Criminal Trial
PATEL J: The
accused persons in this case are charged with three separate counts
of murder, assault and arson. These three counts arise from events
which took place in 2000 at Nehanda Resettlement Village, Madziwa.
All
five accuseds pleaded not guilty to the charges against them when
trial commenced in December 2006. At the resumption of the trial in
July 2007, the court was advised that the 1st
accused (Yomence Chaitezvi) had died on the 4th
of January 2007. This was later confirmed by an affidavit deposed to
by his brother. The trial duly proceeded on the same charges as
against the remaining four accuseds, who were now represented by
different counsel.
The
finalisation of this matter has been hampered by several factors. In
particular, at the conclusion of the trial, Mr.
Mabeza
moved on to the regional bench without having properly handed over
the further conduct of the case. Thereafter, the matter was
significantly delayed for his replacement to be identified and duly
equipped to file closing submissions on behalf of the State. These
were eventually filed in November 2009.
State Evidence
At
the beginning of its case, the State produced by consent the
post-mortem report of Dr. Mutamba, dated the 8th
of May 2000 [Exhibit 1].
In essence, the report shows
that the deceased, Peter Karidza, died as a result of a head injury
from the assault perpetrated upon him on the fatal day.
At a later stage, the evidence
of Vincent Kambanga and that of Dr. Mutamba, as contained in the
State Summary of Evidence, was also admitted by consent.
Vennas Chimangemange is the
deceased's widow.
She
testified that on the night of the 23rd
of April 2000, a group of people gathered outside her homestead
chanting political songs. They then began to throw stones at the main
house and eventually torched the main house as well as the
surrounding structures. At the same time, they called out for the
deceased.
When she and the deceased went
outside they were attacked by some of the men in the group.
At
that point, the 1st
accused (Chaitezvi) tried to verbally restrain the assailants and
took the witness away to the back of the house. Therefore, she could
not say whether any of the other accuseds were present or involved in
assaulting the deceased.
When she returned to the front
of the house after about 30 to 45 minutes, she found that the
deceased had been severely beaten. The main four-roomed house and
five other structures had been destroyed by stones and fire. All the
domestic furniture, utensils and equipment was also destroyed.
The deceased passed away at
about 5.00a.m. on the following morning.
Molline Chimangemange is the
deceased's daughter.
Her
testimony was similar to that of her mother as regards the general
picture of what transpired on the night in question. However, her
evidence was that she actually saw the 1st
accused (Chaitezvi) and the 2nd
accused (Kida) each strike the deceased once before the others in the
group joined the attack.
She
was able to see what happened and positively identify the assailants
because of the burning huts. She did not see the 3rd
accused (Muchemwa) or the 4th
accused (Marufu) at the scene of the attack. However, she did see the
5th
accused (Kagogoda) running around encouraging the assault, but did
not witness him actually assaulting the deceased or causing any
fires.
The witness was present
throughout the duration of the attack.
The group consisted of about
100 men and about 40 of them took part in the assault.
The
deceased eventually lay on the ground after being assaulted for about
30 minutes. The 1st
accused then told the others to stop.
Savory Hodza was at the
relevant time the Chizinga District Chairman of the ZANU-PF youth
wing. All five accuseds were office-bearers in the political party in
various branches which fell under Hodza's command.
He
testified that on the night in question he met and drank beer with
the deceased at Muzivi Growth Point. He heard that the 2nd
accused (Kida) had planned a meeting at which the deceased was to be
summoned. He warned the deceased who then ran away. On his way home
he passed by Nehanda Village and saw a group of about 50 people,
including the 2nd
accused, who had gathered for a “pungwe” about 300 metres from
the deceased's homestead. Further along the road he encountered two
more groups, of about 50 and 20 people respectively, who were also
going to the “pungwe”. The first group included the 1st
accused (Chaitezvi) and the second group included the 4th
accused (Marufu).
When Hodza arrived home, about
2 to 3 kilometres away, he saw fires burning over Nehanda Village.
Although he was fairly drunk, he walked towards the village. About
300 metres away from the deceased's homestead he observed that all
the groups had dispersed.
The witness was arrested as a
suspect on the following morning but was later released after
recording his statement to the police.
According
to Hodza, the 2nd
accused (Kida), 3rd
accused (Muchemwa) and 4th
accused (Marufu) wanted his position in the party and therefore
resented him. They had arranged the gathering in question without his
authority and knowledge.
Under cross-examination, he
admitted that he had been convicted for public violence and sentenced
to 30 months imprisonment in respect of another offence involving
political violence in the same area.
Detective Sergeant Nemaisa is
a member of the Zimbabwe Republic Police. He was based in Bindura in
April 2000.
On
the 25th
of April 2000, he was tasked to record warned and cautioned
statements from four suspects, namely, the 1st
accused (Chaitezvi), 2nd
accused (Kida), 3rd
accused (Muchemwa) and Hodza.
He met the three accuseds for
the first time at that stage.
They corroborated Hodza's
statement that he was not present at the scene of the attack and that
he knew nothing about it. Each of the three accuseds was then allowed
to write his own statement in three separate rooms. At that time,
each accused was unguarded and not handcuffed. Nemaisa then confirmed
their statements in Shona and translated them into English.
Thereafter, the statements were given to the accuseds to read before
they were signed and witnessed.
In their statements, the three
accuseds admitted the charge of having murdered the deceased.
After
Nemaisa's evidence-in-chief, the warned and cautioned statements of
the 1st,
2nd
and 3rd
accuseds [Exhibits 2, 3 & 4] were admitted by consent, subject to
challenge under cross-examination.
When cross-examined, Nemaisa
confirmed that the three accuseds had understood and signed their
respective statements freely and voluntarily and without any duress
whatsoever. Moreover, he did not see any visible signs of the
accuseds having been assaulted, nor did they complain of having been
assaulted by other police officers.
Inspector
Absai Muchemedzi testified that he was involved in attending the
scene of the attack on the morning after. He found the body of the
deceased covered in bruises and observed that some of the structures
at the homestead had been burnt or otherwise damaged. Certain
suspects were arrested later that day but he could not recall any of
them other than the 1st
accused (Chaitezvi).
The
warned and cautioned statements of the 4th
and 5th
accuseds were compiled and signed over 9 months later, in the
presence of different police officers who were not called to testify.
These statements were therefore not adduced or admitted in evidence.
Evidence for the Defence
The
2nd
accused (Notice Kida) used to reside in Nehanda Village and was a
ZANU-PF cell chairman in April 2000.
His evidence was that it was
Hodza, in his capacity as the District Chairman, who had convened the
ZANU-PF members from the surrounding villages to attend the gathering
at the deceased's homestead. He disagreed with Hodza's mission as
he knew the deceased as a village elder and because there was a
strong probability that violence would occur. Therefore, he and the
other Nehanda Village members dispersed to go home, having been told
to do so by Hodza.
On
his way home, he observed flames emanating from the deceased's
homestead. On the following morning, he and the 3rd
accused (Muchemwa) were arrested by the police.
When cross-examined, Kida
accepted that 2000 was a very politically charged year and that the
ZANU-PF youth wing was an important element in strengthening the
party's base. At that time, it was unheard of that anyone in the
locality should belong to the opposition MDC party.
The
3rd
accused (Obert Muchemwa) was a senior official of ZANU-PF in the
Chizinga District.
His
testimony was that from the 21st
and 24th
of April 2000 he was attending his father-in-law's memorial service
at Batsinarayi Village, about 12 kilometres away from Nehanda
Village. He only returned to Nehanda Village on the morning of the
24th
of April, together with his wife and child. He was not aware of
Hodza's plan to visit the deceased at his homestead. He was
arrested by the police because he was the ZANU-PF political leader in
Nehanda Village.
He and Kida were taken to the
scene of the attack where he was assaulted for arguing with the
police.
The deceased's wife
identified Hodza and Chaitezvi as the perpetrators of the assault
upon the deceased. They were both arrested but Hodza was given
preferential treatment and was not detained.
Under cross-examination, he
accepted that he was not assaulted at the police station and that his
arrested colleagues did not complain to him of having been assaulted.
Again, he was not assaulted at the time that he signed his warned and
cautioned statement, but he denied having read his statement before
signing it. As this was the first time that he had been arrested he
did not appreciate the significance of signing the statement.
When questioned by the Court,
he stated that he had attained 8 “O” levels in 1990 and a
certificate in tobacco culture in 1996 or 1997.
Juliet Kaingidza resides at
Batsinarayi Village and is Muchemwa's sister-in-law.
She
endeavoured to corroborate Muchemwa's version of his having
attended her father's memorial service at her village from the 21st
to the 24th
of April 2000. However, she contradicted him in one material respect
– by stating with certainty that he left the village on the 24th
of April on his own and without his wife and child. Moreover,
although she could recall exactly the date and time of Muchemwa's
departure, she could not remember the month or year when her father
had died.
The
4th
accused (Zvidzayi Marufu) was an official in the Chitepo Branch of
ZANU-PF. According to him, it was Hodza who directed him to mobilise
the members from Chitepo Village. When they arrived at Nehanda
Village he met Chaitezvi, Kida and Hodza, together with 120 to 150
party members, gathered on a hill approximately 300 to 400 metres
away from the deceased's homestead.
He deduced that Hodza was
drunk and that his plan to confront the deceased as an MDC
sympathiser would probably entail violence.
Marufu then told the Chitepo
members to return to their village and returned home himself soon
thereafter. He was surprised the following morning when he heard
about the attack on the deceased and his homestead. He was arrested
about nine months later. He signed his warned and cautioned statement
after being threatened and slapped by the police.
The
5th
accused (Jacob Kagogoda) was also an official in the Chitepo Branch
of ZANU-PF.
He testified that at the time
of the attack on the deceased he was in bed suffering from malaria.
He was under medication and unable to walk. He was arrested much
later in January 2001. After his warned and cautioned statement was
recorded he was assaulted by three police officers. He then signed
the statement without having read it.
Warned and Cautioned
Statements
Having
regard to the testimony of Detective Sergeant Nemaisa, the Court is
satisfied that the warned and cautioned statements of the 2nd
and 3rd
accuseds were properly recorded and that they were duly sworn and
signed by them.
Notwithstanding their
protestations to the contrary, it is clear that the two accuseds had
understood and signed their respective statements freely and
voluntarily and without any duress.
They are accordingly admitted
as reliable evidence.
On
the other hand, the warned and cautioned statements of the 4th
and 5th
accuseds were not adduced or admitted in evidence and must therefore
be disregarded for present purposes.
Findings
- Assault and Arson
According to the indictment,
one or some or all of the accuseds intentionally assaulted Molline
Chimangemange and unlawfully set fire to a hut owned by the deceased
and Vennas Chimangemange.
However, no evidence
whatsoever was led at the trial relating to the alleged assault.
As for the arson charge, such
evidence as was presented was not specific as to what property was
destroyed and which accused, if any, was responsible for such
destruction. Moreover, the State's closing submissions are utterly
silent on both charges.
In the premises, the Court
finds that these charges cannot be sustained. Accordingly, all four
accuseds are acquitted on the counts of assault and arson.
Findings - Murder
In considering the charge of
murder it is necessary to assess the extent to which each accused was
or was not present and involved in the events that took place on the
night in question. Thereafter, it must be determined whether any or
all of them are guilty of murder or some lesser offence.
The
evidence against the 2nd
accused (Kida) stems from various sources.
(i)
Firstly, there is the evidence of Molline Chimangemange who was
adamant that he used a stick to assault the deceased on the head. She
indicated that visibility was good because of the burning huts and
she positively identified the 2nd
accused as an assailant. Moreover, she knew him because he was from
the same village.
(ii)
Secondly, the 2nd
accused was also identified by Savory Hodza as having gathered with
his group for a “pungwe” about 300 metres from the deceased's
homestead.
(iii)
Finally and crucially, there is the 2nd
accused's warned and cautioned statement in which he made several
critical admissions:- that he had circulated the letter that resulted
in the gathering of ZANU-PF youth at the deceased's homestead;
that, although it might not have been agreed to assault the deceased
“to death”, it was agreed to assault him in order to “inflict
pain”; and that he could not defend the deceased because he was
standing outside the homestead.
The
3rd
accused (Muchemwa) stated that he was attending his father-in-law's
memorial service at the relevant time.
However, his alibi was not
satisfactorily corroborated by his sister-in-law and is wholly
rebutted by his warned and cautioned statement.
In
that statement, he admits the following: that ZANU-PF youth were
recruited from neighbouring villages to deal with the deceased's
case; that he was invited by the 2nd
accused to accompany the group to the deceased's homestead where it
was planned to assault him and that the latter was in fact assaulted;
and that, although he did not enter the homestead, he “could not go
against that [assault] because it is a taboo in our party to go
against any planned thing”.
The
main evidence against the 4th
accused (Marufu) is that of Savory Hodza to the effect that he
encountered the 4th
accused leading a group of about 20 people going to the “pungwe”
near the deceased's homestead.
The
4th
accused admits that he was present at the “pungwe” but denies
having been involved thereafter and claims to have withdrawn from the
planned assault.
The
5th
accused (Kagogoda) was identified by Molline Chimangemange as running
around the homestead encouraging the assault. The witness did not
know him in person as he was from a different village.
In
his defence, the 5th
accused's testimony is that at the time of the attack he was in bed
suffering from malaria and that he was under medication and unable to
walk.
As is conceded by State
counsel, his alibi was not meaningfully challenged or rebutted.
Elements of Murder and
Conspiracy to Murder
On a charge of murder, it must
first be established whether the accused's action was the factual
cause of the end result, viz. if but for his action, the deceased
would not have died when he did.
It must also be shown that
there was legal cause, viz. whether it was objectively foreseeable or
within the range of ordinary human experience that the accused's
action would lead to the death of the deceased.
Where there has been a
supervening event, this will not break the causal link between the
accused's act and the end result if that subsequent event was
foreseeable.
As
regards mens
rea,
it must be shown that there was actual or legal intention to kill.
Legal or constructive intention to kill arises where the accused does
not mean to bring about death but continues to engage in an activity
after he foresees that there is a real risk or possibility that the
activity will result in the death of a person and is reckless as to
whether or not death ensues.
Under our law, it is trite
that conspiracy is a competent verdict on a charge of having
committed the completed crime. It is also trite that a conspirator is
liable to the same punishment as the person who has actually
committed the principal crime.
A conspiracy to commit a crime
is usually defined as an agreement by two or more persons to do an
unlawful act or to do a lawful act by using unlawful means.
In essence, there must be
agreement as to the criminal object.
There
does not have to be agreement on the exact ways and means of putting
into effect the plan before conspiracy is committed. Provided that
the criminals have agreed on their object, they are guilty of
conspiracy even if they are still negotiating towards full agreement
on the means to be used in the criminal enterprise. See Feltoe: A
Guide to the Criminal Law of Zimbabwe
(2006).
Moreover,
each conspirator will be responsible for specific criminal conduct
committed by any one of the conspirators which falls within their
common purpose or design. See S
v Chauke & Another
2000 (2) ZLR 494 (S) at 497, citing Burchell and Hunt: South
African Criminal Law and Procedure
Vol. 1 (3rd
ed.) at p. 307.
Again,
even where a conspirator withdraws at any stage from the common
enterprise, he may be entitled to an acquittal on the main charge but
remains liable to be convicted of the offence of conspiring to commit
the crime in question. See R
v Chimyerere
1980 ZLR 3 (AD) at 8.
Verdict
The
general picture that emerges from all of the evidence before the
Court is that the leaders of various ZANU-PF village groups within
the district convened a night time gathering of their respective
members, comprising circa
100 men, near the deceased's homestead. The purpose of the
gathering, which purpose was agreed by the leaders and understood by
their followers, was to confront the deceased at his homestead and
assault him for his supposed affiliation with the MDC opposition
party.
Given the nature, timing and
object of the gathering as well as the number of men involved, the
leaders present must have foreseen the possibility of the gathering
turning so violent against the deceased as to culminate in his death.
The
2nd
accused (Kida) was identified not only as having been present but
also as having struck the deceased on his head with a stick that was
approximately 2ft. long.
According to the post-mortem
report, the cause of death was stated to be “head injury due to
assault”.
Nevertheless,
in light of the overall attack on the deceased perpetrated by about
40 men, it cannot be stated with any certainty that it was the 2nd
accused's particular blow to the deceased's head that was the
specific cause of his death.
In
the event, it is difficult on the evidence available to sustain the
charge of murder against the 2nd
accused on his own.
What the evidence does clearly
show is the following.
The
2nd
accused (Kida), 3rd
accused (Muchemwa) and 4th
accused (Marufu) were all present at or near the deceased's
homestead on the night in question.
All three of them held
positions of leadership and control over the groups that they had
called together at the gathering.
As already stated, they were
fully aware of the planned assault.
Additionally, they must have
foreseen, and by unavoidable inference did foresee, the possibility
of the attack on the deceased resulting in his death.
Subsequently, after their
followers were unleashed on the deceased's homestead, they either
actively participated or did nothing to defuse the situation and
avert the attack on the deceased. Moreover, in the aftermath of the
attack, they did nothing to report the matter to the police or any
other responsible authority.
In short, all three accused
conspired in varying degrees in the planned assault on the deceased
and all three of them foresaw the real possibility of the attack
resulting in his death but were reckless as to whether or not death
ensued.
In the event, all three
accuseds are acquitted on the charge of murder but are found guilty
of the offence of conspiring to murder the deceased.
Turning
to the 5th
accused (Kagogoda), there is only the evidence of one witness
(Molline Chimangemange) identifying him as having been present at the
deceased's homestead.
Given
the circumstances prevailing at the time and the fact that the 5th
accused was not previously known to the witness, it is necessary to
be very circumspect in assessing this evidence of identification. See
S
v Mutsinziri
1997 (1) ZLR 6 (H); S
v Ndhlovu & Others 1985
(2) ZLR 261 (SC).
On balance, the Court is
inclined to credit and accept his alibi of having been physically
indisposed at the time and unaware of the planned attack until after
it had occurred.
The
5th
accused is accordingly acquitted on the charge of murder.
Mitigatory Factors and
Aggravating Features
All three accuseds are first
offenders and breadwinners for their respective families. Their
lengthy incarceration would certainly impact very badly on them and
their families and may not serve to rehabilitate them. Moreover,
after having undergone 3 months of pre-trial incarceration, they
attended court regularly for the purpose of their trial and did not
interfere with State witnesses.
Ordinarily, the crime of
murder with legal or constructive intent attracts a relatively
lengthy term of imprisonment. As I have already indicated, the
offence of conspiracy to murder is susceptible to the same penalty as
applies to the principal offence.
In the instant case, however,
the ordinary rules must be weighed against the inordinate and
substantial delay in finalising this case.
The Court notes that the
offence was committed in April 2000, almost 10 years ago, and that
trial commenced in 2006 but was only concluded a few days ago because
of the reasons outlined at the beginning of this judgment. The
intervening delays were not occasioned by the accuseds but were
entirely attributable to the State.
As was submitted by Defence
counsel and conceded by State counsel, the accuseds have over the
past 10 years undergone significant anguish. They have obviously
agonised over their uncertain fate and the attendant psychological
trauma constitutes a form of punishment in itself.
As against these mitigatory
factors is the fact that the accuseds have been convicted of a very
serious offence.
The attack on the deceased and
his homestead took place at night and traumatised not only the
deceased but also his entire family. Although the accuseds did not
kill the deceased with their own hands, they conspired in conduct
that entailed his death and did nothing to avert or alleviate that
death.
Our courts have perennially
declared that the sanctity of human life must be protected and
preserved. Apart from the violent loss of life, the conduct of the
accuseds is aggravated by the fact that it was politically motivated.
In this context, it is especially incumbent upon the courts to make
it abundantly clear that such conduct will not be favoured with
impunity.
Sentence
In imposing sentence on the
accuseds it is necessary to have regard to the respective role and
culpability of each accused.
Of
the three accuseds, the 2nd
accused (Kida) bears the greatest degree of culpability inasmuch as
he not only circulated the letter convening the gathering but also
participated directly in assaulting the deceased. The 3rd
accused (Muchemwa) is less culpable as he was present but did not
actively assault the deceased, while the 4th
accused (Marufu) is the least culpable having withdrawn from the
planned attack at the last minute.
In the result, the accuseds
are sentenced as follows:
(1)
The 2nd
accused (Notice Kida) is sentenced to a term of 48 months
imprisonment of which a period of 24 months imprisonment is suspended
for 5 years on condition that he does not within that period commit
any offence involving violence or bodily injury to another person and
for which he is convicted and sentenced to a term of imprisonment
without the option of a fine.
(2)
The 3rd
accused (Obert Muchemwa) is sentenced to a term of 24 months
imprisonment of which a period of 12 months imprisonment is suspended
for 5 years on condition that he does not within that period commit
any offence involving violence or bodily injury to another person and
for which he is convicted and sentenced to a term of imprisonment
without the option of a fine.
(3)
The 4th
accused (Zvidzayi Marufu) is sentenced to a term of 24 months
imprisonment wholly suspended for 5 years on condition that he does
not within that period commit any offence involving violence or
bodily injury to another person and for which he is convicted and
sentenced to a term of imprisonment without the option of a fine.