This
is an appeal against the sentence of death imposed by the High Court
on 2 February 2015 following the conviction of the appellant on a
charge of murder.
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.
