IN THE HIGH COURT FOR ZAMBIA HPS/24/2014

AT THE PRINCIPAL REGISTRY

AT LUSAKA
(Criminal Jurisdiction)

Between:

THE PEOPLE

CLIFFORD DIMBA KANENE

Before Hon. Mr. Justice C.F.R. Mchenga SC

For the People: C.M. Hambayi, Senior State Advocate, National Prosecution Authority
For the Convict: N. Chanda, Nicholas Chanda and Associates with T. Chali, H H Ndhlovu
& Company

JUDGMENT

Case referred to:

1. Macheka Phiri v The People [1973] ZR 145

Legislation referred to:

1. The Criminal Procedure Code, Chapter 88 of the laws of Zambia

2. The Penal Code, Chapter 87 of the Laws of Zambia

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This case was pursuant to the provisions of Section 217 of the

Criminal Procedure Code, committed to the High Court for sentencing.

However, before imposing the sentence, I have decided to review the

case by virtue of the powers vested in me by Section 337 of the

Criminal Procedure Code. My decision to review the conviction follows

a number of applications made by Clifford Dimba Kanene, the convict,

raising issue with the correctness of the conviction in the face of

what he considers to be inadequate evidence of the age of the

prosecutrix.

The convict appeared before the Subordinate Court sitting at Lusaka

charged with one count of the offence of Defilement contrary to

Section 138(1) of the Penal Code. The particulars of the offence

alleged that on a date unknown but between the 31 st of January, 2012

and the 1st of February, 2012 at Lusaka in the Lusaka District of the

of the Lusaka Province of the Republic of Zambia he had unlawful

carnal knowledge of Jammie Mukuwa a girl under the age of 16 years. He

denied the charge and a full trial was conducted. At the end of the

trial, he was found guilty as charged and convicted.

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The relevant evidence can be summarised as follows: on 31 st January

2012, the prosecutrix, who said she was born on 25 th March 1998 in

Namwala, knocked off from school at about 12 hours. While in the

company of her sister Shelly Mukuwa, Pw2, and two other boys she met

the convict along the rail line within Misisi Compound. The convict

who was with a friend took the prosecutrix to a lodge within the

compound and had carnal knowledge of her. He also spent a night with

her at the same lodge and only took her back to her father’s house the

following afternoon at about 15 hours.

Bruce Mukuwa, Pw4, the prosecutrix’s father told the court that on 31 st

January 2012, he called the convicts father when Pw1 failed to return

home from school. He said Pw1 was his daughter and she was born in

Monze on 25th March 1998. He also said her Under-5 Card was destroyed

in a fire and he did not obtain a birth certificate for her. Pw4 said

when he contacted the convicts father, he was given the convicts

number and he called him. The convict told him that he was going to

bring his daughter home but he did not. The following day, around

1800hrs, as he was reporting the matter at Lusaka Central Police

Station, he was informed that the convict had taken the prosecutrix
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home while in the company of his father, mother, sister and brothers.

He also said the prosecutrix was taken to the hospital.

Dr Lalieke Onesimus Chaponda Banda, Pw3, a doctor at the UTH confirmed

having attended to the prosecutrix. He told the court that on 2 nd

February 2012, he examined the prosecutrix and found that she had

sexual intercourse within 72 hours of the examination. He produced the

medical report. He also said they do not use MRI but X-ray to

determine age at his hospital. Evidence in support of her age was also

given by Christopher Chabala Kafwanka, Pw5, of Polydrive Sunset

School. He told the court that in 2007, as Pw4 was registering the

prosecutrix at their school, he indicated on the enrolment form that

she was born on 25th March 1998. He produced the enrolment form.

In his defence, the convict told the court that he had known the

prosecutrix for over a year prior to the incident. He had met her in

the bars where she used to drink from. He also said when she

approached him, she told him that she was 18 years old and wanted to

be one of his dancing queens. Further, he said the State did not

conduct and/or bring evidence of a Magnetic Resonance Imaging (MRI)

test to prove the prosecutrix age. In addition, it was his evidence

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that even though the prosecutrix volunteered to have sex with him to

prove her age, he did not have sex with her.

In his judgment, the learned trial magistrate accepted the prosecution

evidence and found that the convict had carnal knowledge of the

prosecutrix. He also found that the evidence of Pw2, Pw3 and Pw4

corroborated the prosecutrix evidence on the sexual act and identity

of the convict. He accepted the prosecution evidence and found that

the prosecutrix was born on 25th March 1998. He found that Pw4’s

evidence that his daughter was born on that day was corroborated by

that of Pw5.

As regards the failure to conduct and bring evidence of an MRI test,

the learned trial magistrate found that even if the test was

conducted, the results on the prosecutrix age would not have been

different. He also found that in any case, had the convict thought

that such test would have ended with a different result or evidence

favourable to him, he was at liberty to apply for the prosecutrix to

be subjected to the test during his defence but he did not. Finally,

he found that the defence in the proviso in Section 138 of the Penal
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Code was not available to the convict because he denied having sex

with the prosecutrix.

I have looked at the evidence on record and I am satisfied that the

learned trial magistrate cannot be faulted for having come to the

conclusion that the fact that the convict had carnal knowledge of the

prosecutrix was proved beyond all reasonable doubt. What appears to be

contentious is the age of the prosecutrix. It has been suggested that

the prosecution failed to prove the age of the prosecutrix to the

required standard; beyond all reasonable doubt.

The prosecution evidence in support of her age was that given by the

prosecutrix, Pw4 and Pw5. According to the prosecutrix and Pw4 she was

born on 25th March 1998. Pw4 also told the court that he could not

produce the Under-5 card because it was destroyed in a fire; neither

could he produce a birth certificate because none was obtained. The

only document that was produced to support Pw4’s evidence on the

prosecutrix’s age was an enrolment form he filled in 2007 when he was

enrolling her to school. On that form, he gave her date of birth as

25th March 1998.

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In the case of Macheka Phiri v The People (1), Baron, Acting Chief

Justice, at page 146, observed as follows:

“As the learned judge observed in that case, there is no difficulty in proving

the age of a prosecutrix, and it is not acceptable simply for a prosecutrix to

come to court and state her age. This can be no more than a statement as to her

belief as to her age. The prosecution should have called one of her parents or

whatever other best evidence that was available for the purposes of such proof.”

It follows that the viva voce evidence from a parent which has not

been discredited in cross examination can be used to conclusively

prove the age of the prosecutrix in a defilement case. Birth

certificates or Under-5 cards which are secondary ways of proving age,

can he used in cases where the parents are illiterate and do not know

when their child was born; the parents are not unavailable or to

support the evidence of a parent who has testified. It must be noted

that they are not necessarily the most credible or reliable ways of

proving age. Anyone who is familiar with how a birth certificate is

obtained in this country knows that it is based on information that is

given to registration officials by the parent or person obtaining it

on behalf of the child.

It follows, that like any other evidence their accuracy or

truthfulness can be challenged by cross-examination of prosecution

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witnesses or through calling of defence evidence that discredits them.

The learned trial magistrate was therefore right when he held that it

was up to the convict to lead MRI test evidence if it was his view

that it was going to help his case. Further, though MRI testing is one

of the ways through which age can be proved, it cannot be said to be

the most credible or the only one that the courts should accept. Like

any other evidence given by an expert, it is only an opinion of the

expert who presents it and like any other evidence, it is for the

trial magistrate to decide what weight to attach to it. The trial

magistrate may either accept or reject the expert’s opinion.

In this case, it cannot, on the evidence on record, be said that Pw4’s

evidence of when his daughter was born was discredited. There is

nothing to suggest that he did not know or he was mistaken of when his

daughter was born. Neither was his testimony not shaken in cross

examination. His evidence on the issue was actually given credence by

the testimony of Pw5. The evidence of Pw5 established that as early as

2007, way before the incident that gave rise to this case occurred,

Pw4 had indicated, when he was registering his daughter, that she was

born on 25th March 1998. While it can be argued that he lied when he

gave his daughter’s age to the police and court to ensure that the
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convict is prosecuted, the same cannot be said about it when he was

enrolling his daughter. There is no evidence that there could have

been any reason for him to lie then.

This being the case, I am satisfied that the trial magistrate was on

firm ground when he found that that the prosecutrix was below the age

of 16 years when the convict had carnal knowledge of her.

Consequently, I find no reason to review the Subordinate Courts

judgment on account of the prosecutrix age not having been proved

beyond all reasonable doubt, the conviction is confirmed.

Delivered in open court at Lusaka this 25 th day of April, 2014

________________________________
C. F. R MCHENGA SC
JUDGE