On 28 January 2015, the appellant was arraigned before the High Court sitting at Gweru on a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Criminal Law Code”).
The allegations against him were that on 20 September 2013, at Gore Village, Chief Nyamhondo, the appellant had caused the death of Chipochashe Ndlovu, a female juvenile, by forcibly having sexual intercourse with her, and assaulting her all over her body with an unknown object, intending to kill her or realizing that there was a real risk or possibility that his conduct might cause her death.
The appellant tendered a plea of not guilty to the charge. He was convicted of murder with actual intent to kill the deceased and was sentenced to death.
The appellant noted an appeal against the sentence of death only.
However, in view of the death penalty imposed upon him, in terms of the law, an automatic right of appeal lies against both conviction and sentence....,.
The appellant was charged and convicted in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Criminal Code”). That section, which has since been amended to accord with the Constitution, provided as follows:
“47 Murder
(1) Any person who causes the death of another person -
(a) Intending to kill the other person; or
(b) Realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility;
shall be guilty of murder.
(2) Subject to section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], a person convicted of murder shall be sentenced to death unless;
(a) The convicted person is under the age of eighteen years at the time of the commission of the crime; or
(b) The court is of the opinion that there are extenuating circumstances;
in which event the convicted person shall be liable to imprisonment for life or any shorter period.”
On a proper and literal construction, section 47(2) of the Criminal Law (Codification and Reform) Act, as it was prior to the amendment, requires that a person convicted of murder be sentenced to death in terms of section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Therefore, a court which convicts an accused person of murder must have regard to the provisions of section 337 of the Criminal Procedure and Evidence Act to pass a sentence that is in accordance with the law.
In turn, as at the date that the appellant was convicted and sentenced, section 337 of the Criminal Procedure and Evidence Act read in relevant part:
“337 Sentence of death for murder
Subject to section three hundred and thirty-eight, the High Court —
(a) Shall pass sentence of death upon an offender convicted by it of murder:
Provided that, if the High Court is of the opinion that there are extenuating circumstances or if the offender is a woman convicted of the murder of her newly-born child, the court may impose -
(a) A sentence of imprisonment for life; or
(b) Any sentence, other than the death sentence or imprisonment for life, if the court considers such a sentence appropriate in all the circumstances of the case.”
In casu, having found the appellant guilty of murder with actual intent, the trial court invited counsel for the defence and the State to address it in relation to the question of sentence.
The record reveals that counsel premised their addresses on the provisions of section 48 of the Constitution of Zimbabwe Amendment (No.20) 2013.
It is common cause, that, both counsel related their respective addresses to the question of whether or not the murder of which the appellant had been convicted had been committed in aggravating circumstances.
Neither made reference to section 47(2) of the Criminal Law (Codification and Reform) Act (the Criminal Code) or section 337 of the Criminal Procedure and Evidence Act.
Consequently, in passing sentence, the trial court invoked section 48(2) of the Constitution.
As prayed by the State counsel, the trial court exercised its discretion under section 48(2) of the Constitution on the issue of aggravating circumstances. The court was unable to find anything that would justify the imposition of a sentence other than death.
It imposed the death penalty upon the appellant.
At the hearing of the appeal, this court enquired from the legal representative of the appellant and the State as to the appropriateness of the sentence.
The question bedevilling the court was whether or not a trial court can impose a death sentence on a person convicted of murder with actual intent without reference to section 337 of the Criminal Procedure and Evidence Act.
Neither counsel was in a position to assist.
We are indebted to Mr Zhuwarara who successfully applied to assist the court as an amicus curia. He filed detailed submissions on the question posed.
It is not in dispute that section 337 of the Criminal Procedure and Evidence Act constitutes part of the law of this country.
Section 10 of the 6th Schedule of our Constitution has specifically provided for the continuation and efficacy of all laws in existence at the date of promulgation of the Constitution.
It seems to me, that, the trial court was aware that the provisions of section 337 of the Criminal Procedure and Evidence Act were in conflict and inconsistent with section 48 of the Constitution. This section read as follows:
“2 Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of Government at every level, and must be fulfilled by them.
48 Right to Life
(1) Every person has the right to life.
(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and —
(a) The law must permit the court a discretion whether or not to impose the penalty;
(b) The penalty may be carried out only in accordance with a final judgment of a competent court;
(c) The penalty must not be imposed on a person —
(i) Who was less than twenty-one years old when the offence was committed; or
(ii) Who is more than seventy years old;
(d) The penalty must not be imposed or carried out on a woman; and
(e) The person sentenced must have a right to seek pardon or commutation of the penalty from the President.
(3) An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.”
The Constitution is the supreme law in Zimbabwe land and all laws and legislative instruments must be construed in such a way as to give efficacy to the provisions of the Constitution.
The Constitution requires, that, the death penalty may be imposed upon a person convicted of murder committed under aggravating circumstances in terms of a law. However, per contra, the Criminal Procedure and Evidence Act provides for the death penalty unless there are extenuating circumstances surrounding the commission of the offence.
This clearly is in conflict with the provisions of section 48(2) of the Constitution.
In addition, there are a number of inconsistencies apparent in the Constitution and section 337 of the Criminal Procedure and Evidence Act. These are the following:
The Constitution provides, that, the court has a discretion as to whether or to impose a death penalty; section 337 of the Criminal Procedure and Evidence Act is peremptory in its terms, in that a court which is unable to find factors of extenuation must impose the death penalty.
The Constitution provides, that, no court may impose a penalty of death upon a woman convicted of murder; whereas, in terms of section 337 of the Criminal Procedure and Evidence Act, only a pregnant woman is exempted from the imposition of the death penalty.
It is clear, that, section 47 of the Criminal Law (Codification and Reform) Act (the Criminal Law Code) and section 337 of the Criminal Procedure and Evidence Act are inconsistent with section 48(2) of the Constitution.
When regard is had to the provisions of section 2(2) of the Constitution, a court which convicts an accused person of murder can only sentence such an accused person to death in terms of a law which provides for a murder committed in aggravating circumstances.
It is common cause, that, as at 30 January 2015, when the appellant was sentenced, no such law was in place.
Although the trial court made no reference to section 337 of the Criminal Procedure and Evidence Act, it was correct in accepting, that, in view of its inconsistency with section 48 of the Constitution, section 337 of the Criminal Procedure and Evidence Act was invalid and therefore could not be given effect to.
The trial court sought to rely on section 48(2) of the Constitution to pass the sentence of death.
In my view, the court was wrong in simply ignoring the section; it should have made mention of the offending provision and given its reasons as to why it would not sentence the appellant in accordance with the same.
The court a quo, however, completely overlooked the section and went on to sentence the appellant in terms of section 48(2) of the Constitution.
The court was clearly in error as section 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 outs out fundamental rights of a person convicted of murder.
In addition, and most fundamentally, section 48(2) of the Constitution requires that the death penalty be provided for in a law permitting a court to pass sentence for a murder committed in aggravating circumstances. Therefore, it stands to reason that section 48 of the Constitution is not such 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 section 48(2) of the Constitution.
Parliament has now complied with the provisions of section 48(2) of the Constitution.
The General Laws Amendment Act 3 of 2016 has made provision for the amendment of section 47 of the Criminal Law (Codification and Reform) Act (the Criminal Law Code).
Consequently, in so far as the trial court ignored the provisions of section 377 of the Criminal Procedure and Evidence Act in its consideration of the appropriate sentence, the sentence it passed was invalid. The sentence was passed outside the law and cannot stand.
The sentence, therefore, is set aside and the matter is hereby remitted to the trial court for the same to consider sentence in terms of the law.
Accordingly, it is ordered as follows:
1....,.
2. The appeal against sentence is allowed.
3. The sentence of death is set aside and the matter is remitted to the same court for consideration of and the passing of an appropriate sentence in terms of the law.
