The appellant was charged and convicted in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].That section, which has since been amended to accord with the Constitution, provided as follows:

“47 Murder

(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.

(2) Subject to s 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless;

(a) The convicted person is under the age of eighteen years at the time of the commission of the crime; or

(b)The court is of the opinion that there are extenuating circumstances; in which event the convicted person shall be liable to imprisonment for life or any shorter period.”

On a proper and literal construction, section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], as it was prior to the amendment, requires that a person convicted of murder be sentenced to death in terms of section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], (the “CP&E Act”).

Therefore, a court which convicts an accused person of murder must have regard to the provisions of section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] to pass a sentence that is in accordance with the law.

In turn, as at the date that the appellant was convicted and sentenced, section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] read, in relevant part:

“337 Sentence of death for murder

Subject to section three hundred and thirty-eight, the High Court -

(a) Shall pass sentence of death upon an offender convicted by it of murder:

Provided that, if the High Court is of the opinion that there are extenuating circumstances, or if the offender is a woman convicted of the murder of her newly-born child, the court may impose;

(a) A sentence of imprisonment for life; or

(b) Any sentence other than the death sentence or imprisonment for life, if the court considers such a sentence appropriate in all the circumstances of the case.”

In casu, having found the appellant guilty of murder with actual intent, the trial court invited counsel for the defence and the State to address it in relation to the question of sentence.

The record reveals that counsel premised their addresses on the provisions of section 48 of the Constitution of Zimbabwe Amendment (No.20) 2013. It is common cause that both counsel related their respective addresses to the question of whether or not the murder of which the appellant had been convicted had been committed in aggravating circumstances.

Neither made reference to section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] or section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Consequently, in passing sentence, the trial court invoked section 48(2) of the Constitution. As prayed by the State counsel, the trial court exercised its discretion under section 48(2) on the issue of aggravating circumstances. The court was unable to find anything that would justify the imposition of a sentence other than death.

It imposed the death penalty upon the appellant.

At the hearing of the appeal, this Court enquired from the legal representative of the appellant and the State as to the appropriateness of the sentence. The question bedevilling the Court was whether or not a trial court can impose a death sentence on a person convicted of murder with actual intent without reference to section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Neither counsel was in a position to assist.

We are indebted to Mr Zhuwarara who successfully applied to assist the court as an amicus curia. He filed detailed submissions on the question posed.

It is not in dispute that section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] constitutes part of the law of this country. Section 10 of the 6^th Schedule of our Constitution has specifically provided for the continuation and efficacy of all laws in existence at the date of promulgation of the Constitution. It seems to me that the trial court was aware that the provisions of section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] were in conflict and inconsistent with section 48 of the Constitution.

This section read as follows:

“2 Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including

the State and all executive, legislative and judicial institutions and agencies of Government at every level, and must be fulfilled by them.

48 Right to life

(1) Every person has the right to life.

(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and –

(a) The law must permit the court a discretion whether or not to impose the penalty;

(b) The penalty may be carried out only in accordance with a final judgment of a competent court;

(c) The penalty must not be imposed on a person –

(i)  Who was less than twenty-one years old when the offence was committed; or

(ii) Who is more than seventy years old;

(d) The penalty must not be imposed or carried out on a woman; and

(e) The person sentenced must have a right to seek pardon or commutation of the penalty from the President.

(3) An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.”

The Constitution is the supreme law in Zimbabwe land and all laws and legislative instruments must be construed in such a way as to give efficacy to the provisions of the Constitution. The Constitution requires that the death penalty may be imposed upon a person convicted of murder committed under aggravating circumstances in terms of a law. However, per contra, the the Criminal Procedure and Evidence Act provides for the death penalty unless there are extenuating circumstances surrounding the commission of the offence.

This, clearly, is in conflict with the provisions of section 48(2) of the Constitution.

In addition, there are a number of inconsistencies apparent in the Constitution and section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These are the following;

(i) The Constitution provides that the court has a discretion as to whether or not to impose a death penalty; section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] is peremptory in its terms, in that a court which is unable to find factors of extenuation must impose the death penalty.

(ii) The Constitution provides that no court may impose a penalty of death upon a woman convicted of murder; whereas, in terms of section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], only a pregnant woman is exempted from the imposition of the death penalty.

It is clear that section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] are inconsistent with section 48(2) of the Constitution.

When regard is had to the provisions of section 2(2) of the Constitution, a court which convicts an accused person of murder can only sentence such an accused person to death in terms of a law which provides for a murder committed in aggravating circumstances.

It is common cause that as at 30 January 2015, when the appellant was sentenced, no such law was in place.

Although the trial court made no reference to section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] it was correct in accepting that in view of its inconsistency with section 48 of the Constitution, section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] was invalid and therefore could not be given effect to. The trial court sought to rely on section 48(2) of the Constitution to pass the sentence of death.

In my view, the court was wrong in simply ignoring the section, it should have made mention of the offending provision and given its reasons as to why it would not sentence the appellant in accordance with the same.

The court a quo, however, completely overlooked the section and went on to sentence the appellant in terms of section 48(2) of the Constitution.

The court was clearly in error as section 48 of the Constitution is not an operative provision for purposes of sentencing. It does not specify what sentence the court may pass upon a person convicted of murder. It is a section which defines and sets outs out fundamental rights of a person convicted of murder.

In addition, and most fundamentally, section 48(2) requires that the death penalty be provided for in a law permitting a court to pass sentence for a murder committed in aggravating circumstances. Therefore, it stands to reason that section 48 of the Constitution is not such law. In my view, it is an enabling provision for the promulgation of the necessary law. In the absence of the contemplated law, therefore, the trial court could not pass a sentence of death.

To do so would be a violation of section 48(2) of the Constitution.

Parliament has now complied with the provisions of section 48(2) of the Constitution. The General Laws Amendment Act 3 of 2016 has made provision for the amendment of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequently, in so far as the trial court ignored the provisions of section 377 of the Criminal Procedure and Evidence Act [Chapter 9:07] in its consideration of the appropriate sentence, the sentence it passed was invalid. The sentence was passed outside the law and cannot stand.

The sentence, therefore, is set aside and the matter is hereby remitted to the trial court for the same to consider sentence in terms of the law….,.

1….,.

2. The appeal against sentence is allowed.

“(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances; and the law must permit the court a discretion whether or not to impose the penalty;”

The contemplated law that complies with this Constitutional provision is not yet in place. Part XVIII of the Criminal Procedure and Evidence Act [Chapter 9:07] comprehensively deals with the punishments that may be imposed for all criminal offences in Zimbabwe. Section 336(1)(a) empowers the High Court to impose the death penalty. Section 337 mandated the imposition of the death penalty in the absence of extenuating circumstances.

There was recognisable distinction in our law and practice between extenuating circumstances and aggravating features before the new Constitutional dispensation. The cases of S v Jacob 1981 ZLR 1 (S), S v Mutsunge & Anor 1987 (1) ZLR 53 (S) and S v Tshuma 1991 (1) ZLR 166 (S) underline the distinction and may throw light on the meaning of the present Constitutional provision.

My view is that until a law contemplated by the Constitution is promulgated, the Criminal Procedure and Evidence Act, supra, must be interpreted in conformity with the Constitution. The effect of such an interpretation is that extenuation is no longer a requirement and the death penalty is no longer mandatory. It may only be imposed where the sentencing court finds that the murder was committed in aggravating circumstances. The procedure envisaged may very well be along the lines intimated by EBRAHIM JA in S v Tshuma 1991 (1) ZLR 166 (S)…,. The court is addressed in mitigation by the accused, followed by aggravation by the State, and, thereafter, the court determines, in the normal way, whether aggravating circumstances that warrant death exist. This appears to have been the approach adopted by HUNGWE J in S v Mutsinze HH645-14.

It is the approach that commended itself in the present matter.

In assessing sentence, I take into account what counsel for the accused has submitted in mitigation. Factors which should weigh as mitigating include but are not limited to the following:

(a) Accused is a family man with many wives and 10 children.

(b) He is a first offender who was a leader of his church.

(c) He has been in prison for the past 13 years.

(d) He has lost his mother and son whilst in prison.

Indeed, he has been anxiously awaiting to hear his fate for a long time. These are his personal circumstances against which the interests of justice need to be weighed. These factors include the aggravating factors of the case which counsel for the State has pointed out in its submissions.

These factors include but are not limited to the following:

(a) The accused has been convicted of serious crimes i.e. 2 Counts of murder and 1 Count of armed robbery.

(b) The murders were not planned in the sense that the accused set out to kill Lessmore Kange and Willis Konje but they fell within the general plan that the accused and his erstwhile accomplices hatched when they settled and decided to set in motion their evil plan to rob business premises at night.

(c) The armed robbery was planned to detail. The accused and his friends foresaw that by its nature the crime of robbery involved confronting their victims who may or may not resist their demands to take away property. If their demands were resisted, they could force their way by use of armed force. In that sense, therefore, the death of the two victims was planned.

(d) They carefully chose their targets which were business premises; the timing also jeopardised the lives of innocent people who were going about their ordinary businesses.

Usually, at 20:00 hours, the urban business centres are a hive of activity. They chose to execute their plans then - the results were disastrous for two security personnel.

In the case of Lovemore Kange, he had not challenged or resisted the robbery. In fact, he was killed before he knew why he was being shot. He was unarmed and had not resisted the accused in any way. As for Willis Konje, he was relaxing with other members of the public and apparently not on duty. He was a police officer. When public security was threatened he felt duty-bound to act in the interest of crime prevention. He resisted the accused because he was under the false belief that the accused had a toy gun. Unfortunately it was a real gun. He, in a way, met his death in the line of duty.

The first count of murder was committed in the course of a robbery so was the second one. In my view, these murders were committed in aggravated circumstances.

The law, at the time, required and obliged the court to impose the death penalty especially where no extenuating circumstances had been found to exist. See section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. However, there has been a change in the legal terrain introduced by the new Constitution. That Constitution, in section 48, recognises everyone's right to life - including a prisoner. Section 48(2) of the Constitution states that a law may permit the death penalty to be imposed on a person convicted of murder committed in aggravated circumstances and that the law must permit the court a "discretion whether or not to impose the penalty.”

In my view, what the Constitution has done is to unfetter the exercise of the discretion which was previously fettered in section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The omission of reference to extenuating circumstances and the introduction of aggravated circumstances, in my view, must be interpreted to mean that what is envisaged is an Act of Parliament which will define the terms on which courts will impose the death penalty. Alternatively, and in any event, the absence of the definition of the term or what amounts to "aggravated circumstances" must mean that these were to be defined in the envisaged law. Before such an Act of Parliament is enacted, I interpret the legal position to be that, in keeping with its international obligations and international best practices, Zimbabwe intends to move away from the death penalty. Therefore, unless the State applies for a finding that aggravated circumstances exist, the court cannot impose this penalty in the spirit of the new law.

In my view, the accused must benefit from the absence of a specific law setting out the exact definition of what constitutes aggravated circumstances.

In any event, the accused has spent a long time awaiting sentence. However, I do not attach too much weight on this aspect because he did not press early enough his right to a speedy trial within a reasonable time. He is, in any event, partly to blame for his plight. In view of the fact that these crimes were committed after a careful planning I find that the following sentences are appropriate;

Count 1: Life imprisonment.

…,.

Count 3: Life imprisonment.

FACTUAL BACKGROUND

At the time of the commission of the offence, the appellant was thirty-nine (39) years of age. He was co-habiting with one Kudzai Dube, mother of the deceased, Chipo Chaishe Ndlovu, aged three years. On 20 September 2013 he was alleged to have taken the deceased into a bush on the pretext that he wanted her to assist him fetch firewood. It was alleged, by the State, that whilst in the bush he had proceeded to rape the complainant and penetrate her anus with his male organ. Various other injuries were inflicted on the body of the deceased. He, thereafter, ferried her back to the homestead where he told the mother that the deceased had suffered epileptic fits. At the time, the deceased was frothing in the mouth and blood was oozing from her nose. The deceased died almost immediately after the assault. After the Village Head, who happened to be the appellant's brother, refused to get involved in the matter, the appellant then strapped the lifeless body of the deceased onto his back, and, with the deceased's mother, walked a distance of twenty kilometres to the deceased's maternal grandmother's residence where he requested that the body be buried. As a result of the suspicion surrounding the whole episode the police were alerted leading to the arrest of the appellant.

The deceased's body was examined by a nurse at Musume Hospital who reached the conclusion that she had been raped and had injuries above the right eye, on each side of the abdomen, and on the back. A post-mortem examination was subsequently carried out. The body was now in an advanced state of putrefaction. The doctor was, however, able to conclude from his examination that the deceased had been sexually abused, and, in particular, that her rectum had been lacerated in the process.

In his Defence Outline, the appellant had denied causing the death of the deceased. He denied raping her or penetrating her anus. He stated that whilst he was fetching firewood, he noticed the deceased lying on the ground, frothing from the mouth. He then carried her back to the homestead.

The High Court did not believe the appellant's version. It found the version highly improbable. It concluded that the appellant had taken the deceased into the bush for the sole purpose of killing her. It accordingly found him guilty of murder with actual intent. On a further finding that the murder had been committed under aggravating circumstances, the court imposed the death penalty. The appellant then noted an appeal against the sentence of death imposed by the High Court.

PROCEEDINGS BEFORE THE SUPREME COURT ON AUGUST 3, 2015

Although the appellant had noted an appeal against sentence only, at the hearing of the appeal before this Court, on 3 August 2015, this Court, as it is required to do in terms of the law, scrutinized the evidence adduced before the High Court in order to determine whether the conviction was also proper.

See S v Mubaiwa 1992 (2) ZLR 362, 365D; Mupande v The State SC82-14; Samson Mutero v State SC28-17; Cloudious Mutawo v State SC37-14; Enock Ncube and Anor v State SC58-14.

At the hearing of the appeal, this Court accepted that the evidence against the appellant was circumstantial. In its judgment in Samson Mutero v The State SC28-17, this Court made a number of observations. It is desirable that some of those observations be quoted. It stated, at page 9 of the cyclostyled judgment:-

“From the evidence, she had been brutalized. She had also been sexually abused. She died from injuries as a result of the sexual abuse. He was, on his own admission, the last person to see her alive. He admitted, in his warned and cautioned statement, that when he returned home with her she was unconscious. When he took her from her mother she was walking on her own two feet. The only inference is that he was the one who abused her sexually resulting in the state that she was in upon their return to the homestead.”

At page 10 of the cyclostyled judgment, the court continued:-

“The deceased's body was in such an advanced state of decomposition that the pathologist was unable to establish the exact cause of death. As a result, the post-mortem report is silent as to the actual cause of death. However, the tenor of the evidence of the witnesses who saw the deceased shortly after the Appellant brought her home from the bush bears testimony to the application of force to her body as well as her private parts. In view of the evidence of the pathologist that the proximate cause of death was the laceration to the rectum, the question before this court is whether, by raping the deceased in the manner described by the pathologist, the Appellant meant to perpetrate the prohibited conduct or bring about the criminal consequence…,.”

At page 11, the court further remarked:-

“The nurse who admitted the deceased's body observed fresh bruises on the right eye. There was also bruising on each side of the abdomen. The grandmother observed swellings on both sides of her neck. In my view, the injuries point to the application of force around her throat resulting in her bleeding from the mouth. Taken together, these injuries suggest that the deceased was lying with her face on the ground. In order for the Appellant to perpetrate the rape per annum, the deceased would have to be lying on her stomach.”

And at page 12:-

“The open genitalia which had faeces confirms that she was raped and further that after sodomising her at some point he perpetrated a frontal assault leaving faeces on the genitalia. From the bruises and injuries observed on the body, it was the conclusion of the pathologist that the deceased had been sexually abused both per vaginum and anum. As a result of the sexual abuse there was a laceration in the rectum. A laceration of this nature would cause bleeding which could be fatal…,.

The evidence on the sexual assault leads one to conclude that the Appellant intended to rape and assault the deceased. In order to give effect to his intent, the Appellant took her to the mountains against the will of her mother. He subjected her to such a vicious assault that he tore her insides causing her to die from the injuries inflicted from the assault.”

Still at page 12, the court further commented:-

“Given the age of the deceased and her body size, it can be said that the death of the deceased was the Appellant's aim and object. He could not give a reason why he wanted a three-year old juvenile to accompany him to the bush to fetch firewood. When the mother indicated her unwillingness for the child to accompany him he threatened her with physical assault. He kept her in the bush for two hours only to return with her lifeless body on his shoulder. He callously laid her body in the kitchen hut where he proceeded to prepare food for himself and ate it. He made no attempt to obtain medical assistance - even from the child's own mother. He then surreptiously conveyed her to her grandmother's homestead for burial during the night. He made no effort to advise the grandmother of the child's passing…,.”

By way of conclusion, the court stated at page 13 of the judgment:-

“…,. In view of her age, her small body, and the manner in which he perpetrated the sexual assault on her, it is clear that the Appellant contemplated and foresaw that the deceased would sustain serious injuries that would have irreparably and extensively damaged her small undeveloped body. It must have been in his contemplation that her pubescent body could not withstand such an assault and that serious harm would be occasioned to her from the assault. As a result, he must be presumed to have intended to cause her death…,.

…,. I am satisfied, on these facts, that the Appellant was properly convicted of murder with an actual intent to kill the deceased.”

Having confirmed the conviction, this Court found that, in passing sentence, the High Court had relied on the provisions of section 48 of the Constitution. That section provides for the right to life, and, in subsection 2, provides that a law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances. Subsection (2) further provides that the law that permits the imposition of the death penalty must permit the court a discretion whether or not to impose the penalty, that it may only be carried out in accordance with a final judgment of a competent court, and that it must not be imposed on a person who was less than twenty one or more than seventy years or on a woman.

It was common cause that, at the time of sentence, the law envisaged in section 48(2) of the Constitution had not yet been promulgated and that the High Court had regarded the constitutional provision itself to be the law. This Court found that this was:-

“…, clearly in error as s 48 of the Constitution is not an operative provision for purposes of sentencing. It does not specify what sentence the court may pass upon a person convicted of murder. It is a section which defines and sets out fundamental rights of a person convicted of murder…,.

Therefore, it stands to reason that s48 is not such a law. In my view, it is an enabling provision for the promulgation of the necessary law. In the absence of the contemplated law, therefore, the trial court could not pass a sentence of death. To do so would be a violation of s48(2).”

The court accordingly set aside the sentence of death and remitted the matter to the trial court for sentence to be passed in accordance with the law.

REMITTAL OF MATTER TO TRIAL COURT

By the time the above determination was made by this Court, Parliament had, by the General Laws Amendment Act 3/2016 passed a law in conformity with section 48(2) of the Constitution. Having set aside the sentence of death imposed by the High Court this Court then remitted the matter to the High Court for sentence to be passed afresh taking into account the provisions of the General Laws Amendment Act, 2016.

At the reconvened hearing, the State submitted that, in view of the findings of fact made by the court, in particular, that the appellant had raped the victim, who was a mere three year old girl; that there was physical torture of the victim; that the assault was perpetrated in order to conceal the rape, there were aggravating circumstances justifying a sentence of death. The appellant's counsel, asked to address the court, conceded that indeed the murder had been committed in aggravating circumstances.

The High Court took into account that the victim was a three year old toddler. The offence was committed during the course of a rape. The murder had been premeditated. Physical torture was used. It accordingly found that the murder had indeed been committed in circumstances of aggravation.

The appellant's legal practitioner then addressed the court on whether there were mitigating circumstances. He submitted that the appellant was illiterate and lived a life of abject poverty. He appeared to have been shunned by his relatives and neighbours and lived a reclusive lifestyle. Both his brother and Headman had distanced themselves from him once they got to know what he had done. His societal seclusion must have affected his psychological and emotional state.

The State, on the other hand, submitted that there were no mitigating circumstances. The appellant's brother and immediate family and neighbours deserted him because of the heinous crime that he had committed. Whilst it is true that he is illiterate, he had tried to cover up the murder by alleging that the deceased had died as a result of an epileptic seizure. He brought the body back to the homestead. He did not feel compelled to take the deceased to hospital. Instead, he cooked food and ate it. He showed no care. The State accordingly argued that the few mitigating factors that may have been present were far outweighed by the aggravating features.

RULING BY THE HIGH COURT ON REMITTAL

In its ruling, the High Court found that the appellant exhibited inherent wickedness. He raped and severely assaulted the three year old toddler who was his girlfriend's daughter. Even when he brought the body back to the homestead, at a time he claims she was still breathing, he made no attempt to render first aid. Instead, he placed the body on a table whilst she was frothing and proceeded to cook sadza which he ate. The court concluded that there were aggravating circumstances after which it then proceeded to pronounce the sentence of death on the appellant.

THE PRESENT APPEAL

The propriety of the conviction having been confirmed previously by this Court, the only issue raised in the grounds of appeal is that the court a quo erred at law in finding that the murder was committed in aggravating circumstances and that the court should have considered other forms of punishment such as life imprisonment.

Counsel for the appellant conceded that, in the circumstances of this case, he was unable to make any meaningful submissions in support of the only ground of appeal that the court a quo erred in finding aggravating circumstances. The mitigating factors, namely, that he was a poor, illiterate peasant farmer who had no social support are of little weight when compared against the circumstances surrounding the commission of the offence.

The State submitted that this was a heinous murder committed during the course of a rape and had been pre-meditated. In the circumstances, the State submitted that there was no basis for interference with the sentence imposed by the High Court.

It is correct, as submitted by both parties, that the appellant is a poor, rustic individual who appears to have been shunned by both relatives and the local community once this offence came to light. The reaction of the community was not unexpected, regard being had to the fact that this was the heinous murder of a three year old toddler, born to his live-in girlfriend and another man. He took her to the bushes despite clear reluctance by his girlfriend. It was almost as if, intuitively, the mother suspected all was not well and that something untoward was going to occur.

Two hours later, he brought the body of the infant back to the homestead alleging that the child had suffered fits. He placed the body on a table in the kitchen. He made no effort to seek assistance or to render first aid. Instead, he cooked sadza which he ate – almost as if nothing untoward had occurred. When his own brother made it clear that he did not want to get involved in the mess he had created and the Headman insisted the body was not going to be buried in the village, he strapped the body of the deceased onto his back, and, with the deceased's mother, walked a distance of about twenty kilometers to the homestead of the deceased's grandmother where he intended to bury the body.

As found by the court a quo, and confirmed by this Court, the appellant deliberately took the deceased to the bush where he physically assaulted her and penetrated her both per vaginum and anum. The force of the assault was so severe that the rectum was lacerated. The body was found to have various other injuries.

Clearly, this was a sadistic attack on a defenseless three year old toddler who had done nothing wrong. It is unclear why he decided to ravish the toddler in the manner he did. He tried to cover up the crime by alleging that the deceased had had epileptic seizures. This was obviously not a very convincing cover-up as it was clear that the deceased had been physically assaulted owing to the blood oozing out of her nostrils. The deceased must have experienced a very painful death. Faeces found on her private parts and on her anus bear testimony to this.

I agree with both counsel that there were no mitigating features in this case. The facts show a murder committed in circumstances of extreme aggravation.

DISPOSITION

It remains unclear why the appellant committed such a brutal murder on his girlfriend's defenceless three year old daughter. There is no other ready explanation as to why he would have committed this heinous offence, save, in all probability, to satisfy his own perverted sexual desires.

The finding that the murder was committed in circumstances of aggravation is supported by the established facts. There is no basis upon which this court can interfere with that finding.

In the result, the appeal against sentence is dismissed.

This is a gruesome murder committed against a 3-year old toddler who was defenceless and looked up to the accused for protection. The accused never attempted to even justify the heinous murder.

I have exercised my discretion in terms of section 48(2)(a) of the new Constitution but was unable to find anything in the accused's favour which could influence me to consider any sentence other than capital punishment.

The accused planned the murder which was motiveless. The accused appeared unconcerned about the deceased after bringing her back home he continued to cook his sadza.

The murder was committed under aggravated circumstances. He first sexually abused the deceased and thereafter murdered her in order to cover up the crime. This is one of those bad types of murder where no other form of punishment other than capital punishment is suitable.

The accused shall be returned to prison for the sentence of death to be executed according to law.

The only snag is the absence of what constitutes aggravating circumstances. That notwithstanding, the common law which is also part of our law provides for what constitutes aggravating circumstances in the commission of a crime as a plethora of decisions of the superior courts demonstrate.

Notwithstanding the absence of a definition of aggravating circumstances it is possible, from the particular facts of a case, to make a finding of what constitutes aggravating circumstances. Within a legal context, aggravating circumstances are ordinarily understood to be those circumstances that reduce an accused person's moral blameworthiness. See S v Jacob 1981 ZLR 1….,.

It is well established that prior to the coming into effect of the present Constitution, the death penalty was mandatory where a person was convicted of murder unless the court found extenuating circumstances. Section 338 of the Criminal Procedure and Evidence Act [Chapter 9:07] excludes the death penalty for the following -

(a) A pregnant woman; or

(b) A person who is over the age of seventy years; or

(c) A person who, at the time of the offence, was under the age of eighteen years.

In light of section 48 of the Constitution, it is imperative that section 338 of the Criminal Procedure and Evidence Act [Chapter 9:07] be aligned with the Supreme law.

In assessing an appropriate sentence, the court takes into account the fact that the accused has been convicted of murder with actual intent. The murder was committed in aggravating circumstances. The deceased was aged seventy seven years at the time he met his death. The murder was clearly pre-meditated. The court may therefore impose a death penalty as provided under section 48(2) of the Constitution of Zimbabwe (No.20) of 2013.

The General Laws (No.3) of 2016 has now set out what constitutes aggravating circumstances. In terms of section 8(3) it's provided that:

“A court may also, in the absence of other circumstances of a mitigating nature or together with other circumstances of an aggravating nature, regard any aggravating circumstances the fact that -

(a) The murder was premeditated; or

(b) The murder victim was a police officer or prison officer, a minor, or was pregnant, or was over the age of seventy years or was physically disabled.”

In terms of subsection 8(4) of the General Laws Amendment Act it is further provided that:

“A person convicted of murder shall be liable –

(a) Subject to sections 337 and 338 of the Criminal Procedure and Evidence Act (Chapter 9:07), to death, imprisonment for life or imprisonment for any definite period, not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3); or

(b) In any other case to imprisonment for any definite period.”

The State has not advocated for the imposition of the death penalty in view of what they perceive to be the background facts of the matter. They argue that the fact that the accused was being accused of stealing his father's cattle affected his mind and he acted irrationally. The emotional and pyschological stress he may have suffered contributed to his irrational behaviour.

This court recognizes that the manner in which the accused committed this offence fits perfectly within the category of a murder committed in aggravating circumstances. This court, however, does have a discretion to impose a death penalty or life imprisonment, or other appropriate sentence. In my view, even where a murder is committed in aggravating circumstances, the court still has a discretion whether to impose a death penalty or other appropriate sentence. This discretion must be exercised judiciously, taking into account all the relevant factors relating to the commission of the offence.

The irrationality of the accused's behaviour tends to reduce his moral blameworthiness. I have not lost sight of the fact that there was evidence placed before the court to indicate that the relationship between the deceased and the accused had soured prior to the commission of this offence. The deceased had threatened to consult prophets and traditional healers in Bulawayo to establish who was responsible for his missing cattle. The accused must have been rattled and disturbed by this threat, which, possibly, would expose him as the person behind the missing cattle. For that reason, I would be persuaded to give the benefit of the doubt to the accused person to the extent that the accused was not solely motivated by an evil design to murder his father.

This is a murder that was evidently committed in a most brutal and callous manner. The accused not only set out to kill his father. After he achieved his purpose he succeeded in concealing the body. The remains of the deceased were only recovered after a period of two (2) years.

The court must therefore impose a sentence that shows that the courts do not condone the senseless killing of other human beings. The accused acted selfishly and showed no remorse up to the end. He chose to cover up his tracks in the hope that he would escape punishment for his evil deed.

In my view, the following is an appropriate sentence;

“Accused is sentenced to life imprisonment.”

(a) The murder was committed in a robbery.

(b) The murder victim was pregnant.

After hearing counsel, the Court dismissed the appeal and indicated that reasons for the decision would follow in due course. These are they….,.

On the sentence, the applicable law, on 21 March 2011, when the death penalty was imposed, was section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The relevant law obliged a court convicting an accused person of murder to impose a sentence of death unless it was of the opinion that there were extenuating circumstances.

The legal practitioner who represented the appellant in the trial indicated that after careful consideration of all the facts surrounding the commission of the offence, he had no meaningful submission to make on extenuating circumstances.

The public prosecutor was not sure whether the fact that the appellant was not the one who cut the deceased's throat with a knife, could constitute a factor of extenuation of the appellant's moral blameworthiness.

The trial court made it clear that such a factor did not amount to extenuation where an accused, who had been involved in a conspiracy to kill a person, did not dissociate himself from the execution of the agreement but instead took an active part in the murder.

The court a quo said:

“The accused was a conspirator and an accomplice in the murder of one Innocent Mudimba. It is not in dispute that the killing was motivated by ritual killing at the instigation of a businessman, one Daniel Mudimba, who committed suicide soon after the commission of the offence. The defence counsel has properly conceded that he has no meaningful argument to advance in extenuation and therefore he has not sought to raise any factors. The State has raised an aspect which it feels might lead to a finding of extenuating circumstances in that the accused person was hired to be part of the gang that killed for ritual purposes. The State takes the view that since the accused did not actually deliver the crucial blow that led to the demise of the deceased that may be considered to be an extenuating circumstance. We have come to the conclusion that the accused was hired to kill. His role was not defined at the outset but he was an active participant. In his confession he states that he held the deceased person from the back whilst his throat was being slit for the purpose of collecting blood from him. The accused's moral blameworthiness is no different from the person who actually stabbed the deceased. As we have said, the action of one of the conspirators was the action of all the conspirators. Accused person could have chosen to dissociate himself but he was tempted by money. Such killings are abominable to society and to any right thinking person. The accused's conduct, in confessing in a written statement, is not consistent with his action in court on trial where he chose to deny responsibility altogether. His moral blameworthiness is very high. The fact that he did not deliver the blow, in our view, cannot amount to an extenuating circumstance.”

Counsel for the appellant, on appeal, conceded that on the facts and the law applicable at the time, the court a quo did not misdirect itself in passing the sentence of death. The concession was properly made.

Counsel for the apellant, however, sought to argue that the provisions of section 48(2) of the Constitution should be applied by the court in determining the correctness or otherwise of the decision by the court a quo to impose the death penalty on the appellant. The argument was based on the view that sentencing is a process, suggesting that the court can act as if it was at large and assess the factors of sentencing before finding a misdirection on the part of the court a quo.

The Court was not persuaded by counsel for the appellant's argument.

The argument overlooked the fact that the task of the sentencing court was to impose the sentence of death in accordance with the law applicable to the facts before it at the time of sentencing.

The task of the Appellate Court is to determine the question whether the court a quo misdirected itself in the finding of facts and application of the law in terms of which it was required to act at the time of sentencing.

Section 48(2) of the Constitution has no retrospective effect. It came into effect on 22 May 2013 whilst the death penalty, the legality of the imposition of which is under review, was imposed on the appellant on 21 March 2012. It talks of what a court, which has convicted an accused person of murder, has to take into account before imposing the death penalty. There has to be a moment between the conviction and imposition of a death penalty when section 48(2) of the Constitution would apply. Section 48(2) of the Constitution does not apply to a case where the death penalty was considered and imposed before the coming into effect of the new Constitution. The moment after conviction of murder, when the trial court had to consider all the relevant factors and decide whether or not to impose the death penalty, had long been used in terms of a different law applicable at the time.

It was for these reasons that the appeal was dismissed.

As such, the death sentence is out of consideration.

In mitigation, defence counsel highlighted the personal circumstances of the accused. Both accused are married. They have children. Their wives, children and other members of their extended family depend on them for support. They have no regular or formal employment. Bernard is self-employed as a bricklayer. Rabson assists him. Defence counsel pressed for a short term of imprisonment to enable the accused to re-unite with their families sooner.

Counsel also highlighted the accused persons' ages. Bernard is now thirty-three [33] years old, and Rabson twenty six [26] years old. It was argued that, at twenty five [25] and twenty one [21], respectively, the accused were still relatively young at the time of the offence. They had started drinking early in the day and must have been under the influence of alcohol. Counsel also argued that, despite the finding of common purpose, the accused persons' participation in the crime was relatively less involved than Richard's and that, therefore, their moral blameworthiness was markedly lower. With Rabson in particular, it was said that he just thoughtlessly made common purpose with his elder brothers.

Counsel for the first accused, Bernard, pressed for a term of imprisonment of between ten [10] to fifteen [15] years. Counsel for the second accused, Rabson, said twelve [12] years.

Counsel for the State stressed the brutal and sustained assault that characterised the offence. He argued that the murder was undoubtedly pre-meditated. He said the accused harboured a grudge against the deceased whom they held responsible for the collapse of Bernard's first marriage by having an affair with Bernard's first wife.

Counsel for the State further urged us to consider that none of the accused had been contrite.

In Richard's case, we pointed out that the deceased had been a very close relative. We said the English word “cousin” kind of puts distance in that sort of relationship. In traditional African culture, the accused and the deceased were practically brothers by blood. Ever since the commission of the offence the accused have strenuously disowned responsibility.

Counsel for the State called for twenty five [25] years imprisonment for each of the accused. He pointed out that in Richard's case we would have imposed thirty [30] years imprisonment but reduced the period to twenty five [25] on account of the fact that Richard was already serving an additional seven [7] years imprisonment for the attempted murder of Edward.

We have taken both the aggravating factors and the mitigating circumstances into account. The assault on Edward and the deceased was one single act of criminality. Alcohol must have reduced or diminished self-control. This might have been compounded by the accused persons' youthfulness. Nonetheless, life was needlessly lost.

Sentencing is a complex exercise. It is all about striking a balance to achieve a certain equilibrium. It is not about mathematical precision or moral exactitude. There is no tariff system. The principle of stare decisis, i.e. “to stand by things decided”, namely, to follow similar decisions in similar cases, is important, but not overriding. Sentencing is akin to feeding disparate factors into the proverbial judicial computer; letting it process them; blend them; and finally emitting the appropriate globular penalty that suits both the offence and the offender.

In the case of two or multiple offenders convicted for the same offence, individual circumstances are definitely taken into account, but not with such a pedantic or doctrinaire adherence as to upset the equilibrium.

Therefore, taking all the various factors into account, each accused is hereby sentenced to twenty five [25] years imprisonment.

Counsel also submitted that it should be taken into account that the accused, at 23 at the time of the commission of the crime, was still fairly young. He had consumed large quantities of alcohol on the fateful day and should therefore be taken to have been drunk. As such, and coupled with youthfulness, his sense of judgment could be said to have been become impaired.

It was also urged on us to take into account that the accused was already serving a seven year prison term in respect of the conviction of attempted murder.

In aggravation, State counsel argued that the murder was premeditated in that the accused had, for a long time, harboured a grudge against the deceased whom he and his brothers held responsible for having taken away Bernard's first wife and for the misfortunes that allegedly continuously befell Bernard.

Our attention was drawn to the General Laws Amendment Act, No.2 of 2016, which amended section 47 of the Criminal Law [Codification and Reform] Act [Chapter 9:23 [“the Criminal Law Code”]. The amendment lists circumstances that a court, in sentencing a person convicted of murder, may, without any limitation on any other factors, regard as aggravating. The Constitution, in section 48(2), says that a law may permit the imposition of the death penalty on certain persons convicted of murder which was committed in aggravating circumstances.

State's counsel's point was that in accordance with paragraph [a] of the new sub-section [3] of section 47 of the Criminal Law Code; if a murder was pre-meditated, this, in the absence of mitigating circumstances, may amount to an aggravating circumstance, thereby leaving the court at large to consider the penalty of death or life imprisonment.

In our assessment, we have considered that at no stage did the accused show or exhibit any signs of contrition for the death of such a close relative. In fact, the English word “cousin” kind of puts distance in the relationship. In traditional African culture, the accused and the deceased were brothers by blood. But immediately after savaging Edward and the deceased, the accused was still not yet done. He noticed the deceased's wife and chased after her. God knows what would have happened had he caught her. After the murder, the accused and his brothers did not own up. They ran away. Ever since, he has tried to disown responsibility.

However, we have not accepted that the murder of the deceased was committed in aggravating circumstances. This is in spite of the fact that before killing the deceased, the accused had started with Edward whom he had left for dead. But this was one single criminal episode or enterprise. We believe this was an alcohol induced lack of self-control that might have been compounded by youthfulness. For, example, it was irrational that cousins would fight over an incident that was more than a decade old. Nonetheless, life was needlessly lost. Justice demands that an appropriate punishment that suits both the offence and the offender be imposed.

Defence counsel appreciated that a lengthy prison sentence was called for. He suggested fifteen years would be appropriate but that these should be made to run concurrently with the seven years imprisonment that the accused was already serving for the conviction of attempted murder.

In S v Mudenda HB66-15, where the accused, driven by extreme jealousy, killed the deceased by striking him twice on the head with a sharp axe, was sentenced to 30 years imprisonment.

In this case, we have felt that a similar period would not be out of place. However, instead of ordering that any period of imprisonment that we may finally impose should run concurrently with the sentence in the previous conviction, which would be irregular for a number of reasons, we have, instead, taken the previous sentence as an aspect of mitigation.

Therefore, the accused is hereby sentenced to 25 [twenty-five] years imprisonment.

In respect to sentence, it has been submitted, on the appellant's behalf, that the sentence of death is so excessive that it induces a sense of shock.

Counsel for the State submitted that the sentence was appropriate in the circumstances. She stated that the appellant had not challenged the finding by the court a quo that the murder was committed in aggravating circumstances in terms of section 47(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that the court may pass a sentence of death upon an offender convicted of murder if it finds that the murder was committed in aggravating circumstances.

The exercise of discretion by the court a quo, to impose the death penalty in the circumstances of this case, cannot be impugned.

The accused is convicted of murder with actual intent. He is a first offender, is a family man, a father of two children, he was 29 years at the time he committed the offence. The murder was committed in a callous manner; he chopped the deceased on the head several times decapitating her head in the process, this was after he had cut the deceased on the head and on the finger. He mercilessly chopped off the deceased's head until when it was decapitated.

This is a gruesome murder which was committed for no clear reason. The deceased died a painful death of being struck several times until when her head came off. As if that was not enough, he took the head, put it in a box, and put it under a bed in the bedroom and went away. Even animals do not behave in the manner that the accused did.

In terms of section 47(2)(c), as amended by the General Laws Amendment Act No.3 of 2016, a murder is committed in aggravating circumstances where the murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim. Decapitation is mutilation on the deceased.

The death sentence is therefore appropriate in these circumstances. The accused is accordingly sentenced to death.