The State v Paidamoyo Gadzambo

The accused and the complainant were married and later divorced. They had children together, and the complainant was given custody. The accused failed to provide maintenance for the children, and the complainant applied for maintenance at Mt Darwin Magistrate Court. On 29 September 2018, the accused, armed with an axe and a spear, went to the complainant's house and threatened to kill her. The complainant escaped and locked herself in her house. The accused was arrested and charged with contravening section 186 as read with section 47 of the Criminal Law Codification and Reform Act [Chapter 9:23] for making a threat. The accused pleaded guilty before the magistrate.

• Whether the sentence imposed by the trial magistrate exceeded the statutory maximum provided for in section 186 of the Criminal Law Codification and Reform Act
• Whether the accused should have been charged under the Domestic Violence Act [Chapter 5:16] rather than the Criminal Law Codification and Reform Act
• What is the appropriate sentence given the statutory limitations

1. The conviction was confirmed. 2. The sentence imposed by the magistrate was set aside and substituted with: "6 months imprisonment wholly suspended on condition accused completes 210 hours of community service".

A court cannot impose a sentence that exceeds the statutory maximum provided for in the relevant statute under which an accused is charged. Where an accused is charged under section 186 of the Criminal Law Codification and Reform Act, the maximum sentence is a fine not exceeding level five or imprisonment for a period not exceeding six months or both. Any sentence exceeding this statutory maximum must be set aside and corrected on review.

The court observed that the accused should have been charged under the Domestic Violence Act [Chapter 5:16] rather than under section 186 of the Criminal Law Codification and Reform Act, given that the accused and complainant were divorced spouses and the complainant falls within the definition of a complainant under section 2 of the Domestic Violence Act. The court noted that section 3(1)(a) read with section 3(2)(a) of the Domestic Violence Act regulates such conduct, and section 4 provides for more severe penalties (fine not exceeding level fourteen or imprisonment not exceeding ten years or both). The court emphasized that the Domestic Violence Act was specifically promulgated to protect spouses, especially women in danger from current or estranged spouses, and that categorizing threats under the Code has the effect of disguising the true nature of the offense. However, the court acknowledged that the State as dominus litis has the prerogative to determine the charge, and the court's hands remain tied on this aspect. The court expressed that the State should ensure vulnerable members of society are adequately protected by laws enacted for their protection.

This case highlights the importance of proper sentencing within statutory limits and illustrates the distinction between charging domestic violence-related offenses under the Criminal Law Codification and Reform Act versus the Domestic Violence Act. It emphasizes the need for prosecutors to consider the Domestic Violence Act when dealing with offenses involving current, former, or estranged spouses, as that Act provides enhanced protection for vulnerable persons and allows for more severe penalties (up to level fourteen fine or 10 years imprisonment). The case demonstrates judicial oversight of sentencing errors through the review process.