Women and Justice: Jurisdiction

Domestic Case Law

Mwape v. The People Supreme Court of Zambia (2012)

Statutory rape or defilement

The appellant was charged with defilement contrary to Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia (unlawful carnal knowledge of a girl under 16 years) and was sentenced to the minimum mandatory sentence of 15 years’ imprisonment. On behalf of the appellant, the appeal was filed on two grounds. On ground one, it was contended that the Court had erred in law by deciding not to conduct a voir dire and proceeding to receive the sworn evidence of a child. On ground two, it was contended the court below erred by finding corroboration and concluding the appellant was guiltywwww. Relative to the first grounds, the Court held that, while there had been no voir dire and while the Magistrate had failed to inquire as to whether the child understood the nature of the oath, this did not necessitate a re-trial, given that such orders are typically discretionary and this was not the only evidence tendered at trial. Relative to the second grounds, the Court observed that the question of identity was not in dispute and that there was substantial corroborative evidence that the crime had been committed. Accordingly, the Court concluded that the grounds lacked merit, as the Court was competent to convict the appellant even without the victim’s evidence. The Court further noted that the crime was compounded by the breach of trust that the appellant (who was the prosecutrix’s step-grandfather and exercising parental responsibility over her at the time) had committed against the victim and, therefore, set aside the 15-year minimum sentence in favor of a 20-year hard labour sentence. 

Mutombo v. Mutombo High Court for Zambia (2012)

Divorce and dissolution of marriage

The petitioner filed a petition for the dissolution of his marriage. Under Zambian law, there is only one ground for divorce: that the marriage has broken down irretrievably. A marriage has irretrievably broken down when there is no chance of the parties resuming cohabitation. The High Court observed that, on the facts, the conduct and lifestyle of the parties, especially during the period when the suit’s hearing was pending, was utterly inconsistent with that of a couple whose marriage has irretrievably broken-down. In particular, the parties still continued to enjoy family life, the petitioner was still supporting the respondent financially, and the parties continued to enjoy a sexual relationship. In this light, the High Court rejected the submission that there was no mutual love between the parties and concluded that the respondent had not behaved which would preclude the petitioner from reasonably being able to live with the respondent. Accordingly, the High Court dismissed the petition. 

Ponde v. Bwalya Supreme Court for Zambia (2016)

Divorce and dissolution of marriage, Property and inheritance rights

The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.

Joan v. Hodgson High Court for Zambia (2011)

Divorce and dissolution of marriage, Property and inheritance rights

The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).

Miloslav v. The People Supreme Court for Zambia (2014)

Sexual violence and rape

The appellant was charged with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The victim worked for the appellant as a maid when she was indecently assaulted. The appellant advanced four grounds of appeal: (i) the trial court erred when (i) it found the appellant had a case to answer at the close of the prosecution’s case; (ii) it convicted the appellant of the offence in the absence of corroborative evidence; (iii) the trial court erred when it convicted the appellant on the evidence of the victim who suffered from unsoundness of mind without satisfying itself that the victim understood the nature of an oath and was capable of giving rational testimony; and, (iv) it held that the findings in the medical report supported the prosecution’s evidence and when it held that the appellant had corroborated the evidence of the victim when he admitted touching the victim. The Court dismissed all grounds for appeal on the following bases: (i) the Court was satisfied that the victim’s testimony was presented in a very coherent manner and that the three ingredients of the offence had been established and that the victim’s testimony was not discredited at all; (ii) there was medical evidence which corroborated the crime as well as evidence that the victim did not consent to the indecent assault; (iii) the victim’s testimony was very consistent and was given with ‘lucid clarity’, therefore there was nothing in the victim’s testimony that could have compelled the trial court to conduct a voir dire; and, (iv) there was medical evidence which corroborated the victim’s testimony and there was no evidence of a romantic relationship between the parties which would indicate consent. Further, the Court held that, because of the ‘master and servant’ nature of the relationship, the minimum sentence of 15 years imprisonment was inappropriate and should be set aside and replaced by a sentence of 20 years imprisonment with hard labor effective from the date of conviction.

The People v. Mugala High Court for Zambia (2012)

Gender-based violence in general, Sexual violence and rape

The accused was charged with one count of rape contrary to Sections 132 and 133 of the Penal Code, Chapter 87 of the Laws of Zambia. The accused denied the charge. However, following the trial (during which the prosecution called five witnesses, and after considering the evidence of the accused which was given on oath), the trial magistrate found the accused guilty and convicted him of the subject offence. The case was then remitted to the High Court for sentencing pursuant to Section 217 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. Before passing any sentence, the Court was required to satisfy itself that the relevant legal and procedural provisions had been observed by the trial court. The Court held that there was medical evidence in support of the violent nature of the act as well as other corroborative evidence, such as the distressed state of the victim when she reported the act.  Furthermore, the Court concluded there was sufficient evidence in support of the identification of the accused by the victim including the trial magistrate’s finding that the victim was a truthful witness. On the totality of the evidence, the High Court held that the trial judge’s finding of guilt and the conviction was ‘anchored on firm ground’ and, therefore, concluded that it should be upheld. The High Court sentenced the accused to 25 years imprisonment with hard labor effective from the date of arrest.

Sikazwe v. The People Supreme Court for Zambia (2012)

Sexual violence and rape, Statutory rape or defilement

The appellant was charged with incest contrary to Section 159(1) of the Penal Code but was convicted of the lesser charge of indecent assault contrary to Section 137(1) as amended by Act No. 15 of 2005, Cap 871, as the medical evidence ‘left a lot to be desired’ (as described by the Magistrate). However, when the matter was sent to the High Court for sentencing, the sentencing judge substituted the charge of indecent assault with incest and sentenced the appellant to 20 years imprisonment with hard labor. The appellant appealed this conviction and sentence on the basis that the Magistrate “erred in law and fact when he tried and convicted the appellant without the Director of Public Prosecutions’ consent.” In support of this argument, the appellant noted that the instructions of the Director of Public Prosecutions were to try the appellant for rape not incest. Therefore, in the absence of express consent by the Director of Public Prosecutions as required by Section 164 of the Penal Code, Cap 871, the trial court had jurisdiction neither to hear the matter nor to proceed to convict the appellant on indecent assault and sentence him to 20-year term for incest. The Supreme Court reviewed the letter from the Director of Public Prosecutions and noted that, while the first paragraph gave the impression that he had sanctioned the prosecution to go ahead with the charge of incest, the remainder of the letter made it clear that he had also sanctioned the appellant’s prosecution on a charge of either rape or defilement. The Supreme Court also noted that the latter could potentially enable a conviction of indecent assault under the relevant provisions of the Penal Code. Thus, the Supreme Court confirmed that the Director of Public Prosecutions rightly guided the prosecution and the court below to invoke whichever of these provisions as necessary. Moreover, the Supreme Court stated that the Magistrate rightly concluded that ‘the medical evidence left a lot to be desired.’ Ultimately, it concluded that the appellant was not guilty of the offence of rape, but that he was guilty of the offence of indecent assault contrary to Section 137 of the Penal Code and that the sentencing judge was mistaken to sentence the appellant for incest. The Supreme Court quashed the incest conviction, but still upheld the conviction for indecent assault and imposed a 20-year prison sentence.

Habeenzu v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

The appellant was charged in the Subordinate Court of attempted rape contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia. The statement of offence read defilement, contrary to Section 138 of the Penal Code. The appellant was convicted of indecent assault, a minor offence per Section 181(2) of the Criminal Procedure Code. The appellant appealed on two grounds. First, the statement of offence was defective, as (i) it did not specify the offence by section and subsection of the provision of the law contravened, and (ii) it was amended late which was unjust. Second, on the available evidence, a court could not have properly convicted appellant for attempted rape or indecent assault because the allegation of attempted rape impliedly includes both an allegation of assault and of indecency; on the facts, there was only an element of indecency (and not assault). The Supreme Court rejected both grounds of appeal on the basis that: (i), indecent assault, attempted rape, rape and defilement are offences of the same genus and therefore a defendant charged with attempted rape may be convicted of a lesser related charge like indecent assault; (ii) the appellant had an opportunity to defend himself in relation to the alternative charge, so there was no constitutional violation of the fairness of the trial; and (iii) the findings of fact were in accordance with the evidence on the record, as the appellant was ‘caught in the act’ and there was medical evidence of injuries sustained by the victim. Accordingly, there was no reason to interfere with the findings of fact or the minimum sentence of 15 years’ imprisonment imposed by the sentencing judge. The Court dismissed the appeal.

The People v. Manroe High Court of Zambia (2010)

Sexual violence and rape

Pretty, an eight-year-old girl, was on an errand with her friend Violet, a seven-year-old girl. Along the way the inebriated defendant, Manroe, grabbed both girls, stuffed their mouths with cotton, and had sexual intercourse with both of them against their will. After he completed these acts, he threatened to kill them if they told anyone what transpired. Four days after the crime, Pretty’s mother noticed that Pretty was walking rather awkwardly, and upon inspection, discovered cuts on Pretty’s private parts. Her mother then filed a report at the police station and took Pretty to a hospital, where a doctor issued a medical report. The trial court, concerned with the reliability of the testimony of Pretty, a child of tender years, conducted a voire dire and determined that she was not capable of understanding the purpose of taking the oath. Therefore, the court required corroborating evidence of the rape to be presented. The trial court found that Manroe had been properly identified and that the medical report corroborated the rape, and accordingly, convicted Manroe of defilement. On appeal, Manroe argued, inter alia, that the medical evidence was insufficient because the crime was reported late and there was no date stamp on the medical report. The High Court noted that corroborating evidence need not be corroboration in the strict sense of the law, but needed to be “something more” than the victim’s testimony. Despite Pretty’s examination occurring four days after the crime, the High Court found that the medical report, having been issued by a licensed medical professional, properly corroborated the crime and therefore, upheld Manroe’s conviction.

Kalenga v. The People Supreme Court for Zambia (2012)

Sexual violence and rape

Kalenga, the Defendant, told his 70 year-old grandmother, the Victim, that he had collected some firewood in the bush and offered to give her some. When she followed him into the bush, she found that no firewood had been collected, and instead, Kalenga took off his clothes and had intercourse with her without her consent. The Victim returned home and reported the crime to the head of the village and then to the police. While in police custody, he denied the charge, but admitted to having gone into the bush to collect firewood. At trial the Defendant did not testify. The Trial Magistrate found the Victim’s story to be corroborated by the fact that no firewood had been collected and found no reason why the Victim would fabricate such a story involving her grandson. As this evidence went unchallenged by Kalenga, the Trial Magistrate convicted him. The Trial Magistrate committed Kalenga for sentencing to the High Court, which sentenced him to 16 years imprisonment with hard labor. Kalenga appealed to the Supreme Court on the grounds that there was no finding of corroborative evidence. The Supreme Court agreed with the trial court that his admission to escorting the Victim into the bush, the lack of motive of the Victim to lie, and the unlikelihood of mistaken identity constituted “something more” to corroborate the Victim’s testimony. The Supreme Court further found the age of the Victim to be an aggravating circumstance and increased his sentence from 16 years to 20 years.

Hara v. The People Supreme Court for Zambia (2014)

Sexual violence and rape, Statutory rape or defilement

The Defendant, Hara, broke into the house of a twelve-year-old girl, forced her down and raped her. He pleaded guilty to defilement, a crime with the sentence of fifteen years to life imprisonment, and was sentenced to thirty years imprisonment with hard labor. Hara appealed the sentence on the grounds that (1) thirty years was too severe absent any aggravating circumstances (i.e. the victim did not sustain any physical injuries, become infected with a sexually transmitted disease or become pregnant) and (2) the lower court did not take into account mitigating circumstances (i.e. the defendant was a first time offender who readily plead guilty). Reasoning that “young girls are no longer safe even in their homes”, the Supreme Court rejected the Hara’s arguments that the absence of factors, such as physical injuries and pregnancy, should reduce his sentence. The Supreme Court further held that the lower court properly considered the Hara’s status as a first time offender, and therefore, the Supreme Court upheld his thirty-year sentence.

The People v. Nyambe High Court of Zambia (2010)

Domestic and intimate partner violence

The Defendant, Mr. Nyambe, and the victim, Mrs. Nyambe, were married. Upon return from a fishing trip, Mr. Nyambe found Mrs. Nyambe in bed with another man and reacted by beating the other man. One month later, Mrs. Nyambe revealed that the reason she committed adultery was because Mr. Nyambe “was not a real man,” whereupon the two began to fight, and Mr. Nyambe struck Mrs. Nyambe with an axe and killed her. Despite the one month that had elapsed between the initial discovery of the adultery and the murder, the High Court found that the adultery still constituted provocation. However, under Zambian law, a murder defendant’s reaction must bear a reasonable relationship to the provocation to invoke that affirmative defense to reduce the conviction to manslaughter. The High Court found that the Defendant’s retaliation of striking his wife with an axe was not proportional to the provocation and convicted him of murder.

Phiri v. Zulu High Court of Zambia (2012)

Divorce and dissolution of marriage, Property and inheritance rights

After fifty-four years of marriage, Mr. Phiri divorced Ms. Zulu in 2006. She was the mother of his nine children, and they shared a matrimonial home on a farm. Throughout the course of the marriage, Mr. Phiri and Ms. Zulu acquired real property, comprising the farm, other residential houses, and a bar, as well as several vehicles. However, during the divorce proceedings Mr. Phiri sold many of the houses and gave two of the properties to his children as gifts. He kept the proceeds of the sales for himself. The local court of first instance ordered Mr. Phiri to surrender one of the houses, a shop, a tavern and a sewing machine to Ms. Zulu. Unhappy with the outcome, Mr. Phiri appealed to the Subordinate Court, which heard the matter de novo. The Subordinate Court came to the same conclusions as the local court, although it ordered Mr. Phiri to surrender an additional sewing machine and K 6,000,000, as compensation for the property sold during the divorce proceedings, although no valuation of the latter had taken place. Ms. Zulu appealed to the High Court, among other grounds, on the basis that Subordinate Court should have also taken into account her contribution to the marital home (the farm) and that an assessment of the sold properties (or monies from the sale thereof) should have occurred. The High Court held that because the farm was acquired and maintained through the joint efforts of the husband and wife, Ms. Zulu had acquired a beneficial interest in the farm. Accordingly, the High Court ordered a valuation of the farm and directed Mr. Phiri to pay with one-third of the value to Ms. Zulu as a lump sum. Moreover, reasoning that the K 6,000,000 payment, related to the marital property sold during the divorce proceedings, was awarded without any basis whatsoever, the High Court further ordered a valuation of such property, with Ms. Zulu to receive one half of the assessed value.

Mukinga v. Fuller and Others Supreme Court for Zambia (2008)

Divorce and dissolution of marriage, Property and inheritance rights

Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.

Nawakwi v. Attorney General High Court of Zambia (1991)

Gender discrimination

Ms. Nawakwi was an unmarried mother of two who applied to have her children included in her passport. For her first child, the Passport Office required a birth certificate, which could only be obtained by Ms. Nawakwi swearing by affidavit that (1) she was the mother of the child and (2) the child was born out of wedlock. When the passport was then issued, she was required to swear a new affidavit to the same effect. However, the inclusion of her second child was approved immediately because his Tanzanian father had completed the relevant documents abroad. Ms. Nawakwi challenged this practice as discriminatory, because it recognized a foreign father, and not a Zambian mother, as the parent of a child. The High Court found that the mother of a child was not regarded by the government as equal to the father with respect to the passport application process. Accordingly, the High Court ruled that Ms. Nawakwi had been discriminated against on the grounds of sex. In addition to the foregoing, the High Court also held that (1) a single parent family headed by a male or female is a recognized family unit in the Zambian society and (2) a mother of a child does not need the consent of the father to have her children included in her passport or for them to be eligible to obtain passports or travel documents.

Mashita Katakwe v. Hakasenke High Court of Zambia (2006)

Gender discrimination, Gender violence in conflict, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

Rosaria, a thirteen-year-old schoolgirl, was raped by defendant teacher, and consequently contracted a venereal disease. The rape occurred in the defendant's home, which Rosaria entered with the intent of picking up some past school papers that the defendant had failed to bring to school on multiple occasions. After bringing this incident to the Head Teacher's attention, it was uncovered that the defendant had done this before, that measures had been taken to warn or protect students from the defendant, that the defendant had only received a verbal warning, and that the previous student victim had transferred to another school. In his defense, the defendant claimed that he was in a relationship with Rosaria, to which she consented, as evidenced by a Valentine's Day card that Rosaria had given him. The High Court held that the defendant breached the duty of care that he owed to his pupils and was therefore negligent, noting that it is the duty of a school teacher to care for his pupils, as would a father for his family. The Court reasoned that school teachers are in a position of moral superiority, and a young schoolgirl's "consent" is fictitious in light of the ethics compelling a teacher to not engage in sexual relations with schoolgirls, a young girl's cognitive inability to truly consent, as well as Section 138 of the penal code, which states that defilement of a girl under the age of 16 is an offense. Notably, the Court held that society's indignation of this type of behavior ought to be reflected in the amount of damages awarded. The Court entered a judgment in favor of Rosaria for K 45,000,000 for her pain and suffering, medical expenses, aggravated damages, and mental torture. Furthermore, the Court held that the School, Ministry of Education, and the Attorney General are vicariously liable for this judgment, noting that the government is responsible for all school going children in the care of its agents, including teachers like the defendant.

People v. Chipikili Subordinate Court of the First Class for the Lusaka District (2010)

Sexual harassment, Sexual violence and rape

The accused, a teacher, was accused of sexually assaulting a nine-year-old girl while administering an examination to her. The girl testified that she had reported to the school where she was to be enrolled for aptitude tests. She was taken to a classroom where she found herself alone with the teacher. She said that while she was writing the exam, the teacher hugged her from behind and began fondling her breasts. She moved to another seat and finished the exam. He then lifted her up and told her that she was going to help him, but she pushed him away and ran to the principal's office. The teacher denied the charges, arguing that the girl was a slow learner and was mentally disturbed. When he took the stand at the trial, however, he frequently contradicted himself. On the one hand, he stated that people outside would have seen what happened through the windows and that there were other pupils in the class at the time. On the other hand, he said that the alleged assault could have happened so quickly that nobody would see and noted that the schools closed in December, which meant that no other pupils were in class in January when the girl took the exam. Weighing the evidence and taking into account the contradictory testimony of the accused, the Resident Magistrate found that the prosecution had proved its case beyond a reasonable doubt. She therefore convicted the teacher of indecently assaulting the young girl.