Uphold death sentence for Chongwe poacher

By CHARLES MUSONDA

THE State has asked the Supreme Court sitting in Ndola to uphold a death sentence slapped on a Chongwe poacher who killed a Zambia Wildlife Authority (ZAWA) officer.

Chinyange Muyenga, 67, has appealed to the Supreme Court against the death penalty imposed on him by Lusaka High Court Judge Timothy Kabalata on May 11, 2007.

On July 5, 2005, Muyenga, whilst acting with his son Muyenga Chinyange, shot dead the ZAWA officer identified as Evaristo Kamiza who was on patrol with his colleagues.

The officers found the duo poaching. Muyenga and his son attempted to flee but the officers pursued them and fired warning shots.

Muyenga fired back with his shotgun and shot Mr Kamiza who died the following day.
Judge Kabalata convicted Muyenga but acquitted his son.

Submitting before Supreme Court Judges, Lombe Chibesakunda, Sandson Silomba, and Marvin Mwanamwambwa in Ndola yesterday, deputy chief state advocate Lilian Siyuni said Mr Justice Kabalata considered the issue of malice aforethought in convicting and sentencing Muyenga.

“The court found that the appellant caused the deceased’s death and that he had intention to cause grievous bodily harm to the ZAWA officer. It is a fact that he used a gun to fire at the officer and had intention to cause death,” Ms Siyuni said.

She said the trial judge was on firm ground when he convicted Muyenga for murder and that there was no evidence on record to show that the appellant fired shots in self-defence.

“The record just shows that the appellant fired fatal shots at the officer and it would be erroneous for the court to find that this was in self-defence when there is no evidence to that effect,” she said.

In his submission, Legal Aid Board senior counsel Kelvin Muzenga said Judge Kabalata erred in law and fact in convicting the appellant of murder in the absence of evidence proving malice aforethought beyond reasonable doubt.

Mr Muzenga said the trial judge erred in law and fact in his failure to consider the availability of self-defence.

“In the alternative, the trial judge misdirected himself in his failure to consider extreme fear for one’s life as a possible factor in extenuating circumstances,” he said.

He further argued that ZAWA officers were aggressors in that they fired first at the poachers before Muyenga retaliated.

Mr Muzenga said Muyenga was entitled to protect himself because he was in extreme fear of his life.
But Judge Mwanamwambwa said the officers were on lawful duty when they pursued the poachers who, in the first place, were not supposed to be in the game park.

He said poaching was a criminal offence.
And Judge Silomba said poachers had killed a number of ZAWA officers, and that was the reason why the officers approached the situation with caution.
Mr Justice Silomba said ZAWA officers were not expected to behave like gentlemen whenever they faced poachers.

He said the most prudent thing Muyenga could have done was to surrender and not fight back.
And Ms Justice Chibesakunda urged Mr Muzenga to do more research on the subject to establish whether there was consideration of self-defence in such cases involving a confrontation between law enforcement officers and offenders.

Judgment was reserved to a later date.

The bad guy was not a poacher, he was a murderer. Poaching was his "trade".