This
matter is a matricide matter. A son killed his mother. The material
facts in this matter are not in serious dispute. They may be
summarised as follows;
In
2006, the accused consulted his mother, the deceased in the present
case, about his settled intention to marry. She denied him this
right. This, according to the accused, was the genesis of his
troubled relationship with his then estranged and now deceased
mother. She had made it abundantly clear that he was to live in
bachelorhood for his entire life. In 2012, the accused decided to
marry against his mother's cherished wish. She remonstrated with
him and demonstrated her displeasure by absenting herself from the
traditional ceremony to welcome a daughter-in-law. The problems
persisted in the manner which he outlines both in his confirmed
warned and cautioned statement, his Defence Outline, as well as his
evidence-in- chief.
The
case against the accused was woven around his own statement to the
police recorded two days after the death of his mother. That
statement was duly confirmed by the magistrate on 19 May 2014 some
five days after he killed his mother. It is important to quote his
statement in extensor in order for the defence put forward to be
understood in its proper context. He says:
“I
do admit the charge levelled against me. The reason for this is that
the parental bondage between me and my mother had broken down because
of problems between the two of us. When I got married in 2012, my
mother ran away from her duty of welcoming her daughter-in-law….,.
Three days after my marriage I suffered an erection dysfunction (sic)
and when I told her she said it was a spiritual issue and I had to go
and consult prophets and traditional doctors for solution. She
refused to accompany me to seek remedy saying I had not followed her
wish that I should not get married and she was not my mother. I asked
her that if she was not my mother could she tell me where my real
mother was but she kept quite (sic).I
then consulted a number of local prophets and traditional doctors who
all pointed out that my mother was the source of all my troubles
because I should have not married and she was using me as her
spiritual husband. That did not surprise me because most of the time
I used to dream of making love to her. I did not confront her for a
while as I was gathering the courage. After a while I had the courage
and I asked her about what the prophets had said and she denied
having anything to do with my problems. I exchanged words with her
and she had to report me to Nyanga Police….,. I was acquitted due
to lack of evidence since there was no independent evidence to
substantiate my mother's claim that I had verbally assaulted her
whilst pointing her a finger. I then left my mother's homestead and
went to lodge at Clive Melinda's homestead….,. Even though I had
left my mother's homestead, we continued to have squabbles and I
had to go to Watsomba sometime in 2013 to inform my uncles about the
persistent problems between me and my mother. My uncle, baba wa
Nyasha, and another who I only know as Longchase advised me to retain
(sic)
home and they promised to come and help solve our problems.”
He
gives an insight into another possible source of problems between him
and his mother on the same page where he states:
“In
January 2014 my niece, Tinashe Lapoyo, phoned from Banket informing
me that my mother was not giving him and his siblings their 50% share
of the money which was realized from their father's house rentals.
Tinashe Lapoyo is my late sister's son whose father is also late
and the house of his parents, which is in Norton, was being
administered by my mother. Tinashe had been complaining that my
mother was abusing the money without giving them their share. I told
my mother what Tinashe had said and she said that she could only
discuss this with the bigger Lapoyos. In April 2014 I went to Banket
to look for the Lapoyos and I found Sekai Lapoyo who is a sister to
my late brother-in-law and I brought him to my mother's homestead
to solve the issue of how the rentals of her brother's house was
going to be managed (sic). Sekai Lapoyo, my mother held a meeting and
we agreed that Tinashe Lapoyo was not supposed to get anything since
he had refused to go to school. The money was supposed to be used to
support Upenyu Hamunakwadi, my late sister's child, who she sired
from her previous marriage before she was married to Lapoyo and Best
Lapoyo who are still going to tertiary school. In April 2014, Upenyu
Hamunakwadi was given US$200= meaning that in May 2014 Best Lapoyo
was supposed to be given the same amount. In May 2014 my mother said
that she had lost details of Best's bank account and she had sent
Best Lapoyo's money through Upenyu's account. When she was later
informed by Best that Upenyu had squandered his money she began to
cry and in a few days she became sick possibly due to depression…,.”
Getting
closer to the day of this evil deed he goes on in his own words which
were not translated by anyone into English:
“On
the 11th
May 2014 she was discharged from hospital and she passed through my
homestead on her was (sic)
to fetch some water and I welcomed her. On the 14th
May 2014 I was passing through my mother's homestead proceeding to
my friend Wonder Mudiwa's homestead when I saw my mother's niece,
Mai Emily Mhlanga, whom I had a confrontation with at Nyanga Hospital
because of her refusal to let me use my mother's phone to phone a
relative had visited (sic).
I then went to her and asked her to explain to me why she behaved the
way she did at the hospital. Before she could say any word, my mother
interjected and told me that I should leave her alone and she regrets
to have me as a son. I then pushed my mother into a granary hut and
closed the door and chased her niece, Mai Mhlanga, from my mother's
homestead. When I came back from chasing Mai Emily Mhlanga I was just
cross and that is when committed this horrific act. I went into the
main house and took a nylon cloth belt and told her that today was
the end of our wars as I was going to kill her. She then fell to the
ground facing down possibly frightened by what I had just said. I
then used the belt to strangle her whilst pressing her down with my
knees. I then set on top of her still choking her with the belt until
she died. I then left her like that, got out of the hut and closed
the door. I proceeded to my homestead where I found my wife at home.”
He
went on to describe how he had attempted to leave the area but failed
in this bid when he could not raise the bus fare for the trip. He
went on to give detail of how he kept his wife unaware of his dark
deed by pretending to escort his visitor away from home then
surreptitiously finding his way back to his mother's homestead in
order to put final touches to this horrible act and make it look like
his mother had committed suicide. He first went into the granary and
covered his mother's body with a cloth and a tent. He went to pass
time with friends but then noticed that the persistent Mai Mhlanga
and two others were back at the deceased's homestead looking for
the deceased. He asked her why she had not gone to report him to the
police as she was wont to do. She had no bus fare, she said. The
ladies asked him where his mother was. He lied that he had seen her
going towards her garden. They then left. Later, to his wife, he
created a false visit to a neighbour as a means to find his way back
without arousing his wife's suspicions. He described his final act
in trying to stage-manage a suicide in the following terms:
“…,
and proceeded to my mother's homestead around 1900hours. I
proceeded to the granary hut where I carried the body of my mother
and took it into her bedroom. I carried it on my shoulder and as I
was about to enter her bedroom I removed the body from my shoulder
put it in my arms and rested whilst supporting its weight with my
legs. I rested for a few seconds and thereafter entered the bedroom.
I then took the belt I had used to strangle her with and tied it on
her neck. I took a trunk and placed her body and tried to lift her
body toward the beam but failed because of the low height of the
trunk. I then went to the dining and took a kitchen cupboard and then
place her body on top of the cupboard and put the belt around the
truss. I lifted the body being supported with the cupboard and tied
the belt to the beam. After that I removed the trunk and left the
body hanging. I had a hard time in doing all this but this was the
only thing I could have done in trying to cover up on what I had
done.”
In
his Defence Outline, prepared with the assistance of his legal
practitioners, the accused makes no mention of the little fight over
the rentals revenue stream between him and his mother. He dwells a
lot on his so-called erectile dysfunction whose effects to us
remained obscure in light of the fact that within a year of his
marriage they were blessed by a child. The witnesses who testified in
court were unable to confirm the allegations of witchcraft against
his mother nor were they aware that he had made such claims against
his mother during her lifetime. His defence was that he had killed
his own mother as a result of cumulative emotional, psychological and
mental pressure coupled with a high degree of provocation. I will
proceed to deal with the last defence, provocation, and revert to the
other defences put forward by the accused.
In
our assessment of the evidence placed before us there is no doubt
that the accused believed, rightly or wrongly, that his mother was
responsible for all his misfortunes, real or imagined.
The
witchcraft provocation defence
The
Criminal Law (Codification & Reform) Act [Chapter
9:23]
(“the Criminal Law Code”) has codified the Zimbabwean common law
position regarding provocation as a defence.
Section
239 of the Criminal
Law (Codification & Reform) Act [Chapter
9:23]
sets out the circumstances under which provocation can successfully
be raised as a partial defence to a charge of murder.
Section
238 of the Criminal Law Code provides that provocation shall not be a
defence to crimes other than murder. Section 239 then elaborates when
it may be a partial defence to the crime of murder. It is a partial
defence, if, after being provoked, and as a result of provocation,
the accused does not have the intention or realisation referred to in
section 47 or; although the accused has the intention or realisation
referred to in section 47 but has completely lost his self-control in
circumstances where the provocation was sufficient to make a
reasonable person lose his or her self-control. Then, in those
circumstances, the charge of murder will be reduced to culpable
homicide.
Put
differently, if a court finds that a person charged with murder was
provoked but what he did here the intention on realisation referred
to in section 47 or the provocation was not sufficient to make a
reasonable person in the accused's position lose his self-control
the accused shall not be entitled to a partial defence in terms of
section 239(1) but the court may regard the provocation as mitigatory
only.
The
question then arises whether, when the accused says he was provoked
by his mother's practice of this dark art, the court ought, in the
peculiar circumstances of this case, to accept that as a partial
defence in terms of the Criminal Law Code.
Witchcraft
and the law are different arts; the former residing in the realms of
cultural norms and the latter in legal norms. When legal norms and
cultural norms conflict, the law must resolve the conflict.
Many
cultures across Africa embrace traditional healers and a persistent
belief in witchcraft. The African concept of a witch does not
encompass the potentially benign Wiccan or Pagan which, in some
western countries, enjoy the status of an alternative religion. To
the contrary, there is little redeeming about African witches who,
through sheer malice, either consciously or sub-consciously employ
magical means to inflict all manner of evil on their fellow human
beings. Someone is either born a witch or can learn witchcraft from a
traditional healer.
The
attempts of the common law courts to address witchcraft-inspired
violence differed markedly from the suppression tactics of the
various legislative initiatives. Whereas legislation recognises the
widespread violence and seeks to curtail it, the criminal law has
often recognised the belief that gave rise to the violence and carved
out a witchcraft-provocation defence that could be offered as a
mitigating factor in cases of witchcraft-related violence.
Under
this theory, accused persons could reduce their crimes or punishments
upon proof that they believed they, or persons under their immediate
care, were being bewitched and that this belief caused them to
temporarily lose self-control. In some ways, this theory provides
tacit recognition that in certain communities killing a “witch”
is not merely explainable, or excusable, but praise worthy.
In
our jurisdiction, in 2006, the Witchcraft Suppression Act was amended
to legalise accusations of witchcraft and to allow the State to
convict a person and punish her when it deems witchcraft harmful. See
CHANDRA
KUMAR
“Witches,
Witch Doctors and Men of Reason” Mail & Guardian Online
September 11 2006 on http://www.mg.co.za).
There
is a thread of cases, both in our jurisdiction as well as in South
Africa, which show a vacillation between the recognition of
witchcraft and a willingness to aid the suppression of the belief in
witchcraft. This takes the form of treating the belief as only
mitigatory but only as affecting the element constitution a defence
to a charge.
In
my respectful view, at least the basic elements required for a
successful defence of witchcraft provocation should be;
1.
The act causing death must be proved to have been done in the heat of
the passion, that is in anger; fear alone, even fear of immediate
death is not enough.
2.
The victim must have been performing in the actual presence of the
accused some act which the accused genuinely believed and which an
ordinary person of the community to which the accused belongs would
generally believe, to be an act of witchcraft against him or another
person under his immediate care.
3.
A belief in witchcraft per
se
does
not constitute a circumstance of excuse or mitigation for killing a
person believed
to be a witch or wizard when there is no immediate provocation act.
4.
The provocation act must amount to a criminal offence under criminal
law.
5.
The provocation must be not only grave but sudden and the killing
must have been done in the heat of passion.
See
Eria
Galikuwa v Rex
1951 (1) E. Afri Court of App 175…,; an appeal case from Uganda.
Where
this criteria is met, the court in other jurisdictions have
considered and accepted the witchcraft provocation defence as long as
it can be shown that the accused killed in the heat of passion. See
John
N Rudowiili v Redubliz
1991 TLR 102 (CA).
In
that case, the Tanzania Appeal Court reduced the accused's capital
murder conviction to manslaughter with a 12 year prison sentence
after considering the accused's mitigation plea based in the
defendant's belief in witchcraft. The accused had axed his
grandfather to death after the latter had allegedly threatened to
kill the accused through witchcraft. These cases also in a way
introduce the concept of anger as being intertwined with provocation.
In my respectful view, provocation and anger are different concepts
just as cause and effect are.
In
criminal law, the term provocation seems to be used to include both
concepts thereby throwing light on the accused's conduct. Thus,
when considering the phrase “in the heat of passion” a court is
assessing the subjective frame of mind which has triggered the act.
The
concept of provocation indicates a situation in which the provoker
elicits anger or wrath of the provoked by means of a challenging or
defiant behaviour, and the latter, in reaction to the provocative
behaviour, commits a criminal act. See S
v Mokonto
1971 (2) SA 319 A.
Legally,
the emotional response of the victim to the assaulting or provocative
words or conduct is relevant. When a person has been provoked, anger
and rage are the predominant emotions that are experienced.
We
have considered the accused's defence throughout this grim and
macabre episode. We have scrutinized his own description of the
events leading up to the killing of the deceased. We were unable to
find that she had in any way provoked him in the plain and ordinary
meaning of this word. He did not act in the “heat of passion”
which would have resulted in loss of self-control as would prevent
him from formulating the requisite intention or to realise the risk
involved in the act constituting the crime charged. On his word, the
accused planned the timing of the execution of his mother. He chose
the method of killing her. He knew that there would be relatives who
would visit her to check upon her as she had recently been discharged
from hospital. He planned on how to deal with that too. He did not
want his wife to know what he was determined to achieve and
effectively deflected her by various ploys. He casually announced his
decision to kill her causing his victim to pass out, probably in
shock. He then proceeded to strangle her in a most crude fashion
instantly and mercilessly killing her as he had intended.
His
belief in witchcraft played no part in this chilling murder.
The
accused wanted his mother out of the way so that he remains the only
person in charge of the two deceased estates of his late father and
late sister.
Put
in another way, we find that the accused did not react to an act of
provocation; plain or witchcraft-provocation. He carefully planned
this murder and executed it with cold blooded precision feigning
suicide at the end of it all to deflect attention from himself.
There
is a small issue of the two estates which his mother was the
executor. These revenue streams from his late father and sister, in
our view, provided sufficient motive to wish his mother out of the
way so that he is left in physical control of the estates. This, in
our view, explains why, despite his belief in witchcraft, he remained
physically closely connected to his mother in spite of the advice
from his uncles that he should migrate to a more distant location
from his mother.
In
the end, we are satisfied, by his own admission, that when he
announced to his mother that he had decided to end the war between
him and his mother on 14 May 2014, by killing her, he was genuinely
announcing his true desire and intention to kill.
He
was under no emotional stress when he planned to kill her over time;
it cannot be argued with any conviction that he was suffering from
some mental disorder which induced in him non-pathological criminal
incapacity as a result of emotional stress. The defence of witchcraft
provocation appears to be a carefully engineered ploy to raise a red
herring to deflect this court from making a finding regarding his
true state of mind. We are convinced that the detail reflected in his
warned and cautioned statement correctly reflects a perverted mind
rather than an emotionally psychologically stressed mind. This is the
reason why, in our view, there is no mention of the two deceased
estates in the Defence Outline as well as in his evidence in chief.
So carefully rehearsed in his mind was this defence that counsel for
the State failed to pursue this aspect during cross-examination. Even
if it were to be assumed in his favour that his belief in witchcraft
played a part in prompting him to kill his mother, the act causing
death was not done in the heat of the passion. His victim was not
performing an act which the accused genuinely believed and which an
ordinary person of the community to which he belongs would generally
believe to be an act of witchcraft against him or another person
under his immediate care. She was going about her normal domestic
chores when the accused announced to her that her time on earth was
up since he had resolved to end their wars by killing her.
We
find that when he tied his mother with the nylon belt, he intended to
kill her by that means. He was not reacting to anything her mother
had done or said. He was not angry but determined to carry out a
well-planned plot kill her.
He
is therefore found guilty of murder as defined in section 47(1)(a) of
the Criminal Law (Codification and Reform) Act [Chapter
9:23].
