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RTF formatTHE PEOPLE v 1. EDWARD JACK SHAMWANA AND 12 OTHERS (1982) Z.R. 122 (H.C.)
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2. VALENTINE SHULA MUSAKANYA 4. GOODWIN YORAM MUMBA 5. ANDERSON KABWALI MPOROKOSO 8. THOMAS MUPUNGA MULEWA 10. DEOGRATIAS SYMBA 11. ALBERT CHILAMBE CHIMBALILE 12. LAURENT KANYEMBU RODGER KABWITA (1982) ZR 122 (HC)
HIGH
COURT |
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Flynote
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Criminal law
and procedure - Amendments - Whether court has power to p123
itself amend information at close of prosecutor's case - Matters to be considered in amending - Effects of acting under wrong provisions. Criminal law and procedure - Conspiracy - Whether necessary to prove overt act of treason beyond reasonable doubt - Proof by inference - Whether acceptable. Criminal law and procedure - Defences - Defence of duress in misprision of treason - Whether available. Criminal law and procedure - Offence - Treason - Continuous offence - When terminated. Criminal law and procedure - Treason - Invisible alternative charges - Effect of striking off count of misprision of treason. English law - Application - locally - Interpretation of English Law (Extent of Application) Act. Evidence - Accomplices - Corroboration - Need for - Who can corroborate accomplice evidence - When lies may be corroboration. Evidence - Confessions - Statements taken in breach of Judge's rules - Whether court has discretion not to admit. Evidence - Judicial notice - When evidence not required to prove. Evidence - Witnesses - Overt acts in treason - Requirements for witnessing of. Tort - Duty of care - Lawyer and client relationship - Extent of duty owed. |
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Headnote
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The eight
accused were charged with five others, with the offence of treason
arising from eleven overt acts. One accused was
also charged with
misprision of treason but this was struck out after a preliminary
objection. One accused was struck off
the information on account
of illness. At the close of the prosecution case, and after
submissions of no case to answer,
four of the accused were
acquitted. The defence case rested mainly on proof of the case
against them beyond reasonable doubt.
Several issues arose during
the trial. Held:
p124
Cases cited:
Legislation
referred to: English Law (Extent of Application) Act, Cap.4, s.2. Indictments Act, 1915 (England) s.5 (1). Penal Code, Cap.146, ss. 16,26 (4), 43 (1) (a), 44 (b). Penal Code Amendment Act, No.35 of 1973, s.3.
Treason Act, 1795 (England),
s.5. For the
State: G. G. Chigaga, Attorney-General, J. A. Simuziya, Director
of Public Prosecutions, G. Sheikh and S.Balachandran,
Senior State
Advocates. p126
For the eleventh accused: C. Sakala, Legal Aid Counsel . |
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___________________________________
Judgment
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CHIRWA, J.:
The eight
accused persons were originally arraigned together with five
others. One of them was struck off the information
on account of
illness and the other four were acquitted after the clause of the
prosecution case and on submissions of no
case to answer. To avoid
confusion with the evidence, these eight accused will continue to
be referred to either by name
or original numbers, viz:
Edward Jack Shamwana (accused l), Valentine Shula Musakanya
(accused 2), Goodwin Yoram Mumba (accused 4), Anderson Kambwila
Mporokoso (accused 5) Thomas Mupunga Mulewa (accused 8),
Deogratias Symba (accused 10) Albert Chilambe Chimbalile (accused
11) and Laurent Kanyembu Roger Kabwita (accused 12). On the
original information, all accused were charged with one count of
treason, contrary to s. 43 (1) (a) of the Penal Code,
Cap.146 and
the particulars of that offence were composed of eleven overt
acts. Accused number 5 was charged with an additional
count of
misprision of treason, contrary to s. 44 (b) of the Penal Code,
Cap. 146. However after a preliminary objection
on the information
as laid, this count of misprision of treason was struck off the
information so that the trial proceeded
on one count of treason
against all the accused. The trial
started on a very slow pace as there were a number of preliminary
matters and objections and my ruling on these
matters are on
record and it would be a waste of time for me to repeat these but
where there is need to repeat some portions
of the same in this
judgment, I will do so. When we settled down to getting evidence,
the prosecution called a total of 122
witnesses in the main trial.
This obviously necessitated the
trial to be very long, but the progress made can only be
attributed to the co-operation given to the court by the parties
concerned and for this I am very grateful. At the close
of prosecution case and after submissions of no case to answer, I
ruled that the present eight accused had a
case to answer;
accused numbers, 1, 2, 4, 8, 10, 11 and 12, on one count of
treason having four overt acts. Accused 5 had
a case to answer on
misprision of treason having been acquitted on the treason count.
After my ruling on no case to answer
there were further
submissions on the court's power to ascend the information and my
ruling on this is also on record. After
this ruling fresh pleas of
not guilty were entered and after rights to re-call any p127
prosecution
witnesses were outlined to the accused; they all elected not to
recall any witnesses. Having put the
accused on their defence on the amended information, their rights
were explained to them as to how to conduct
their defence cases,
they all, except accused 11, elected to remain silent and called
no witnesses on their behalf. Accused
11 elected to give evidence
on oath and called no other witness. After the close of defence
case 1 heard final submissions. Before I
consider the evidence in this matter. I feel a quick look at the
law affecting this case is necessary. I will start
with the effect
of striking off the count of misprision of treason from the
information on application by the defence as
this affects accused
number 5 it being the count on which he was put on his defence on
the information as amended on submissions
of no case to answer. In my ruling,
of 3rd December, 1981, I ordered that counts 2 and 3 be struck
off from the information as they were embarrassing
to the accused
persons involved and that, they were prejudiced in the sense that
they could not make any proper defence.
No plea had been taken on
the information and after the counts were struck off the accused
were not arraigned on them. To
me the striking off of the counts
did not amount to an acquittal as an acquittal can only come
about on either offering
no evidence or insufficient evidence
being led, not proving the count alleged. The striking out of the
counts meant that
the accused did not stand trial on those
counts. After the information was amended at the no case to answer stage, Dr Mushota further submitted and also in his final submissions, that the defence had been misled in that they thought that since the count of misprision of treason had been struck off, the accused was acquitted and they could not prepare their defence to cover the misprision of treason. I cannot help it if the defence misled themselves in law and the court did not misrepresent any facts on the matter. I am still of the considered view that on the principle of possible "invisible alternative charge", misprision of treason was one of those "invisible alternative charges". The invisible alternative charges as put the
R v Manchinell (1) by Bell C.J., are minor offences. In this regard I wish to refer to the case of Charles Phiri v The People (2) particularly at p. 171 where Baron, D.C.J., had this to say on construction of s.181 of the Criminal Procedure Code:
p128
At p. 173 of the same Charles Phiri (2) while not disapproving the approach adopted in Manchinelli (1) deciding what is a minor offence by reference to the penalty, Baron, D.C.J., had this to say:
Further down he says:
Coming to the present case, bearing in mind that misprision of treason is cognate to treason and bearing in mind the sentence of misprision of treason is lesser than that of treason, misprision of treason is a minor offence and it is one of those "invisible alternative charges to treasons". I still hold the view that striking off of the Count of misprision of treason before pleas were taken could not and did not mislead the defence. Neither do I agree that the striking off of that count made the court functus officio in the line argued by Dr Mushota. The court did not bar itself from considering misprision of treason as a possible invisible alternative charge. Both amendments did not prejudice accused 5.
As defence
raised some objections to the amended information after "no
case", it is only fair that I re-consider
this matter again
for avoidance of any doubt. In amending
the information, the court cited s.213 of the Criminal Procedure
Code as its authority vesting it with power to
amend. Obviously
that was an error as that section
is for subordinate courts. However p129
the powers for
the High Court to amend the information is s. 273 of the Criminal
Procedure Code. The question at this stage
is; what is the effect
of quoting a wrong section, purporting it to give power to the
court? In my view, the court has powers
to amend information under
the law and if a wrong section is referred to, reference to a
wrong section does not
nullify the powers so existing. The situation can be likened to
charging one with an existing and known offence under
the law but
referring to a wrong section. The charge is not a nullity or bad,
it is merely defective and the accused cannot
be prejudiced by
reference to a wrong section and Zambian cases on this are many
and I need only refer to the case of
Nkole v The People
(3). In the present case, does the citing of a wrong section, as
the source of power for the court to amend the information,
prejudice the accused persons? In my view the accused are not
prejudiced in any way. It is of interest to note that all accused,
apart from accused 5 complaining about the amendment of
information are not complaining about the deletion of some overt
acts. If the court is wrong to amend the information, then the
accused should argue that they should be put on their defence
on
all the eleven overt acts and not only four. They cannot accept
deletion of other overt acts and oppose the amendment
of some of
the remaining overt acts. I will now consider the operation of s. 273 of the Criminal Procedure Code. The defence feel that the court can only amend an information if there has been an application from either party. Alternatively if the court has power to amend on its own motion, it cannot do so without inciting the parties to express their views. In my ruling this issue, which is on record, I did say that our s. 273 (2) of the Criminal Procedure Code is substantially word for word of s. 5 (1) of the Indictments Act, 1915 of England. Our s. 273 (2) reads as follows:
In the case of R v Smith (4) Humphrey J had this to say of the Indictments Act at p. 681:
p130
In my ruling on this issue I did refer to the case of R v Johal and Ram (5) especially the judgment of Ashworth J. at pp. 253-254 where he says:
This general trend accepting that the English courts have power to amend indictments has continued and in the case of Harris v R (6) in following the decision in Johal (5) which decision followed the case of Smith (4), Stocker, J., had this to say at p. 32:
From, the
English cases of Smith
(4) Johal (5)
and i (6) it is clear that courts have powers under s. 5 (1) of
the Indictments Act, 1915, which has similar provisions
with our
s. 273 (2) of the Criminal Procedure Code. It is also clear from
these cases that before an amendment is made due
consideration
ought to be given whether the amendment about to be would cause
injustice to the accused persons and I will
revert to this aspect
of the matter later. Section 273 of
the Criminal Procedure Code already, quoted above is silent as to
how the power to amend the information is
evoked. Because of the
absence of specific provisions of how the powers are to be evoked,
practice set in and it has usually
been at the instance of the
prosecution or the court itself. Surely it cannot be said. that
the court cannot, in its motion,
see that the information is
defective. An information can be defective in many ways, either
it does not disclose an offence
or it is not supporting, the
information later. If the information is amended by the court on
its own motion, it can only
do so after hearing all the
prosecution p131
evidence, and
at this late: stage the amendment would depend on its form. To me
on the plain interpretation of s. 273 of Criminal
Procedure Code
if the court does not see any defect in the information, the
accused or the prosecution may draw the attention
of the court to
the defect and amend the information. The defence
submitted that if the court wishes to amend the information on its
own motion, it should invite parties to express
their views and
for authority para. 50 of Archbold, 39th Edn. was quoted. This
requirement is not in s.5 (1) of the Indictments
Act 1915, (or s.
273 of the Criminal Procedure Code), it is therefore a practice. I
have no quarrel with this practice.
But in Zambia the practice is
that generally the courts do not amend information or charges
unless at the "no case"
stage. I do agree that that is
within the meaning of "at any stage of trial", but our
own practice is that the
parties are never invited to express
their views. It is at a stage where the matter may be finally
concluded if there is
no case to answer. The practice as
contained in para. 50 of Archbold supra
may perhaps be applicable here in Zambia at any stage of the trial
other tha0n at no case to answer stage. At the "no
case"
stage, the parties will have made their submissions and those
submissions cover or touch the evidence adduced
vide
the information as it stands. I hold the view that when the court
amends the information, at no case stage it does not ask
for the
views of the parties. On this I have the Harris
(6) case in mind where the recorder amended the indictment at the
no case stage, the parties were not asked for their views,
he
amended the indictment on their arguments on no case to answer and
on his own motion. I will now
consider the question of injustice and that the amendment to overt
act 2 is prejudicial in that it was done merely
to fit in with the
evidence given. The authorities (English) I have referred to
already all say that no amendment should
be allowed if it would do
injustice to the accused, and that if the amendment is brought in
late it may very well cause
injustice. The amendment complained of is the change of venue from the house of one Annfield to the house of the first accused. To have a proper perspective of this matter one has to consider whether this amendment is in form only or is in substance in that the meeting place is an important ingredient of the overt act. I still do not agree with the defence that place of a meeting in the instance case is an ingredient of the overt act. What is substantive in the overt act is:
(a) the meeting itself; (b) the time of the meeting; (c) what was discussed; and
(d) the people
attending such a meeting. As was said in Johal (5) at p.353 referring to the case of Harden (1962) 46.Cr App. Rep. 90:
p132
In the case of Harris (6) Stocker J. at p.31 said:
In the
instance case the amendment was not of altering the substantive
charge and substituting it with a new one it was a
simple matter
of correcting misdescription of a place where the meeting was
held. All the defence submitted that the amendments
have caused
injustice. What injustice has been caused? As was observed by
Stocker J. in Harris
(6) at p. 32 a passage already quoted, it is not sufficient to
merely state the general principle that injustice had been
done,
the injustice must be pinpointed. This the defence have failed to
do as after the amendment was done the court was
about to take
fresh pleas and ask the accused if they wished any of the
prosecution witnesses recalled; the objections were
raised and
even after overruling the objections none of the accused exercised
their rights to have any of the prosecution
witnesses recalled
for the purposes of further cross-examination on the amended
charge. This to me only shows that there was no injustice caused to the accused by the formal amendment. I therefore still hold the view that the formal amendment even at that late stage did not cause any injustice to the accused.
In any event it appears that the place where offence is committed is not vital in certain cases as is stated by Goddard. L.C.J., in the case Wallwork v R (7) at p. 156:
p133
Rule 9 in the
schedule referred to above is word for word our s.137 (f) of the
Criminal Procedure Code. The offence here (overt
act) is that a
meeting was held between specified dates, between specified people
where a certain subject was discussed,
here in Lusaka. The
specific spot where the meeting was held to me would be
surplusage, to use the word of Goddard, L.C.J.,in
the Wallwork
(7) case supra.
The offence is clear enough even without mentioning the venue, the
amendment was therefore unnecessary and does not cause
any
prejudice or embarrassment to accused persons. It was further argued that the amendment was done merely to fit in with the evidence. I think there is nothing wrong in doing that. That is what is involved in amending an information to fit with the evidence adduced, and I hold that that is what is meant by " amendment of the information as the court thinks necessary to meet the circumstances of the case " in s.273 of the Criminal Procedure Code and this was held in the case of Smith (4) at p.681 by Humphrey J.,:
(italics
my own) Dr Mushota
submitted that it was wrong for the court to amend the information
by itself in the sense that if the Court had
power under s.273 of
the Criminal Procedure Code that power was to direct the
prosecution to amend the information and not
the manner adopted by
the court. With due respect, the word " order " as used
in s.273 of the Criminal Procedure
Code does not necessarily mean
only " direct ". The practice in Zambia is that once the
court has decided to amend
the information or charge it amends the
charge or information filed in court on its own. It does not order
the prosecution
to file on amended information as ordered. I
therefore still hold that the amendment of the information at no
case to answer
stage is perfectly in order and causes no
injustice, prejudice or embarrassment to the defence. I will now
deal with another legal issue brought out by the defence. They
submitted that although s. 47 of the Penal Code
was repealed by
Act 35 of 1973, the law still stands that at least there ought to
be two p134
witnesses to
one overt act or one witness to one overt act and one witness to
another overt act of the same kind of treason.
It was submitted
that if Parliament intended to change this law, it had not
succeeded as by virtue of s.2 of the English
Law (Extent of
Application) Act, Cap. 4. all statutes in force in England on 17th
August, 1911, are in force in Zambia and
that under the English
Treason Act, 1795, the requirement which was previously in s. 47
of our Penal Code is still law. This
sounds a noble submission and
a noble way of interpreting a statute. In the first instance I will deal with the English Law (Extent of Application) Act, Cap.4. My understanding of that Act is that it, is an enabling Act in that in the absence of any legislature in Zambia on any subject, the English statutes before 17th August, 1911, apply in Zambia. Where specific Acts exist in Zambia on a given subject the English Acts do not apply because Zambia is a Sovereign State and legislates on its own. Equally where Zambia enacts an Act with similar provisions to the English statute the Zambia Act is used and not the English statute. Therefore, before the passing of Act 35 of, 1973 the English Treason Act 1795, was not applicable as two similar statutes cannot apply concurrently. It would be absurd if it were otherwise.
What is the effect of Act 35, of 1973? I seek guidance from what Lindley, M.R., said the case of Re Mayfair Properly Company (8) at p 35:
In Mac Millan and Co., v Dent (9) Fletcher Moulton, L.J., put it this way at 120:
In
interpreting Act 35 of 1973, one has to look at the law when the
Act was passed. The law required that in treason one cannot
be
convicted unless there have been two witnesses to an overt act or
one witness to one overt act and another witness to
another overt
act of same kind of treason. That was the law in Zambia and
England. Act 35 of 1973 changed this law. This
was the mischief
that existed before the Act was passed and Parliament p135
intended to
cure this mischief. I cannot accept that the Zambian Parliament
intended to cure the local mischief in order to
use the foreign
mischief. Parliament is presumed to act reasonably. I do not,
therefore accept that the English Treason Act
1795, whose similar
provisions were repealed in Zambia is applicable in Zambia by
virtue of s. 2 of Cap. 4. The law in Zambia
at the moment, in
relation to treason, is that there is no special requirement as to
number of witnesses to testify before
one is convicted. This
offence can be proved like any other criminal offence. The defence
criticized my ruling on no case to answer when, at p. 33 I said
that Gen. Kabwe, PW5, was an innocent person
having been
acquitted on a charge of receiving goods believed to have been
stolen or unlawfully obtained. I went on to say
that he had been
acquitted on this court's cause number HPA/70/1982. It was
submitted that I based my findings on evidence
not before the
court and that such evidence was irregularity obtained in that
nobody was called to produce the said record
containing the
acquittal. It was further submitted that the proper procedure
should have been as the one adopted by this
court when the record
of the proceedings of the lower court in this case were produced
by the Senior Clerk of Court, PW122. The
proceedings in the lower court were referred to in the course of
these proceedings and these references were made from
copies of
the record. Since there was need to produce the original, the
custodian had to produce it. Coming to the main issue, I was not receiving evidence, I merely took judicial notice of a fact that had happened. It is on record that Gen. Kabwe did agree in evidence that he was convicted of receiving goods believed to have been stolen or unlawfully obtained. It is further on record that he said, "In the meantime I have appealed to the High Court " It is common knowledge that his acquittal was reported in the press. In order to equip myself to take judicial notice of the fact, that Gen. Kabwe was acquitted, I did consult appropriate source, namely cause record HPA/70/1982. I am entitled to refer to appropriate source as Lord Summer stated in his definition of judicial notice in the case of Commonwealth Shipping v Peninsular Branch Service (10) at p. 212:
It would be folly for the court, in a appropriate cases, to keep aloof on facts of common knowledge. Again as Lord Summer said in the same Commonwealth Shipping (10) at p. 211:
p136
Furthermore, this court is entitled to look at its own record. Kelly, CB, said at p. 149 in the case of Craven v Smith (11):
With those
authorities I still feel I was correct to say that Gen. Kabwe was
an innocent man. To use his conviction in the
subordinate court on
the charge of receiving as a basis of ascertaining his credibility
or honesty is therefore wrong. I
did not receive any evidence, I
merely took recognisance of the fact of his acquittal. The prosecution in their submissions have conceded that some of their witnesses are accomplices such as PW5, 33-37. I will now therefore deal with the law on accomplices. There is no doubt that the law requires that evidence of an accomplice must be corroborated by independent evidence. This need of corroboration only arises if the accomplice has been found a credible witness. The court should warn itself of the danger of convicting on uncorroborated evidence of an accomplice and in this case I am seized of this danger throughout. If it acts on uncorroborated evidence of an accomplice, it must be satisfied that the risk of false implication has been excluded. As was put by Baron, D.C.J., in the case of Emmanuel Phiri and Others v The people (12) at p.92:
Who may provide the corroboration? The defence submitted that one accomplice may not corroborate another accomplice. On this issue I would refer to the case of D.P.P. v Kilbourne (13) where although their Lords were faced with a sexual offence, they dealt with the general issue of corroboration wherever it is required. At p. 453 of the report Lord Hailsham of St Marylebone, L.C., had this to say:
p137
At p.454 he went on to say:
And further down on the same p. he goes on:
In the same report Lord Reid at p.456 says:
From what
their Lordships said above, it is clear that there is no such a
general rule of law that an accomplice cannot corroborate
a fellow
accomplice provided, of course, the dangers of joint fabrication
are eliminated. Further on the authority of Emmanuel Phiri's (12) case this corroboration need not be corroboration in strict law, but something more that goes to confirm what the accomplice has said, thereby eliminating the risk of false implication. Further, I bear in mind what was said by Goddard, L.C.J,, at p. 56 in the case of Credland v Knowles (14) that:
p138
On the
question of confession, it is undisputed law that ex curia
statement by an accused is only evidence against the maker of that
statement but should that statement be repeated in court
on oath,
it becomes evidence against all others affected by it. Further, ex
curia statements have to be proved to have been made freely
and voluntarily. In the present case all accused persons gave
statements
and were given in evidence except accused number 8
whose statement was rejected after a trial-within-a-trial. Again
all
statements were received in evidence after
trial-within-a-trial except those by accused Shamwana, Kabwita,
and Musakanya.
Of those that trials-within-a-trial were held only
accused Symba and Mporokoso gave evidence. Generally, the common
grounds
for objection were breach of Judges' Rules in that warn
and caution was not administered at the beginning of the recording
of the statements; police brutality in that some accused were in
chains and statements were recorded at gun point; and the
general
unfair conditions in prison as they were all in custody at the
time My rulings on the admissions of these statements
are on
record and I adopt my reasoning in those rulings in trip judgment
The Judges' Rules which are said to have been breached are rr. 3, 7 and 8 and these are reproduced here below:
Judges' Rules
are not rules of law but formulated by the courts for the guidance
of the police for fair treatment of the suspects
or arrested
persons. The breach by the police of these rules does not
automatically render the statements so obtained inadmissible,
there is always the discretion of the judge to exclude such
statements. In objecting to the admissibility of some of the
confessions, serious allegations of police brutality p139
were made but no evidence was called. Serious irregularities by the police were made but no evidence was led, and as I said, referring to the case of Mvula v The People (5) that where serious allegations of brutality and violence are made against the police, it is the duty of the defence to call evidence to support such allegations. Statements from the bar, however moving or convincing, are no evidence at all and in the absence of supporting evidence to such serious allegations, I found the allegations baseless. In fact such allegations were denied on oath by accused 11. The failure to call evidence to support serious misconduct by the police is deprecated by the courts even up to now, see R v Callaghan (16) per Waller, J., for those accused who gave evidence I found them to be lying in their allegations against the police for reasons I gave in my rulings. For accused 12, there was no trial-within-a-trial as the grounds of objection did not warrant the holding of the same. My reasons are on record. The only uncontroverted fact is that these statements were taken in breach of Judges' Rules to the extent that the usual caution was not administered the beginning of the taking of the said statements when all the accused were in custody. That fact, i.e. the breach of Judges' Rules, does not automatically render such statements inadmissible, the judge may exercise his discretion. In the case R v Straffen (17) Slade, J., said at p 214:
(Italics
my own.) See also the case of R
v Prager (1972) (18). I am mindful
that like all judicial discretions, this discretion has to be
exercised judicially. In the Straffen
case the police had already made up their minds to arrest him for
an offence. In the present case although accused were suspects,
the police had not made up their minds to arrest the accused. The
police, in terms of the rule 1 of the Judges' Rules, are
entitled
to question any one whether suspect or not in order to find out
the author of a crime. The only difference here
is that the
suspects were in custody,. Having found during the
trials-within-a-trial that all statements were free and voluntary,
I have to decide whether by virtue of breach of the Judges' Rules
I can exclude them. Exclusion here is excluding than from
being
taken into consideration in deciding whether the accused were
guilty of the offence or not although such restatements
have been
admitted in evidence. Even at this stage the court may consider
exercising that discretion per the authority of
R
v Watson (19). p140
The basis on
which discretion is exercised is that although the evidence is
relevant and admissible, if it would operate unfairly
against the
accused or it has less probative value, then it should be
excluded. Authorities on this are many such as Callis
v Gun (20) and Herman
v R. (21). The fact that the
statements were recorded in breach of Judges' Rules is in itself
not prima facie
proof that the statements would operate unfairly against the
accused. Unfairness against be shown and I have not been assisted
on this point, perhaps because there is none. All counsel kept on
hammering the point that "since the statements were
recorded
in breach of Judges' Rules, they must surely operate unfairly
against the accused". However, be ale it may, I will look at the circumstances under which the statements were recorded. All accused were persons under Presidential detention orders issued under the Preservation of Public Security Regulations. All the time when statements were recorded, although initially the Police may have been responsible for detentions, at this stage they had no control. However all, the same, the accused were in custody for the purposes of r. 3. Now what unfairness or prejudice had occurred to the accused? There is evidence that although no usual caution was administered at the beginning of the statements, as soon is accused started incriminating themselves. the caution was administered and the accused continued talking. As I said earlier on that Judges' Rules are there for the guidance of the police in safeguarding the interest of the accused persons. In the present case although the police did not strictly follow all the Judges' Rules to the letter, they protected the accused's interests as son as the accused started incriminating themselves. The accused freely went ahead with their statements. I see no unfairness or prejudice against the accused produced by the breach of r. 3. Even counsel were unable to pinpoint the prejudice or unfairness.
Whilst on the
question of confessions, I will briefly refer to the interrogation
notes taken from Mr Musakanya, exhibit "P100".
I made it
clear; when delivering any ruling on the notes that they were
being admitted in evidence not as a statement by
Mr Musakanya, as
they do not qualify to constitute a statement, but as notes made
by the witness to remind himself of what
Mr Musakanya said, i.e.
to refresh his memory see Lester
and Howard v R. (22). These notes
were objected to by Mr Mwanakatwe for Musakanya on the grounds
that:
In my ruling,
I did consider the question of prolonged questioning which I said
could amount to oppression but that was vitiated
by the provision
of a bath, offer of food and long break before the next morning.
I am of the view that any element of
unfairness was removed. The
only question remaining was that he was questioned whilst is
custody without the usual caution
being administered. My views on
this have been p141
adequately
dealt with above when I was dealing with warn and caution
statements from other accused persons. It is a question
of
injustice or unfairness but I see none myself. It is law that
in treason evidence is led to proof of the overt acts. In the
present case one of the overt acts is conspiracy.
Before the
commencement of trial, even at the close of prosecution case, it
was argued that the overt of conspiracy should
not be included in
the information, or alternatively if it is put there, better
particulars should be given. My rulings on
the issue are on record
and I need not go through them again. As I said in one of my rulings that conspiracy is a very difficult offence to prove because of its very nature of secrecy, and yet the burden of proof never changes, it is always beyond reasonable doubt. It has been said that "A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law or to do that which is wrongful and harmful towards another person," per Lord Brampton in the case of Quinn v Leathem (23) at p.528. It has also been said that "conspiracy is usually proved by providing acts on the part of the accused which lead to the inference that they wore acting in concert in pursuance of an agreement to do an unlawful act", Per Viscount Kilborne in the case of R. v Doot (24) at p. 540:
In the case of R. v Griffiths (25) Paull J., had this to say on conspiracy as an agreement and as to conspirators at p.453:
However, where
conspiracy is laid down as an overt act in a treason charge, this
must be proved first before acts of one conspirator
are taken to
be acts of the other conspirators in furtherance of that common
design. Before I
consider the evidence in this case, I should comment briefly on
the complaint of accused 1 that this court sat and
granted an
adjournment to the State on 28th September, 1982, in his absence
as he was representing himself. The brief proceedings
are on
record. I was approached by Mr Sheikh for the State and Dr Mushota
at about 1255 hours. Mr Sheikh applied for an extension
of time
within which to make submissions and Dr Mushota fairly indicated
to the court that although he had no opportunity
to consult his
colleagues and accused persons, looking at the stage of
proceedings, he had no objections. It should not look
as if the
court saw the prosecution only and nobody from the defence. I do
not consider what transpired as proceedings which
prejudiced the
accused persons who were not represented on that day. p142
Having looked
at the law that affects this case, I will now deal with evidence
adduced in the matter. As I have pointed out
already, the
prosecution called 122 witnesses and there was only one witness
for the defence. Some of these witnesses were
very long and to go
into full details would amount to reproducing the whole case
record which is composed of fifteen typed
volumes. It would be
easier to deal with the evidence if I briefly review the evidence
relied upon by the State on each overt
act, i.e. on the remaining
four overt acts. As the case is now completed, the court is
entitled to consider the evidence
on the totality, i.e. all the
evidence in this case, both that by the prosecution and the
defence. Overt act 1 -
conspiracy. For this overt act, the State called only one witness,
Gen. Kabwe, PW5. He testified that he was
a member of Lusaka
Flying Club and sometime between April, 1980, and May, 1980,
whilst at the club he was approached by accused
4, Mumba, whom he
had known before having been together at school. Accused 4 told
the witness that he had something serious
to talk to him about and
later he informed the witness that there was a plan to carry out a
coup d'etat
in Zambia and the witness was one of the participants. He was told
that the plan was at a very advanced stage and it would
be carried
out within a week or two and that it was financed by powerful
people, both within and outside Zambia. PW5 told
accused 4 that he
did not take him seriously and the coup would not succeed but was
told to go and think about it. A week later
they again met at the Flying Club, like the first meeting, the
second meeting was not pre-arranged. Accused
4 invited PW5 to meet
some people the following day at 1900 hrs but PW5 did not keep his
appointment but after two days they
met again at the Flying Club
where accused 4 asked PW5 why he did not turn up for the meeting,
the witness said that it was
due to pressure of work. However,
they left later to meet a person called Pierce Annfield. The
witness had met Annfield
before in the offices of accused 5 where
he asked Annfield to sign some mortgage forms as he was a lawyer
by profession.
At that meeting in accused 4's Office, Annfield had
invited PW5 to visit him at his house but this visit to Annfield's
house
with accused 4 was not in response to that invitation.
Anyway they went to the house of Annfield where they also found Mr
Sikatana who was accused 3 and has since been acquitted. He was
introduced to Mr Sikatana and immediately Mr Sikatana left.
Annfield then asked PW5 whether accused 4 had told him anything
and he agreed and after a short discussion the meeting broke
off
but they were to meet again. He was then driven back to the club
by accused 4. After about a week, accused 4 went to
the witness's
house on a Sunday and invited him for a drink. As they were
driving out accused 4 told him that they were going
for another
meeting. They went to Annfield's house and as they were
approaching it they saw that Annfield was driving out.
Accused 4
parked his car by the road and witness saw accused 2 being dropped
from another car in front of Annfield's house.
Accused 2 got into
Annfield's car and he, the witness, and accused 4 drove off,
followed by Annfield. Accused 4 informed
the witness that they
were going to Shamwana's house. At accused 1's house they found
him and he opened the p143
gate for them
and they drove into the yard and they were joined by Annfield and
accused 2. They all went into accused l's
house and exchanged
greetings. After this, accused 2 introduced the subject about the
plans to topple the Zambian Government
and they asked for his
views. The plan outlined to him was to divert the Presidential
plane to some pre-selected place and
there force him to renounce
his office and hand it over to someone else. Announcements would
then be made in the news media,
radio and television to that
effect. It was emphasised that they did not want any loss of blood
unless absolutely necessary.
In order to carry out this plan, in
his capacity as Chief of Air Staff, they wanted PW5 to arrange
for the diversion of
the plane and find suitable pilots to
undertake the task. After
execution of the plan, some key leaders such is Secretary-General
of UNIP, the Prime Minister, Secretary of State for
Defence and
Security, Zambia National Defence Force Commander, Service Chiefs
including himself would be arrested to forestall
counter-coup. He
would be released after sometime. When accused 2 introduced the
subject, all present, that is accused l,
4 and Annfield took part
in the discussion without disassociating themselves. It was
brought out to the witness that whoever
the pilot was that
executed the plan he would be "emolumented" one way or
the other. After the plan
was outlined the witness commented that although the things in the
country may not be perfect, the manner of
changing the Government
as outlined was not the best solution and also that from his
observations, the Defence Force would
not support change of
Government in that manner because they were loyal to the
leadership and Government and, politically,
the masses were behind
the leadership and Government. After making these observations,
the point of inducement arose and
Annfield left the meeting and
came back with K500.00 and gave it to the witness to be used to
induce some ZAF pilots to undertake
the task. The witness took the
money but used it on his personal things. After this
second meeting, the witness kept on seeing accused 4 at his office
over the construction of his house by accused
4's company, Mumgood
Flooring, and he was being asked what progress had been made but
he kept on saying none until he was
finally told by accused 4 that
he should forget about it as the whole thing had been dropped. On
one of the many visits
to accused 4's office he found a man whom
he was told was Symba, accused 10. The witness, with all this
information about
the planned coup, never reported to any
authorities and he gave his reasons as:
p144
However, be as
it may, this witness was picked up and detained and interrogated
for many hours and after that he too was arrested
and in fact
committed to High Court for trial. However, later on he turned
State witness and was issued with an indemnity.
That although he
described his stay in prison as traumatic, that and the indemnity
did not influence his statement, he gave
his statement according
to what he knew in the matter. This witness
is an accomplice witness and he was indemnified by the State
against prosecution for his complicity in the alleged
coup plot.
In my ruling I did find Gen. Kabwe as an honest witness having
observed his demeanour and I have not found anything
in the
evidence that can make me doubt his honesty or credence. I do not
think that he coloured his story in any way because
he agreed to
turn State witness. In my ruling on no case to answer I did say
that I did not believe his reasons for not reporting
the plan to
the authorities, I concluded that he did not report because he was
in it and I still hold that view. In my view,
the reasons
advanced are an after-thought after the plan was foiled but I will
not contradict myself to say that I do not
believe his reasons but
at the same time say that I find him an honest witness. The point
where I have found him lying is
not a material point. The material
points of his evidence in relation to this case are whether he was
approached by accused
4 and told of the plan and invited to
attend meetings; whether he did attend such meetings and what was
discussed and agreed;
and the people who attended the meetings. Having found
Gen. Kabwe a truthful witness, as he is an accomplice, I will look
for corroboration, i.e. evidence that will
confirm the material
points relevant to the case, evidence that should rule out the
possibility of false fabrication of
the story. Before I look for such corroborative evidence, I should put into record that this witness was threatened and interrogated for a prolonged period before he gave his statement in October, 1980. When the offer of his turning State witness was made to him he got legal advice from his counsel on it and he accepted the offer and when he gave the statement, on which his evidence in court was based, he repeated the same story as told to the interrogators in October, 1980. I do not think that he stuck to his story because of the promised indemnity, I say so because he was told when the offer to turn State witness was made to him that evidence against him was negligible, which in ordinary English means that such evidence could not stand against him. There was no motive to fabricate the story against some of his co-accused, he was told that there was no sufficient evidence against him and he would have preferred an acquittal by a court of law. He made it clear in evidence, in re-examination, that he told the police what he knew and what was the truth, and I accept it.
p145
I will now consider whether there is independent corroborative evidence to support the material aspects of Gen. Kabwe's evidence. As was pointed out in D.P.P v Kilbourne (13) case witnesses in a class that need corroboration may corroborate each other and as was said in Mulenga and Others v R. (25) at pp.15-16 by Clayden, F.J.:
I further bear
in mind that conspiracy can be proved by inference drawn from the
words or acts of the accused person. The
matter would be easier if
each accused is considered separately against this overt act of
conspiracy. As far as
accused 4, 10, and 11 are concerned they clearly corroborate the
evidence of PW5 insofar as existence of the Coup
plan is
concerned. They knew the plan although they may not have been in
it from the start; but when they got involved they
never
disassociated themselves from it. Their confession statements
corroborate the evidence of PW5 on the authority of Mulenga
and Others (26) already referred
to. As to accused 2 the corroborative evidence is contained in
the interrogation notes written by
PW110, Mr Kaulungombe. I have
dealt with this matter already it is very unlikely that an
accomplice, PW5, should talk of
the plan of diverting the
Presidential plane and the accused 2 talks of it or suggests the
plan to conspirators. This cannot
be a mere coincidence. I find
that accused 2 was telling lies when he said that he put the
suggestion of diverting the President's
plane to some place and
force him to renounce his office as a joke. He was not joking. I therefore
accept that sometime in April or May, 1980, Gen. Kabwe was
approached by accused 4 at Lusaka Flying Club and was
told of the
plan to topple the Zambian Government. I accept that he did go
with accused 4 to the house of Annfield and that
subsequently he
attended a meeting at the house of first accused which meeting was
also attended by accused 1, 2, 4 and Annfield.
At that second
meeting the plan of diverting the Presidential plane was told to
him and he was asked to arrange for necessary
personnel to carry
out the plan and that he was given K500.00, by Annfield to use it
for inducement of ZAF pilots. I accept
that he did not use this
K500.00 for the purposes for which it was given to him but spent
it on personal things. Having accepted
the K500.00 and having
spent this money on personal things and having failed to report
this matter to authorities, I can
only conclude that Gen. Kabwe
joined the conspirators although he may not have been a very
active member. I further
accept his evidence that he was arrested for treason together with
others and was interrogated for some considerable
period and that
he did give the interrogators a statement. I accept that he was
approached by the State through his lawyers
that the State wished
him to turn State evidence and that after legal advice from his
lawyers, he accepted the offer and
his evidence is based on what
he had told the interrogators 146
in October,
1980. I do not accept that he has coloured his evidence any way. Accused 1 is implicated by PW4 and some of the co-accused in their warn and caution statements. From cross-examination of the witnesses, it is clear that accused 1 denies being involved with co-accused. He says that he knew accused 10 when his firm, i.e. accused l's firm, acted for accused 10 in one matter when accused 10 was detained. His association with accused 10 was therefore an innocent one. Accused 1 was found at house number 6525 Kasangula Road, Roma Township, on 23rd October, 1980. The circumstances of his apprehension were that police got some information that a man they came to know as Symba, involved in the shoot-out at Chilanga Farm on 16th October, 1980, was at that house in Roma. Police went there and on entry they found accused 1 seated in the lounge.
There is no doubt from the evidence of PW4, Raphael Lungu, and PW6, Mrs Rose, whose evidence I accept, that accused 10 was keeping up in that house. It is significant also to note that accused 10 was apprehended the same afternoon as accused 1 except that he was apprehended off Mugoti Road, a road behind Kasangula Road. When accused 1 was found in this house he was asked where the people he had been with were he replied that he was alone and that perhaps the police had seen a servant who went through the back door. He further stated that he did not know the owner of the house and that he came to the house after being given directions on the phone. He was asked to accompany the policeto Force Headquarters and on the way, on his own motion, he told PW2 that he, accused 1, was " stupid to have been involved in this thing". On being asked why, he said he was a lawyer for the man the police were looking for. He explained that he was stupid because he was to be Chief Justice the following week as the incumbent was going on a course abroad.
It should be
observed that when the Police burst into the house in Roma, no
names of the people they were looking for were
mentioned and
accused l's statement that he was a lawyer of the man they were
looking for confirms the evidence of PWs 4
and 6 that accused 10
had been in that house. Accused 1 therefore told a lie to the
police at first when he said that he
was with nobody and the
police may have seen a servant. It is the
undoubted duty of a lawyer to defend his client, no matter how
serious the crime is but that duty does not extend
to helping the
client escape justice or assist in perverting the course of
justice. Accused 10 himself states in his warn
and caution
statement that he saw the police from a window and he left the
house using the back door. Why should accused
1 tell a lie on the
people he was with? If the meeting was an innocent, client/lawyer
meeting, why allow the client to go
out of the house using the
back door when they realise police had arrived at the house? From
PW117, John Ng'andu, we get
another piece of evidence. He asked
accused 1 why he was involved in this matter as he had known him
to be High Court Commissioner
and a lawyer. Accused 1 replied to
the effect that he acted as a lawyer on the sale of the farm
between Mr p147
Milner and Annfield and that he acted as lawyer for accused 10 when accused 10 was detained. He further explained to the witness how he was arrested. He said he got a telephone call from a relative saying that another relative was sick in Roma Township and he went there and he was arrested. On being asked about the people found at Chilanga, he said he was not responsible for these, it was accused 10 who knew about them. Can all this information, be for innocent purpose? There was no sick person in the house number 6525 Kasangula Road, Roma, so why tell lies that he went to the house to see his sick relative. Lies told out of court, may under certain circumstances amount to corroboration. In the case of R v Lucas (27) Lord Lane, C.J., had this to say at p.123:
In the same case, Lord Lane, C.J., gave conditions under which a lie may amount to corroboration. On same p. 123 he said:
From the
evidence, which I accept, accused 1 was apprehended from house
number 6525 Kasangula Road, Roma Township and on
that day accused
10 was in the house. I accept that before PW4 saw para-military
police officers surround the house, he saw
accused 10 jump the
backyard wire fence and after visiting the scene I draw the
conclusion that he jumped into the yard of
house No. 6232 on
Mugoti Road and I accept that later PW4 saw one elderly person
being brought out of house number 6525
Kasangula Road, Roma
Township and from the evidence of PW2 and 3 this elderly man is
accused 1 as no other person was found
in the house; I also find
that both accused 1 and 10 had been together in the house. The
lies told by accused 1 that there
was nobody in the house when
police came and the running away, through the back door, of
accused 18 make their meeting in
this house not an innocent one.
Further lies that accused 1 went to this house to see a sick
relative clearly go to show
other than an innocent visit. The
little to conspiracy of accused 10 as told by PW5 is corroborated
by his warn and caution
statement and the odd coincidence of
meeting one of the conspirators under the circumstances revealed
and the lies told
to let the meeting appear an innocent one do
corroborate PW5 that first accused was one of the conspirators. p148
The lies told by accused 1 were deliberate, they are material in the sense that they were to convey innocent, i.e. innocent association with a conspirator to plan to overthrow the Zambian Government. They were certainly told after realisation of guilt and fear of the truth and that if accused 1 told the truth he would be sealing his fate. The lies are clearly lies from evidence of PW4 and 6 in that accused 10 was in house number 6525 Kasangula Road and yet accused 1, denied his presence except for the presence of a house servant. Further there was no sick person at this house in question and it was never suggested that PW6 is a relation of accused 1. His remorse for being involved in the "thing" when he was to be Chief Justice the following week is clearly a testimony of guilt and regret. I am satisfied that accused 1 is linked to the conspiracy to over throw the Government by unlawful means. There was no need for accused to regret being involved with accused 10 as his lawyer if that was the only involvement and there was no need to have remorse due to the fact that he was to be Chief Justice the following week. If his association with accused 10 was on the footing of client/lawyer, there would be no need to regret being involved with him as he was doing his duty as a lawyer, no matter how grave the offence his client might have been facing.
It is on
evidence that accused 10 has generally been referred to as "DEO".
It is too much of coincidence that his
name should appear in
exhibit "P106" on counter folios 674276 and 674277. This
exhibit is a cheque book of the
personal account of accused 1 and
if there was that client/lawyer relationship, these should have
appeared in the cheque
book for Shamwana and Company. This
exhibit is referred to not because of the allegation by the
prosecution in their information
that accused 1 gave money to
accused 10 for the purposes alleged, but to show the relationship
existing between these two
accused persons. The file kept by
Shamwana and Company on accused 10, exhibit "P111" shows
no payments made by
the firm to accused 10, it only shows one
payment by or on behalf of Symba for K400 being fees for work done
in his detention
case. There is no evidence that Messrs Shamwana
and Company were retained by accused 10 as his lawyers. The matter
on which
they had a brief was over his detention in August,
1980,and this was revoked on 8th September, 1980, per copy of the
revocation
order in exhibit "P111." I have no
hesitation, from the conduct of accused 1 and 10 on 23rd October,
1980, to conclude
that the meeting at house number 6525 Kasangula
Road, Roma, was not an innocent meeting, it was a meeting of
conspirators
trying to find out what to do next as one
conspirator, accused 10, was wanted for the shoot-out at
Chilanga. I am satisfied
that accused 1 is involved in the
conspiracy to overthrow the Zambian Government as narrated by PW5.
The coincidences and
lies are something more which although may
not amount to corroboration in strict law, they confirm what PW5
said. They eliminate
the possibility of false implication by PW5
of accused 1 in the conspiracy. I will now
deal with accused 8, Thomas Mulewa. According to accused 11,
Chilambe, accused 8 is his elder brother and that
he collected him
from Mansa after he and accused 10 had had a meeting at Lusaka p149
with Mumba,
accused 4, Annfield and others at which he, accused 11, and
accused 10 were persuaded by the others to help them
to overthrow
the Zambian Government and in turn they would help them in
over-throwing the Zairean Government. He collected
accused 8 to
help him in recruiting soldiers for the two ventures and he was to
be a driver. He, indeed i.e. accused 8, agreed,
and they came
together to Kitwe and he was involved in recruiting such persons
as PW33 Alick Muzeya, PW34 Lewis Masuba, PW35
Emmanuel Kafumbo,
PW36 Soneka Mashikini and PW37 Francis Muteba. According to
accused 11, when recruiting these soldiers,
they never told them
the truth. They were being told that they revere recruited as
labourers, to work on a farm in Kitwe.
The reason for telling lies
was the very fact that if the recruits were told that they were to
be soldiers to overthrow the
Zambian Government the secret would
be revealed. Accused Thomas
Mulewa was apprehended in the early hours of 16th October, 1980,
in the vicinity of the Chilanga Farm by PW
71, Major Kalebuka. On
apprehension he stated that he was from the next farm where he was
visiting his in-laws. After apprehension,
he was identified by
David Munjinga who was also one of the people captured at the
farm. This David Munjinga died as a result
of the, injuries he
received from the shooting at the farm and it was accused Mulewa
who identified the body to the doctor
who conducted a post-mortem
examination at the University Teaching Hospital, as that of David
Munjinga. Accused Mulewa
was identified by PWs 33-37 us a person who recruited them to work
as farm labourers. Their evidence was not
challenged at all, and I
accept their evidence that they were recruited by accused Mulewa
and Chilambe. I accept that they
were told that they were to be
farm labourers, but as accused 11 said, and as I found in my
ruling on no case to answer,
they were tricked that they were to
be farm labourers. They were recruited to be soldiers in the
illegal army. When accused
Mulewa was apprehended and told PW 71
that he was from the next farm visiting his in-laws, he was
telling lies. I have no
hesitation in concluding that Thomas
Mulewa was one of those people at the Chilanga Farm. Exhibits "p
139"-"p 142" were found within the vicinity of the
Chilanga Farm. It is not mere coincidence
that some of these
documents bear the name of accused Mulewa and is described as
"Chief Adjutant". It is also no
mere coincidence that
the name of David Munjinga should be found on some of these
documents. He was issued faith AK47 rifle
and ammunitions,
exhibits "P63" and "83" respectively. I do not
accept that Thomas Mulewa was a mere
driver of accused Symba. He
was fully involved in the affairs of the group of conspirators and
was given the responsibilities
of Chief Adjutant. He could not be
given the title of adjutant if he was not fully aware of the aims
of this group. PWs 33-37
were recruited at different times by
accused Chilambe and Mulewa and transported first to Tshombe Farm
in Kitwe and then
to Chilanga farm here in Lusaka. The witnesses,
although found in the situation p150
they were, I
would describe them as innocent accomplices, innocent in the sense
that although they were recruited by accused
Chilambe and Mulewa,
they were tricked that they were to be farm labourers when in fact
they were intended to be soldiers
of an illegal army. To some,
like PW36 Mashikini, when they realised that they were not to be
ordinary farm labourers, after
the guns were brought to the
Chilanga farm, they deserted. This clearly shows their innocence.
The evidence of PWs 33-37
does not show that they concocted the
story and they do corroborate each other on recruitment, supply of
the guns and ammunition.
From the evidence I am satisfied that
accused Mulewa joined the conspirators who planned to overthrow
the Zambian Government.
His warn and caution statement was a
saving statement, not containing the truth. As regards
accused 12, Kanyembu, he was also apprehended at the Chilanga farm
and at the time of apprehension, he was armed
with an AK47 rifle
with eight rounds of ammunition, exhibit "PG2" and "90"
respectively. He was apprehended
when the security forces went to
the farm. His name appears on exhibits "P 140" and "P
142". On exhibit
"P 140" gun number 73BK 2262
exhibit "P 73" is recorded against his name. Being with
a different gun
on apprehension can be explained that there was
confusion when Security Forces attacked the farm and he picked any
gun. Being
armed with an AK47 at a farm where there were other
armed men can be nothing other than that accused was with that
group. On exhibit "P
142 (C)" he is described as a captain. I refuse to accept
that that group of people at the farm was
there for the purposes
of farming, giving them work was a mere further method of
concealing the true purpose of their presence.
Arming over sixty
people with AK47 rifles can hardly be attributed to farming. Even
if it is accepted that there were thieves
on or around the farm,
the farm could not need protection by arming all those present and
accused 12 was one of those so
armed. On the totality of the
evidence, I am satisfied beyond all reasonable doubt that all the
accused persons, except accused
5, did conspire together to
overthrow by unlawful means the Government of the Republic of
Zambia as by law established. They
all may not have been together
when the idea was originally mooted out, but certainly they
joined together later. The defence
put forward is complete lack of knowledge of the whole venture.
This is what I gathered from cross-examination
of the prosecution
witnesses. With the overwhelming evidence adduced by the
prosecution, this defence cannot stand. All
accused persons were
involved in this matter and I reject their defence of innocence. Further
accused Chilambe put forward the defence that he later withdrew
from the whole venture and he took ninety guns from
the farm so
that they could be used in Zaire. I find it difficult to accept
this bearing in mind his conduct. It should
be remembered that
the ninety guns he took to Ndola and which he showed the Police
after arrest were p151
surplus after
arming everybody at the Chilanga farm. It should also be noted
that his organisation had been looking for guns
and as there were
surplus guns at the farm, it was natural that they keep the
surplus safely somewhere from where they could
collect then later
and use in Zaire. He buried them secretly and this was in October,
1980. He never took any positive step
to inform the authorities
about either the plans or the guns, until he was apprehended in
December, 1980. Further, when accused
Symba was in detention, he
had every opportunity to tell the authorities about the plans if
he was afraid of the presence
of his leader Symba but he never
did. This conduct cannot be of a person who had disassociated
himself from the venture.
If the shoot-out had not taken place, I
am very certain that he would have come back to rejoin the group
and proceed with
it to execute their plans. I reject his defence
that he disassociated himself at any reasonable time. He remained
on the
Copperbelt because the group at Chilanga farm had been
dispersed by the Zambian Security Forces and he did not know where
his leader Symba was. He was like a lost sheep. As conspiracy
has been proved, any act or omission done by any conspirator in
pursuance of the conspiracy is deemed to be
an act or omission of
co-conspirators. When I was dealing with the evidence of Gen.
Kabwe, I did refer to the meeting he
had with accused 1, 2 and 4
together with one Annfield. At this meeting he was told of the
plan to overthrow by unlawful
means, the Government of the
Republic of Zambia and a suggestion was put to him to how to do
it. It was suggested that a
Presidential plane be diverted to a
pre-selected place where the President would at gun point be
ordered to renounce his
office and hand it to someone else. That
meeting was clearly in furtherance of the conspiracy. The fact of
meeting taking
place and the plan discussed is corroborated by
warn and caution statement of accused 4 and the interrogation
notes in respect
of accused 2. Accused 10 does confirm of a
meeting in his warn and caution statement. In his evidence,
accused 11 did confirm
of the meeting where PW5 was being
persuaded to do some acts. All these were done in pursuance of the
plan already agreed
upon. I am satisfied that overt act number 2
of a meeting held to persuade PW5 to make arrangements to divert
the Presidential
plane has been proved beyond all reasonable
doubt. On the
evidence, having agreed on the plan to overthrow the Zambian
Government, by unlawful means, I accept that accused 4,
10 and 11
proceeded to buy the following motor vehicles: Land - Rover AAD
5842 from Three - Way Parking: VW Combi ANA 1452
and Ford Transit
40 ADA 995 from Duly Motors. These vehicles were used to
transport recruits from North - Western Province
to Kitwe and then
to Lusaka. I have already held that these recruits were cheated
that they were to be farm labourers when
in fact they were to be
soldiers in an illegal army. PWs 33-37 were recruited and
transported at different times and there
is no suggestion in
their evidence that they concocted the story against accused 4, 8,
10 and 11 and 12 about their involvement
in this matter. These
witnesses were truthful witnesses whose evidence was not
CHIRWA J discredited in
any material way by the defence. I am satisfied that although
these witnesses said that they were recruited
as farm labourers,
they were tricked as was confirmed by accused 11. No reasonable
person can accept that farm labourers
can do farm work with AK47
assault rifles and thirty rounds of ammunition each. Although they
did some farm work, that was
just to hoodwink the poor innocent
souls. If they were told the truth, it is doubtful if any of them
could have agreed to
be recruited as is demonstrated bar PW36,
Mashikini, who after seeing the guns, he and some friends deserted
the farm. I
am satisfied that accused 8, 11 and 12, in pursuance
to the conspiracy did recruit the men listed in the new overt act
3
for the purposes of turning these into soldiers to be used in
overthrowing by unlawful mean the Government of the Republic of
Zambia as by law established. As these people were recruited as a
result of the conspiracy, the recruitment is deemed to
be the act
of all accused persons. There is
evidence before this court from PW68, Bread; PW69, PW85, PWs 33-37
and accused 11 that accused 10 was the leader
of this group. He
took an active part in looking after them at the farm and
according to PW68 he took the first gun to the
farm and this fact
has been confirmed by the accused himself in his warn and caution
statement admitted in evidence. There
is no doubt in my mind that
accused 10 was in command of this group. This group was unlawfully
armed with weapons, of war,
AK47 assault riffles, they were armed
for a war-like operation and they were therefore an army. They
needed not to be trained
like professional soldiers. I am
satisfied beyond doubt that accused 10 was in command of this army
at Chilanga farm whose
aim was to overthrow by unlawful means the
Government of Zambia as by law established; the new overt act
number 4 has been
proved. On the
totality of the evidence, I am satisfied beyond all reasonable
doubt that between 1st April, 1980, and 16th October
1980, accused
numbers 1, 2, 4, 8, 10, 11 and 12 did conspire to overthrow, by
unlawful means, the Government of the Republic
of Zambia and as a
result of such conspiracy did endeavour to persuade Gen. Kabwe to
arrange for the diversion of the Presidential
plane to a
pre-selected place where the President would, at gun point, be
forced to renounce his office and hand over his
office to someone
else. I am satisfied further that in pursuance of the said
conspiracy, accused 8, 11 and 12 went to North
- Western Province
to recruit men who were to form an illegal army which was to be
used in overthrowing by unlawful means,
the Government of the
Republic of Zambia as by law established and that the said illegal
army was under the command of accused
10. I am therefore satisfied
beyond all reasonable doubt that the prosecution has proved the
case of treason, contrary to
s. 43 (1) (a) of the Penal Code. Cap.
146, against the said accused numbers 1, 2, 4, 8, 10, 11 and 12
beyond all reasonable
doubt and I convict each and everyone of
them at charged. I will now
proceed to deal with the case against accused Mporokoso. Having
been satisfied beyond all reasonable doubt that
treason had been
committed, I will now consider whether accused Mporokoso was
aware p153
of the treason
being committed and that he failed to report to the authorities.
The evidence against him is mainly that his
warn and caution
statement admitted in evidence after a trial-within-a-trial.
Further there is the evidence of accused 11
in court that accused
Mporokoso attended meetings where this plan was discussed at
Shamwana's house and in Mumba's office. In his warn
and caution statement accused Mporokoso agrees that he was
approached by accused Mumba sometime in about March
or April,
1980, and was told of the planned coup and he attended a meeting
with accused Mumba and accused Shamwana at accused
Shamwana's
house. He was co-opted into the plan so that he assists in the
military way since the planners were all civilians.
He was asked
to go and look for willing officers in the Army and Airforce. To
assist him in his task, he was given K1,000
cash but he spent this
money on personal matters. On meeting accused Mumba and on being
asked the progress made, he said
that the people he wanted to
contact were out on operations. In May, 1980, he left for
Yugoslavia on official business and
on return he was told by
accused Mumbo that they had made lot of progress in recruiting
personnel and these were ex - Gendarmes
of Katanga and two of
their officers would be in Lusaka shortly. He met these officers
in June, 1980, and these were Deo
and Chilambe accused 10 and 11
respectively. He met them at accused 1's house where it was
explained to him that the Gendarmes
would assist in staging a coup
in Zambia and in return the Zambians would assist them in staging
a similar one in Zaire.
Responsibilities were then shared, he was
to find arms and possibly uniforms. He was to meet Deo the
following day in Mumba's
office but did not do so. However, later
they did meet and Deo expressed his disappointment in that accused
Mporokoso did
not turn up for the meeting. With all this
information, accused Mporokoso did not report to the authorities,
giving the excuse
than he was told that he was the only military
personnel they had contacted and if the information leaked to the
authorities,
he would be the first suspect and he would be shot. I will now consider this defence of duress or compulsion in respect of accused Mporokoso. The defence of compulsion is provided for under s. 16 of the Penal Code, Cap. 146, which reads:
To avail oneself to the defence under s. 16 of the Penal Code, following conditions must be satisfied:
p154
Accused Mporokoso in his warn and caution statement already referred to states that he did not report to the authorities because he was told that he was the only military man and that if the information leaked he was to be the person responsible and he would be shot. It will be noted from his warn and caution statement that he was approached by accused 4 around March or April, 1980, and between this time and 16th October, 1980, he had been out of the country twice, first to Yugoslavia and secondly to West Germany. It should also be noted that accused Mporokoso was not always with accused 4 or any of the accused persons. He was not in contact with them every day. He had ample opportunity to report to authorities and seek protection.
As was said in R v Hudson and Taylor (28) at p. 246 by Widgery, L.J.:
In the present case, the offence of failing to report a treason or misprision of treason is continuous offence and unless it can be shown that the threat was "present" all the time, I do not see how the defence can stand. As I have said, the accused was not constantly under the "present" threats of co-accused and I very much doubt if such a defence is available to an offence such as misprision of treason as this is a continuous offence. One commits it as from the time he knows of the plan by others to commit treason and he fails to report. He is only relieved once he reports to the relevant authorities. I am aware of what Lord Morris of BorthY-Gest said at pp. 917 and 918 in the case of Lynch v Director of Public Prosecutions (29) in answer whether duress should be recognised as a defence:
p155
Further down on p. 918 he says:
Considering
this defence in the present case, I am of the view that the
defence of duress or compulsion fails. The threats
although may
have been uttered were not immediate, they were as to the future,
that he would be shot. Further accused Mporokoso did not disassociate himself from either accused Mumba or others. He made himself available to these people. He kept on having meetings with these people. He kept on going to accused 4's Office. He could have avoided the dominance of these threats, he could have sought police protection. As I said, the crime of misprision of treason is a continuous one and there is no evidence that, any of the accused were always near him so as to keeps the threats fresh. The conduct of the accused was such that he cannot avail himself to the defence under s.16 of the Penal Code, Cap.146. His deference fails. I therefore find the accused guilty of the offence of misprision of treason or contrary to s. 44 (b) of the Penal Code, Cap. 146. and I convict him accordingly.
All accused convicted |
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