IN THE COURT OF APPEAL OF ZAMBIA Appeal No.
140/2022
HOLDEN AT KABWE and LUSAKA
(Criminal Jurisdiction)
BETWEEN:
LEVITICUS TEMBO APPELLANT
~
AND
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Ml ALREGlS
.
THE PEOPLE aox soo67 RESPONDENT
CORAM : Mchenga DJP, Ngulube and Muzenga, JJA
ON: 16 th May 2023 and 21 st June 2024
For the Appellant: M. K. Liswaniso, Senior Legal Aid
Counsel, Legal Aid Board
For the Respondent: N. Lubasi, State Advocate
National Prosecution Authority
JUDGMENT
Mchenga DJP, delivered the judgment of the court.
Cases referred to :
1 . Precious Longwe v . The People , CAZ Appeal No . 182/20 1 7
2 . Simutenda v. The People [ 1975] Z . R . 373
3 . Kalaluka Musole v. The Peop l e [ 1 963-1964] Z. R. and
NRLR 206 (Reprint)
4 . Rodgers Kunda v . The People , SCZ Appeal No. 8 1 of 2017
5 . Whiteson Simusokwe v . The People , SCZ Appeal No . 15
of 2002
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Legislation referred to :
l.The Penal Code , Chapter 87 of the Laws of Zambia
INTRODUCTION
c11 The appellant appeared before the High Court
(Makubalo , J.), charged with the offence of murder
contrary to Sec tion 200 of the Penal Code .
c2 1 He denied the charge , and the matter proceeded to
trial . At the of that trial , he was convicted for
committing the offence and condemned to suffer
capital punishment .
C3J He has appealed against the sentence .
CASE BEFORE THE TRIAL JUDGE
C4J On 22 nd November 2020 , Levison Tembo of Chigumane
Village in Chipata , was roofing a house with his
brother , Mwanj i Zulu . After working on the roof ,
Levison Tembo and Mwanji Zulu took a break . Mwanji
Zulu lay under a tree , while Levison Tembo retreated
into a house .
cs 1 While in the house , Levison Tembo heard some
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chopping sounds. He also heard the appellant say they
had finally settled their differences , that had been
outstanding for a long time.
C6 J When Levison Tembo came out of house , he found the
appellant , who was holding a bloodied axe, standing
nex t to Mwanji Zulu ' s lifeless body . He also noticed
two cuts on Mwanji Zulu ' s face .
c11 In his defence , the appellant did not deny axing
Mwanji Zulu . He said Mwanji Zulu attempted to strike
him with the axe , before he disarmed and hacked him .
csi He recounted being told by his daughter that one
night , Mwanji Zulu spent a night in his former wife ' s
bedroom . He also recounted how earlier that day , he
found that his former wife had washed Mwanji Zulu ' s
clothes . On being questioned, she attributed her
association with Mwanji Zulu , to his inadequacies in
bed .
C9J The appellant said he only sought to confront him on
the allegations , but Mwanji Zulu attempted to attack
him with an axe .
c101 A post-mortem on the body of Mwanji Zulu , found t he
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cause of his death to be the injuries he had
suffered to his head .
GROUND OF APPEAL AND ARGUMENTS IN SUPPORT
c11i The sole ground of appeal is t hat , the tr ial Judge
erred when she held that the there were no
extenuating circumstances on account of a failed
defence of provocation , because no provocative act
was proved .
c12i Reference was made to the case of Precious Longwe v.
The People 1 , and it was submitted that even though
the defence of provocation may have failed , the
provocative act was proved .
c1JJ According to counsel , the provocative act was the
picking of the axe by Mwanji Zulu , and his attempt
to strike the appellant with it . It was submitted
that even if no one saw what happened , the
appellant ' s story was plausible .
ARGUMENTS AGAINST THE APPEAL
c14J In response to the so le ground of appeal , the cases
of Simutenda v. The People 2 and Kalaluka Muscle v.
The People 3 , were referred to and it was submitted
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that even if there is no obligation on an accused
person to prove the defence of provocation , there
must be credible evidence either from the appellant
or prosecution witnesses , supporting the elements of
the defence , before its availability can be
considered .
[1si It was submitted that while the appellant claimed
that Mwanji Zulu attempted to strike him with the
axe , the evidence established that the axe , in fact ,
belonged to the appel l ant.
c1GJ It was also submitted that since the allegation that
he was inadequate in bed was not made in the presence
of Mwanji Zulu , it could not have been provocative
to warrant him attacking Mwanji Zulu .
c111 Finally , the cases of Precious Longwe v The People 1
and Rodgers Kunda v . The People 4 , were referred to
and it was submi tted that where there is no evidence
of any provocative act , e x tenua t ing circumstances on
the basis of a failed defence of provocation , cannot
arise .
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CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT
c1a1 It is settled law that a failed defence of
provocation , can amount to an extenuating
circumstance . There is plethora of authorities to
that effect , including the case of Whiteson Sirnusokwe
v. The People 5 •
c191 It was submitted that the provocat ive act was Mwanj i
Zulu ' s attempt to str i ke the appellant when he went
to question him over the affair he was having with
his former wife .
c201 The trial Judge made a finding that the appe l lant
was the owner of the axe tha t he used to hack Mwanji
Zulu. That fact discredited the appel l ant ' s claim
that he only went to house were the roofing was
taking place , to question Mwanji Zulu , and that
Mwanji Zulu attempted to strike him .
c21 1 In addition , the appellant ' s statement , as he hacked
Mwanji Zulu , that t he ir differences had finally been
sett led , is indicative that the appel l ant had set
out armed with an a x e , to ' deal ' with Mwanji Zulu .
c221 In the circumstances , we find no basis for faulting
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the trial Judge ' s rejection of the appellant ' s c l aim
that Mwanji Zulu attempted to strike him with an axe ;
and her conclusion that , in fact , the appellant went
there armed .
c23 1 An examination of the evidence before the trial Judge
establishes that what upset the appellant was his
discovery that his former wife had washed Mwanj i
Zulu ' s clothes , and being told that she was
associating with him on account of his inadequacies
in bed .
c2 41 As it turned out , about 5 years prior to his killing ,
Mwanji Zulu used to live with the appellant . They
parted company following reports that Mwanj i Zu l u
was having an affair with the appellant ' s wife . Those
allegations also led to the appellant breaking up
with his wife .
c2s1 The defence of provocation is set out in Section 206
of the Penal Code. The relevant parts of the
provision read as follows :
(1) The term "provocation" means and
includes, except as hereinafter stated, any
wrongful act or insult of such a nature as
to be likely, when done or offered to an
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ordinary person, or in the presence of an
ordinary person to another person who is
under his immediate care , or to whom he
stands in a conjugal , parental , filial, or
fraternal relation, or in the relation of
master or servant, to deprive him of the
power of self-control and to induce him to
assault the person by whom the act or insult
is done or offered. For the purposes of this
section, "an ordinary person" shall mean an
ordinary person of the community to which
the accused belongs. (th e underlining is ours
and is for emphasis)
c2G1 In this case , the annoying statements were not
uttered by Mwanji Zu lu but t h e appellant ' s former
wife . This being the case , the defence of
provocation , as is set out in Section 206 of the
Penal Code , was not ava ilable to the appellant
because the provocative statements did not come from
the person he killed . In effect , there was no
' p rovocat ive act ' as it i s se t out in Section 206 of
the Penal Code.
c27J In the absence of a provocative act , there cannot be
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a failed defence of provocation , and extenuating
circumstances on the basis of a failed defence of
provocation .
c201 We find no merit in the s ole ground of appeal , a nd
we dismiss it .
VERDICT
c291 The sole ground of appeal having failed , this appeal
is dismi s s ed for want of merit . The sentence imposed
by the trial Judge is upheld .
. F.R. Mch
DEPUTY JUDGE PRES
P . C . M. Ngulube K. Muzenga
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE
