Maxwell Tembo and Anor v People (Appeal 122 of 2000) [2001] ZMSC 140 (8 May 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: MAXWELL TEMBO ASTACK MUMBA V THE PEOPLE APPEALS NOS. 122 & 123 OF 2000 1st Appellant 2nd Appellant Coram: Sakala, Ag. D. CJ., Chaila and Chirwa JJs at Lusaka on 21st November 2000 and 8th May 2001 For the Appellants: Captain F. B. Nanguzyambo, Director of Legal Aid For the People: Mr. J. Mwanakatwe, Senior State Advocate JUDGMENT Chirwa, J. S. delivered the judgment of the Court: - The Appellants were charged with one count of murder, contrary to Section 200 of the Penal Code, then Cap. 146. The particulars of the offence were that the two appellants on the 16th day of September 1993 at Petauke, in the Petauke district of the Eastern Province of the Republic of Zambia, jointly and whilst acting together did murder Alick Phiri. After trial during which the appellants were adequately represented, the appellants were found guilty as charged but the learned judge found that there were extenuating circumstances in the case and in accordance with Section 201 (1) (b) sentenced the appellants to life imprisonment. The appeal before us is against sentence only. - J2 - The learned trial judge found the extenuating circumstances as follows: - “In this case a cousin of the deceased hired for a consideration a friend to the deceased to kill the deceased because the cousin of the deceased felt that the deceased was a problem member of the family. The question is whether, with these facts, there are extenuating circumstances. I would say yes. In deciding whether or not there are such factors the court looks at whether the community in which the accused live would view the crime from such a facet as would mitigate the gravity or moral seriousness of the offence. This is a domestic fate in which the family has already punished itself more than anybody else. Seen from that angle, one would say these are extenuating circumstances. The wrong is inside the family of course not every domestic homicide with automatically qualifying under these lines, each case will be seen in Us own right depending on facts The Learned Director of Legal Aid supports the learned trial judge’s finding that there were extenuating circumstances in the case but submitted that the sentence of life imprisonment was on the excessive side and asked us to substitute it with a term sentence so that the appellants may live a normal life, bearing in mind that the deceased was a cousin to the second appellant and a friend of the first appellant. We have looked at the circumstances to which the learned trial judge has referred to as extenuating. The learned trial judge took the view that the petty thefts committed by the deceased in his family were extenuating circumstances. We do not think so. However, since there was no appeal by the State, we will leave the matter at that and give the benefit to the appellants. This was a very bad murder case. As the - J3 - learned trial judge observed that the deceased was almost decapitated and the first appellant actually did this for a goat and some groundnuts. In setting aside the life imprisonment sentence, we wish to impose a sentence that will reflect severity of the crime committed, committed for the payment of a goat and ground nuts. Paid murderers and their master should be severely punished. We allow the appeal against sentence. We set aside the life imprisonment sentence and in its place we impose the sentence of 25 years imprisonment with effect from 17th September 1993 the date they were taken into custody. E. L. Sakala ACTING DEPUTY CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE