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Acquit Kabwela - defence lawyers

Acquit Kabwela - defence lawyers
Written by George Chellah
Thursday, October 08, 2009 4:59:13 PM

DEFENCE lawyers in the Chansa Kabwela case have urged chief resident magistrate Charles Kafunda to dismiss the charge against their client and acquit her. According to the submissions of no case to answer, which were filed last week Friday, defence lawyers Remmy Mainza and George Chisanga stated that the prosecution has lamentably failed to establish a prima facie case against the accused to warrant her being put on her defence.

“As this Honourable Court will observe from the record, the Prosecution witnesses have failed to demonstrate that the photographs in question were obscene and that the same tended to corrupt or deprave the morals of the recipients. The witnesses described the photographs as annoying, disgusting and shocking but as this Honourable Court will note from the authorities cited above, the photographs may indeed be annoying, disgusting and shocking, but that is not the test for obscenity,” they stated.

“On the contrary, in order for the photographs to be deemed to be obscene, they must to deprave or corrupt morals namely to make people behave worse, more violently, homosexually, or be more addicted to drugs than they would otherwise be or behave; or a tendency to blur a sense of right and wrong so that they would be incapable of making moral distinctions. All the Prosecution witnesses denied that they were sexually aroused by the photographs and that the photographs made them to behave worse, more violently and that their sense of right and wrong were blurred.”

Below is the verbatim of the defence team’s submissions of no case to answer:

IF IT MAY PLEASE THIS HONOURABLE COURT the following are the Accused’s submissions of no case to answer:-

Legislation referred to:

1. Section 177(1)(b), Penal Code, Chapter 87 of the Laws of Zambia

2. Section 206 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia

Cases referred to:

1. Japau-vs-The People (1967) ZR 95

2. Leco Limited-vs-The people (1975) ZR 16

3. Regina-vs-Calder & Boyals Limited (1968) 1QB 151

The Accused stands charged with One Count of circulating Two (2) obscene photographs tending to corrupt morals contrary to Section 177 (1) (b) of Penal Code, Chapter 87 of the Laws of Zambia.

The particulars of the offence allege that between 1st and 10th June, 2009 the Accused circulated Two (2) obscene photographs tending to corrupt morals.

The Prosecution having closed its case, it is now incumbent upon this Honourable Court to determine whether or not the Prosecution has adduced sufficient evidence to warrant the putting of the Accused on her defence.

1. THE LAW

Section 177 (1) (b) of the Penal Code reads as follows:-

“177. (1) Any person who-

(b) imports, conveys or exports, or causes to be imported conveyed or exported, any such matters or things, or in any manner whatsoever puts them in circulation;

is guilty of a misdemeanor and is liable to imprisonment for five years or to a fine of not less than fifteen thousand penalty units nor more than seventy-five thousand penalty units.”

The term obscene was subject of judicial interpretation by the Court of Appeal in the case of Regina-vs-Calder & Boyals Limited. Quoting from Section 1 (1) of the Obscene Publications Act, 1959 of England, the Court defined the term “obscene” at page 152 as “an article shall be deemed obscene if its effect……is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read….it.”

At page 160 the Court defined the term “a tendency to deprave or corrupt” as “ A tendency to deprave or corrupt may be defined as a tendency to make people behave worse, more violently, homosexually, or be more addicted to drugs than they would otherwise be or behave; or a tendency to blur a sense of right and wrong so that they would be incapable of making moral distinctions.”

The brief facts of the case were that the defendants were charged with contravening section 2(1) of the Obscene Publications Act, 1959 in that they published a book which was admittedly and intentionally disgusting, shocking and outrageous. They denied that the book was obscene within section 1(1) and put forward the specific defence on the issue of obscenity that the only effect the book would produce if any but a minute lunatic fringe of readers would be horror, revulsion and pity; and a further defence was raised that publications was justified as being for the public good on the ground of literary, sociological or ethical merits in accordance with section 4, on which the trial judge ruled that expert witnesses should be heard first for the defence and in rebuttal for the prosecution. The direction to the jury on section 1 was that the essence of the matter was moral corruption and, in general terms, that it was insufficient for the prosecution to prove merely that the book tended to horrify, shock disgust or nauseate,……….

At page 156 the Court observed as follows:-

“….Witnesses have variously described the effect of the this book on them as to horrify; to shock; to nauseate and so on; but remember that the book could quite possibly do all those things and still not be obscene within the meaning of this Act. ….A thing may be wholly repellant……and, while being wholly repellant, it may well not be morally corrupting…”

The case of Leco Limited-vs-The people decided by the High Court for Zambia is to the same effect.

In the premises, we submit that in order to establish a prima facie case, it is imperative for the Prosecution to prove all the essential elements of the offence namely:-

(a) that the Accused circulated obscene pictures

(b) that the said pictures tend to or are capable of corrupting morals

Section 206 of the Criminal Procedure Code provides as follows:-

“206. If, at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case, and shall forthwith acquit him.”

In the case of The People-vs-Japau Evans J stated the law on no case to answer as follows:-

“A submission of no case to answer may properly be upheld if an essential element of the alleged offence not been proved, or when the prosecution evidence has been so discredited by cross-examination, or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”

2. EVIDENCE

2.1 PWI-KENNETH NGOSA

In the Defence’s submissions, PW1’s evidence was that on the 11th day of June 2009 while on duty he received a letter from the Post Newspapers ‘P4’. The letter was delivered to him by Inspector Solochi an Officer at the office of the Vice-President.

He opened the letter which was addressed to the His Honour the Vice President Mr George Kunda. The letter contained 3 photographs. The letter was authored by Chansa Kabwela as she had signed the said letter

The evidence of PW1 was that of the three photographs there was one photograph which moved him. According to his evidence he was surprised to see the photo because he had never seen it before.

The photograph was showing a woman delivering a child. The woman was lying down with her legs open and a child was coming out from the birth canal of the woman. There was blood and the woman exposed her nakedness. The witness was referring to ‘P1’

According to PW1, the second photo showed a woman being assisted and she was wearing a chitenge material. ‘P2’

The third photo according to the witness was not so clear. He supposed the woman was somehow naked and there was a child.’ P3’.

PW1 testified that he was at pains to deliver the said letter to the intended recipient the Vice President as he thought it was not right for his boss to see such photographs. He only notified the Vice-President of having received the said letter and photograph which the Vice-President insisted that he be given.

According to PW1 the Vice President was annoyed to see the Photo (P1) as at his age he had never seen such kind of a photo such as of a woman delivering.

In the main the evidence of PW1 was that he felt bad at coming across such a picture. He had a feeling of embarrassment as women were being exposed. He was not aroused by the pictures at all.

PW2- SOLOCHI CHIWALE

PW2 testified to the fact that on the 11th day of June 2009, he did receive a letter from the Post Newspaper addressed to the Vice-President Mr George Kunda which mail he booked in the mail registry book and handed the said letter to PW1. Your worship it is not in dispute that a letter was sent from the post Newspaper to the Office of the Vice President on the 11th day of June 2009. In the main the evidence of PW1 was that he felt bad at coming across such a picture.

PW3- NAWINA HAGWAGWA

PW3 testified to the fact that on the 11th day of June 2009, while on duty she did receive a letter from the Post Newspaper addressed to the Vice President Mr. George Kunda which letter was copied to among others the Secretary to the Cabinet.

The letter contained three photographs of which the 1st photo ‘P8’ was in bad state. According to PW 3 when she saw the photo she screamed and wept because as a mother of 6 children she had never come across such a sight.

According to this witness she screamed and wept because what she saw was a taboo as she had never come across such a sight. The witness testified that she was angry with the person who had brought such pictures to her attention.

The witness gave evidence that she felt the integrity of women was exposed and that the pride of a Zambian woman was at risk.

The second photo was not insulting ‘P9’ but the third photo was also in a bad state ‘P10’

The witness testified that her morals had been she was confused. She was ashamed angry horrified and embarrassed.

PW4-BENSON MUUKA

PW4 testified to the fact that on the 11th day of June 2009, while on duty he did receive a letter from the Post Newspaper addressed at 11:35 hours. The letter was in a sealed envelope and addressed to Dr. Joshua Kanganja the Secretary to the Cabinet. He entered the mail in the mail register marked ‘P12’. Your worship it is not in dispute that a letter was sent from the Post Newspaper to the Office of the Secretary to the Cabinet on the 11th day of June 2009.

PW5-CLARE KALUNGA

PW5 testified to the fact that in June 2009, whilst on duty at the Ministry of Health she did receive a letter from the Post Newspaper ‘P4’ which was delivered to her by some male figure.

She opened the letter and noticed some enclosures which enclosures were photographs. The letter was addressed to the Vice President Mr. George Kunda which letter was copied to among others the Minister of Health. She testified the letter was meant to bring to the attention of the relevant authorities the effect of the strike by health workers.

The letter contained three photographs of which the 1st photo ‘P13’ was of a woman lying down with a baby hanging the whole body was out but the head was in the vagina and the woman’s legs were wide apart.

According to this witness she had ‘chills’ she went cold when she saw the photo. She could not believe what she was looking at. She was very angry shocked and humiliated and did not want to look at it a second time. She gave evidence that it was a horrible situation and made her feel bad.

She testified that she actually felt for the woman in the picture.

According to the evidence of this witness second photo was not that offensive ‘P14’ but the third photo ‘P15’ affected her considering that the woman was being helped from a van.

In cross examination the witness testified that the photos had the impact of showing the minister how grave the situation at the hospitals was.

PW6- DR VELEPI CATHERINE MTONGA

PW6 testified to the fact that in June 2009, whilst on doing her normal work she received a call from the Minister of Health who at that time was in Namibia inquiring on whether PW6 had seen the letter and the photographs that had been sent to his office by the Post Newspapers.

After inquiring PW6 was given the said letter ‘P4’ and photographs by the secretary to the Deputy Minster of Health who was in the office at the time. The letter was on a Post headed paper and it contained 3 photographs. The first photograph was of a woman being helped out of a motor vehicle ‘P15’. The second photograph ‘P13’ PW6 testified that she was angry and actually shed tears. The picture showed a woman giving birth and showed her private parts.

According to PW6 in the medical profession they are told to keep the privacy and confidentiality of a patient. She testified that she shed tears because the natural reaction would have been to cover the woman in the picture.

She testified that the picture disturbed her line of thought and it took some time for her to recover and think through the picture. Her line of thought was that the woman had been exposed and as women there was need to protect each other.

When she recovered from the shock a lot of ethical issues came to her mind. To consider how to protect the right of the patients ethical issues have to be considered.

PW6 gave evidence that her morals were corrupted because in a way she felt naked. She further testified that the photographs in question were not circulated to her by the accused person.

She further testified that she did not act in a manner worse off than she was before she had sight of the photos and that she did not become a bad person after she saw the photographs.

The third photo ‘P14’ was just showing a woman with 2 people carrying her but it did not show any private parts but just a baby

PW7-ESTER MWANZA

PW7 testified that on 10th July 2009 she was visited by a gentleman from Lusaka Central Police who requested to give a statement to the police which statement she provided.

She gave evidence that at the Police Station she was shown the account opening mandate with other attached documents for the accused. Exhibits ‘P16 to P23’.

PW8- PHILBY BOMBEKI KAOMA

PW7 evidence is that on the 11th day of July 2009 he received 2 letters that is exhibits ‘P4’ and ‘P7’ an envelope addressed to Dr Joshua Kanganja ‘P25’ and the course of business samples of the accused ‘P’ 17 and ‘P23’.















From page 21

He testified with the two letters the disputed were the signatures and with the envelope the disputed were the writings. The documents were taken to the lab to ascertain the authenticity of the documents. He testified that he examined the samples visually and under microscope and made comparisons. From his examination he compiled a report exhibit ‘P24’.

PW9-Lewis Mbewe

PW9 testified that he received a warrant (exhibit ‘P26’) from the compliance officer a Teddy Muntanga, which was requesting for documents pertaining to the accused who holds an account with Barclays Bank.

In compliance to the warrant PW9 got the documents, that is exhibits ‘P16’ to ‘P23’ and gave them to the requesting Police Officer.

PW10- Sharon Cheelo Zulu

PW10 the arresting officer testified that on 29th June 2009 she was assigned the case of circulating obscene materials by her supervisors in the Police Service. The evidence of PW 10 was that she executed her investigations by way of verifying the offence. PW10 testified that she went to the Ministry of Health where she interviewed PW5 who confirmed having received a letter from the Post Newspapers which contained 3 photographs. According to the evidence of PW10, PW5 was shocked and she screamed when she saw the photographs.

Pw10 testified that in the absence of the Minister, PW5 took the letter and photographs to PW6. This evidence is contrary to the evidence of both PW5 and PW6.

It was the evidence of PW10 that she interviewed PW6 as well who told her that she was shocked as she had never seen such a sight before and she shed tears. At the Ministry of Health PW10 requested for and was given exhibits ‘P4’ ‘P13’ P14’ and P15’.

PW10 further testified that she had never seen such pictures before and she was affected because as a woman she felt her pride had been taken away from her. She felt assaulted and touched by the photograph ‘P13”. According to PW10 ‘P14’ was also disturbing.

PW10 also conducted investigations at Cabinet office where she established that a letter from the Post Newspapers had been received by the secretary to the Secretary to the Cabinet PW3. PW3 showed ‘P8’ ‘P9’ ‘P10 and P11 as the photographs and letter she had received.

According to PW10, PW3 was disturbed when she received the pictures and failed to circulate them to the Secretary to the Cabinet as she thought those photographs should not be circulated to a man his age and status.

PW10 also went to the Office of the Vice-President where PW1 confirmed having received a letter from the Post Newspaper and three photographs. PW10 testified that PW1 was shocked with what he saw saying he had never seen such a situation.

It was PW10 further evidence that she extended her investigations to the Banks in order to verify the one who wrote the letters. The specimens from the Bank were submitted to a handwriting expert together with the letters from the Post Newspapers. From the report of the expert, PW10 was satisfied that the author of the letters was the accused and she summoned the accused to the Police Station where she charged the accused with circulating obscene materials contrary to section 177(1)(b) of the Penal Code.



The evidence of PW 10 was that obscene is something forbidden in society, something which is shameless. She qualified her statement further that by forbid she meant something not allowed in our culture.

It was the evidence of PW10 that the two pictures are obscene matters because in the Zambian set up, a woman giving birth needs privacy and does not need to be exposed, that is, a woman giving birth is supposed to be somewhere private with elderly women.

PW10 testified that as a woman she felt insulted and felt that her integrity had been taken away. PW10 was annoyed and disturbed and that she was annoyed with the accused.

PW10 further testified that the tending to corrupt morals is any object offensive and how you feel after you see the object. According to PW10 the photographs were going to affect the minds of the people, that is, the moral fibre of the community that were to receive the pictures that is both the young and old.

PW10 further testified that the recipients, that is PW1, PW3 and PW5 were corrupted in their morals by the pictures and more particularly PW1 was shocked, PW3 was disturbed and PW5 was shocked and she screamed.

It is our humble submission that the Prosecution has lamentably failed to establish a prima facie case against the accused to warrant the putting of the accused on her defence.

As this Honourable Court will observe from the record, the Prosecution witnesses have failed to demonstrate that the photographs in question were obscene and that the same tended to corrupt or deprave the morals of the recipients. The witnesses described the photographs as annoying, disgusting and shocking but as this Honourable Court will note from the authorities cited above, the photographs may indeed be annoying, disgusting and shocking, but that is not the test for obscenity.

On the contrary, in order for the photographs to be deemed to be obscene, they must to deprave or corrupt morals namely, to make people behave worse, more violently, homosexually, or be more addicted to drugs than they would otherwise be or behave; or a tendency to blur a sense of right and wrong so that they would be incapable of making moral distinctions.

All the Prosecution witnesses denied that they were sexually aroused by the photographs and that the photographs made them to behave worse, more violently and that their sense of right and wrong were blurred.

Quite clearly, the Prosecution has failed to prove one of the essential elements of the charge namely; that the photographs in question tended to deprave or corrupt the morals of persons who are likely have sight of the said photographs.

Accordingly, we humbly urge this Honourable Court to dismiss the charge against our client and acquit her accordingly in terms with the provisions of section 206 of the Criminal Procedure code, chapter 88 of the Laws of Zambia.

Labels: CHANSA KABWELA, COURTS

posted by MrK @ 4:00 PM