Criminal
Trial (Mental Health Act- Special Verdict)
MWAYERA
J:
In
this case precious human life was lost in circumstances where
religious extremism was at play.
Under
the umbrella of exorcising demons, a nine year old was strangled to
death.
It
is alleged by the State that on 14 June 2013 and at Tongogara Refugee
Camp, Chipinge, Judith Mupelefuraha Mulumba unlawfully caused the
death of Kubota Mupelefuraha Mulumba or realising that there was a
real risk or possibility that the conduct might cause death and
continued to engage in that conduct despite the risk or possibility
resulting in injuries from which Kubota Mupelefuraha Mulumba died.
The
accused pleaded not guilty to the charge.
From
the summary of the State case and Statement of Agreed Facts tendered
as exh 1 by consent it is common cause the deceased and accused were
related as they were sisters. It is also common cause that on the
fateful day the accused who was at a church gathering with the
deceased after the church service, started to “pray” for the
deceased. The accused in a horrendous manner mounted on the deceased
and inserted her fingers into the deceased's mouth. She choked the
deceased while at the same time shaking the deceased's head
vigorously. The accused believed she was praying to exorcise demons.
The
witnesses in attendance also tried to stop the accused but failed.
The deceased was choked to death and the remains were taken for post
mortem.
The
post mortem report compiled by Dr Mutetwa was produced as exh 3 by
consent and cause of death was established as cervical neck
dislocation and asphyxiation.
The
unprovoked horrendous assault of the deceased is spine chilling. We
were not surprised when the State and defence counsels came up with a
Statement of Agreed Facts and sought the court to proceed with the
accused in terms of section 29 of the Mental Health Act [Chapter
15:12].
The
respective counsel presented the Affidavit of Evidence of Dr Walter
Mangezi a duly registered medical practitioner, specialist
psychiatrist. The Doctor formulated an opinion that the accused was
mentally disordered at the time of commission of crime in 2013. At
the time of commission of the offence the accused was a mental
patient whose mental disorder manifested by being talkative,
excessively reading the bible in a manner out of character and also
being physically aggressive.
This
culminated in the gruesome assault on the deceased under excessive
stance to exorcise demons from a 9 year old.
This
behaviour which is out of the ordinary and normal occurred when the
deceased was mentally disordered.
The
offence of murder requires establishment of both the actus
reas
and mens
rea.
In
this case given the obvious mental disorder confirmed by Dr Mangezi
the accused person cannot be said to have had the requisite intention
to carry out the offence of murder. The psychiatrist Dr Walter
Mangezi outlined that the accused responded well to the medicine for
mental disorder administered on her since 2013.
The
accused was subsequently released on bail in March 2014 and was
viewed as being fit and of sound mind to stand trial.
The
accused, when she appeared in court before us impressed the court as
an individual appreciating the proceedings. She tendered a plea of
not guilty to the charge and given the history of mental instability,
we acceded to the request by the respective State and defence
counsels to retain a special verdict of not guilty because of
insanity.
We
were further addressed on post special verdict fate of the accused.
It was clear as reflected in the Statement of Agreed Facts that the
accused was released on bail in 2014. She has been religiously taking
the medication and has started her own family. She has a husband and
two children. Further she stays in a refugee camp, Tongogara where
the authorities there are aware of the condition and medicines are
readily available.
This
background information clearly portrays that the accused is no longer
a danger to herself and to the members of the community. She does
not, in our considered view require further institutionalisation as a
protective measure for herself and the society at large. See S
v Pretty Matangi
HH23/13 and also S
v Sinaiso Donald Khumalo
HB61/06.
In
the premises we accordingly order that:
1.
A special verdict of not guilty because of insanity be and is hereby
retained.
2.
The accused is released to go and stay with her family at her
official residence at Tongogara Refugee Camp.
National
Prosecuting Authority,
State's legal practitioners
Tanaya
Law Firm,
accused's legal practitioners
