SENTENCE
MAWADZE
J:
Both
accused were initially charged with the crime of murder as defined in
section 47(1) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23].
The State and the defence found each other and the matter proceeded
by way of agreed facts. Consequently, both were convicted of
culpable homicide as defined in section 49 of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
In
brief are the agreed facts are as follows:-
The
53-year-old accused 1 and 27 years old accused 2 resided in the same
Mandivenga village, Chief Mukanganwi, Bikita, Masvingo with the
50-year-old now deceased. The now deceased was accused's cousin and
an uncle to accused 2.
On
19th
July 2013 the accused persons and the now deceased were drinking
traditional beer at Chenjerai Tichaenzana's homestead at about 0700
hours. At about 1600 hours the now deceased, who apparently was
believed to be practising witchcraft, told accused 2 that accused 2
should not marry as the now deceased wanted accused 2 to take over
the now deceased's tools of trade relating to witchcraft and to be
in control of the whole family. Accused 2 was unimpressed and
advised accused 1. Both accused persons then asked the now deceased
to go with them to their home to discuss what the now deceased had
said. The now deceased refused but insisted he would not reverse the
pact he had made with the underworld in relation to accused 2. This
infuriated accused persons who proceeded to assault the now deceased
with fists and a switch. The now deceased fell down but the assault
continued until the owner of the homestead ordered the accused
persons and the now deceased to leave his homestead. The three of
them left and the now deceased was later found unconscious by the
road side at about 1808 hours. The now deceased was rushed to
hospital as his condition worsened and he passed on the next day on
20 July 2013.
As
per the post mortem report by Doctor Zimbwa, compiled on 23 July
2017, the now deceased had the following injuries;
(i)
multiple bruises and whip lash marks on lower limbs and trunk.
(ii)
multiple haematomas and injuries on the head and face.
(iii)
dislocation of the right sternoclavicular join.
The
cause of the now deceased's death was severe head injury.
In
assessing the appropriate sentence we shall consider both the
mitigatory and aggravating features in this case.
The
mitigatory factors were outlined with consummate skill and tenacity
by Mr
Ndlovu
for the accused persons. He canvassed virtually every aspect of this
case and prayed that we impose a fine coupled with a wholly suspended
sentence or at worst that we impose community service. Indeed, we
were cuddled and persuaded by Mr Ndlovu in a very remarkable and
impressive manner.
In
arriving at this appropriate sentence we did consider the personal
circumstances of both accused persons. These include, inter alia,
their ages, marital status, employment status and their dependants.
We note that accused 1 is much older as compared to accused 2.
Accused 2 is still single with no family responsibilities. He is also
unemployed. On the other hand accused 1 is married with 7 children
and is employed at Glen View Home Industry in Harare as a carpenter
realising monthly income of US$30. None of the accused persons has
any meaningful assets or savings. Despite these differences we find
no rational and objective basis to treat the accused persons
differently in respect of sentence as they are both adult men and
their moral blameworthiness is the same.
It
is in accused persons' favour that they are both first offenders.
To that extent they deserve to be treated with some measure of
leniency. They have the potential to reform and can only be sent to
prison if it is necessary. Our prisons are currently overpopulated
and we take judicial notice of the Government's intention to reduce
this over-ballooning prison population by granting Presidential
amnesty to some of the prisoners. Indeed, there are no resources to
fend adequately for the prisoners and judicial officers should be
alive to such constraints and challenges. This means that prison
sentences should be imposed sparingly and as a last resort only in
deserving cases.
It
is a fact that there has been a delay of 4 years in finalising this
matter despite that the accused persons were not denying the charge
of culpable homicide. The blame lays squarely on the shoulders of the
State which inexplicably believed a more serious charge of murder was
warranted. It is prudent for the State to always carefully consider
such cases and ensure that justice is not delayed to the prejudice of
the accused persons. Besides ensuring that the rights of accused
persons are protected such cases are low hanging fruits which reduce
the backlog of cases. In casu both accused persons cannot be blamed
for this inordinate delay. They both religiously attended the remand
court in Bikita for 4 years incurring expenses. They could not plan
their future without knowing how this matter would be finalised.
Their lives were put in a freezer as it were. As an example accused 2
may well have decided not to marry for fear that if he did he may
nonetheless leave the wife after being incarcerated. While the
pre-trial incarceration of one month which the accused persons
suffered is insignificant, the delay of 4 years is an important
factor.
There
are indeed mitigatory circumstances surrounding the commission of
this offence.
While
in terms of section 221(2) of the of the Criminal Law (Codification
and Reform) Act [Chapter
9:23]
voluntarily intoxication is not a mitigatory factor in assessing
sentence on an offence involving negligence (I am still to be
educated why this is the case) we nevertheless cannot close our minds
to the fact that the accused persons and the now deceased were
drinking beer from 0700 hours until 1400 hours when this tragic
incident happened.
What
is indeed mitigatory is the accused persons' belief in witchcraft.
Our law as outlined in PART V1 of the of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
Sections 97–102 in my view recognises the existence of witchcraft.
In fact, in terms of section 101 of the same Act the belief in
witchcraft should be taken as a mitigatory factor in assessing
sentence.
The
accused persons believed that the now deceased practised witchcraft
and blamed him for deaths in the family. The now deceased did not
help the situation on this day as he seemed to reinforce this idea in
the minds of the accused persons. To that extent he was the author of
the misfortune which befell him. Allied to this fact is that it is
the now deceased who provoked accused persons especially accused 2
initially.
We
remain mindful of the fact that the accused persons did not use any
dangerous weapons besides their fists and switch. The fact that the
accused persons are responsible for the demise of their own relative
will indeed haunt them for the rest of their lives. The stigma in the
eyes of the public that they have the now deceased's blood in their
hands will forever be attached to them.
It
is a mitigatory factor that the accused persons paid 2 head of cattle
and a goat as compensation to the now deceased's family. While this
cannot be equated to the value of the precious life which was
needlessly lost, it is nonetheless in line with our african custom
and practices.
Having
outlined these mitigatory factors we remain mindful of the fact that
the offence of culpable homicide arising from violent conduct remains
a very serious offence. Invariably it should attract a custodial
sentence unless there are special mitigatory factors. Society should
always be encouraged to resolve disputes in a non-violent manner and
should know that violence is not a panacea to whatever problems one
may face. The bottom line is that no person has a right to cause the
loss of life of another unless in circumstances permitted by the law.
The sanctity of human life should be respected at all times.
In
our view there was no need for the accused persons to have resorted
to such violence on the day in question after the now deceased had
refused to go with them to their home. There were other lawful and
acceptable means accused persons could have employed to solve this
dispute rather than violence. They could have sought the involvement
of fellow clan members or the traditional leaders especially when
they would be in their sound and sober senses.
The
fact of the matter is that this was a gang assault involving two
physical fit people. Severe force was used as the now deceased lost
consciousness and died the following day despite being taken to
hospital. The assault itself was indiscriminate judging by the
injuries reflected in the post mortem report. It was also prolonged.
The now deceased sustained multiple bruises on the limbs, trunk, the
head and face. The accused persons also targeted the head which is a
vulnerable part of human anatomy. As a result death resulted from the
severe head injury inflicted.
We
would have agreed with Mr
Ndlovu
if death arose probably from a single blow with a fist during a beer
brawl. In that case a fine or community service would be appropriate.
The
degree of negligence by accused persons in this case is very high.
The level of their moral blameworthiness warrants punishment with a
custodial sentence. The resultant sentence should however reflect the
genuine mitigatory factors in this case.
In
the result we believe the following sentence meets the justice of
this case.
Each
accused is sentenced to 3 years imprisonment of which one and a half
years imprisonment is suspended for 5 years on condition each accused
does not commit within that period any offence involving the use of
violence upon person of another for which each accused is sentenced
to a term of imprisonment without the option of a fine.
The
effective term of imprisonment is one and half years for each accused
person.
National
Prosecuting Authority, Counsel for the state.
Ndlovu
& Hwacha, Counsel for both accused.
