Driver Mwale v The People (SCZ APPEAL NO. 47 OF 2003) [2003] ZMSC 188 (4 June 2003)

, IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 47 OF 2003 HOLDEN AT NDOLA (Criminal Jurisdiction) DRIVER MWALE vs THE PEOPLE Coram: Sakala, C. J., Chibesakunda and Chitengi, JJS 4 th June, 2003. For the Appellant: For the State: Captain F. B. Nanguzyambo, Director of Legal Aid. Mr. C. F. R. Mchenga, Chief State Advocate. JUDGMENT Sakala, C. J., delivered the Judgment of the Court. The Appellant was sentenced to death following upon his conviction for the offence of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence were that the Appellant, on the 20 th of May 1999, at Chadiza, in the Chadiza District of the Eastern Province of the Republic of Zambia, did murder Mr. Musanivute Tembo. O The fact that the deceased was axed to death as a result of a quarrel was not in dispute. The evidence conclusively established that the Appellant axed the deceased to death. There was equally no dispute that the Appellant was drunk and that there was a quarrel followed by a fight. There was also evidence that the deceased had grabbed the Appellant by the waist and accused him of being impotent. • : J2: This appeal is essentially against the death penalty. On behalf of the Appellant, the learned Director has briefly indicated that the Appellant at trial adequately raised the defence of drunkenness. According to the evidence he was very very drunk. The Director pointed out that the Appellant having been accused of being impotent, he was provoked. He has asked the court to revisit the death penalty. On behalf of the State, Mr. Mchenga, Chief State Advocate, properly indicated that the failed provoca.tion in this case amounted to extenuating circumstances. We have considered the evidence on record. The evidence in support of the conviction was overwhelming. However, on the evidence on record, it appears to us that the learned trial Judge did not address his mind to the evidence that established extenuating circumstances. We have said before that failed provocation warrants the reduction of a death sentence. In the circumstances therefore, we set aside the death sentence imposed by the learned trial Judge but bearing in mind the circumstances in which the deceased met his death, we find that there was no justification to axe him to death even if there was the accusation of impotence. We therefore impose a sentence of 20 years imprisonment with hard labour with effect from the date of arrest. To that extent the appeal succeeds. CJ ~ .... ~ .......................... . E. L. Saka/a CHIEF JUSTICE .......... lQ✓. ........................... . LP. Chibesakunda SUPREME COURT JUDGE 'l'-,--btti ng SUPREME COURT JUDGE