MAFUSIRE
J:
Accused
2, Richard Makuchete [“the
accused],
aged 25 years at the time, was one of three brothers arrested for the
murder of their cousin, Zvinowanda Zvinowanda [“Deceased”].
The murder happened in rural Masvingo under Chief Chikwanda. By the
time of trial only the accused was available.
The
allegations were that on 10 May 2014, following a beer drink, the
accused and his two brothers, or one or other of them, unlawfully
caused the death of Deceased by striking him with knobkerries and a
slasher all over the body, intending to kill him or, despite
realising the real risk or possibility that their conduct might cause
death, continued with it.
The
accused pleaded not guilty.
The
State called six witnesses. Four gave viva
voce
evidence. The other two, who included the doctor who conducted the
post mortem examination on Deceased, had their evidence admitted by
consent.
The
first and, obviously, the star witness for the State was Edward
Zvinowanda [“Edward”].
He was Deceased's brother. On the day in question he and Deceased
were drinking traditional beer at a certain homestead. The accused
and his two brothers were also drinking there, but not together with
Edward and Deceased. At some stage, Bernard Makuchete [“Bernard”],
aged 21 years, the youngest of the three brothers, stood up from
their drinking place, approached Edward and Deceased and provoked a
fight. He accused Edward of having assaulted him previously. In court
Edward said that that incident had happened way back in 1989 when
both he and Bernard were still youngsters.
We
note in passing that from 1989 to 2014 it was twenty-five years. So,
if Bernard was twenty-one years old at the time of the offence, then
in 1989 he had not yet been born. However, Edward was not categorical
that the incident had happened in 1989. It was purely an estimate
that he gave when pressed by Counsel.
Back
to the fight.
Bernard
slapped Edward twice. The two started fighting. The accused and the
third brother, Rabson Makuchete [“Rabson”],
aged 23, joined on Bernard's side. Deceased, who at 44 years old
was the oldest of the lot, intervened and quelled the fight. Bernard
turned on him. He accused Deceased of having destroyed his first
marriage by snatching his first wife. He also accused Deceased as the
author of the continuous misfortunes in his life.
In
court it transpired from the testimonies of Edward, Deceased's
wife, Tecla Matema [“Tecla”],
and even the accused himself, that the incident relating to Deceased
allegedly having had an affair with Bernard's wife had been almost
a decade old. Edward said it was 2007. Again we note that then
Bernard would have been only about fourteen years old. But again
Edward was just estimating.
The
brawl eventually died. But the accused and his brothers continued to
scold Edward and Deceased. The accused in particular, said omniously
that it was not the end of the matter. Edward and Deceased decided to
leave. The time was around 15:00 hours. The accused and his brothers
followed them. At Deceased's homestead the three milled around the
edge of the fields shouting. Deceased invited them inside the house.
He wanted them to discuss and resolve the issue amicably, seeing that
they were all members of the same family. These two sets of brothers
were first cousins. Their respective fathers had themselves been
brothers.
The
three accused persons refused to enter Deceased's house. Later on
they left for their own homes. Deceased, Edward and their wives had
supper together with another cousin, Munyori Zvinowanda [“Munyori”],
who had called on them. Munyori was the other State witness whose
evidence was admitted by consent.
After
supper Deceased and Edward walked Munyori to his own home. The time
was now around 19:00 hours. There was plenty of moonlight. The three
used a footpath that passed through the accused's homestead. On
their way back, the accused and his brothers confronted Deceased and
Edward. The three were all armed with wooden knobkerries. Each of
those knobkerries comprised a 10 to 12cm long head and a shaft about
90cm to a metre long. In addition, the accused was armed with a metre
long metal slasher with a rubberised handle. The slasher was angled
at the tip.
With
no prior ado the accused struck Edward on the top of his head with
the knobkerrie with so much force that it immediately snapped. The
accused turned to the slasher. He struck Edward between the eyes.
Edward fell down. The accused turned to Deceased, He struck him twice
with the slasher. His two brothers joined in. Together they randomly
struck Deceased with their knobkerries and the slasher all over the
body. Deceased fell down. They continued to assault him until he went
limp. They had been at him for about 10 minutes. Meanwhile, Edward
lay bleeding some six to eight metres away. But he said he could
observe everything.
Tecla
and Vimbai Sithole, Edward's wife [“Vimbai”],
had crawled out of their hiding place in the maize field and had
silently encroached closer to the scene. Bernard noticed them. He
chased after them but failed to catch up with them. He came back and
ordered Edward to carry Deceased home. Deceased was lying face down,
lifeless. Edward was himself in no state to lift Deceased on account
of the assault on his own person. He staggered to Deceased's
homestead and found both Tecla and Vimbai waiting. Upon telling them
that Deceased had died, Tecla started wailing. The noise attracted
other villagers. They congregated at Deceased's homestead.
Eventually Edward was ferried to hospital where he was admitted for
two days. A report was made to the police. They came immediately. But
all the accused persons had fled. However, they were all apprehended
four days later at their uncle's homestead in another chiefdom.
Edward
said all the three accused persons were subsequently tried in the
Magistrate's Court for the attempted murder of himself. He said he
gave similar evidence. But he did not know the exact outcome of that
case, save to say that the accused was sent back to custody and his
two brothers released.
The
next State witness was Tecla. The material portions of her testimony
were that she witnessed the assault of both Edward and Deceased from
start to finish. Together with Vimbai they had crawled to the edge of
the maize field near the accused's homestead. They had been
attracted by the noise of the struggle. Amid a mixture of thuds,
shouts and swears the accused's voice was the sharpest and most
dominant. The accused was making constant reference to the Deceased
having taken Bernard's first wife. He was saying Deceased was going
to pay for it that day.
Tecla
said when she married Deceased, the issue of his having taken
Bernard's first wife had been talk of the village. She had no
first-hand knowledge of it. She had heard that the wife in question
had been questioned about it by a village court but that she had
completely denied any affair with Deceased.
Tecla's
testimony corroborated that of Edward virtually in all material
respects. She stressed that at no stage did Deceased try to retaliate
or defend himself, a detail that Edward had also mentioned. From
their evidence, it seems when the first blow caught him, Deceased's
one hand was still inside his trousers' pocket. He must have died
like that because when the body was examined the following morning,
the hand was still inside the pocket.
The
only slight difference between Edward's testimony and that of Tecla
was on who, of the three accused persons after they were done
assaulting Deceased, had chased after Tecla and Vimbai. Edward said
it was Bernard who had chased them both. But Tecla said it was the
accused that chased after her, with Bernard chasing after Vimbai.
However, this difference is of no significance.
As
said before, the summary of Munyori's evidence was admitted without
objection. He had been at the beer drink on the day of the fight. He
witnessed the first brawl from start to finish. His evidence on it
corroborated that of Edward in all material respects. It was also the
same with his evidence on the issue of their having had supper at
Deceased's home and the walk to his own home. The extra detail in
Munyori's testimony that was not, and naturally, could not have
been in those by Edward and Tecla, was that after Edward and Deceased
had accompanied him to his own homestead, he had received a phone
call from yet another of their cousins, Ishmael Zvinowanda
[“Ishmael”],
at around 23:00 hours. Ishmael informed him of the attack on Edward
and Deceased. Munyori had rushed to the scene. He had found Deceased
lying on the side of a footpath near the accused's homestead.
Munyori inspected the body. He observed several deep scalp wounds.
Part of the head was covered with blood. The blood was coming from
the mouth and nostrils. He also observed three knobkerries and a
slasher beside Deceased's body. One of the knobkerries was broken.
The police arrived at the scene around 03:00 hours the following day.
The
next two State witnesses were police officers, Sergeants Rashweth
Mutaki [“Rashweth”]
and Last Zimbandi [“Last”].
Rashweth was the investigating officer. Last, the last State witness
to give viva
voce
evidence, was part of the team of police details that arrested the
three accused persons.
Material
portions of the evidence of the police witnesses was that after the
accused persons had been arrested and had been brought back to the
scene of the crime, Rashweth asked each of them to pick the
respective weapons that they had used to assault Deceased. The
accused picked the broken knobkerrie and the slasher. Bernard and
Rabson each picked a knobkerrie.
The
next relevant aspect of the evidence of the police witnesses was on
the recording and confirmation of the warned and cautioned
statements. Rashweth had led the way. Last had witnessed the process.
The State went into some detail on how the statements had been
recorded because the accused seemed to be challenging some aspects of
his statement.
From
the police witnesses' evidence, the three accused persons' warned
and cautioned statements had been recorded at the police station at
Muchakata, some two days after their arrest. Two sets of statements
had been recorded from each of the accused persons. One set related
to the charge of attempted murder in relation to Edward. The other
set related to the charge of murder in relation to Deceased. The
accused had properly been warned and cautioned. He had opted to write
down his statement in Shona. It had been translated to English. It
had been read back to him. He had agreed with it. He had then signed
it freely and voluntarily without any pressure having been brought to
bear upon him, or any promises having been made to him. Some six days
later, i.e. on 16 May 2014, the accused's statement had been
confirmed by a magistrate at Masvingo Magistrate's Court.
It
transpired from the police witnesses that Bernard and Rabson had
challenged their warned and cautioned statements in relation to the
charge of attempted murder. As a result those statements had not been
confirmed. The confirmation process had been carried out at the same
time in respect of all three.
It
also transpired that all the three accused persons had been charged
with attempted murder in the Magistrate's Court. But none of the
police witnesses was quite sure what the final outcome of the case
had been. In the present trial, none of the weapons used in the
commission of the offence was produced as exhibits. The police
witnesses said they had been the same weapons produced in the
attempted murder trial. Apparently after the conclusion of the
attempted murder trial it was not realised that the same weapons
would be relevant exhibits for the current trial. They had been
destroyed on the orders of the court.
The
last State witness, but whose evidence had been admitted without
objection, was Dr T. Nyasha, a medical practitioner. From his post
mortem examination of the body of Deceased he concluded that the
cause of death had been head injury. The post mortem report recorded
deep cuts on the forehead and bruises on the chest.
That
was the State's case.
The
accused gave evidence. He would admit only such evidence as was not
directly incriminatory, and deny everything else. He claimed all the
State witnesses had lied against him in order to secure a conviction
simply because he was the only one that was in the dock.
The
accused was largely incoherent. He admitted the evidence of the first
brawl at the beer drink. But he denied that Bernard had provoked it.
Instead, he said it was Edward who had stood up from his drinking
place to go and slap Bernard. Bernard had retaliated. Edward had been
overpowered. He had then produced an Okapi knife intending to stab
Bernard. Deceased had intervened and stopped the fight. The accused
denied he and Rabson had joined the fight on Bernard's side, or at
all. The accused said Deceased and Edward were chased away from the
beer drink by some village heads who had been around.
Next,
the accused admitted the fight with knobkerries at the edge of his
homestead between him and his brothers on the one side, and Deceased
and Edward on the other. But he completely denied having ever
assaulting Deceased or in any way having engaged him in any violent
physical contact.
The
accused's version of events, as far as we could make out from the
rumbling incoherence, was materially different from that of the State
witnesses. He maintained that in the evening fight, Deceased was
assaulted by Bernard and Rabson. For him, the only person he ever
fought with was Edward. Edward had been the aggressor. He had come
banging at his door demanding that he should come out or else he
would burn down the house. The accused was lying inside with his
wife. Edward was armed with a knobkerrie. At first the accused
ignored Edward's violent knocks. Later he observed that Edward, who
was using his cell phone light, had moved away to Rabson's
compound. The accused then came out of the hut and ran to Bernard's
place. His reason for going to Bernard's place was to inform him
that the people that he and Rabson had fought with earlier on in the
day had come bothering him at his house. Bernard had to come and deal
with them himself.
The
next lucid detail in accused's testimony was on the actual fight.
He said he and Bernard came back together. They ran into Deceased and
Edward. Edward slapped him on the face. They started fighting using
knobkerries. At that time Deceased, Bernard and Rabson also arrived.
They also started fighting using knobkerries, Deceased on one side,
and Bernard and Rabson together on the other. At some stage Edward
stabbed the accused at the back with an Okapi knife, inflicting a 2cm
deep wound.
It
was not altogether clear from the accused's testimony how his fight
with Edward eventually ended. He did mention a slasher. But he denied
it had been his weapon or that he had ever used it. Instead, he
claimed it was Ishmael who had arrived at the scene holding a
slasher. But under cross-examination he said it was Bernard's
slasher and that it was Bernard who had used it on Deceased. Accused
said he became more certain that indeed it was Bernard's slasher
when he saw it on the day of indications because Bernard always had
one like that.
The
next relevant bit in the accused's testimony related to the
recording and confirmation of the warned and cautioned statements. He
denied that he had written down his own statement or that he had
signed it. He swore he never went to school and so he could neither
read nor write. He maintained that the police had got Bernard to
write down his [the accused's] statement and to sign it for him.
The
accused denied that the police had recorded two statements from him
and maintained that only one had been recorded. That one statement
related to the attempted murder charge, not murder.
At
confirmation, the accused maintained he did inform the magistrate
that the police had assaulted him and that they had got Bernard to
write his statement and to sign it for him. However, the accused
claimed the magistrate had just kept quiet about it. The accused
mumbled incoherently why the statements ascribed to Bernard and
Rabson would not be confirmed when they had challenged them but only
to have the magistrate confirm his alone.
Asked
why he had not sought medical treatment given that he had been
seriously wounded from the knobkerrie attacks and the knife stabbing
by Edward, the accused at first said he been waiting for a letter of
instruction from the village constabulary, one Tembwe, to whom they
had made a report of the fight. However, upon being given the report,
Tembwe had allegedly advised them to wait for sunrise given that
Deceased was of a violent disposition. But later on the accused said
he had opted for traditional medicine for his wounds because he could
not afford clinic or hospital fees.
That
basically was the accused's case. It was a pack of lies. We had
little difficulty dismissing it. It did not add up. It was
contradictory in many respects. A few examples will suffice:
-
That
at the beer drink it was Edward, not Bernard, who had provoked the
fight was corroborated by Munyori. Munyori's summary of evidence
was admitted by consent. So the accused, rather than the State
witnesses, was lying on that score. At any rate, the accused could
ascribe no reason or suggest why Edward would just stand up
unprovoked and go and attack Bernard. That would be irrational. At
least Bernard deemed himself to have an unresolved grudge against
Edward.
-
Admittedly,
given Bernard's age at the time, the dates ascribed by Edward to
the incident of the old fight, 1989, and the incident of the alleged
affair between Deceased and Bernard's first wife, 2007, did not
add up. However, this has little significance. The State witnesses
were merely trying to emphasise lengthy periods of time that had
elapsed.
-
The
accused's denial of the assault on the person of Deceased was in
direct contrast, not only to his warned and cautioned statement that
was recorded only some six days after the event, but also to his
defence outline that was drafted by his Counsel only some six days
before trial. In the warned and cautioned statement, the accused
admitted striking Deceased with a knobkerrie more than once and to
Deceased falling to the ground. In his defence outline, the accused
expressly admitted attacking Deceased, albeit with a knobkerrie, and
albeit “…
never severely …”
-
Still
on the assault on Deceased, the accused's denial of having used a
slasher contradicted his warned and cautioned statement. In that
statement, he admitted to being armed with a knobkerrie “… and
an iron rod / bar…”
At any rate, there was no significant challenge to the evidence of
Edward and Tecla, who were direct eye-witnesses, that the accused
had been armed with a knobkerrie and a slasher; that he had smashed
Edward with the knobkerrie which had then snapped, and that he had
then used the slasher on Deceased. Furthermore, there was no serious
challenge to the evidence of the police witnesses who testified that
at indications, each of the three accused persons had been asked to
stand by the weapons that each of them had used during the fight and
that the accused had picked the broken knobkerrie and the slasher.
-
Still
on the issue of weapons, if Deceased and Edward had each been armed
with a knobkerrie, then there should have been five of them on the
day after the fight or on the day of indications. But there were
only three, one of them broken. Every relevant witness on that point
said they were only three. The accused did not deny or challenge
that. He did not say anyone might have concealed the others.
-
From
the evidence, Deceased did not fight back. There is a salient detail
that seems to confirm that he did not fight back. It was that he
died with one hand inside his trousers' pocket. That could not
have been a fighting posture, or even a defensive one. The first
blow on him must have been a surprise attack. It must have knocked
him out instantly, otherwise he would naturally have had to try and
deflect it. So the accused must have been lying when he said in his
warned and cautioned statement that Deceased had been attacking him,
or when he implied or insinuated in his testimony that Deceased had
attacked Bernard and Rabson.
-
The
accused's version of how his warned and cautioned statement was
recorded and confirmed would probably make sense in kindergarten. If
believed, it would mean Rashweth, as the investigation officer
conspired to fix him. Last, as the witness, and the magistrate who
confirmed the statement would also have conspired against him.
Finally, the court that tried him of attempted murder, and all the
court officials involved in that trial, including the prosecutor,
would also all have conspired to use a statement that clearly
referred to a charge of murder. This is incredible and therefore not
believable.
There
were several other contradictions and inconsistencies in the defence
case. In the final analysis the accused's version of events is
rejected in favour of that of the State.
The
court is satisfied that the State has proved its case beyond any
reasonable doubt. We find that the accused actually did intend to
kill Deceased. Therefore, the accused is hereby found guilty of
murder with actual intent.
In
mitigation, Defence Counsel said accused was married with three minor
children. The wife was said to be unemployed and disabled. As such,
the accused was the sole breadwinner.
Counsel
also submitted that it should be taken into account that the accused,
at 23 at the time of the commission of the crime, was still fairly
young. He had consumed large quantities of alcohol on the fateful day
and should therefore be taken to have been drunk. As such, and
coupled with youthfulness, his sense of judgment could be said to
have been become impaired.
It
was also urged on us to take into account that the accused was
already serving a seven year prison term in respect of the conviction
of attempted murder.
In
aggravation, State Counsel argued that the murder was premeditated in
that the accused had for a long time harboured a grudge against
Deceased whom he and his brothers held responsible for having taken
away Bernard's first wife and for the misfortunes that allegedly
continuously befell Bernard.
Our
attention was drawn to the General Laws Amendment Act, No. 2 of 2016,
which amended section 47 of the Criminal Law [Codification and
Reform] Act, Cap
9:23
[“the
Criminal Law Code”].
The amendment lists circumstances that a court, in sentencing a
person convicted of murder, may, without any limitation on any other
factors, regard as aggravating. The Constitution, in section 48[2],
says that a law may permit the imposition of the death penalty on
certain persons convicted of murder which was committed in
aggravating circumstances.
State's
Counsel's point was that in accordance with paragraph [a] of the
new sub-section [3] of section 47 of the Criminal Law Code, if a
murder was premeditated, this, in the absence of mitigating
circumstances, may amount to an aggravating circumstance, thereby
leaving the court at large to consider the penalty of death or life
imprisonment.
In
our assessment, we have considered that at no stage did the accused
show or exhibit any signs of contrition for the death of such a close
relative. In fact, the English word “cousin” kind of puts
distance in the relationship. In traditional African culture, the
accused and Deceased were brothers by blood. But immediately after
savaging Edward and Deceased, the accused was still not yet done. He
noticed Deceased's wife and chased after her. God knows what would
have happened had he caught her. After the murder, the accused and
his brothers did not own up. They ran away. Ever since, he has tried
to disown responsibility.
However,
we have not accepted that the murder of Deceased was committed in
aggravating circumstances. This is in spite of the fact that before
killing Deceased, the accused had started with Edward whom he had
left for dead. But this was one single criminal episode or
enterprise. We believe this was an alcohol induced lack of
self-control that might have been compounded by youthfulness. For,
example it was irrational that cousins would fight over an incident
that was more than a decade old. Nonetheless, life was needlessly
lost. Justice demands that an appropriate punishment that suits both
the offence and the offender be imposed.
Defence
Counsel appreciated that a lengthy prison sentence was called for. He
suggested fifteen years would be appropriate but that these should be
made to run concurrently with the seven years imprisonment that the
accused was already serving for the conviction of attempted murder.
In
S
v Mudenda
where the accused, driven by extreme jealous, killed the deceased by
striking him twice on the head with a sharp axe, was sentenced to 30
years imprisonment. In this case we have felt that a similar period
would not be out of place. However, instead of ordering that any
period of imprisonment that we may finally impose should run
concurrently with the sentence in the previous conviction, which
would be irregular for a number of reasons, we have, instead, taken
the previous sentence as an aspect of mitigation. Therefore, the
accused is hereby sentenced to 25 [twenty-five] years imprisonment.
23
November 2016
National
Prosecuting Authority,
legal practitioners for the State;
Chihambakwe,
Makonese & Ncube,
legal practitioners for the second accused, Pro
Deo
1.
HB66-15
