Criminal Review
MOYO J: The accused person
was convicted of kidnapping as defined in section 93(1)(a) of the Criminal Law
Codification and Reform Act [Chapter 9:23]. He was sentenced to 15 years
imprisonment with 3 years imprisonment suspended for 5 years on condition the
accused person, is not within that period convicted of the offence of
kidnapping for which upon conviction he shall be sentenced to imprisonment
without the option of a fine. This left the accused person with 12 years
effective.
It is the sentence that has drawn my attention as I am of the view that it is
unduly harsh and excessive so much so that it induces a sense of shock.
The facts of the case are that accused and complainant were neighbours.
The accused on the 2nd of November 2012, at around 0630 hours,
followed complainant who was on her way to school with some pupils.
Complainant is apparently a teacher and was on her way to school in the company
of these pupils. The accused approached complainant from behind and paced
up until when he caught up with her. He greeted the complainant with a
harsh voice. The complainant asked the accused person what he wanted and
the accused demanded that she should stop. Complainant quickened her pace
so did accused until he caught up with her. Accused had an okapi
knife. He then dragged complainant through the fields to his home where
he pushed her into the kitchen and sat on the doorway to stop her from
escaping. He detained her for 20-60 minutes. Meanwhile the children
that were walking with the complainant had run in different directions and some
of them advised complainant's husband of what had transpired.
Complainant's husband then came to the accused person's homestead and accused
attacked complainant's husband assaulting him in the process. The accused
person had previously been hauled before the Chief's court whereupon he was
ordered to pay 3 beasts for adultery damages to the complainant's
husband. The accused had been charged with rape and kidnapping whereupon
at the close of the state case he was found to have no case to answer on the
rape allegations. From the accused's own defence he had an affair with
complainant who was a married woman. Whilst complainant stated that accused
was ordered to pay 3 beasts for the rape by the Chief, accused stated that 3
beasts were ordered as a result of consensual sex between him and
complainant. The prosecutor conceded in his submissions to the court that
the Chief would most certainly have ordered the accused to pay 3 beasts for
adultery as opposed to rape. There was obviously some background
relationship and interaction between accused and complainant prior to the
kidnapping incident.
The accused person is a 49 year old first offender, married with 7
children. The accused's version that he was in love with the complainant
is supported by the chief's order that he pays adultery damages to the
complainant's husband. Whilst the kidnapping charge is sustained by the
school child's evidence, it is clear from the facts that these two people had a
background and accused had been punished for having an affair with someone
else's wife who is the complainant.
The sentence given to the accused person is not in line with other kidnapping
cases and is accordingly excessive especially if one looks at the background
that these parties already had. In Nyathi and Another vs S HB
19/92, the accused persons kidnapped the wife of a person who had sold them
fake gold. This person was rescued after about 45 minutes. A
sentence of 24 months imprisonment with 6 months imprisonment suspended on the
usual conditions was confirmed in appeal by the Supreme Court.
In Mahuni and Others vs S HH 406/86, a policeman had been kidnapped
for 3 hours by a bus crew and they were sentenced to 10 months imprisonment
with 4 months imprisonment suspended on the usual condition. Also refer
to Hove vs S SC 64/88 and Masuku and another SC 132/89.
The sentences are generally 3 years imprisonment or 2 years imprisonment with a
portion suspended or even less.
In my view the facts of this case warrant a sentence less than 3 years
imprisonment as I have alluded to the general guideline given by the decided
cases.
I accordingly confirm the conviction. The sentence of 15 years
imprisonment with 3 years suspended for 5 years, on the usual conditions, is
accordingly set aside and substituted with the following:
The accused person is sentenced to 30 months imprisonment of which 12 months
imprisonment is suspended for 5 years on condition the accused person does not,
during that period commit any offence involving the deprivation of liberty of
another person, whereupon conviction the accused person shall be sentenced to imprisonment
without the option of a fine.
Takuva
J agrees...............................................................
