MALABA
DCJ: This
is an appeal against the sentence of death passed on the appellant by
the High Court on 21 March, 2012 following a conviction of murder of
Innocent Mudimba with actual intent to kill him. After hearing
counsel, the Court dismissed the appeal and indicated that reasons
for the decision would follow in due course. These are they.
The
facts on which the trial court found that the deceased had been
murdered by people who had the actual intention to kill him are set
out in the judgment of the court a quo.
These are they.
The
deceased was aged 19 years at the time he met his death. He resided
at Gillian Munkuli's homestead, Sikaputa Village 1, Binga. On 3 May
2011, at about 2000 hours, the deceased retired to bed with his young
brother Pronounce Munkuli. At about 0400 hours the following morning,
Pronounce Munkuli woke up and discovered that the deceased was not on
the bed and the bedroom door was slightly open. A few minutes later
the deceased entered the hut holding his neck with both hands and
fell to the floor writhing in agony. The deceased's young brother
tried to ascertain what had happened but the deceased did not
respond.
Seeing
this, he called his grandmother who was sleeping in another hut. When
the elders entered the bedroom hut they discovered that the deceased
had died. He had a deep cut on the throat from which he was bleeding
profusely. A report was made at Binga Police Station.
The
police attended the scene and conveyed the deceased's body to Mpilo
Hospital in Bulawayo for a post-mortem examination. The post mortem
examination revealed a very deep wound, four centimeters long across
the lower neck just above the left collar bone, cutting the left
subclavian artery and penetrating to the right apex of the chest
cavity collapsing the right lung. As a result of the wound, the
deceased bled profusely and he died of haemorrhagic shock.
On
9 May 2011, following investigations, police from Criminal
Investigations Hwange arrested the accused in connection with the
offence.
The
direct evidence on which the court found that the appellant was
involved in the murder of the deceased and that he had the requisite
intent to kill the deceased was the confirmed warned and cautioned
statement made by him and recorded at Hwange Police Station on 12 May
2011. The appellant said:
“I,
Colgate Duffen Mudenda do admit that I killed the deceased person. I
was in the company of Bhilo, Chiyanembo, Peter, Petros and Mr Daniel.
Chiyanembo, Daniel and Peter entered the hut. I remained outside
watching for anyone who would be awake by then. At this homestead
there are several houses but they entered into the hut and lifted the
deceased and took him to the kraal. Bhilo held the deceased from the
back while Petros collected dripping blood into an empty sugar
plastic. Chiyanembo stabbed the deceased on the wind pipe
(oesophagus) with the knife while I also held him from the back.
After that, Mr Daniel and Chiyanembo lifted the deceased's body and
placed it in the deceased's bedroom hut. After that each of us left
for his homestead. I then followed Mr Daniel so that he gives me some
money that we were promised after successfully killing someone. Mr
Daniel gave me US$700.00. Out of that money I gave $50.00 to my
junior wife to buy her blanket at Sinamatelele of which she did. I
then used $50.00 in drinking beer and in gambling school. When the
rumour had spread that I killed a person, I then took the remaining
$600.00 and hid it underground in the mountain area of Bulawayo
Kraal.”
The
trial court correctly found, on the analysis of the contents of the
warned and cautioned statement, that it was an expression of a
genuine confession by the appellant of his involvement in the
planning and murder of the deceased. The statement contains
references to facts which could only have come to the knowledge of
the appellant through direct participation in the conspiracy and the
execution of the agreement to kill the deceased for money and to
extract warm blood from his body for ritual purposes. Not only did
the appellant give a comprehensive statement of what he said
happened, the facts to which it relates were presented in a coherent
manner producing a convincing story into which all the known facts
dovetailed perfectly. Edward
Dima v The State
SC-129-07.
There
was sufficient evidence aliunde showing the deceased was killed in
the manner revealed by the appellant in the warned and cautioned
statement. The appellant was seen running from the direction of the
deceased's homestead soon after the deceased had his throat slit
with a sharp object. Three days later, he voluntarily and freely told
the deceased's grandmother and grandfather that he had taken part
in the killing of the deceased. At the trial, the appellant did not
proffer any defence. He was contented with proffering a bare denial
as a defence to the charge. The conviction is, in the circumstances,
unassailable.
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 [Cap.
9:97].
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.”
Mr
Sibanda,
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.
Mr
Sibanda,
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 Mr Sibanda'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.
GUVAVA
JA: I
agree
TAKUVA
AJA: I
agree
Webb,
Low & Barry,
appellant's legal practitioners
Prosecutor
General's Office,
respondent's legal practitioners
