E. Munshya, LLB (Hons), M.Div.
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 precedent 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 (called mens 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 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 precedents as interpreted by the judges. In fact, a bulk of what constitutes evidence law today comes from these sources. 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 precedent 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 Siavwapa in Tembo v. The People ). 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 precedent 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, subject to cross-examination, is 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!
Mr Munshya is defilement a strict liability offence under criminal law?
No it is not.
Sepiso, the offence is too serious to be strict liability.
When some one searches for his vital thing, so he/she needs to be available that
in detail, so that thing is maintained over here.
According to the available evidence the guy was rightly found guilty and convicted because prosecutions proved the case beyond reasonable doubt.There was indisputable evidence that the prosecutrix was defiled.They also proved an essential element in the case of defilement, which is age of the prosecutrix.Her mother’s evidence of age was the best evidence in so far as the birth certificate was not obtainable. Therefore it was the duty of the defence to disprove the prosecutrix mother’s evidence on age.They could have obtained that evidence from the school where prosecutrix was enrolled or copy of the record from the hospital where the prosecurix was born if at all she was born in the hospital or clinic.
the use of Viva Vocae evidence needs to be examined at length. the court should have put on the hat of an inquisitorial court to effectively clarify the issue with regards to the girls age. the parents word of mouth isn’t enough evidence to convict the accused…. justice in this case has not prevailed. the defense are within their legal rights to appeal.
i appreciate the fact that our jurisdiction is an acusatorial system but a judge must step into the arena for the interest of justice to prevail.
Reblogged this on KELVIN ESIASA.
“. . . all this obsession with scientific evidence is not as reliable as that provided by a parent of a victim.” I beg to differ . Scientific or documentary evidence (birth certificate, birth cards etc) also help to prove beyond any reasonable doubt the age of the child. Such proof works both ways; for the prosecution & defence. It’s necessary for justice ‘s sake
“Scientific evidence” in proving the age of a victim could be significant and persuasive, but there is no court that would allow for that. It would not be in the interest of justice and public policy to subject young victims of sexual crimes to scientific age tests. Birth certificates and birth cards are by routine obtained by parents of children or those that are close to a child. The court in this case did not need to have a birth certificate because the parent of the child gave testimony in open court about the age of the victim. The Registrar of Births who issues birth certificates in fact relies on the report that parents give concerning children. As such, a parent’s sworn testimony in open court is more persuasive than any other piece of evidence.
Very interesting, thanks for the reply.
But don’t you think courts need to embrace science (DNA etc), to coroborate acceptable common law evidence?
This will ensure that legal certainty is achieved, and justice is prevail. Remember justice must not only be done, but should be seen to be done
I do not think it should be a matter of policy to “… subject young victims of sexual crimes to scientific age tests.” But in a case where there is reasonable doubt about age, it should be mandatory (if the pictures of the girl circulating online are to be believed, that girl does not look 14).
“The court in this case did not need to have a birth certificate because the parent of the child gave testimony in open court about the age of the victim.”
It would be extremely naive for courts to assume the parent is telling the truth. I am frankly surprised the judge did not insist on getting copies of the original birth certificates from the Registrar of Births. I am even more surprised the defence lawyer failed to do so as well.
“The Registrar of Births who issues birth certificates in fact relies on the report that parents give concerning children.”
This not not completely true. When getting a birth certificate, they ask for the original record of birth from the hospital. The date and time of birth is recorded by the hospital independent of anything the parents say. The only case where the parents come in is where there is no record of birth and the parents have to swear an affidavit. And even this can be challenged if the defence adduce evidence to the contrary (eg by producing a witness to the birth like an aunt).
Thanks so much to the lessons u have highlighted. There is some belief that the High Court judge may have made a conclusion on the case influenced by other forces of which one of them is the civil society organisations who wanted to see that Mr Dimba is gone. Also, the legal representation of Mr. Dimba should help the gentleman by gathering all necessary evidence including the issue of birth records, in the case also to prove with historical data that the papers containing this evidence did in fact burn down. The judgement of the supreme court is all we await as they set a new precendency or follow the old one. If he is guilty, let him be punished. But if he is not, let him be freed.
Thanks Elias Munshya for your thought. Well articulated. “Not to come in uniform, but come in plain clothes.” I would disagree with the assertion that this is proof that he knew that the victim was a minor. There are so many ‘old pupils’ in uniform now. For example my cousin is a puts on uniform but she is 33 year. This is misinterpretation of statement by the Judge. In Law, there is no such a thing as ‘I think’. The Dimba case is an interesting one if i was handled without due influence from the the civil society and the media-a problem with many case in Zambia. I still feel that the state of reasonable doubt has not be reached in this case. Having said that, I am not in a way supporting defilers, Actually if I find one I can strangle him/her. I am interested to see how the courts will handle the appear.
Thanks Munshya for your well written and well thought out article. We await to see how Mr. Dimba’s appeal with play out at the Supreme Court. For now, I would be content to agree with you that the High Court judge was on firm ground when he accepted the uncontradicted and unshaken evidence of parents as to the prosecutrix’s age.
Thanks for helping us understand this case better. According to articles on the internet, the parents claimed that the birth records got burned in a house fire. If this is true, then Clifford’s lawyer is incompetent. It should surely be a simple matter to go to Kambendekela House and retrieve a certified copy of the birth certificate, or even the hospital the girl was born at since they do keep records of all births, unless one accepts the conspiracy theory that it is the govt trying to sort him out (for singing against them) and the records have vanished. Why not go to the first school the girl attended and pull out records from there as well?
It seems to me that word of mouth evidence only carries weight if the witness has no motive to lie. Someone should only be convicted if the case is proved BEYOND REASONABLE DOUBT and there is plenty of doubt here, which is why I think the defence should find the evidence to show the girl is older than the parents claim by finding the records I have alluded to.
I think the judge erred by reading too much into the issue of the uniform. It is irrelevant because he could have asked her to wear plain clothes for other reasons, not necessarily because he thought she was a minor. There are many girls who are 18 but still in school.
Even though I am not a lawyer, it seems to me that cutting to pieces the prosecution case is a simple matter.
Wow. It seems this guy wants 25 years!
I think if his basis for appeal is that the parents had lied in their sworn evidence, he will lose.
Mr Munshya what if the “minor” has had a child before will it still be defilement? I am read somewhere that the girl in question has a baby and the alleged defilement took place way after she had the baby.
Henry having a child does not change the fact that she is a minor. The question 2 b asked is why did the parents 2 the victim decide 2 take legal action now? Why didn’t they do the same with the guy that got her prego? I ud love 2 hear there response 2 this.
There is a claim that the girls has a child. That piece of evidence was never presented at trial. I doubt the relevance of that piece of evidence though. The fact that a minor has been defiled before, does not negate the fact that she has been defiled now. A prior defilement does not excuse a current defilement.