Proof and Punishment: Evidence Law in General Kanene’s Conviction

33

Several judges of the High Court of Zambia have been quite consistent and clear with regard to the evidence the prosecution needs to provide when proving the age of a minor in defilement cases. In following the 1973 legal precedence of the case of Phiri (Macheka) v. The People most judges have gone to hold that “age should be proven by one of the parents or by whatever other best evidence is available.” This case has formed an integral part of Zambia’s evidence law.

In a criminal case, the State has the burden of proving, beyond reasonable doubt, all the elements of a case. Main elements of most criminal cases hinge on at least two components: the prohibited act (called actus reus) and the required mental element (calledmens rea) that goes with it. In the case of child defilement, the prosecution must prove that an accused had sexual intercourse (the act) with a child and did this intentionally (the mental element). As mentioned earlier, the prosecution that must prove that (1) sex took place, (2) it was with a minor, and (3) the accused did this intentionally (s.138 of the Zambia Penal Code). It would be beyond the scope of this article to analyse each of these elements in detail. I should leave that to a university course in Criminal Law or Evidence Law. However, I just wish to deal with one element involved in this section: proof as to age of a victim.

The Law of Evidence deals with how a party can prove its case before an impartial tribunal. There are several sources of Zambian evidence law. I will mention only those relevant to this article. The first one is statute law. For example, CAP 43 of the Laws of Zambia (The Evidence Law Act) contains some guidelines with regard to evidence law. Second, most of the penal code provisions do come with some guidelines of how a particular offence can be proven. The third source of Zambian evidence law is the common law. By this we mean the law that has come to us through the history of precedence as interpreted by the judges. In fact, a bulk of what constitutes evidence law today comes from this area of law. It comes from what judges have ruled about what can be admitted and what cannot be admitted in court. The fourth source of evidence law is the trial judge or magistrate who is expected to use discretion to admit or reject some evidence if they will be prejudicial, or if the evidence will put the administration of justice into disrepute.

With specific reference to defilement cases, it is settled law, through the 1973 precedence that in proving the age of a victim, the testimony given by a parent in court “is conclusive unless evidence to the contrary is adduced” (Justice Siavwapain Tembo v. The People [2011]). It cannot help an accused to simply dispute the testimony given by a parent of a victim while failing to adduce contrary evidence. When a parent to a victim of defilement testifies in an open court that a child is indeed a minor, any one wanting to challenge this testimony must, through cross-examination, discredit this testimony, or should provide contrary evidence. Failure to do so, unfortunately, could lead to a conviction.

While I cannot deal with the specific issue regarding the conviction and appeal of Mr. C. Dimba, who has been slapped with 18 years for defilement, it would be interesting to see how the judges will handle this appeal. As widely reported in the press, the convict is appealing on the basis that the prosecution did not provide sufficient evidence with regard to the age of the alleged victim. At the centre of this appeal is the denial, by the appellant that the victim is actually not a minor. The convict does not seem to deny that sex took place. Second, he does not deny that he did it intentionally. What he denies concerns the exact age of the victim. Without doubt, age is an essential ingredient of the offence of defilement (Mulonda v. The People, 2004). As such, what is at issue in this appeal is what weight if any, the trial court should have given to the testimony rendered by the parents of the victim in an open court. Again, this issue could hinge on how the Supreme Court will relate facts of this case with precedence already in place. Basing this appeal only on the reliability of a parent’s testimony is a very difficult proposition.

There have been comments about how that, in order to convict Dimba, the court must have been provided with “documentary” evidence about the age of a victim. Some are even suggesting that a medical or scientific proof should be provided to substantiate the age of a victim. This is where we need to differentiate reality from the fiction we find in Hollywood dramas such as “Criminal Minds” and stuff like that. In my opinion, all this obsession with scientific evidence is not as reliable as that provided by a parent of a victim. The viva voce(word of mouth) testimony given in a court of law is more like the golden standard of evidence. The word of mouth testimony given by a witness (the parent) in open court about what they observed with their senses is very difficult to dislodge. In this case, the parents had testified before the trial magistrate that this child was below the age of sixteen at the time this offence took place. You have to have a very strong case to be successful on appeal.

 

The 2005 reforms to s.138 of the Penal Code expunged the defence of “reasonable belief” from the offence of child defilement. In 2011, however, this defence was reinstated. Parliament did well to reinstate this defence. A person who otherwise is guilty of child defilement could use this defence. It shall be a defence for a person charged with an offence under s.138 to show that they had “reasonable cause to believe, and did in fact believe,” that the child was not a minor. I think this defence takes care of some grey areas so that only those who are truly culpable should go to jail. However, it is interesting that Justice Mchenga did allude to this when he mentioned in his sentencing that the convict did seem to know that the girl was a minor by asking her “not to come in uniform, but come in plain clothes.” This is a very persuasive finding of fact that could prove critical going forward. I doubt whether this defence could be available to someone who knew very well that a girl was a minor! The more you know, the less likely that you could be successful in raising this defence.

For proof, the testimony of a parent seems appropriate. For punishment, the judges are meting out stiff penalties. For the careless, s.138 should be taken seriously. If they are below 16 years of age and you have sex with them, then you will go in for 15 years and above. That’s the law!

Elias Munshya, LLB (Hons), MA., M.Div. |

SHARE

33 COMMENTS

  1. IT SEEMS THIS GIRL IS BEING SUPPORTED BY THE JUDGES WHAT IF THIS GIRL HAS A CHILD FROM SOMEONE ELSE, WHAT WOULD THE COURT DO THIS GIRL AND HER PARENTS

  2. The girl was a minor. The girl was in uniform. Therefore all girls in uniform are minors….this is the most flawed logic ever!

    Mr. Mushya, as a scientist I find your comments on scientific evidence disparaging and inaccurate. Scientific evidence in court should be the gold standard, not word of mouth. Even the simple fingerprint is based on science!

  3. Zambian law is utopic. I am having sex with a grade 9 pupil and she is 19 years. I tell her not to come in uniform everyday. what has that got to do with defilement.

  4. The fact that so many womens’ groups advocated for this girl swayed the court decision.. its unfortunate that this man was tried in the media rather than in the courts of law… yes he was wrong for involving himself in somewhat reckless behavior but he did not defile this woman… those parents stretched the truth all too much… they have instead doomed a mans life because of being naive to that fact that they needed to educate their daughter of being in such situations..

  5. The judges handling such cases should also find out how the parents to the said minor and the accused have been relating as that may determine the truth regarding the testimony that the parents may give. And as for Kanene’s case, the parents may have lied to say the birth certificate had been burnt in the house in some village.

  6. ba munshya then your laws are stone age relics which should damped in the dust bin of history.

  7. Dimba’s case is not the only one at least its the third i have heard were parents never produced evidence to show the rightful age of the girl, but courts just listened to the parents and the man was sent to prison.

  8. it is unfortunate that even learned men and women of this generation use emotions rather than intelligence and logic.Give kanene a free and fair trial

  9. as regards child defilement,i am beginning to suspect that alot of people have been convicted wrongly as the judges rush to pass judgement before analysing the case at hand.why wasnt proof of birth records provided or atleast even the possible existence of an nrc ….you cannot rely on word of mouth.Ladies and gentlement i smell a dead rat and as such this case should be revisited.

  10. You heard that the girl used to be found in bars and she has a child.meaning shes already spoiled,so better free kanene.

  11. Was the girl a virgin before Mr Dimba had sex with her? if not what about the men that sex with her before Mr Dimba? Do her parents know that she could have had sex with other men before Mr Dimba? If she had sex with other men before Mr Dimba and her parents know that, what sort of parents are they?.

    What also we should consider is that no one can give proof of what one testified is the truth by heart. so we look all the angles.

    • i believe the defence have a strong case to appeal,it is mere and absolute common sense to see that the sentence was prematurely handed.

  12. I would like to commend this article as it is very enlightening, both on the facts of the case and on the quick review on the law of evidence. In light of this, it could be argued that the parent of the girl involved in this girl is a suspect witness and as such could be culpable of adducing false evidence in relation to the age of the child as they could have a strong interest to serve. Based on the fact that the country is advancing and the ease at which a medical report could be obtained, I believe that the Supreme Court should set precedent on the appeal of the case that where the testimony of a parent in relation to child age comes under dispute, a medical report as to the age of the child should be adduced. Furthermore, the fact that the accused asked the girl to come “in plain clothes” does not place the fact that he knew she was a minor beyond the realm of conjecture in the sense that there are people over the age of 18 who are still in school, an age beyond the requisite 16 in this case ergo it is essential that the prosecution prove beyond reasonable doubt that the child indeed is below 16, a fact in my opinion based on the information of your article has not been proved to that extent. As such, I do believe that the defence has a very strong case in their appeal.

  13. My lesson…… Be an icon with a purpose…. be abstract of the confusion n stay wiser enough. …the mistake he made was to agree that he knew the gal…

  14. Interesting article Mr.Munshya, well written and really insightful for someone passionate about law.That said it’s interesting to note how those facts on his defence weren’t made as public as his conviction in the media.as amusing as this news was, as juicy tabloid gossip, and as angered as people can get over defilement cases one can only pray that justice was served…if not our justice system still has it’s work cut out for it.

  15. Thanks mr. Writer. I would like to findout, what if the lady in question is a prostitute even at a minor age? Some kids are young but are chief prostitutes and their parents dont even that. Lets hear from her school, the neighbours and her friends rather than sticking to the fathers Ideology. Most parents if not all dont really know what goes down when they’re kidsare alone and parents are not there. It will be had for the girl and the parents if kanene dies because of this. Why didn’t the girl run tothe police iimmediately the incident happened and have kanene arrested their and then. I look at it as a case were the parents thought the would earn some VAT from the incident. I think it is to earlly to put him behind bars because the truth has not been found.

    • Doris, whether she is a prostitute is neither here nor there. The fact still remains that she is a minor. On whether she should have reported him to the police; note that the sex was consensual. However, given that she is a minor, she can not legally give consent. And that is why all sex with a minor is a criminal offense. She could have slept with the entire neighbourhood for all we know, but that does not mean that Kanene should get away with it. It just means the whole neighbourhood should be arrested for sex with a minor.

      Also, you insinuate that maybe the parents wanted to squeeze some cash from Kanene. But then in the same breadth, you go on to indicate that most parents do not know what their kids are up to. The two statements are inconsistent. Also, if they wanted cash from him, they can still sue him in a civil case and get that money. This was a criminal case, meaning the state took him to court, not the parents.

      Also, it is not too early to put him behind bars. A competent court has found him guilty, and as such he deserves the punishment meted out. If you disagree, as the author has pointed out, Kanene needs to show tangible evidence that the father’s testimony on the age of the girl was wrong. The only way he can do that is by producing a birth certificate, or a document from the state indicating her age (such as an NRC). Since neither were produced, I do not see this appeal being successful

      • Splaka, your comment is on the right track. However, I’m interested to know what civil action the parents would be able to bring against general kanene over defilement.

  16. am learning a lot from kanene ‘s case. You see there was a girl who failed 4 times in grade seven. if she had sex in her fourth attempt to go to grade 8, they courts and the parent will maintain that she was defiled and is 13 years as long as she is in grade 7? The courts should wake up. where there an proof of medical certificate than just word of month?.

  17. sir,why should the evidence of the parent rein supreme if it is possible for the parent to lie in court jst to fix someone or for monetary gain? Is that what the court,in this case,termed ‘proof beyond any reasonable doubt? The judge misled her/himself by claiming kanene knew that the girl was a minor wen he advised her to come in plain clothes and nt uniform becoz there are many pupilz in zambia who r beyond 16yrs of age and are stil at junior secondary.

  18. Mr Munshya,
    i would be very glad if you were to respond to my queries. first of all, im against men defiling minors neither am i in support of irresponsible sex. But i must mention that i have worked on defilement cases for over 4 years now and probably my testimonies have helped put the defilers behind bars!
    First of all, you have done well to educate us on the law of evidence and what should be proved in our courts for one’s acquittal or sentencing. My question is, why should the parent’s testimony be the supreme when it comes to admissible evidence over scientific methods. You argument that we should not think this is CSI Los angels is unfortunate especially coming from a learned man of your caliber. First of all, to prove that sex took place, the courts call on medical doctors to examine and employ scientific means. why shouldnt age also be subjected to scientific means? Age determination is a simple thing that can be achieved through a thorough medical exam, X-rays, and MRI all of which we have at the UTH! so why should judges still think this is utopic? I believe every suspect is innocent until proven guilt! and Dimba is such a victim who has been judged by the public rather than correct application of the law!
    My take is that; 1. let the girl be subjected to scientific methods of age determination rather than word of mouth just as a medical report showed there was penetration.
    2. if it is scientifically proved that Dimba indeed defiled her, it will be both beneficial for the girls’ psychological healing, Dimba doubts would be settled and the picture of the courts judging him harshly shall not be there! it owuld also be a warning for would be offenders who might manipulate the parents that science wont lie

  19. Was the girl a virgin before Mr Dimba had sex with her? if not what about the men that sex with her before Mr Dimba? Do her parents know that she could have had sex with other men before Mr Dimba? If she had sex with other men before Mr Dimba and her parents know that, what sort of parents are they?

    • I would like to agree with the concerns and questions raised by a Mr. Concerned Citizen and would urge our learned Mr. Munshya to kindly address these valid concerns and questions raised.

    • Its not the matter of if she has been having sex before with other men,if she has been then those men are lucky and now it seems like mr Kanene here has been caught by the LAW……..Kansapato Kamwana..!!!!!!!!!!!!!!!!!!!!!!

  20. Not all school gals are sixteen, especially in an African setup were children start schooling between the ages of 5 to 7.
    Secondly telling a gal to come in her plain cloths is avoiding people saying that you like hitting on school gals.
    Thirdly if the gal agreed (mutual) with a Mr Dimba andeven told him that she was at a legal age, how do we prove that it was defilement….am not a lawyer but c’mon,poverty has led to so many people trying to find some means and ways of putting food on their tables…
    i rest may case.

  21. @ Golden standard is Wat the parents testified on her age in open court than scientific proof…..how about if the parents were being economical with the truth on the age simply because the convict didn’t oil the parents…or Wat will happen if science will says she is older than Wat wad said by parents..Zambia needs forensic labs to avoid such confusions…

LEAVE A REPLY