accused or if at all it was tested. 14. In further cross examination, PW2 denied knowledge that babies sometimes get chocked by amniotic fluids during child birth. He stated that he did not have an opportunity to talk to the accused before surrendering her to the police. He denied the assertion that on their way to the police station, the accused told them to leave her alone as she had a still birth. 15. PW3 was 46-year-old Boniface Kaseba also of Shisholeka Village. He told court that he was the husband to the accused and he had been with her for 1 year and 3 months. He, however, admitted that he had not paid the bride price. According to PW3, he and accused J5 had agreed that she would deliver from her relative's place and that he would pay dowry later. 16. It was his evidence that every month for three months, he gave the accused his bank card for her to withdraw K 1,000.00 for the baby's requirements. When she was almost due, she applied for leave from work so that she could go and give birth at her grandmother's place. PW3 informed court that he and accused worked at the same farm. He said he never saw ~y of the baby items that accused allegedly purchased. When he questioned her about it, she told him that she was taking whatever she bought to the grandmother's place. 17. On a date he could not recall, but during the maize farming season, the accused came to his work station to bid him farewell as she was leaving for her grandmother's place. However, when he got home around 21h00 that day, he found that she had not left. She was at PWl's place which is just a few metres away from his house. Apparently she had gone to watch T. V. She explained that she would leave the following day. According to PW3, He slept and accused joined him in bed much later. He did not check the time thus couldn't tell what time it was. He woke up at 04h00 on Saturday to prepare for work and accused informed him that she would be long gone by the time he returned. She called him in the evening to inform him that she had arrived safely at her grandmother's. 18. It was PW3's further testimony that on Sunday, he went to nurse his uncle who was admitted in Chongwe clinic and between 18 and J6 19h00, he received a phone call from his sister in law, PW2's wife, saying they had found a baby that was buried. When he reached home, he phoned the accused and informed her of the discovery. He also asked her to return home and she said she would return the following day. 19. On Monday, he was picked up from work by the neighbourhood watch and was taken to the police station. The police tasked him to find the accused. Accused was picked up from her grandmother's residence and was surrendered to the police. 20. When cross examined, PW3 confirmed that the accused was his wife and that he knew her well. He stated that he left her sleeping on Saturday, therefore could not confirm her state or condition. It was not to his knowledge if accused was distressed and neither did he observe her tossing and turning during the night. According to PW3, he was too tired on that particular night. He confirmed speaking to the accused in the morning and it was his evidence that her voice sounded just fine . 21. In continued cross, PW3 stated that the accused had four children and this would have been his first child with her. He also stated that he was not aware that the accused had had a miscarriage prior to their getting together. She also never informed him that she delivered a stillborn. As far as he was concerned, she had reached full term. PW3 clarified that he saw the baby having buried it himself. The witness was not re-examined. J7 V 22. PW4 was 15-year-old Charles Chitewo Junior who gave evidence on oath following a voire dire. It was his testimony that on Friday, 24th February, 2023, he retired to his separate living quarters after watching T. V from his parent's sitting room. He explained that his quarters are near a borehole and a road passes close by. According to PW4, he heard a baby crying for a long time and when he woke up the following morning, he informed his parents about it. His father, PWl herein, told him that it could have been people passing on the road. 23. On Sunday, however, a baby was found buried behind his quarters across the road. PW 4 clarified that he was not the one that made the discovery. He visited the scene and observed that indeed it was a baby that was buried there. 24. It was his further testimony that on that Friday, he watched T. V with his siblings and cousins. His aunt, the accused, who lived nearby with his uncle (PW3) was not with them. 25. When cross examined, PW4 stated that it was not to his knowledge if his uncle was with the accused when he (PW4) went to bed around 23h00 on Friday 24th February. He stated that he did not see the accused behind his quarters later on see her kill the baby. 26. Woman Constable Nancy Popota was PWS. It was her testimony that on 26th February, 2023, at about 17h40, she received a report from Peter Sakala of Shisoleka Village in Chongwe that a baby was found buried in a shallow grave within the village. According to PWS, she rushed to the village where the baby's remains were exhumed and deposited in Chongwe hospital mortuary. J8 27. On 28th February, 2023 the now accused was brought in by PW2 and PW3 on the suspicion that she was the one that buried the baby in the shallow grave. PW5 interviewed the accused and recovered a hoe that the accused allegedly used to dig the shallow grave. She also took accused to Chongwe hospital for examination where the doctor {PW7 herein) confirmed that the accused had given birth recently. The doctor reduced his findings in writing in a medical report produced in evidence (Pl). Furthermore, a postmortem was conducted on the remains and PWS produced the postmortem report (P2). Subsequently, accused was charged and arrested for the subject offence. 28. Further, regarding the scene of cnme, PWS testified that the shallow grave was just about 100 meters away from accused's house and quite near a handpump. She also told court that the infant was buried facing downwards without any clothes. 29. PWS further testified that during her investigations, she inquired about whether or not the accused had prepared for the baby. Accused's husband informed PWS that all the items were allegedly at accused's grandmother's house. According to PWS, there were no baby clothes at the grandmother's house and accused confirmed not having bought any. 30. PWS tendered the hoe used to dig the shallow grave and it was admitted in evidence and marked P3. 31. In cross examination, PWS stated that she did not take photos of the infant or of the shallow grave. She also stated that she found J9 the hoe with the neighbour. PWS admitted that she did not investigate accused's antenatal attendance and consequently did not find out the fetal status. She, however, denied the assertation that the absence of the antenatal history meant that accused was free from blame in the alleged death. 32. PWS also denied knowledge that asphyxia is prevalent in Zambia and that women over the age of 35 have a higher chance of experiencing a still birth. She further denied the assertion that the baby was born dead and placed reliance on the postmortem report which indicates that the cause of death was suffocation. She expressed ignorance that suffocation can occur when amniotic fluid is ingested or when the placenta is misplaced. 33. In re-examination, PWS told court that she did not take photos of the crime scene because the police camera was not serviceable. 34. PW6 was Dr. Viktor Telendiy, State Forensic Pathologist. He testified that on 2 nd March, 2023, he conducted a post-mortem on the body of an infant that was born on 24th February, 2023 to Gloria Tembo. The information he received from the police was that the body was found on 26th February, 2023. 35. According to PW6, the body weighed 2,320 grams and was 48 centimetres in length. He determined that the baby was born after 37 weeks of gestation as the weight and length corresponded with a mature baby. 36. He told court that part of his duty was to determine if the infant was born alive by conducting specific tests. He explained that JlO sometimes babies die during birth due to trauma occasioned by child birth. In this case, however, he did not see any birth trauma which indicated that the delivery was normal. He also explained that a baby can at times die due to congenital diseases but there was none in this case. 37. It was his further testimony that usually the doctor can conclude whether the baby was born dead or alive from the state of the lungs. When lungs are elastic and pick, it means the baby took a breath after delivery. He testified that he took fragments of internal organs for histology, which is checking organs under a microscope, and the histology examination of the lungs showed that the baby was born alive and took breaths after delivery. Further, histology of other organs like the brain, kidneys and liver showed that the baby was mature in the term. 38. PW6 also observed that there were no signs of decomposition on the deceased infant and that is why he was able to discover that the child was born alive. He stated that when there is decomposition, it is hard to conclude that a baby was born dead or alive. It was his evidence that he found petechial hemorrhages in the eyes and lungs. These hemorrhages are non-specific marks of asphyxia. 39. From his autopsy findings, therefore, he concluded that the baby did not die due to trauma or congenital diseases. The baby was born alive and mature and died due to asphyxia or suffocation or smothering. J11 - 40. PW6 identified Pl as the postmortem report he prepared. He highlighted that page 3 has an error of 315 grams. He emphasized that the weight of the baby was 2,320 grams. He clarified that a baby weighing 315 grams cannot measure 48 centimeters as was the case herein and this would be a two to three-week-pregnancy. 41 . Under cross examination, PW6 acknowledged that the correct way to correct a report was to write another report. He did not do so in this case as the error was not brought to his attention prior to coming to court. 42. PW7 was Dr. Morton Zuze, Senior Resident Medical Officer based at Chongwe District hospital. It was his testimony that on 1st March, 2023, he was the attending medical officer when accused was brought in for medical examination by the police. As per procedure, he sat down with the accused to have an interaction. He begun by considering her mental stability and noted that she was coherent, well kempt and oriented to time, place and person. 43. The accused explained to him that five days prior, she went into labour, having been eight months pregnant. That was her fifth pregnancy. She delivered successfully at home and after the delivery, went in a nearby bush and dug a shallow hole and buried the baby. When questioned as to why she took such an action, the accused informed him that her life was hard and her husband was unable to provide for her and her four children. A fifth child would have worsened the situation. J12 - 44. PW7 thereafter proceeded to conduct a physical examination and observed that the accused's uterus was contracted, her cervix was two centimeters dilated and she had lochia (which is vaginal discharge after delivery). He concluded from the colour and the type of lochia that she had a vaginal delivery four to ten days prior to examination. He then issued the medical report (Pl). 45. Under cross examination, PW7 confirmed that he did not see any antenatal report in respect of the accused. He also confirmed that he did not give a written statement to the police but that he informed them about the financial challenges accused had told him about. He denied the assertation that the information from the accused was an afterthought. 46. In further cross examination, PW7 acknowledged that it is possible for someone to be found lucid although they previously had a mental issue, if they have had time to recover. Defence case 47. The accused, Gloria Tembo aged 39 years informed court that she was a general worker at Kapiliomba Fann in Chongwe. She begun by acknowledging that she was pregnant at the material time. She testified that on 24th February, 2023, she begun having abdominal aches. Subsequently, she delivered what she called 'chinyama nyarna' loosely translated as some fleshy thing. She said she did not know what it was and it confused her. As such, she got a hoe and buried it. It was her evidence that she has four children all of whom were delivered from the hospital. J 13 48. The following morning, she went to her grandmother's place as she had already been given maternity leave. Three days later, she received a call from the man she was co-habiting with, PW3 herein, asking her to go back home. She, however, could not return home there and then due to heavy rains. She narrated that at the time she left home, PW3 already knew that she was going to stay with her grandmother. The following morning, PW3 came with his relatives and she was picked up and taken to the police. She was not told the reason why. 49. The following day, the police took her to Chongwe hospital, where she was examined. It was accused's evidence that the doctor, PW7, did not tell her anything and neither did she tell him about the burdens of raising four children as alleged. She added that the doctor only examined her after 5 days and she was just fine at the time. 50. In cross examination by Mr. Phiri, state advocate, the accused confirmed that she was pregnant for 8 to 9 months. She also confirmed that she is conversant with what happens when one is about to deliver. She did not, however, know that she was in labour this time around as her experience was different from previous labour experiences. She stated that with the other pregnancies, she used to go for antenatal care. With this particular pregnancy, she only went for antenatal once and this is because she was told to come with her husband but PW3 refused to accompany her each time she asked him. She also stated that she J 14 wouldn't know if she carried a child because she was never examined at the hospital. 51. When pressed, the accused admitted to knowing that she was with child and that she even asked for maternity leave from work. She confirmed that PW3 gave her his ATM card to enable her buy clothes for the baby. She insisted that she did buy the baby clothes and took them to her grandmother's place in January, 2023. She, however, admitted to not showing the police and PW3 the alleged clothes. 52. In continued cross examination, accused stated that she started experiencing labour pains between 16 and 1 7h00 on the material day and she gave birth around 19h00. She acknowledged that there were people in the village at the time including her brother in law, PWl, and his wife. She, however, did not inform her sister in marriage when she went into labour and could not explain to court the reason why. According she did look at what she delivered but did not know that it was a baby. 53. The accused admitted to giving birth in secrecy but denied the assertion that she did not want the child. She accepted that she was struggling to take care of her other children. 54. When queried further, the accused confirmed that she got what she gave birth to and buried it and that the hoe used to dig the shallow grave belonged to her neighbour. The accused further confirmed that she took the police to that shallow grave and that what was retrieved from that shallow grave was an actual baby. J15 55. Further in cross examination, the accused stated that she did not get the hoe before she delivered. According to her, she was not confused when she got the hoe, dug a hole, buried the infant and later on returned the hoe to its owner. She confirmed that PW3 was not at home at the time and that she did not inform him that she had delivered something. This is because she did not know that what she experienced was a miscarriage and also because PW3 was angry with her for not having gone to her grandmother's place. 56. When cross examined by Mrs. Mhambi, state advocate, the accused confirmed that just as with her previous pregnancies, she did feel the baby move in her womb. She again accepted that what she delivered was a baby and she ended its life. 57. This was all the evidence. Both the prosecution and defence elected to rely on the evidence on record and did not file any submissions. Consideration and decision 58. I have carefully considered all of the evidence. I find as a fact that in or around February, 2023, the accused was pregnant. It is also a fact that her partner (PW3) with whom she was co-habiting, gave her money to procure what was needed for the arrival of the baby. PW3 never saw any baby items. It is further a fact that the accused left home, where she lived with PW3, and went to her grandmother's residence so that she could deliver her child therefrom. However, on 26th February, 2023, a day after she had J 16 left, a baby was found buried in a shallow grave near her home. Medical examination of the accused conducted on 1st March, 2023 revealed that the accused had recently given birth. 59. The prosecution sought to establish that it was the accused that buried the baby that was exhumed from the shallow grave while the accused told court that she delivered a fleshy thing which confused her as she did not know what it was and as a result she buried it. 60. Arising from the foregoing, I ask myself if there is sufficient evidence on record to prove that accused committed the offence of murder. Has the prosecution established all the elements of the offence? 61. As found, the body of a deceased infant was recovered from a shallow grave. Thus, death did occur. 62. The second aspect of the offence is that the deceased must have died as a result of an unlawful act or omission. The evidence of PWl, PW2, PW4 and PWS establishes that at the shallow grave site near the bore hole was a lot of blood and the deceased baby was found buried facing downwards without any clothes. 63. I am mindful of the fact that PWl and PW4 are relatives of the accused's partner, PW3. Thus, in accordance with the case of Christopher Nonde, Lushinga v. The People( 1l I ask myself if these witnesses may have an interest of their own to serve and I warn myself accordingly. However, careful observation of these witnesses left me with no misgivings as these witness delivered J 17 their evidence dispassionately. In addition, as will be seen later, their evidence is corroborated by other evidence on record thus eliminating the danger of false implication. 64. The testimony of PW4 was that he heard a baby crying for some time during the night. The following morning, he informed his father, PWl, about the crying baby. Lal and behold, the deceased infant was subsequently found buried in a shallow grave. As has been admitted by the accused, this is the very grave wherein she buried whatever she delivered. 65. It is pertinent to note here that the accused's defence was that she did not know what she gave birth to. Defence counsel also sought to establish through cross examination of prosecution witnesses that the accused had a still birth. It is therefore imperative to establish what the accused delivered, that is to say, whether it was a fleshy thing as alleged or a well-developed infant. If it was a fully developed infant, it has to be established whether it was born alive or dead. 66. The evidence of the Forensic Pathologist (PW6) reveals that what was exhumed from a shallow grave and deposited in the UTH mortuary and on which he conducted an autopsy, was an infant deceased. The ·histology examination established that the infant was born mature or of full term and alive. This conclusion was arrived at after examining amongst other things the lungs of the deceased infant which lungs appeared pink and were elastic. According to the Pathologist, this indicated that the deceased infant took a breath or breaths before his demise. It was further his J18 testimony that the deceased infant had no congenital diseases that could have caused his demise and neither was his birth traumatic as to cause injury. He concluded that the deceased died of asphyxia due to suffocation. 67. I have not lost sight of the guidance of the Supreme Court in a number of authorities regarding expert evidence. In the case of Justine Soko v. The People(2l, the Court reiterated its earlier position in the case of Shawaza Fawaz & Prosper Chelelwa v. The People(3l that when dealing with the evidence of an expert witness, a Court should always bear in mind that the opinion of an expert is his own opinion only, and it is the duty of the court to come to its own conclusion based on the findings of the expert witness. 68. In the case at hand, it is a fact that on the night of 24th February, 2023, PW4 heard a baby crying near his quarters which quarters are near a borehole. Further, a baby was found dead and buried in a shallow ditch near the very borehole. Arising from this, I have no doubt in my mind that the deceased infant retrieved from the shallow ditch was born alive. I have no qualms accepting that his delivery was not premature as his weight (over 2kg} was consistent with the weight of a full term baby. 69. Based on the Pathologist's findings, I am satisfied that the infant found buried after being heard crying died as a result of asphyxia. The infant died of suffocation because his body was deprived of oxygen. I am of the firm view that the burying of the infant was intended to cause grievous harm or death. Quite clearly, the issue of the infant choking on amniotic fluid does not arise. There is simply no medical evidence to support that assertion. Thus, I am satisfied beyond doubt that the infant died as a result of an unlawful act. 70. I 'Will now address whether or not the accused is responsible for the death of the infant. It is cardinal to point out that there was no eye witness to the death. The evidence of the prosecution is to the effect that the accused left her home for her grandmother's place allegedly to go and deliver and the shallow grave in which the deceased infant was found was only discovered after accused had left. When accused was picked up from her grandmother's place, she was no longer pregnant and could not immediately account for the baby's whereabouts. 71. Clearly, the evidence against the accused is largely circumstantial. The Supreme Court in the case of Nyambe v. The People (4l reaffirmed its position on circumstantial evidence set out in the landmark case of David Zulu v. The People(5 J to the effect that the Court must satisfy itself that the evidence has taken the case out of the realm of conjecture so that it attains a degree of cogency. Where the conclusion is based purely on inference, that inference may be dawn only if it is the only reasonable inference on the evidence. 72. The undeniable evidence is that the accused did go into labour and had a delivery. The evidence of Dr. Zuze (PW7) confirms this fact as it established that the accused had a vaginal birth a few days prior J 20 to her examination. It is also undeniable that the accused buried what she delivered. PW7 told court (and his testimony was unchallenged) that the accused informed him that she delivered successfully and then went to a nearby bush, dug a shallow hole and buried an infant. I ask myself if PW7 had any reason to concoct a story against the accused and I find none as the evidence on record does not reveal any n1otive. Quite clearly, the accused was unknown to PW7 until this encounter and PW7 appeared to be professional and with no interest of his own to serve. 73. In light of the foregoing plus the Pathologist's evidence on histology, there is no doubt that what the accused buried was actually a fully developed infant and as found already, the infant was born alive and well with no presence of congenital diseases or evidence of birth trauma. 74. Evidently, there was an omission to preserve the life of the infant. The infant was neither clothed nor fed nor protected from harm. Thus, the evidence has undoubtedly connected the accused to the death of the infant. The only reasonable inference to be drawn is that the accused suffocated the baby thereby causing its death. 75. What remains to be resolved is whether the prosecution has proved that the accused had the necessary mens rea. 76. PW3, the 'husband' to accused testified that he gave the accused money to buy the necessities for the baby and yet the accused never bought the necessities. She was questioned about baby clothes by the investigating officer and had it been true that she did J 21 buy the baby clothes and was keeping them at her grandmother's place, she would have led the officer to their recovery. The non procurement of baby items is in my view a serious red flag and makes any reasonable person question if the accused ever intended to keep the baby. 77. Further, in cross examination, the accused conceded that she did not ask for any help in the delivery process from her neighbours or indeed anyone in her locality. The evidence is also clear that accused concealed the birth from PW3 and left for her grandmother's place. She never ever complained about having a 'complicated delivery' or a delivery of any kind. The question is - why would anyone hide such important information from the person that impregnated her? 78. The defence did endevour to establish that the accused may not have been in her right frame of mind due to the effects of giving birth as envisaged in section 203 of the Penal Code which provides for the offence of infanticide. Thus, it important to consider this aspect before arriving at any conclusion. 79. The testimony of PW7 is to the effect that the accused was coherent, well kempt and oriented as to time, place and person when he examined her. As earlier found, PW7 was a credible witness. In light of his confirmation that he administers psychosocial counseling, I have no reservations accepting his testimony that the accused was well oriented. I am fortified by the fact that accused was able to give birth in secrecy or secretly endured the pain of labour. Quite clearly, this was done to ensure J 22 • that no one knew that the infant had been born. Such conduct is in my view consistent with conduct of one in their right frame of mind. In a nutshell, I find that that there is no evidence indicating that the balance of the accused's mind was disturbed as a result of child birth. 80. There is no reasonable explanation for the accused's actions in my view. The record is also bereft of any evidence indicating that the accused ever grieved for her child. In fact, no one was aware that she had delivered. 81. In a nutshell, the evidence has established that: the accused did not prepare for the impending birth; the accused formed the decision to give birth in secrecy and to bury the infant facing downwards in a shallow grave; and the accused did not inform anyone about the delivery. From these facts, I hold the firm view that the accused's actions were premeditated. The accused acted with malice aforethought. 82. I am fortified by the case of Emeldah Mwanza v. The People(6l, where the Court of Appeal in dismissing the appeal had this to say: The fact that the baby was thrown in a well shows that causing death or grievous hann was intended by the perpet;rator of the crime. The trial court cannot be faulted in its finding that the action satisfied the mens reafor murder per section 204 of the Penal Code. 83. In casu, the accused should have known and in fact knew that burying her baby would inevitably result in grievous harm and death as was the case. J 23 ... 84. In the result, I am satisfied beyond reasonable doubt that all the elements for the offence of murder have been proved. Further, I find no extenuating circumstances which merit consideration. I therefore find the accused, Gloria Tembo, guilty of the offence of murder and I convict her accordingly. J 24