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IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 114/2018

HOLDEN AT LUSAKA
(Criminal Jurisdiction)

BETWEEN:

ASWELL BANDA APPELLANT

AND

THE PEOPLE RESPONDENT

CORAM: CHISHIMBA, LENGALENGA AND SIAVWAPA, JJA

On 20th November 2018 and 20th February 2019

FOR THE APPELLANT: MR. K. MUZENGA, DEPUTY DIRECTOR, LEGAL AID

BOARD

FOR THE RESPONDENT: MISS G. C. MULENGA, SENIOR STATE ADVOCATE,

NATIONAL PROSECUTION AUTHORITY

J U D G M E N T

SIAVWAPA, JA, delivered the Judgment of the Court.

Cases referred to
1. Emmanuel Phiri v The People (1982), Z.R 77
2. Darius Sinyinza v The People (2009) 24

The Appellant herein was convicted on three accounts of Indecent

Assault on males contrary to Section 137(1) of the Penal Code
Chapter 87 of the Laws of Zambia as read with Act No. 15 of 2005.
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The three acts of indecent assault were committed on three different

males on different dates namely; 1st and 31st December 2016 in
count 1, 13th March 2017 in count 2 and 17th March 2017 in count
three.

At trial the three victims each testified giving graphic details of the
acts of indecency performed on them by the Appellant.

According to the victims, the Appellant would call them to his home
in the early hours of the morning or in the early hours of the night
where upon he would either invite or usher them into his bedroom.

In the case of the 1st victim, PW2, the Appellant called and asked
him to go to his house around 15:30hours. He however told him
that he would go the following day. The following day the victim
went to the Appellant's house around 07:00 hours. He was invited
into the bedroom where he found the Appellant still lying in bed.
He sat on the bed as the two struck a conversation. In due course
the Appellant started caressing and kissing the victim until the
Appellant ejaculated on the victim's work suit. After cleaning-up the
Appellant escorted the victim outside the house.

In the case of the 2nd victim, PW3, he said that he received a phone
call from the Appellant around 06:00 hours inviting him to go to the
Appellant's house. On arrival, he found two men outside who told
him to enter the house. The Appellant then invited him into his
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bedroom. The Appellant was in bed and after a brief conversation
the Appellant asked him to move closer to him and join him in bed.
The victim later succumbed and joined the Appellant in bed. Later
the Appellant asked him if he knew how pistons moved in a cylinder
to which he answered in the affirmative. The Appellant then took
out his penis and asked the victim to demonstrate how the pistons
worked. The victim then masturbated the Appellant three times
with each episode leading to an ejaculation. Thereafter the
Appellant escorted him outside the house.

In the case of the third victim, PW4, the Appellant sent him a text
message to meet him at a designated place around 22:00 hours. He
went and met him after which the two went to the Appellant's
house. The two proceeded to the Appellant's bedroom upon which
the Appellant undressed leaving only his boxer shorts. He lay on
the bed under the mosquito net and invited the victim to join him.
After some resistance he eventually joined the Appellant in bed.
After caressing him, the Appellant removed his under wear and
placed his penis between the victim's thighs and started thrusting
back and forth until he ejaculated. Thereafter, the Appellant asked
him to masturbate him which he did resulting in the Appellant
ejaculating for the second time.

After the episode, the victim cleaned up and the Appellant escorted
him up to the point where they had earlier met.
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The Appellant did not dispute meeting the three victims at his
house as stated but it was his position that the visits were at the
instance of the victims who were his students and that they
discussed academic matters.

He denied performing the said lurid sexual acts on the victims.

In cross-examination of the three victims, through counsel, the

Appellant very strongly suggested that the victims were all willing
participants in the sexual performances. In his Judgment, the trial
Magistrate found it as a fact that the victims visited the house of
the Appellant on the dates in issue.

He also found that the testimonies of the three victims had

corroborated each other on the fact of the indecency against each of
them.

The trial Magistrate also accepted it as a fact that the victims did
not voluntarily consent to the indecency as the fact that the
Appellant was their lecturer placed him in the position of authority
over them.

On passing sentence, the court below accepted the findings of the

trial court and sentenced the Appellant to 15 years imprisonment
with hard labour on each count to run concurrently.
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With leave of the Court the Appellant, through counsel filed one
ground of appeal in the main and another in the alternative on the
date of hearing. The ground of appeal in the main is that;

"The learned trial court erred in law and in fact when it convicted
the Appellant in the absence of corroborative evidence or evidence
of something more".

In the alternative, that

"The learned trial court erred in law and in fact when it convicted
the Appellant despite the evidence showing that PW2, PW3 and
PW4 consented".

In the heads of argument, reliance was placed on the case of

Emmanuel Phiri v The People 1 which held that failure to warn itself
on the danger of lack of corroboration in a sexual offence is
misdirection by the court.

The trial court did warn itself except it found corroboration in the
evidence of the victims and the defence's suggestion of consent by
the victims.

Lets start by stating that the rules relating to corroboration have

been laid down in a plethora of case law including the one cited by
the Appellant.

Corroborative evidence must be a fact not in issue but which tends

to confirm a fact in issue.
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We must also make it clear that evidence that A was assaulted by B

on a particular date cannot be corroboration of an allegation that B
also assaulted C on another date. It can only be corroborative if it
is shown, for instance that the weapon used to assault A is the
same one used to assault C and such weapon is found in
possession of B.

It is also a cardinal principle of corroborative evidence that evidence

or a witness requiring corroboration cannot corroborate another
witness or evidence requiring corroboration.

In this case, the three victims could not corroborate each other as
they each required corroboration.

In the case of Darius Sinyinza v The People2, the Supreme Court of

Zambia held inter alia, as follows;

(6) Victims of defilement are suspect witnesses, and their evidence

should always be corroborated.
(7) The rule that evidence of a witness requiring corroboration cannot
corroborate that of another equally requiring corroboration, when
applied to sexual offences, must be limited to cases where the
offence charged is a single offence, or a transaction involving two or
more complainants.
(8) Where two or more complainants in addition to alleging assaults on
themselves, are eye witnesses of assaults on others, their evidence
of the assault on such others, is direct evidence, and is capable in
law of being corroborated.
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In the case before us, the three victims are not eye witnesses of the
assault on the others and as such their testimonies of the assaults
on them cannot corroborate the evidence of assault on the other
victims by the Appellant. It was therefore misdirection on the part
of the trial court to hold that the victims corroborated each other.

However, because the trial court recognized the need to warn itself,
we accept that the misdirection on the finding as to corroboration is
not fatal.

We accept the finding that the line suggested during cross-

examination was to the effect that the victims were willing
participants.

We also take the position that the evidence adduced by the three
victims and PWl, the Vice Principal, was sufficient to convict upon
and given the nature of the offence, the delay in reporting would not
be considered inordinate more so that there is no time limit to
reporting a crime.

We however, note that the ingredients of the offence of Indecent

Assault on males for which the Appellant was convicted under
Section 137(1) of the Penal Code, provides under Sub-section (2)
that consent by a child shall not be a defence.
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It therefore, as of necessary implication means that consent to the

act of indecency on an adult shall be a defence.

The starting point 1s that Section 137(1) of the Penal Code, as

amended by Act No. 15 of 2005 does not define "indecent assault".
We however know that an indecent assault is any assault on a
person that has sexual implication.

In general terms, an assault is any touch on another person

without that person's consent and when such touch is sexual in
nature or offends against human decency, then, it amounts to an
indecent assault. Section 137(1) provides as follows;

"Any person who unlawfully and indecently assaults any child or

other person, commits a felony and is liable, upon conviction, to
imprisonment for a term of not less than fifteen years and not
exceeding twenty years".

The use of the word "unlawfully'' in itself entails that the victim is
violated without their permission or consent. However, if it is shown
that the victim did consent to the indecency, then the ingredient of
unlawfulness is not satisfied and no conviction on the charge
should stand. In other words consent by the victim shall be a
defence to the charge of indecent assault.

However, that defence is not available if the victim is a child who is

below the age of sixteen years as defined by Section 131 A of the Act.
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The non-availability of the defence of consent where the victim is a
child is set out in Sub-section (2) of Section 137 in the following
terms;

"It shall not be a defence to charge of an indecent assault on a

child to prove that the child consented to the act of indecency".

Although this provision does not state that it is a defence if the

indecent act was with a consenting adult, we hold that Sub-section
(2) so provides by necessary implication.

In this case, we note that during the trial, although the Appellant
did not admit expressly to the acts of indecency, counsel raised it in
very forceful fashion during cross examination of the three victims
namely PW2, PW3 and PW4.

It is clear from the pattern of cross-examination that counsel had

instructions which showed that acts of indecency did occur but that
they were all consensual.

The record will show that the circumstances in which the acts of
indecency occurred strongly point to pre-arranged meetings for the
purposes of engaging in the sexual acts between the Appellant and
the three witnesses.

The record will show, in general, that no threats of any kind were
issued nor any inducement offered to the victims by the Appellant
before engaging in the indecent acts.
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There is therefore no evidence on the record that the Appellant used

his position as lecturer to either threaten or induce the victims into
submission.

We would add that, in fact, as an ordinary lecturer, the Appellant

had no power to exclude the victims from the college. Throughout
their testimonies non-of the victims alleged that the Appellant had
threatened to disadvantage them in any way in pursuit of their
studies by reason of him being their lecturer.

In the case of PW2, the first victim, it was his testimony that when
he arrived at the Appellant's home around 07:00 hours, he was
ushered into the bedroom and sat on the bed in which the
Appellant was lying and engaged in a conversation for about thirty
minutes before engaging in acts of indecency for another thirty
minutes.

This, in our view can only mean willingness or acquiescence on the

part of the victim.

In the case of PW3, the second victim, the pattern is similar after he
arrived at the Appellant's home around 06:00 hours. His testimony
was that the Appellant, whom he found in his bed, invited him to sit
close to him after a conversation.
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The Appellant then exposed his penis and invited him to

demonstrate how a piston functions and he demonstrated without
any threats or inducement by masturbating his penis three times as
the Appellant ejaculated on each episode.

In the case of this victim, he said that he spent one and half hours
in the Appellant's bedroom and in cross examination, it was his
position that he masturbated the Appellant's penis without anyone
forcing him and that he could have easily left the bedroom and the
house.

We still find no reasonable cause why this victim engaged 1n the

indecent acts if he was not a willing participant or victim.

As for PW4 the third victim, he went to the Appellant's home

willingly around 22:00 hours. He accepted an invitation into his
bedroom where he remained even as the Appellant started
undressing and went into his bed under a mosquito net. Later after
a conversation, the Appellant invited him to join him in bed and so
he did. The Appellant then removed his under wear and placed his
penis between the victim's thighs and started thrusting back and
forth until he ejaculated. This victim stated that he felt nice as the
Appellant performed the sexual act. This same victim further
accepted to masturbate the Appellant's penis until he ejaculated for
the second time after which he cleaned up and allowed the
Appellant to escort him.
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We can only see a willing participant in PW4 and not a victim of

sexual assault.

In view of what we have said, we are clear in our minds that had the
trial court considered the behaviour and conduct of each of the
victims in this case, it would have found that all the victims were
willing participants in the acts of indecency.

Considering that the victims were all above the age of sixteen years
and therefore, not children, consent on their part forms a defence to
the charge of indecent assault contrary to Section 137 (1) of the
Penal Code.

We therefore, quash the conviction and set aside the sentences in

respect of all the counts.

We are however, satisfied that the evidence on record satisfied the

ingredients of the offence of indecent practices between persons of
the same sex contrary to Section 158(1) of the Penal Code Chapter
87 of the Laws of Zambia.

To the extent that the said offence carnes a lower m1n1mum

mandatory sentence of seven years and fourteen years maximum
term of imprisonment, it is a lesser offence to indecent assault
which carries a minimum mandatory sentence of fifteen years
imprisonment.

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We accordingly find that the Appellant committed the offence under

Section 158(1) above.

We sentence him to seven (7) years imprisonment with hard labour

on each count to run consecutively with effect from the date of
conviction; the 9th day of January 2018.

F. M. CHISHIMBA
COURT OF APPEAL JUDGE

F. M. LENGALENGA M. J. SIAVWAPA
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE