James Mwitwa and Anor v People (SCZ Appeal 22 of 2001) [2002] ZMSC 100 (5 March 2002)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 25(a) AND 25(b) OF 2001 (Criminal Jurisdiction) BETWEEN: PELIAS KABOYI APPELLANT LWIZA KALAMBO APPELLANT AND THE PEOPLE RESPONDENT CORAM: Ngulube, CJ, Chirwa and Chibesakunda, JJS. On 5th February and 7th May, 2002 For the appellants - NanguZgambo, Director of Legal Aid For the respondent - Mchenga, Chief State Advocate JUDGMENT Ngulube, CJ, delivered the judgment of the Court. On 5th February, 2002, when we heard this appeal, we dismissed it save to the extent of ordering that the second appellant’s sentence be 10 J2 I years simple imprisonment rather than with hard labour. We said we would give our reasons later, which we now do. The appellants were each sentenced to 10 years imprisonment with ’ hard labour for manslaughter after pleading guilty to a charge which had been reduced from murder to manslaughter. The particulars were that on 20th December, 1999, at Solwezi, they unlawfully caused the death of Yotamu Kanakambeba. The facts recited showed that there was a funeral at Kalobwe Village in the Solwezi district. This was the funeral of the second appellant’s daughter. It was said that the coffin led the pall bearers to Yotamu’s house. The deceased was not at home and the mourners went to fetch him from his field. The appellants and other mourners severely beat up Yotamu on suspicion he had killed the second appellant’s daughter. He was beaten with sticks, fists, kicks and stones and died from the assault. The learned trial Judge noted that this sort of offence was prevalent and it was necessary to discourage the type of belief in witchcraft which was exhibited here. Accordingly, a deterrent sentence was selected. We agree with the learned Judge. All too frequently in some parts of this country, one death leads to another as bereaved families insist on witchcraft to find an alleged culprit resulting in the assault and murder of innocent persons J3 suspected to have killed the beloved ones. There is also the danger of a vicious cycle as each aggrieved family in turn exacts vengeance. This practice and the tendency must be curbed and discouraged. We are mindful of the powerful submissions in mitigation when we were urged to consider that 10 years was excessive in a situation where the offenders had pleaded guilty thus saving the court’s time; where they were bereaved and where there were other mitigating circumstances. For instance, the second appellant’s family circumstances were urged; as was the youthfulness of the first appellant. We are also quite mindful of the need for a sentence to reflect the credit that is due to a first offender who pleads guilty. As against all this, however, there was the overriding consideration that it is time to dissuade those who always try to find a culprit and take instant justice to their victim so selected. Death which is the inevitable end for all of us does not have to come in multiples and certainly not those which are man-made and most probably inflicted on the innocent who are made the victims of instant justice. In the event, the sentences here were condign and not one day too long. J4 It was for the foregoing reasons that we dismissed the appeals. M. . S. W. Ngulube, CHIEF JUSTICE. D. K. Chirwa, SUPREME COURT JUDGE. L. P. Chibesakunda, SUPREME COURT JUDGE.