Musician Kanene Denied Bail

The Supreme Court has thrown out a bail application pending appeal by Musician General Kanene.

Supreme Court Judge Albert Wood ruled that the appeal case will be heard in less than two years and there is no possibility that Clifford Dimba alias General Kanene would have completed his 18 year jail sentence for defilement.

Judge Wood has ruled that Kanene will remain in custody until when his case comes up for hearing next year.

General Kanene’s lawyer Treshford Chali has however disclosed that he will appeal against the ruling before a full bench of the Supreme Court.

“What was happening today was the bail hearing application to a single Judge but he has denied it. So the option we have is to make the same application to a full Supreme Court bench,” he said.

General Kanene was sentenced to 18 years imprisonment for defilement by the High Court this year.

And Mr. Chali has refuted reports that his client is on hunger strike.

“These reports that Kanene collapsed and he is not eating are not true. My client is in high spirit and he is coping very well,” Mr Chali said.

Proof and Punishment: Evidence Law in General Kanene’s Conviction

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 precedence 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 (calledmens 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 that 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 precedence as interpreted by the judges. In fact, a bulk of what constitutes evidence law today comes from this area of law. 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 precedence 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 Siavwapain Tembo v. The People [2011]). 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 precedence 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 is more like 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!

HAS MODERN CELL PHONES MADE OUR LIVES BETTER OR WORSE ?

 "SMARTPHONE LET MY PEOPLE GO"

Csho Chilala

Maybe it should take a supernatural order for us to be free from the yoke of SMARTPHONES. Its amazing how a possession has possessed the possessor. Simply put, We have surrendered our superior smartness to promote the  smartness of our phones. Friendship now is locked in the keypad of a phone.

Modern cell phones  has made some aspects of life easier -  We can order food /clothes, gadgets, sex and other items  online, without having to go to the shops .  we can download a lot of application that are very useful in our day to day lives ,we are provided with entertainment, relationships and of course communication is easy and cheap .WhatApp; Viber, Bbm, Wechat, skype, ChatOn ,Email, Messenger etc  are some of the Applications that one can have and has really made communication easier, faster and cheaper. . It is amazing how cell phones have become a mobile computer at the palm of our hands . The sending and receiving of emails, News and just browsing everywhere at anytime, has really made life better .

Csho Chilala

Most of us are even unable to function without our cell phones. We even declare ourselves naked when we lose the intimacy with our phones or feel like something is missing. That’s how much effect a modern cell phone has on us.


In today’s society, Cell phones do not only offer us better communication but also brain cancer.( Cell phones emit radiofrequency energy, a form of non-ionizing electromagnetic radiation, which can be absorbed by tissues closest to where the phone is held.) Not only has cell phones taken over our learning environments and social events they have made people lose their lives. Talking on phone whilst driving has been declared illegal in most countries due to its fatality.... just by sending a simple text saying “hey” while driving a car many have lost lives and the lucky ones just lost their expensive cars in accidents.




Having a small device that can find you any information you want has increased the problem of not spending quality time with your family. Facebook may offer you 5000 friends, they poke you, the like your photos and comment on your posts but they will not physically wipe your tears at your funerals or cut your cake on your birthday. So even in the face of so much social life on our smartphones our socializing is still marooned in the cyber world.





  Most of us spend our days walking around with our noses buried in our cell phones, BlackBerrys, iPhones, HTC etc and while we're doing that, we're tuning out the people who are actually in the same room as us.

Csho Chilala

I fear that we are living in a society that is anti-social.

The Truth about Michael

The Truth about Michael

‘So from your point of view,’ I said, ‘All this talk about Michael’s health was just the idle chatter of the unemployed?’

     ‘Politics,’ explained Christine, ‘is for politicians. We have a parliament for idle chatter, where politicians chatter on behalf of everybody else, so that the remainder of the country can get on with their work and shut up.’

     ‘Or at least not talk about Michael!’

     ‘Exactly.’

     ‘But tell me, why did Michael go to India? Was it for medical treatment?’

     ‘Of course not. He went there to look for investors, to give work to the unemployed, in order to stop them chattering, so that he can have some peace.’

     ‘Even so,’ I said. ‘If he was looking for investors, why did he spend so much time at Gujarat Central Hospital?’

     ‘Look, Chilala, what do you know about finding investors?  If you were looking for investors, where would you go?’

     ‘An investment bank in New Delhi?’

     ‘There you are!’ she laughed, as she poured me another cup of tea. ‘See how little you know! Investors don’t sit in offices! Nowadays they are so rich and decadent that they spend most of their time in hospital, recovering from the diseases of affluence such as obesity, high blood pressure, or the more exotic forms of sexually transmitted diseases. They are using their vast wealth to linger on, far beyond their allotted lifespan, because they know that when they die they will surely to go to Hell.’

     ‘But why Gujarat Central Hospital?’

     ‘Because it specializes in the diseases of dying and stinking capitalism. It is reckoned that Gujarat Central Hospital has the world’s highest concentration of capitalists per square metre.’

     ‘But Dotty Scotty told parliament that Michael had gone to India on a private visit, for a holiday.’

     ‘Of course there was that too,’ agreed Christine. ‘Perhaps you don’t realize, Chilala, that a hospital is a grand place for a holiday. The air is clean and free of germs, and you can jog up and down the corridors which run for miles. And Gujuarat Central Hospital has a swimming pool, gymnasium, massage parlour, several restaurants and cinemas, and so on.’

     ‘So Michael had plenty of time to relax?’

     ‘Well, you know Michael, he can’t relax. He soon found that there were many heads of state living in Gujarat Central. Before long he was fixing up international trade deals, to import water from Bangladesh, export slave labour to the Siberian salt mines, and so on.’

     ‘Good gracious!’ I exclaimed. ‘What were these heads of state doing there?’

     ‘Many of them were recovering from bullet wounds, or taking refuge from the International Criminal Court, or merely taking a holiday from the suffocating love of their grateful citizens. Others were having secret treatment because they didn’t want to admit that they were sick.’

     ‘Good gracious,’ I said, ‘I hadn’t thought of that. So with all these eminent people to meet, Michael must have had a marvelous time.’

     ‘Ever busy, my Michael,’ replied Christine, proudly. ‘When he saw how many Zambian doctors were working at the Gujarat Central, he gathered them all into the medical lecture theatre and gave them a little pep talk, telling them what they could expect if they ever came back home to Zambia.’

     ‘What did he tell them?’

     ‘He told that he had been forced to travel all the way to Gujarat to seek medical attention because they had run away from their own country. They had deserted sick Zambians at home in order to attend to the health of foreigners, which was treachery, and that if they ever came home they would be charged with treason.’

     ‘Ah yes,’ I said. ‘Our friend Michael is such an honest person. Whatever comes into his head, he will say it, just like that!’

     ‘And he has such a marvelous imagination,’ she said proudly. ‘He has been thinking about the problem of bringing back these doctors to Zambia, and he’s going to make an announcement this afternoon. He’s decided to reshuffle Gujarat Province to Zambia, in exchange for Western Province, which will go to India. This will solve our doctor shortage and the Barotse problem at a stroke.’

     ‘Brilliant,’ I agreed. ‘The Zambian doctors can come home, and the Barotse can break away, so everybody will be happy!’

     ‘Yes,’ said Christine. ‘Michael’s such an agreeable fellow, very easy to get along with.’

     Just then Michael put his head round the door. ‘I’m off to reshuffle a few provinces, see you later!’ Then he noticed me. ‘Csho Chilala,’ he said. ‘I thought you were dead.’

     ‘How did the operation go?’ I asked.

     ‘Complete success,’ he replied, as he disappeared from sight.

     ‘The operation to find new investors,’ Christine explained, ‘was a great success.’

     ‘I must be off,’ I said, as I stood up and put my notebook in my pocket. We shook hands, and I gave her a little kiss on each cheek. ‘What’s it like, being the First Lady?’

     ‘It’s just a title,’ she laughed, ‘there’s no job!’

     ‘Never mind,’ I said, ‘I've enjoyed having a bit of idle chatter with one of the unemployed.’ 

Blood in the Bathroom

Barry Roux, Defendant: My Lady, I heard a noise from the bathroom, I thought somebody was climbing in through the bathroom window.

Garrie Nel, Prosecutor: Why should anybody want to climb in through your bathroom window?

Barry Roux: My Lady, so many people wanted to kidnap my girlfriend, the beautiful Constitution. My lady, I had sworn to protect my Constitution, but I had enemies who wanted to abduct her and misuse and abuse her. So when I heard a noise from the bathroom, My Lady, I was terrified. In the pitch black of the night, I picked up my gun, then picked up my legs, and moved stealthily to the bathroom.

  GarrieNel: Mr Pistorius, who are these enemies you are so afraid of?

Barry Roux: They are so many, My Lady. But the worst is Technical Committee. He has sworn to steal my Constitution from me, and subject her to his will and base lusts and desires, and to turn her into his slave. My Lady, I had to protect my beautiful Constitution.

Nel: And tell, Mr Pistorius, why were you so in love with your Constitution?

Barry Roux: My lady, when I am with my Constitution I am a real man. She gives me my power. With my beautiful Constitution everybody looks up to me, I command the universe, and people obey my every command. This Technical Committee wanted to steal my power.

Nel: So now, without your Constitution, you are a broken man?

Barry Roux: Yes, My Lady. (Sobs for a couple of minutes into his handkerchief)

Nel: OK, so now you reach for your gun and make for the bathroom. Was Constitution lying on the bed?

Barry Roux: No, My Lady, she was not on the bed.

Nel: Ha ha, how do you know that? You said the night was pitch black!

Barry Roux: She always slept under the bed, My Lady, she was so afraid of Technical Committee.

Nel: So did you look under the bed to check if she was there?

Barry Roux: Yes, My Lady. But I couldn’t see her because the night was pitch black.

Nel: So you went to the bathroom door and fired four shots straight through it.

Barry Roux: Yes, My Lady. I had to protect my Constitution.

Nel: Did anybody scream?

Barry Roux: Yes My Lady, I screamed because I was terrified. Then I screamed at Constitution to phone the machete Force on 991. But she didn’t reply. It was then that I became terrified that I had shot my beloved Constitution.

Nel: Then you went and got your machete and hacked a hole in the door, only to find our beautiful Constitution blown to pieces, with blood all over the bathroom floor.

Now a court official obligingly placed a green plastic bucket in front of Mr Pistorius, so that he could have a prolonged vomit. After he had finally recovered himself the cross-examination continued… 

Nel: I put it to you, Mr Pistorius, that you have misled this court. I put it to you that our beloved Constitution did not come to your house of her own free will, but you kidnapped her and brought her to your house.

Barry Roux: No, My Lady, it’s not true. I always respected my beloved Constitution, she came to my house to give me a Valentine’s present.

Nel: I put it to you, Mr Pistorius, that you wanted an opportunity to accuse her of breaking her promises to you. You were jealous because she had left you and was instead dating Technical Committee. And you were also in a rage because Technical Committee had transformed her by the power of love. She was so now so beautiful and so admired by everybody that she became known as People’s Constitution. But you were so jealous that you kidnapped her, to get her back.

Barry RouxIt’s not true, My Lady. I never kidnapped her. She came to visit me because she loved me.

Nel: I put it to you, Mr Pistorius, that you had a shouting match with Constitution that night, because you had fallen into a jealous rage after she left you for Technical Committee. When she refused to come back to you, you threatened her with a gun.

Barry Roux: No, My Lady. That was not possible. I loved my Constitution.

Nel: And when she tried to run away from you, and locked herself in the bathroom, you fired through the door and murdered her.

Barry Roux: (Head in hands, sobbing) No, no, no, My Lady. I thought I was protecting my beloved Constitution from Technical Committee who had come to abduct her.

Nel: No, no, no! It seems that everything is no, Mr Pistorius! But perhaps on one thing we can agree: The People’s Constitution is now dead.

Barry Roux: (Now slowly looking up towards the judge) Yes, My Lady, on that we can agree. The People’s Constitution is now dead.

Nel: And you murdered her.

Barry Roux: No, My Lady, it was an accident.

The Fifa World Cup is close, so let me give you a few rules that will help us during the months of June and July:

Dear Sweethearts

The Fifa World Cup is close, so let me give you a few rules that will
help us during the months of June and July:

1. The remote control belongs to me for the whole month.

2. Tell all your friends not to give birth or wed on any of the days
during the World Cup because we won't go!

3. You support the teams that I support.

4. No talking during the game, wait for half-time or end of the game.

5. Repeats and highlights are as good as the main match, so I'm gonna
watch them too.

6. We can see movies/home videos provided actors and actresses are
wearing soccer jerseys and they are in Brazil.

7. You don't just pass in front of the TV if am watching any match,
you better freeze where you are or crawl on the floor.

8. Make sure you don't ask silly questions such as; "is this Chelsea
versus England?"

9. No funny faces to my friends when they come to watch a match with me.

10. Smile every time EXCEPT when my team is losing, OR ELSE!!!

You are Warned!
Jointly signed by
Husbands and Boyfriends

General Kanene Says He Is Looking Up To God For Redemption

SINGER Clifford Dimba, alias General Kanene, says he is looking up to God for redemption as he battles against his conviction and subsequent 18-year jail sentence handed down on him for defilement.
Dimba, 27, was in February this year convicted by the magistrate's court for defilement and last month the Lusaka High Court sentenced him to 18 years imprisonment with hard labour but he has appealed to the Supreme Court against both conviction and sentence.
His lawyer Nicholas Chanda has argued that it was wrong for the court to convict his client in an event that there was a lacuna of evidence in terms of lack of the girl's birth record.

Dimba has told the Sunday Mail in an interview at Lusaka Central Prison that he is coping with prison life.

"When you go to a new place you have to suit the environment. Challenges are different when you are in prison and when you are outside but there is nothing we can do because we have found ourselves here. It is only God who knows and so we just have to pray.

"I am missing my family but it is just a matter of time. When time for something comes it means it has come and the next thing is God. So we just have to trust God because he himself knows why he removes you from society and brings you here; and the time he will release you from here and take you back to society. It means there is something he wants you to have," Dimba said.

Donning a red vest and red shorts, the singer, renowned for his controversial social commentary in his lyrics, said he has learnt many lessons in prison since he was incarcerated last February.

"I have learnt how to live with people and believing in God because here in prison more time is spent on praying. People out there should know that I am here and I am still alive. Here in prison it is like we have come to church. We are on the tour of the church and we are serving God here," he said.

Dimba said he does not believe that all offenders should be in prison, adding that those behind bars are the 'chosen' ones.
"Those who are outside are going through bad things like alcohol abuse and smoking but here there is nothing like that. So we are like somebody who has been taken on a tour to learn and spread the gospel. So even if I spend five, 10 or 18 years here, it means I am on a tour of serving God," he said.

Sentencing Dimba, Judge Chalwe Mchenga said from the evidence adduced, it was clear that he had planned to have sex with the girl because he told her not to meet him in uniform, adding that he would punish the convict to deter all would-be offenders because defilement cases are on the increase in the country.