People v Mwenda and Anor (IPG 48 of 2018) [2018] ZMSUB 1 (23 July 2018)

J1 IN THE SUBORDINATE COURT OF THE FIRST FOR THE MPIKA DISTRICT HOLDEN AT LUSAKA (Criminal Jurisdiction) THE PEOPLE VERSUS TRYMORE MWENDA & RACIIEAL KAFUWALA ‘ BEFORE: HER WORSHIP A. N WALUSIKU FOR Uli PEOPLE: MIL NGOZO PURI IC PROSIT U FOR FOR HU ACCUSED: MR. MILNER KA LOLO & MR. W. M. MUTOFWE R II I I N G CASES ( I I ED EMM INTEL PHIRI I THE PEOPLE (1982) Z. R. 77 (S. C.) MIEANZA v THE PEOPLE (1976) Z. R. 154 EAGAN I METROPOLITAN POLICE COMMISSIONER [ 1968) 3 ALL ER 447. THE PEOPLE US'. MAKOWELA (1974) ZLR 290 NSOEV I' THE PEOPLE (1973) ZLR 287 HATT I v THE PEOPLE (1974) ZLR 154 IVOR NDAKALA v THE PEOPLE (1974) ZLR 19 PEN1AS TEMPO v THE PEOPLE (1980) ZLR 218 RvSHIPPEYAND OTHERS (1988) GRIML. R 767 SIMON MALAMBO CHOKA v THE PEOPLE (1982) ZR 20 (SC) KATEBE p THE PEOPLE (1975) Z. R. 13 (S. C.) MWEWA MURONO v THE PEOPLE (2002) ZLR 207 In this case the accused stand charged with two counts oflNDECENT ASSAULT OF FEMALE contrary to section 137( I) of the Penal Code as read with Act No. 15 of 2005 ot the laws of Zambia. The particulars of Count 1 allege that TRYMORE MWENDA and RACHEAL KAFUWALzX. on unknown dates but between 1st January and 3 1st January, 2018 at Lusaka in the Lusaka District of the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting J 2 allege that TRYMORE MWENDA and RACHEAL KAFUWALA on unknown date but between 1st January, 2006 and 31s1 December. 2013, at Lusaka in the Lusaka district of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together unlawfully and indecently did assault JANE MWENDA. The accused pleaded not guilty to the charge. I lowevcr, Count I was withdrawn under Section XX(a) of the Criminal Procedure Code at the close <>/ die 1’ioscentioii case I his meant dial l><>1 h accused were discharged in < ount I WARNING I warn myscli from the outset that the buidcn ol proof in criminal proceedings such as the present one lies squarely with the Prosecution. Notwithstanding the delcnscs available to an accused person, the primary responsibility to prove the allegations against such a person remains with the Prosecution. The Prosecution in this case is required Io prove each ingredient that constitutes the ollcnce ol indecent assault as charged beyond reasonable doubt. I must reiterate that proof beyond reasonable doubt is not synonymous with proof beyond any shadow ol doubt. In the event ol reasonable doubt, such doubt must be decided in favor ol the accused and he must be accordingly acquitted. I further warn myself that in a sexual offence there must be corroboration ot both commission ot the offence and the identity of the offender in order to eliminate the dangers of false complaint and false implication per EMMANUEL PHIR1 v THE PEOPLE (U’N?) Z. R. 77 (S. C.). At this point I propose to analyze the law creating this offence before considering the evidence adduced herein. ANALYSIS OF THE LAW J 3 The offence of INDECENT ASSAULT ON FEMALES is created by section 137(1) of the Penal Code as read with Act No. 15 OF 2005 which is couched in the following language; . (1) Any person who unlawfully and indecently assaults any child or other person commits a felony and is liable, upon conviction, to imprisonment fora (cim of not less than Hllecn years and not exceeding twenty. I'hi' phrase "indcccntl v ;issa111(’ |<>r the purposes of (his oflcnee Inis not been defined by the penal » ode I lowcvei, I lie iei in "I i idee envy" in (hi > context was given a idci meaning than pm c .sexual indecency II was held m MVVANZA v Illi PEOPLE (1976) Z. R. 154 (ll. C.) th at to construe the word "indecency" so narrowlv that an offence under this section cannot be made out unless there is explicit evidence of what we would call "sexual desire" is to construe the section wrongly in Zambia today. The term assault is not delined unvwhcrc in the Zambian authorities I therefore Imd it necessary Io borrow the English definition of assault established in Fagan v Metropolitan Police Commissioner [ 19681 3 All ER 447. In this case Lord PARKER C'J defined an assault as any act which intentionally—or possibly recklessly causes another person to apprehend immediate and unlawful personal violence. In order to prove the guilty of the accused therefore the prosecutions must prove the following ingredients beyond all reasonable doubt; • That the prosecutrix was assaulted • That the assault was indecent • That at the time of the assault she did not consent to be indecently assaulted within the meaning of the law. 1 will now consider the Prosecution evidence in this case. J4 PROSECUTIONS’ EVIDENCE PW1 was JANE MWENDA a Student at the University of Zambia. According to her in 2006 she started staying with her father Al. Prior to that she was staying with her mother PW3 in Arrackan Barracks. At Al s place she was also staying with her stepmother A2 and her brother. She was 9 years old when she started staying with Al and A2 and she was in Grade 3. Just when she started staying with Al and A2, A2 would awaken her in the night and call her to their bedroom where she would watch them have scx/hl Used to tell her to touch A2’s breasts and kiss her. Sometimes A I would cal I her alone in the bedroom and help him masturbate. She used to touch A I us penis and (lien he would ejaculate Sometimes ache used Io pul A I's penis in her mouth When she was m Grade 7 m 2010 Al called her in the bedroom and tried to pul his penis in her vagina. 1 le told her to remove the pant and he was wearing a short. Al ejaculated near her vagina. A I told her that she could not get pregnant because she had not yet started her menses. She went to the bathroom to cry. Weeks later she ran awav from home and went to PW3’s place. She ran awav because she wanted to tell PW3 what was happening. She told PW3 who told her to tell her if it happened again. Later Al went to pick her in the night. PW3 was CAlliERlNE NY 1RLNDA. When they got home Al beat hci up. She- continued helping Al masturbate and Al was outing lingers in her vagina. The issue of kissing the breasts happened for about 3-4 times. EorAl. most of the times A2 used to he there. She only used to be with Al. IN Grade X she went to Chikankata School and she told her friend MUYOBA I IAEA YOBE who was now with her at the University of Zambia. There was no any other person that she told apart from PW3. At the time she was staying with PW4, CLIVATE her brother and TRUST MWENDA her Uncle. Most of the time when it was happening, people were in the Living Room watching TV and A2 in the kitchen. On 11/01/18 Al came home around 1800hrs. Around 2200hrs Al left to pick A2 and PW4 from the Lodge. She was from bathing when Al came in the house. Everyone else was outside except herself. She then noticed that everyone had entered the house except for her sister JACKLINE- PW2 she saw PW2 go behind the house and she asked PW2 s to why she was going behind the house and she was told that Al was calling her. She got scared and rushed outside and went behind the house. She found PW2 at the gate. She called for PW2 and asked her as to what she was doing and she was told that Al was showing her the electric fence. Al did not say anything but just bypassed. PW1 and PW2 went inside. In the bedroom she asked PW2 i<| Al had sent her to do anything that she had never done before. PW2 just told her that Al was just showing her an electric J 5 fence and that when she called her, Al said that PW1 spoke too much. She then followed Al to his bedroom and asked him as to what he was doing with PW2 and he said that he was showing her the electric fence and wanted to see if she could fit at the space in the electric fence. She then went to tell A2 that PW2 was in the dark outside with Al. A2 started that it was PW2 who was a fool. After talking to A2 she went to sleep. The following day she called PW2 because she wanted to talk to Al in her presence but'AI was busy going to the Lodge. That day Al never came home. Herself and PW4 spoke lo A2 of what was going on. The following day, Al came home around Hlbblifis and asked hei l<• give him a blai k lolder and she took the lolder to him while her brother was standing al a distance and Al was m (he cai. Al asked hei d -he wanted Io talk to him and she agieed. She told him that .she did not want things that had been happening Io hei to happen to PW2. I If asked her as to what those things were that she was talking about. She reminded him ol the time when he ejaculated near her vagina, lie then told her that it she thought that was wrong her mother was alive. She told him not to sav that but to talk about it. Al then said that he was a big person and that she could not sit him down. Al told her to pack her bags and leave the house and that he should not find her when he came back. AI told her to report to ZNBC or the Police ol she wanted lo see il anything would happen to him. Al loll and she went back into the house and called A2 who was at the Lodge and asked her to put them phone on loud and told her that Al had chased her. A2 did not react hut PW4 went home. When PW4 came home, PWI and PW2 started packing things. Later Al came and told PW4 to also pack. Al look PW2 to her mother and with PW4 booked a Cab and PW3 came with Al and she went to PW3’s place. Later she went to the Lodge in Avondale and paid for it. She used school money lo pay al the Lodge and were there for two days. She then called Uncle Ngoma and Neva from Kafue. Later people from YWCA came to interview them at the Lodge and took them to their offices in Kabwata and were taken to a shelter. She identified Al and A2. In XXN by Counsel she told the Court that she was born on 11/02/1998. She had an Aunt from PW3’s side. She only knew of two. It was M1Y0BA and Virginia. She was not very close to them. Miyoba stayed in Lusaka and Virginia in Chongwe. She had two uncles on PW3 s’ side. It was Andrew and Fewdays. She did not see the need to disclose to them. Al told her that PW3 used to do the same to her father. When she went to her father in 2006 that was the time PW3 used to send her to sell water in the bucket. She did not know if her life changed for the better J 6 after she started staying with him. Al was paying fully for all her education. Al opened a Bank account for her at ZANACO. It was Al who used to put money in that account. Al bought a Toyota Vitz for her. She knew PW4. PW4 had never said anything that she alleged that she went through it from Al. She did not know when PW4 started living with Al and A2. She found PW4 at home. Al sent her to Chikankata Secondary school. It was not all the times that Al used to take her-to school. Sometimes she was using a school bus. She agreed that all what her parents did showed love to her. Only for Al would discipline her in case she did something wrong. She was beaten when she was m Crude II by A I Al del not tell her what she did I le was taking her to school in Chikankata. I he beating wa.s done outside the gale and he .sent .someone to take het. She was not told why she wa.s beaten. I lie second time lie beat hci she ian away liom home. She did not tell anyone that she was leaving home. She did not go back to PW3 to tell her that the things had continued. She kept on telling her. PW3 was going to say part of her story in Court. PWI did not do anything when she kept on telling her. While at School she was a member of the Debate club, ft was true that Al was against her being in that club. I le said that it was because her grades al school were going down. 1 hey did discuss her performance al school oncc.il was true that grades were going down. She was at the l odge for two days when people from \ WCA came. She did not ask them as to how they came to know about her whereabouts. She did not see the need Io report Io the Police, YWCA or school authorities because she was sacred. She was scared of Al that he would be upset. Al would asked her to go to the bedroom when other members of the family were in the Living room and kitchen. She was in a position to go to the Living room and kitchen. It was A2 who used to tell her to go to the bedioom. Iheie was no time that she said she was not going to the bedroom. She told Al once to stop it. She did not tell the Court about that. The last time this happened was in 2010 when Al got circumcised. In 2010 she was 12 years old For 8 years upto 2018 she did not say anything to anyone. She recalled that he was circumcised in 2010. At this point she was shown unmarked document for male medical circumcision. It was a medical male circumcision. It had a name of Trymore Mwenda. It had a date of 22/02/2016 it was done at Chainama Hills Hospital, ft was Al’s penis that she was massaging in 2010 which was circumcised. It was PW3 who told her that PW2 had been taken to her mother at UTH. She did not drink beer. And had never taken beer. It was not true that her parents accused her of getting home drunk and censured her. kier parents had never censured her of coming home late. It was not true that the day that she was chased from home her father J 7 censured her about being drunk and getting home late. The issue of her being mistreated only came out to the public after he chased her from home. She was not bitter that she was chased from home That day as she stood, all the good things that she had been getting from her parents were not coming forth. She was not sad that Al withdrew the car from her. She did not miss the car. She enjoyed driving. She was not in court that day because her father chased her from home. When she was chased she went to the I ,odge alter she took things lo PW3. She paid tor the Lodge. It was Al and A2 who gave her the money. She only decided lo report this after Al chased her from home. I’W2 was JACKI. LNE MWENDA a child witness aged I I >cais old. Voiic dire was conducted in English and it was found that the child witness undcislood the scuousiiess ol the occasion, (he duty to tell the truth and was possessed of sufficient intelligence. She gave evidence on oath. According to her, on I l/OI/IX Al came back home from picking PW4 and Ad. A2 and PW4 entered (he house and Al remained outside. Al called her outside and she went. It was around 2200hrs As she was going to Al, PWI her sister asked her as lo where she was going and she told hei that Al was calling her. She went to Al who asked her it a thicl could pass there. She told him that she did not know and he told her lo try and pass anil she told him that a thief could not pass because she was not able to pass there. Al then asked her to go and check at the gate and they went to the gale. Al fold her that they needed to pul lights there and make the fence higher. After that PWI came and asked what she was doing there because she could not see her. She told PWI that Al was telling her about the lights. Al said that she was talking too much. PWI told her to go where she was and pulled her by the hand and look her lo the bedroom and started asking her what she was doing with Al. She told PWI that Al was talking about lights. She was told Lo wear a pyjama and to go and sleep. She had her own bedroom and three of them slept in the bedroom with her young sister and brother CLIVATE. When she was still dosing Al came and she asked him as to what he was doing and he told her to cover herself properly. He saw him because there was light from the passage and he stood at the door. The room was dark. Al came out of the bedroom and she slept. The following day, PWI came and told her that she wanted to talk to Al and they went to Al’s bedroom. Al said that he was going to the Lodge and they did not discuss. PWI then started talking lo A2 and told her that PW2 was with Al. A2 said that it was PW2 who was not okay. A2 TOLD PWI that PW2 went out because she trusted her father Al. They went out of the bedroom and went out and PW1 went back to A2. After sometime they J 8 went to the Lodge. PW4 came home and started talking to PW1. They went to the Lodge. They came back and PWI was talking to PW3 and they went to the Priest S wife and PWI explained. They went home. Whilst there, Al came and said everyone else should start packing including PW2. She had already packed and showed Al what she had packed. She got her bag and went to the car and was taken to NTH to her mother and Step father. She was (ak-en to I ,ilayi. She started staying with her mother and step father. She started staying with Al when she was live years old in 201 I. PWI was her sister. PW1 was talking to PW3 her biological mother She was staving with I’W I In the house was A I, PWI. PW I < 'I IVA I k and MICH Al'L. She identified Al and AZ. In XXM by Counsel she told the Court (hat it was true that at one time thieves broke in her mother s car and stole things. It was her first time that hsc heard that thieves had stolen at the house. It was not her first time that she heard that. Thieves stole from the car that A2 parked at the gate. I he vehicle was parked close to the wall when Al asked her if a thief could pass. I he space Al was asking her to pass through was between the wall lor the house and the vehicle. 1 here was nothing wrong for Al to ask her to pass. There wa.s something wrong for Al to talk to her about lights and the wall fence security. A I was supposed to show her brother. 1 ler brother was already shown the lights II was not right to say that most of the times when he parents came she was (he one to open the gate. She used to open even in the night but used to exchange with her brother. She was scared to go to that dark end. She used to go on her own to open the gate. It was not PWI who used to send her to open the gate. She trusted AL Lvcn as she stood in Court she trusted AL HL had not done something bad to her. Al beat her when she fail at school. She understood that he wanted her to work extra hard at school. She still loved AL At the Lodge PWI and PW4 were discussing. She did not hear what they were discussing about. Al told her to cover herself properly in the bedroom. Al was a caring father. In REXN she told the court that she did not know if Al cared for her to come in the bedroom. PW3 was CATHERINE CHIMUKA the mother to PWI. According to her she knew PWI. She gave birth to her in 1998 when she was still at School. The father was Al. She used to slay with PWI until 2006 when Al took her and was in Grade 5. On 12/01/18, PWI phoned her and told her that she had a problem at home. PWI told her that the last evening, Al wanted to get hold of J 9 PW2 to have sex with her like he used to do to her when she was young. PWI said that Al wanted to touch the breast of PW2. PW3 asked PWI as to where she was calling from and she said that she was inside. She asked PWI to go outside which she did and she said that Al it was too much and that what Al used to do to her when she was a child had started with PW2. SHE asked PWI to go and explain properly. Before PWI came, Al called her on phone and asked her as to where she was. She told him that she was at* home in Arrackan Barracks. Al reached her home and complained Lo her that PWI had destroyed his home. She asked what it was and he told hei that PA I had been accusing him to be a witch Al went <»it to sav that m the iiioining. I A I railed him that ..he wauled to have a meeting with him with A2. Al said that he had refused to have a meeting with I’W I a child ol his own and a mmoi. She asked what soil ol a meeting it was and he told her that in the night when he came he wanted to park a vehicle and a space remained between the vehicle and the wall and that he cal led PW2 to pass on the small space to see it thieves could pass because thieves had become a problem. After he finished talking, he asked her to go with her so that she could pick PAH her daughter because he had called her already. She did not tell him that she had communicated willi PA I. IN 1 he vehicle were two other children and took one to II I II lo her step father. They also took the other one to her parents. Al told him that he had decided lo remove all the female children because he had been accused ot being a wizard I hey found PWI and PW4 packing in a I'axi She went to where PWI was and asked her as lo what was happening. PW2 however, asked her as to why she had come. She told PWI I hat she came to listen to the issues there. PWI said that they should discuss but Al refused because those were young people and that one of them had a bursary and the oilier one had a degree. PWI and PW4 left and she remained with Al. Al, CL1VATE and herself went to the Lodge and found A2.1 hey disembarked and Al took A2 aside. She asked CLIVATE as to what was happening and he said that he did not know. Later she was taken home When PWI was in Grade 7 she was Beaten By Al and she ran to her. She asked her what the problem was but did not say anything. In the morning the father came and picked her and said that she had run away. After sometime PWI went to her home and she asked her as to what the problem was for her to be beaten and she said that she had forgotten. The second time she was beaten when she was in Grade 12 and going back to school in Chikankata. She called her and reported that she was beaten and had an injury on the eye. The third time PWI called and said she had problem with blood. She said that Al had told her that AI, A2 and herself were to go to a witch doctor and undress themselves tor blood to come J 10 back. She asked Al over that but he refused. She did not do anything because she did not have evidence as she was not living with them. When she asked her as to why she was beaten on her way to school, she said Al wanted to touch her breasts when she was bathing in the bathroom. She said that she refused the more reason she was assaulted. She identified Al and A2. IN XXN BY Defence Counsel she told the Court that on 12/01/18 when she went to Al’s house and was asked by PWI as to why she was there she did not cry. What-she had said before Court was what PWI told her. She never witnessed any incident. PWI did not tell her that the reason for the healing was poor performance al school PWI never lold lici llial she was bcalcn hccau. A of joining .1 Debate club. Il was Al who I old I ici I ha I PWI joined the Debate Club just like him when he wa.s at school. She did al one lime complain to Al that he wa.s not taking care ol the child. Il wa.s after the issue of low blood. She wa.s a Grade *> school leaver. She did not complain to the police. She did not go to A I Io ask for assistance. It was A I who used to go to her house. A I only went to her when there was a problem with PW I. Prom 2006 it was A I who had been supporting PW I in everything. It was true that in 2006, A I paid money to her husband’s relatives for him to take PW 1. She trusted Al when she was releasing PW 1 to him as he was a God fearing man. PW4 was MERCY MWENDA a Site Coordinator for YWCA. On I Ith and 12th .lanuary, 2018 she used to slay in Avondale with her brother Al, his wife A2, PWI. PW2, M1SIIEL and CL1VA1E They were the 7 of them. On 1 I /01 /18 she was at work at the 1 ,odge for A1. A2 and herself worked there. Around 22001ns, Al came to pick them. When they reached home, she went to the kitchen when she heard PWI screaming calling for PW2 who was outside. PW 1 then went to the kitchen and told her that she should not be letting PW2 go outside in the night. She did not mind about that. PW4 went to the bedroom and found PW2 and asked her as to what she was doing outside PW2 told her that Al was showing her electricity. She asked PW2 as to why he was showing her and not CLIVATE the son. Whilst there PWI came and reminded he of the incident she told her in 2011 that Al and A2 used to call her in the bedroom in the night and watch them have sex. Pwl said that sometimes Al would call her outside and ask her to touch his manhood. PW4 was surprised. At first she did not believe her because she had lived with them for some time and nothing could happen, they did not sleep early just to make sure thatPW2 had slept. The following morning she went for work. They came back from work and she confronted A2 as to J11 why such things were happening. A2 told her that when she heard about it she wanted to leave but Al wanted to kill himself. They had Peggy their cousin in the house and was impregnanted by Al. She asked Al if there was a reason for things happening and she said the friends to Al lied to him. A2 said that for PW1 she did not know that it was happening and for Peggy it was because of Al’s lust. She went for work and PWI remained at home and later called and asked to put the phone on loud lor A2 to listen and PWI said that Al had told her lo leave the house. She asked • PWI as to what the problem was and was told that it was because she wanted to talk to Al what he was doing lo her and that it should not happen to her sister PW4 went home and found her packing. Whilst there, A I came and .->1 ic was told to leave a?> well. A I did not tell her as to why she w<is leav ing. She packed and took the (hinge to I’W I aiid went lo a I .<xlgc 111 Avondalc. She called relatives and told them about what was happening such as I hide Ngonia I hereafter she called PW5 who went to the I .odge and took them to Y W( 'A. They spoke to someone who reported the matter to Kabwata Police station she identified A 1 and A2. She had stayed with A2 from 200X to 20IX. In XXN by Defence Counsel, she told the Court that she lived in the house of the accused for over I I years. In the 1 1 years she stayed there she was never violated sexually. She was surprised when PWI told her that tilings were happening to her She was suiprised because she did not expect the persons to do what PW I told her. She had never seen the two doing, what PW I accused them of doing. She was a University graduate. It was Al and the Government that paid for her education. She graduated on 20/12/17. Both accused persons did not attend her graduation. She considered both accused as her parents. She was disappointed that both did not attend her graduation. She c complained bitterly. She did not tell them that she should never forgive them for not attending her graduation It to<’k two weeks from the the elate of graduation to when PWI told her of issues. At that time she was okay with the accused even if they did not attend her graduation. Al bought her two cars. One was sold and one remained at home. She was no longer using the vehicle. Al got the keys from her. She did not feel anything. It was not true that she was bitter with both accused for not attending her graduation and for withdrawing a vehicle from her. PW5 was LAURA MITI the Executive Director for Alliance Community Action a non­ governmental organisation. On 20/01/18 it was a Saturday when she got a telephone call from J 12 someone that she did not know who asked her to go to Chelstone and said that there was a case of child abuse. She earlier on said that was not her area of work but they begged her to go. She agreed to go and they met at Chelstone Catholic Church. The person whom she met upto now she did not know him. That person took her to the Lodge where she found two young girls in a room. He asked the man to leave so that she can talk to the girls. She came to know them as Jane and Mercy, t hey told her (hat they were there and had lelt home because ol PW I s long sexual abuse by Al her Dad. They told her that PWI begun to live with Al when she was 9 years old and almost I n >m I lie start < > I the period. A I ici slcpmot her < isc< I to a waken I ici in I he night an< I lake Ik i to then bedroom where A I would a.->k hei to londle A2 s bica. Us while Al would be having sex with A2. Imrther that Al wanted to peiietiatc hci but laded because she was too tight. She was told to start inserting her fingers in the vagina so that it could be easici to be pencilated. She said that this happened lor a number ol years until she went to the Hoarding school. I W I said that she was ta the Lodge because she had seen Al take PW2 towards the gate in the datk and that she tan there and asked her Dad as to what he wa.s doing there and Al said that he was living to show PW2 electricity. She told her lather that she was not going to allow what he was doing to her to happen to PW2. PWI stated that Al was not happy and so she left with PW4 to the Lodge. PW5 asked then as to how they were paying as young people and she said she used school money and that it had run out. She told them that that was not her area ol expertise and handed them over to YWCA. She had never seen the farther to PWI. hi XXN she told the Court that besides being told what the two girls said she had nowhere to know if what was said was the truth or not. As ol that moment in court she could not tell it the things happened. PW6 was NAMAKAU NYUMBU the Arresting officer based at Lusaka Division Headquarters Victim Support Unit. On 22/01/18 she was on duty when she received docket of case from Kabwata Police station for Indecent Assault on female. The complainant was PWI aged 19 years of H/No 34 Avondale, Lusaka. PWI complained that between 2006 when she was 13 years old and 2013 when she was 16 years old, her father Al and stepmother A2 used to indecently assault her where A2 used to order her to touch her breast when she was half dressed in the matrimonial bedroom in the night and Al would order her to be inserting her fingers in her private part. When J 13 she saw that she was not happy with that behavior she went to report to her biological mother PW3 who told her to go back to Al because she did not believe her and also the Aunt PW4 never believed her. This was because Al seem to lobe PWI so much. In 2013 on unknown date PWI alleged that Al had sexual advances on her which she refused. From that time she did not take any action until on 11/01/18 around 2200hrs when she was having a bath, she heard Al calling PPW2 her young sister outside. PWI came out ol the bathroom and wanted to see where PW2 was and she asked PW4 as to where PW2 was. PW I told her that she was called by Al and PWI asked PW I as to why she allowed PW2 lo go lo A I PW4 lold I’W I she allowed her because it was her father who called her. PWI iu. Jicd mil.side and called PW2 who came and entered ihe house. I he loliowmg day, PA I asked PA 2 il anything liappcncd to hei in the night and PA 2 told hei that A I came lo check on lhem and left. P W I then got P W2 and went to A I‘s bedroom but he was busy and said I hat he was not ready lo talk to them but would do later. Alter Al left, PWI and PW4 confronted A2 and asked her as to why Al had called PW2 in the night and A2 said that she did not know if PW2 was called and that if PW2 was called it was PW2 to blame because she h.id no iole to play il she was called by the lather. She then summoned Al and A2 over Indecent Assault on female. Under warn and caution .statements (hey bolh denied the charge. She made up her mind lo charge and arrest the two for Indecent Assault on female. She interviewed PW4 who told her that PWI said (hat she was indecently assaulted but she did not believe her. She identified Al and A2. She visited ll/No 34 Avondale and was shown where PWI, PW2 used to sleep as well as the master bedroom. At that house there were other people and according to PWI she used to sleep with PW4 in the same bedroom. From the lime the matter was reported she has been al YWCA as they were chased from home. In XXN she lold the* court that when PWI told PW3 and PW4 of the allegation, they did not believe her. What she said was all she did in the investigations. She had narrated what people told her. She visited the scene, interviewed PW3 and Al and A2. By visiting the scene she did not see anything in relation to the offence but to see if they truly lived there. PW3 told her that she did not believe PWI. Al and A2 denied to know anything on the allegation. From the investigation, she believed the complainant though! people did not support her. She believed PPW1 because on 12/01/18 they chased her from home which shows that it happened. A1 and A2 could get annoyed but not to the extent of chasing her. In this case they did not send PWI to her mother PW3 but J 14 away. She did not charge and arrest them because they chased PPW1 from home. The evidence she had was what she told the court. There was no physical evidence to rely on. V In R. EXN she told the court that according investigations PWI was based. PWI complained to her. This is the Prosecution evidence that I received. I received submissions from the Defence which I have considered. I hi.s rulinf is in respect <>1 whctlui or not the .kciiscJ person has been found with n ease Io niiswri I lie law in section 206 <<i the si mimal pioccilute code is (lull il at the close ol (lie prosecution case and from the evidence in support ol the charge, it appears to the court that a case lias not been marls- out against the accused sufllcicntly to require the accused to be put on his defense the court shall dismiss the matter and necessarily acquit the accused. < >n the other hand the law m section 20/ ol the criminal procedure code is that wlicic it appears to the court that a case has been made out against the accused sufficiently to require him to make a defense- the court shall put the accused on his defense to hear the side of his story. In a number of cases our own courts have addressed the issue affecting the two provisions, l-’or instance in the Supreme Court precedent of the PEOPLE VS. MAKOWELA (1974) ZLR 290 the coin t staled, that no case to answer can properly be made when: 1. There has been no evidence to prove the essential element in the alleged offence and When the evidence of the prosecution has been so discredited by cross examination or is manifestly unreliable that no reasonable tribunal could safely convict on it. I have given the most serious consideration to the evidence on record. At this stage I warn myself on the dangers of putting an accused on his defence on uncorroborated evidence because the law requires that in sexual offences such as defilement and rape, the evidence must be corroborated or independently supported by other evidence to preclude the possibility of false implication. If the test of intercourse and the identity of the offender and age of the victim J 15 are resolved against the accused he must be convicted. However, justice is for both the victim and the accused. Therefore, if there is any doubt as to the stringent proof of any of these ingredients, it is settled law that the doubt however slight must be resolved in the acquittal of the accused. At this stage 1 warn myself on the dangers of putting an accused on his defence on uncorroborated evidence because the law requires that in sexual ollenecs such as defilement, rape and indecent assault, the evidence must be corroborated or independently supported by other evidence to preclude the possibility of false implication I lowcvcr. justice is (or both (he victim and (he accused. Ihcrcforc, if there is any doubt as lo the sliingciit proofofany of these ingredients, it is settled law that the doubt howevci slight must be icsolvcd in the acquittal ol the accused. I'he role of the ('ourt at this stage is not to lake a cursory or superficial assessment of the evidence but to closely examine the evidence and satisfy itself whether on the evidence as it presently stands, and the accused remaining silent the court would return a verdict o( guiltv Coming to the Prosecution evidence, for PWI she alleged that when she was 9 years old, A2 used to awaken her in the night and called in the matrimonial bedroom where she would watch Al and A?, have sex, further that she would be asked lo touch and kiss the breasts tor A2. PW I is now 19 years old, meaning the said stale of affairs could have happened 10 years ago. In the bedroom, evidence by PW4 and P W6 revealed that PW I used to sleep in the same bedroom with P W4. I he question 1 ask myself is why did PW4 observe that PWI was being awakened in the night lo go and do what she said? The answer being that PW4 did not know because nothing was happening, further she never reported to PW4 that this was what was actually happening to her. Evidence has shown that PW4 was not aware and when she was told years later she was surprised and did not believe PWI. Further PWI told Court that she told this ordeal to her friend MUYOBA HAKAYOBE who was around and with her at the University of Zambia. She told MUYOBA when she was in Grade 8 at Chikankata Secondary School. This MUYOBA HAKAYOBE was never called to corroborate the evidence of PWI. In the case of NSOFU V THE PEOPLE (1973) ZLR 287 the Supreme Court stated that ‘’for evidence to be corroboration as a matter of law it must not only tend to confirm that an offence was committed but must tend to confirm also that it was the accused who committed it”. In this case, PW4 and MIYOBA were not told J 16 anything by PWI on what was happening to her. PWl‘s evidence has not been supported. PWI further stated that there was no any other person that she told apart from PW3 her biological mother. Again PW3 did not hear about this as nothing was reported to her She came to hear about it recently when PWI was chased from home by Al. However, it is not known at what point she told PW3 because according to PW3, it was on 12/01/18 when PWI phoned her and told her that Al wanted to have sex with PW2 like he used to do with her. This was the only time that PW3 heard of such issues. At no lime did she heat that from PWI since PWI was handed over to the lather in 2()()6. In the case of IVOR NDAKALA v THE PEOPLE! 197 I) ZLR 1<) where it was held that "The corollary to the principle that evidence of early complaint is admissible to show consistency is that the failure to make an early complaint must be weighed in the scales against (he prosecution ease.” In the case before me there was no caily complaint ol any kind I he report came after I en years (I Oyrs) to be spec i I ic a nr I one would wonder what (he meaning of this is. I his evidence is unsafe to be considered The report came on the day when PWI was chased from home by Al. Again the question I ask myscll is, why did she n<>( icpoit belotc she was » based from home l>y A I ’ I he answci being th.it the reporting was ill intended and had a possible interest in something. In the case ol SIMON M A LAM BO CIIOKA v Illi PEOPLE (1982) ZLR 20 (SC), the Court held that, “witness with possible interest of his own to serve should he treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belie! in the truth thereof based simply on his demeanour and the plausibility of his evidence. I hat something more must satisfy the Court that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence if the suspect.” In the case of KATEBE v 1’1 IE PEOPLE (1975) Z. R. 13 (S. C.) it was held that: (i) The general principle of the cautionary rule as to corroboration applies equally to sexual cases as to accomplice cases. (ii) If there are "special and compelling grounds" it is competent to convict on the uncorroborated testimony of a prosecutrix. (iii) Where there can be no motive for a prosecutrix deliberately and dishonestly to make a false allegation against an accused, and the case is in practice no different from any others in which the conviction depends on the reliability of her evidence as to the identity of the culprit, this is a "special and compelling ground" which would justify a conviction on uncorroborated testimony. J 17 In this case there are no special compelling grounds to convict the accused looking at the inconsistencies and lack of corroboration PWI has not been reliable in her evidence as to what happened to her which makes it not to qualify as a special compelling ground which has not justified the conviction. Infact there was no corroboration in this case because the act of indecency was not reported by PWI. PWI failed to report lo her own mother ill things which are alleged to have happened for reasons known to herself and the inference being that she had a bad motive lor doing such. Evidence from PW3 shows that when she arrived with A I at the house and found PWI and PW I packing their belongings, PWI was not happy lo see her and even questioned her as to why she was there.' I’WJ i;. the biological mother lor PW 1 and had a right lo tic there al that particular moment and to be asked why she was (here by PW I leaves much to be desired. I his just shows that PWI did not want PW3 nearby because she was going to inform Al what PWI had said which issue was a he. PW3 clearly told Court that she did not have evidence lo the allegation by PWI and trusted Al. further PWI told her mother that at one point she was beaten bv PWI on her way to school because Al wank’d to touch her breasts However, when cross examined by Defence Counsel she stated that it was because of having joined the Debate Club and also that her grades were below par. Now you wonder which one is which and as such the bcnelil of the doubt goes to accused. Evidence coming from PW4 shows that the issue of being indecently assaulted came out on 1 1/01/18 after PW2 was called by Al to check on a certain space to see if thieves could pass there and also to check on the electric fence. PW4 stated that on that date, PWI reminded her of the issue she lold her in 201 1 that A1 and A2 used to call her in the bedroom and watch them have sex and sometimes she would touch the manhood of Al. PW4 further stated that she did not believe this because she had stayed with the family for a long time and did not hear that such things were happening. In 2011, PW4 did not take any action on the alleged matter. She never queried Al and A2 on the allegation. On 11/01/18 nothing was reported to her except that she was asked as to why she let PW2 go to her father which she said there was nothing wrong. She answered like that because she had no concern and did not suspect such to happen. When cross-examined she stated categorically that she was surprised when PWI said that things were happening because she had stayed with them for 11 years and had never seen Al and A2 do such. Again when you look at the motive behind PW4’s evidence, on 20/12/17 she had her own graduation Ceremony at the J 18 University and Al and A2 whom she took as her own parents did not attend and she was bitter about it. On 11/01/18 PWI and PW4 decided to come up with a story and this story is motivated by PW4’s anger of non- attendance of the Ceremony by Al and A2 and further the anger by PWI on parental guidance by Al and A2. This just shows the PWI and PW4 had an interest to serve. Evidence for PW2, has nothing to do with the allegation by PWI. PW2 was lured by PWI to say something incriminating AI and A2 but the child did not buy into that. 1 he child was opemon why Al called her and was to get her opinion on the space between the wall and the vehicle and also on the security and lighting .system al the wall fence. I'or the Arresting officer PW6, she told the Court of what she heard from PWI, l’W'2, PWI. PW4 and 1’VV.s. 1 Ici investigation:, luvcaicd that t’A 1 and 1'W I used the same room to sievp. She did not witness anv incident iieithci did PW 1 witness any incident I’Wti staled that PWI and P W4 did not believe PWI. This shows that PW6 decided to charge and arrest Al anti A9 only from evidence ol PW I. In short PW6 only worked on the evidence of PW I which was not corroborated. In the case of II Al III V '1'11IC PEOPLE (1 ‘>74) ZLR 154 at Page I 56, it was held that “a man against w horn (here is no pi ima facie case at (he close ol the prosecution case is entitled to an acquittal. An error on the part of the trial court into thinking that there is a prima facie case cannot alter the position. In my opinion Section 206 of the Criminal Procedure Code is mandatory and means that if it appears to the Court properly directed that the case is not made out, the accused is entitled to an acquittal. It avails the Prosecution nothing to request the court to put an accused on his defence merely so that the court must hear his version or explanation levelled against him by the state. Mr. Justice Gardner then Acting Deputy Chief Justice considered the consequences of the Court wrongly putting an accused on his defence. In the case of PENIAS TEMBO v THE PEOPLE (1980) ZLR 218 where he stated that “it is mandatory for a Court to acquit an accused at the close of the Prosecution case if the facts do not support the case against him and no evidence that is led thereafter can remedy the deficiency in the prosecution case”. Further in the case of R v SIIIPPEY' AND OTHERS (1988(Grirn L. R. 767, Turner. J in the Crown Court held that the requirement to take the prosecution evidence al its highest did not mean “picking out all the plums and leaving the duff behind” but that the Judge should asses the J 19 evidence and if the evidence of the witness upon whom the prosecution case depended was self­ contradictory and out of reason and all common sense, then such evidence was tenons and suffered from inherent weaknesses. The evidence of PWI is self-contradictory and not supported by independent evidence and so cannot be relied on. For instance she failed to tell PW3 why she was beaten by Al on her way to school and said that she had forgotten why. However, she told the court in XXN that she was beaten because she had joined the debate chib and her grades were getting lower which made Al annoyed. In her evidence on the same she changed and said she was beaten because Al wanted lo touch lie, breasts in the bathroom hut she refused. I here is no consistency and when one docs not believe in what they arc saying, inconsistency is (he result. In (he case of In the case of MWEWA MHRONO v THE PEOPLE (2004) Z. R. 207 (S. C.) where it was held that: 1. In criminal cases, the rule is that the legal burden of proving every element ol the offence charged, and consequently the guilt ol the accused lies from beginning lo end on the prosecution. 2. The standard of proof must be beyond all reasonable doubt. I A submission of no case to answer may properly be and uphcld:- (a) When there has been no evidence to prove the essential clement of the alleged offence; and (b) When evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it. 4. The accused bears the burden of adducing evidence in support of any defense after he has been found with a case to answer. “A man against whom there is no prima facie case at the close of the case for the prosecution is entitled to an acquittal. An error on the part of the trial court in thinking that there is prima facie case cannot alter that position. In my opinion sections 206 of the CPC is mandatory, and means that if it appears to a court properly directed that the case is not made out, the accused is entitled to an acquittal. The application of Sections 206 and 291 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia docs not depend on the defense making a no case to answer submission. The Court has of its own motion to consider whether a prima facie case has been made out. J 20 2. If an accused person is convicted as a result of an error of the trial Court in thinking that there is a prima facie case, the conviction cannot stand. It must be quashed. An appellate Court has no discretion. I am therefore well satisfied that the evidence given at the moment falls short of establishing a prima facie case against the accused persons. The evidence on record has not demonstrated that a case has been made out against the accused persons for them to make a defense. In line with ‘ section 206 of lhe CPC I Acquit the accused Of INDI A'kN I ASSAUI. I ON Id. MAI. I. Contrary lo Section I ! 7| I | of Ihe Penal ('ode ('liaplei S7 of Ihe laws of Zambia as read wilh Art No I S of 2005. DELIVI Rid) IN OPEN ( OUR I d HIS.............................. n AY Ob........................................... ZOIN. . < ’ I ' s ) | ( A/ HON A. N VVAIdlSIKU ivrCisTftA riu ’7 ■■ I ■-