Authored By: Malumbo Mugala
University of Zambia
Case Citation
Abel Banda v The People (1986) Z.R. 101 (Supreme Court). Judgement No. 25 0f 1986
Court Name and Bench
This case was decided in the Supreme Court. It was a case judged by Honorable Deputy Chief Justice Ngulube, justice Chomba and justice Gardener on 28th January 1987.
Parties involved
Appellant: Abel Banda
Respondent: The People
Facts of the Case
The appellant in this case was convicted for murdering the deceased, Andereya Mwanza, on the 16th of August 1983, contrary to Section 200 of the Penal Code. He was convicted of murder by administering pesticide into a drink of kachasu (a traditional liquor) It was in Chadiza in Eastern Province of the Republic of Zambia, the appellant visited the deceased, who was a personal friend of his. Then appellant entered the deceased’s house and the deceased wife, Enelesi Phiri noticed the appellant carrying a bottle of kachasu and a cup. The appellant sat down and offered some kachasu to the deceased, who accepted it and drank from the cup. The appellant did not, however, partake of the liquor that night. He told the deceased to keep the remaining kachasu until the morning. Later that night, the deceased fell ill, complaining of “a paining” throat. His condition got worse and he eventually died. The appellant was sentenced to the Capital Punishment but appealed.
Issues Raised
Stare Decisis: Whether the Supreme Court has power to overrule itself.
Evidence: Whether a Village Headman is a person in authority for purposes of administering a warn and caution interrogating a suspect.
Evidence: Whether a prosecutor is under duty to place evidence known to him.
Arguments of the Parties
Appellant: Mr Ngenda, on the first ground that the totality of the evidence adduced by the prosecution in support of the charge of murder was not sufficient to sustain a conviction. He quoted a judgement on page 24 of appeal records, “At the outset……Mr Lungu’s submissions have been well taken and have great force but the greatest hurdle for the defense is the warn and caution statement admitted in evidence after a trail within a trial.” Moreover, he argued that the appellant gave his confessions under duress. Admissibility of a warn and caution statement was objected. He further argued that when the appellant was under duress, the police assaulted him, resulting in him losing two teeth. He further contended that the two police officers contradicted each other regarding the place where the warn and caution was taken and the number of persons at the time of the warn and caution raised a question as to how the statement took place. Mr. Ngenda, in his next submission, accused the prosecution of dereliction of duty in failing to call Stephen Mwale. Stephan Mwale, was the man who was initially jointly charged with the appellant. He features in the appellant’s warn and caution as the man who had sent him to administer the poisonous powder. Counsel for the appellant then attacked the evidence of the Public Analyst and stated that though rogor was present in the specimens removed from the deceased stomach, it fell short that rogor could kill. The aspect of causation between the appellant’s act of administering the powder and the death of the deceased could not be established.
Respondent: Mr. Munthali, argued that the appellant’s counsel misconstrued the trail judge’s statement in regard to the submissions made by Mr. Lungu. The correct interpretation by the judge was satisfied that the evidence against the appellant was his own warn and caution statement. He further argued that the cumulative effect on the prosecution established causation quite clearly. The appellant himself stated that the third man who gave him the powder told him to introduce it to the kachasu which he would later offer the deceased, with the intention to kill the deceased. The appellant did as he was directed. The deceased wife said he had fallen ill after taking the doctored kachasu. His condition got worse until he died. It was later proved that he had died through poisoning. The determination of a public analyst is that the specimens in the deceased stomach were rogor and pesticide. Pesticide was noted to be harmful to man’s health. It is therefore irresistible to conclude that the cause of death was poisoning from the pesticide, the rogor. The linkage was clear, considering the powder the appellant introduced into the deceased drink was rogor.
Decision
The appeal against murder was dismissed by the Supreme Court, applying Section 204 of the Penal Code. However, the confession was inadmissible because it was taken in contravention of Judges Rules. The accused was convicted
Ratio Decidendi
The ratio delivered by the Supreme Court, per Deputy Chief Justice, Ngulube delivered that Mr. Ngenda’s evidence adduced did not prove mens rea and even if it was found that the act committed, he would be guilty of a lesser charge of Manslaughter. Section 204(b) the Penal Code Cap 146 of the Laws of Zambia, which states that malice afore thought shall be deemed to be established if knowledge that an act or omission causing death will probably cause death of or harm to a person though such knowledge is accompanied by indifference whether the death or harm is caused. Further, on examination of the confession script, it is clear that the man who instructed the appealant to administer the rogor did impart knowledge to the appellant that the act he was requested to commit would cause the death of the deceased. In the case of Chibozu and Another v The People the court held that village headmen were people in authority and therefore, could administer a warn and caution before taking confessions from the accused. However, Chibozu was wrongly decided, it failed to serve justice. It reasoned that justice requires balance: an accused should be convicted on strong evidence and the state should not lose a case where evidence can legally support a conviction. It was also held that courts should stand by their decisions, no matter how erroneous unless there be strong reasons requiring courts to overrule their decisions. As seen in Kasote v The People which stated that the Supreme Court being the final court adopts practices from the house of Lords in England concerning previous of its own and will decide whether its decision was wrong.
Conclusion
This case shows its significance in determining the supremacy of the Supreme Court. It demonstrates how it binds every court below it and how it has jurisdiction to review its own decisions as demonstrated in the Kasote case. The court reviewed its previous decisions in the earlier judgement of the current case. This case also demonstrated how one must be proved to have not been in a correct or stable mental state during the act of committing the commission. However, it was proven that the appellant had the mens rea of committing the harmful act, which would have been reduced to manslaughter if he had not known what he was doing at the time of committing the act. The Penal Code Section 204, stated that malice afore thought shall be deemed to be established if knowledge that an act or omission causing death will probably cause death of or harm to a person. As seen that the appellant knew of his actions, it was proven beyond reasonable doubt that he was aware of his actions. This case is also an example of how duress to access evidence is unlawful. The court emphasizing on how police officers or any official of the law ought not to mistreat anyone including accused is an example of how equality is an important aspect in the legal system.
BIBLIOGRAPHY
Supreme Court of Zambia, Kasote v The People (1986) Z.R. 105 (Judgement of Ngulube D.C.J as reported on ZambiaLII). Other sources include refernced statutes and case law.
