AT the close of the prosecution’s case the trial judge, Mr Justice Jack Blagden, sitting at the Ndola High Court with four African assessors, found the four accused persons charged with the murder of a white housewife, Ms Lillian Margaret Burton, with a case to answer and put them on their defence.
Before the court were John Chanda, 26, Robin Kamima, 18, Edward Cresta Ngebe, 27, and James Paikani Phiri, 20, all members of UNIP who were alleged to have murdered Ms Burton on the Ndola-Mufulira Road on May 8, 1960, by setting her ablaze with petrol in the car she was driving at the time.
After the judge ruled that they had a case to answer, all the accused persons elected to give evidence on oath, thereby laying themselves open to cross-examination. Chanda was the first to give evidence during which he admitted that he had thrown a stone at Ms Burton’s car and broken a window.
Wearing a white open-neck shirt and grey trousers, Chanda further admitted that he had taken a toolbox through the car’s back window. And asked by his defence counsel, Mr David Houstoun-Barnes, why he had thrown the stone, the accused simply replied: “Because all the others threw stones.”
COUNSEL: “Why did you take the toolbox?”
CHANDA: “To use it.”
COUNSEL: “Prosecution witnesses said they saw you kicking Ms Burton.”
CHANDA: “They were lying.”
COUNSEL: “Why did you throw a stone at a car which was already on fire?”
CHANDA: “Because all the others did.”
During cross-examination the crown counsel, Mr Paul Counsell, asked Chanda if he was angry in the morning before he reached the scene of the burning car.
CHANDA: “No, sir, I was not.”
COUNSEL: “Witnesses who said you were angry would be lying?”
COUNSEL: “Where did you first pick up a stone that morning?”
CHANDA: “On the Mufulira Road.”
COUNSEL: “Witnesses said you made lots of noise, that you were one of those who stopped a lorry, that you were one of those who said, ‘Let’s go to the Mufulira Road.’”
CHANDA: “They were lying.”
COUNSEL: “At the preliminary inquiry, you said you never carried anything in your hands at any time till you returned to Chifubu. Is this true?”
CHANDA: “It’s a lie.”
The accused also denied he took part in the struggle for Ms Burton’s vanity case, and said that another man later gave him several articles, including a notebook and a mirror, asking him to look after them.
He said he had been forced by the crowd to go to the scene and would have been beaten if he refused. He denied carrying a stick or that he beat and kicked Ms Burton.
The second accused, Phiri, said a man known as Benny or Ben was the one who poured petrol on Ms Burton’s car and another man, known as Evans Miti, “threw the fire at it.”
Phiri claimed in his defence that he did not know Ben but heard others call him so, that he had not seen Ben before or since, and that Ben was tall, wearing a dirty white shirt and long grey trousers.
He said he saw Miti “throw the fire” – later identified as a burning cigarette – on the car, and another man, Francis Mulenga, pour more petrol on it, causing flames to shoot from the car.
Phiri said he was at the scene of the burning car but said at no time did he stone the car or throw anything at it; nor did he take any active part in slapping and kicking Ms Burton and setting fire to her car.
Questioned by his defence counsel, Mr Brian Gardner, who was later to become a Supreme Court judge, Phiri denied that he was with Ngebe earlier on May 8, that he tried to burn the door of the old beerhall in Chifubu Township, that he followed a witness into his house and forced him to join a crowd moving towards Mufulira Road, that he carried a red petrol tin and that he siphoned petrol into it.
GARDNER: “A witness said earlier that after returning from Mufulira Road, you told him, ‘I stopped a car, then I took a tin and poured petrol on the car.’”
PHIRI: “He misunderstood me. I said ‘we’, not ‘I’. I meant the people in the group of which I was part.”The accused denied that he had carried stones. He admitted, however, that he was a member of UNIP, although he did not have a membership card.
And a suggestion that several witnesses who lived together at Wilkinson (now Peter Singogo ) Police Camp had been forced to give evidence against him was made by Kamima, when it was his turn to give his side of the story. Kamima told the Crown Counsel, Mr D.A. O’Connor, during cross-examination that the witnesses who had given evidence against him were those who were themselves guilty of Ms Burton’s murder.
O’CONNOR: “Have any of those witnesses had a quarrel or a dispute with you, or any reason to bear you ill will?”
KAMIMA: “One hated me because I once refused to lend him money. All the others were afraid.”
O’CONNOR: “All those who gave evidence against you, did they all come and perjure themselves to harm you?”
KAMIMA: “That’s quite correct.”
The accused claimed that two earlier statements he had made to the police about his movements on May 8 (1960) were untrue. He said he had lied because he was afraid and that the statement he signed at the preliminary inquiry was a mistake.
As usual, after the defence had closed their case, it was now time for final submissions in which the defence lawyers urged the court to acquit their clients on the ground that the prosecution had “lamentably” failed to prove the charge against the accused beyond all reasonable doubt and the crown counsel calling for their conviction.
The case was adjourned to March 7, 1961, for judgement when three of the four African assessors held that all the four accused persons were guilty of Ms Burton’s murder. The fourth assessor said the men were “guilty of killing without knowing.” The assessors drawn from Native urban courts in the then Western (now Copperbelt) Province had withdrawn into a locked room in the Ndola High Court to deliberate on the questions, and were not allowed to communicate with anyone except a police officer. They returned after 115 minutes.
The assessors were answering a series of questions put to them by the trial judge, Mr Justice Blagden. The questions put to them were:
- How far, if at all, did the bruising of Ms Burton contribute to her death? Three assessors said bruising did contribute. The fourth said that according to medical evidence, she died of burns and would have died without the bruises.
- Was the 16-year-old schoolboy witness, Lameck Zulu, an accomplice in the design to stone and set fire to vehicles on the Mufulira Road on May 8?
wAll four agreed that he was but one added that the witness had been compelled to join in the activities.
- Who was the person or were the persons concerned with the pouring of petrol on Ms Burton’s car? One assessor said Kamima and Ngebe, a second said Kamima or Ngebe, a third said Ngebe and the fourth could not pick out any single one among the whole group.
- How was the petrol ignited and who was responsible? Two assessors said all four accused persons were concerned but evidence did not prove who was responsible. One said Kamima or Ngebe.
- Who was the person or were the persons who attacked Ms Burton after she had left the burning car? Of three assessors who answered “all four accused,” one added, “including others not here today.’ The fourth said, “All those who came from Chifubu willingly.”
- When Kamima went to a certain house that night (May 8, 1960) did he admit to anyone that he had been participating in the burning and beating of Ms Burton? All the four assessors said he did.
Earlier, Mr Justice Blagden had put all the evidence of the prosecution and the defence before the assessors in a summary lasting seven hours and 23 minutes. Referring to certain eyewitnesses, the judge said that those who had come from Chifubu after being dispersed by the mobile police for attending an unlawful assembly meeting were “accomplices” whose evidence should be regarded with suspicion.
Judge Blagden told the assessors: “Look at the evidence as a whole, not only of the prosecution, but of the accused men. The fact that they made untrue statements or gave untrue evidence – if this is your opinion – must be taken into account with all the other factors in coming to a final conclusion, and you must be sure in your own mind of their guilt or innocence, based on the evidence.” In his subsequent judgement, the judge noted that it had been suggested that the intent of those who took part in the attack on Ms Burton was only to damage the car and not to injure any person and so there could not have been any malice aforethought in their killing. “That is not so in my view,” he said. “To heavily stone a moving vehicle, with the driver in it and with the probability of damage from broken glass or a later collision is to act with intent to do grievous harm.
“And when petrol is poured over the car with the driver in it and with the intention that it shall be lit, it is idle to suggest it is only damage to the vehicle that is intended,” the judge said.
In the circumstances, Mr Justice Blagden held that the four accused persons were guilty of murder and convicted them accordingly.
He then sentenced all of them except Phiri (who was a juvenile) to death and directed that they were to be hanged by the neck “until you are dead. May the Lord Almighty have mercy upon your souls.”
As soon as the verdict was passed, relatives of the accused turned the court into a funeral house by wailing loudly. As they left the dock, Chanda shouted in Bemba,”Shalenipo bonse.” – meaning “goodbye everybody.”
The four were cornered following an intensive police hunt lasting several weeks after Ms Burton’s death.
The death sentences were confirmed on July 14, 1961, by the Federal Chief Justice, Sir John Clayden, in a 21-page written judgement handed down from the Lusaka High Court. With him were the Northern Rhodesian Chief Justice Conroy and Mr Justice Quenet. The appeal hearing had lasted four days. That, then, marked the end of the longest and most costly trial in Northern Rhodesian’s legal history.
- The author is a Lusaka-based media consultant, recipient of the 1978 Best News Reporter of the Year Award and a former diplomat in South Africa and Botswana. For comments, sms 0977425827/0967146485 or email: firstname.lastname@example.org