The
accused appeared before the court charged with the crime of murder as
defined in section 47(1)(a) of the Criminal Law (Codification and
Reform) Act [Chapter
9:23].
It
is the State's contention that on 12 April 1997, and at Chabvukwa
Village, the accused unlawfully and with intent to kill or realising
there was a real risk or possibility that death might result, struck
Kustera Muyambo with a stick and log all over the body thereby
inflicting injuries from which the said Kutsera Muyambo died.
In
his response to the charge the accused stated that it happened but
that when it happened he was unwell, which culminated in the court
entering a plea of not guilty.
There
being no disputed facts, the trial proceeded with the State and
defence counsels submitting, by consent, a Statement of Agreed Facts
as exhibit 1. Further submitted by consent was an affidavit of
evidence by Dr Walter Mangezi. The affidavit confirmed that the
accused was mentally disordered and required further management in a
long term special psychiatric institution. The post mortem report by
Dr B Dhliwayo, which concluded that the deceased Kustera Muyambo died
as a result of head injury following deep cuts to the head, was also
tendered as exhibit 3 by consent. Finally, in evidence by consent, a
sketch plan by the attending details was submitted as exhibit 4.
The
circumstances surrounding the matter were aptly captured in the
Statement of Agreed Facts…,;
“STATEMENT
OF AGREED FACTS
1.
The Accused is a male adult who ordinarily resides in Chabvukwa
Village, Chief Musikavanhu in Chipinge.
2.
On the 13th
day of April 1997, and at Chabvukwa Village, Musikavanhu in Chipinge
the Accused approached Kutsera Muyambo (the Deceased), who was
working in his fields with his family, with the intention of asking
the Deceased why he was bewitching the Accused person.
3.
The Accused was not satisfied with the response given to him by the
Deceased, and, in anger, he began to assault the Deceased with a
small stick on his back.
4.
The Deceased took the stick from the Accused, after which the Accused
picked up a log and continued to assault the Deceased all over his
body.
5.
The Accused left the Deceased lying in the field, badly injured but
still breathing, to go home.
6.
Upon arriving at his house the Accused decided to return to the
scene, and, upon arrival, he again continued to assault the Deceased
with a log all over his body.
7.
The Deceased attempted to roll away to escape the assault and rolled
down an escarpment where he died after landing on rocks at the
bottom.
8.
The Accused was admitted to Chikuribi Psychiatric Unit following the
commission of the offence that he is being charged with, from 1997 to
2001, after which he was discharged. The Accused was again examined
in 2016 by Dr Mangezi, a duly registered Medical Practitioner
employed as a Psychiatrist. He observed that the Accused became of
sound mind after taking medications for Epilepsy and Mental Disorder.
Dr Mangezi concluded, in terms of an affidavit that he deposed to on
1 December 2016, that the Accused was mentally disordered at the time
of the commission of the offence, but that he was now fit to stand
trial.
9.
The Accused cannot properly be found guilty of murder as he lacked
the requisite mental capacity at the time of the commission of the
offence and should be appropriately dealt with in terms of the Mental
Health Act [Chapter 15:12].
10.
Dr Walter Mangezi recommended that the Accused be managed in a long
term special psychiatric institution to assist in his rehabilitation
and anger management.”
Given
the evidence presented we found no reason to disagree with both the
State and defence counsels' position. We were moved to act in terms
of the Mental Health Act [Chapter
15:12].
Given
the accused's stated mental condition we agreed to return a special
verdict of not guilty because of insanity.
As
regards the accused's fate after the special verdict; again, as
correctly observed by both the State and defence counsels who
addressed us, we found no basis and justification for discharging the
accused person. This is moreso when one considers the specialist
doctor's opinion that the accused still requires assistance to
manage this mental condition. The accused requires management and
rehabilitation at a psychiatric institution. It is our considered
view that it is in the interests of the accused, and society at
large, for the court not to prematurely release the accused.
In
the circumstances of this matter, the institutionalization of the
accused for further treatment and management is viewed as a
protective measure that ensures the accused, and community at large's
safety while the interests of administration of justice is also
safeguarded. See S v Sonaiso Donald Khumalo HB61-06; S v Zvoushe
HB28-13; and also S v Pretty Mutunga HH23-13. The
institutionalization is an administrative measure which will enable
his further management and release at the appropriate time by the
Health Review Tribunal or other competent body as provided for by the
Mental Health Act.
Accordingly,
having returned a special verdict that the accused is not guilty
because of insanity, and having found that the accused still requires
institutionalization for further treatment and management, it is
ordered that:
1.
The accused is not guilty because of insanity.
2.
The accused be returned to prison for transfer to Chikurubi
Psychiatric Unit or such other appropriate institution for his
continued treatment and management until discharged therefrom by a
competent body.
