UCHENA
J: Ronald Kanyowa was charged with the
crime of murder in contravention of s 47 (1)(a) of the Criminal Law
(Codification and Reform) Act [Cap 9;23] herein-after called the Code. He
fought and killed his cousin Nigel Mashingaidze. He stabbed him in the stomach
and chest with a ceremonial dagger. He pleaded not guilty to the charge and
raised the defences, of, provocation and defence of person as provided in
sections 239 and 253 of the Code.
The
brief facts on which the charge is premised are as follows. On 16 September 2006 the accused
person went to attend a church service. He came back at 21.00 hours. He found
the residents of No 531 Makomo Area, Epworth fetching water from a water tape
outside the house. The deceased, Tapfumaneyi Mbauya, Concillia Kanyowa and
others were part of the group which was fetching water. Water was scarce, and was
being erratically supplied. The accused observed how they were fetching water,
and commented on the need for the deceased and Tapfumaneyi to give others a
chance to fetch water. The deceased took offence. He commented that the accused
was too young to control the goings on at No 531 Makomo Epworth. He advanced
towards the accused and started assaulting him.
Tapfumaneyi
Mbauya and Concillia Kanyowa, gave evidence for the state. They told the court that the deceased, who was
heavily built and older than the accused, viciously assaulted the accused. The
accused feebly retaliated but was no match to the deceased. Tapfumaneyi and
Concillia tried to restrain the deceased but failed. They continued in their
effort to restrain the deceased and free the accused, who, had fallen to the
ground. They eventually succeeded. The deceased, went back to the water tape. Concillia
took the accused into his bedroom, and left him there. They believed their
intervention had settled the dispute.
The
evidence narrated above is common cause. The accused agrees with it, but adds
the following. He said when his mother took him to his bedroom he became afraid
that the deceased would come and assault him there. He took a dagger which he
knew was kept in a tools box under the bed. He came out of the house through
another door. He went to where his grandmother was. She asked what was
happening. He explained to her that he did not know why the deceased had
assaulted him. The deceased then came and started assaulting him again. He
defended himself by indiscriminately waving the dagger between him and the
deceased. The deceased was thus stabbed in the stomach and the chest. He said
he came out through another door to avoid the deceased whom he was afraid would
assault him again. He could not run away as when he tried to, he bumped into
his grandmother. He then had to defend himself with the dagger. He had then
taken it out of the sheath. The deceased cried out that he had been stabbed. He
dropped the dagger. The deceased walked into the house and slept on a sofa. He
followed him and rendered assistance. He took off his shirt and bandaged the
deceased's stomach.
The
only evidence that calls for assessment is that on whether or not the accused
came out and explained the previous incident to his grandmother. Tapfumaneyui
said the accused came out and stood five meters away from the water tape, and
asked why the deceased had assaulted him. That is different from standing a
distance away talking to some-one else. Concillia the accused's own mother
corroborated Tapfumaneyi's evidence. She confirmed that the accused stood a
distance away and asked why the deceased had assaulted him. There is no doubt
in my mind, that the two, state witness's, told the truth on this aspect. There
is no reason why Concillia would agree with Tapfumaneyi on this detail if it
was not the truth. She generally testified in a manner protective of her son.
She must have told the truth when she said the accused came out stood at a
distance and demanded to know why the deceased had assaulted him. The accused's
own confirmed warned and cautioned statement which was produced as exhibit two,
by consent, confirms that detail. He said:-
"I took a dagger
and returned where the now deceased was. I asked the now deceased why he had
assaulted me".
His
version in court is an obvious after-thought. I would in the result find that
the accused came out through the other door armed with a dagger, stood at a
distance and asked the deceased why he had assaulted him.
The
accused was therefore not happy about what had happened in the previous
encounter. He took a double edged ceremonial dagger, and came out through
another door. The dagger belonged to his late father. He stood five meters from
the water tape, and asked the deceased why he had assaulted him. The deceased
advanced towards him. Tapfumaneyi tried to restrain the deceased. He was pushed
away and he fell to the ground near the water tape. The deceased got to the
accused and the fight resumed. The accused then inflicted the fatal stab wounds
on him. The accused said he did not stab the deceased, but waved the dagger
indiscriminately towards the deceased who was closing in on him to assault him.
He said when he left the house the dagger was in its sheath. He pulled it out
when the deceased advanced towards him from the water tape.
Mr
Mandevere for the accused submitted
that the accused should be acquitted as he acted in self-defense, and had been
provoked. Mr Nyazamba for the State
submitted that the defence of provocation cannot succeed because the accused
was taken into a room from which he deliberately armed himself with the dagger
and came out to reengage the deceased.
The
accused is therefore relying on the defences of provocation and self defence.
An analysis of the evidence against these defences will determine whether the
accused can succeed on both or one of them.
Provocation
The
defence of provocation is provided for in s 239 of the Code. It provides as
follows.
"(1) If, after being provoked, a person does or
omits to do anything resulting in the death of a person which would be an
essential element of the crime of murder if done or omitted, as the case may
be, with the intention or realisation referred to in section forty-seven,
the person shall be guilty of culpable homicide if, as a result of the provocation
(a) he or she does not have the intention or
realisation referred to in section forty-seven; or
(b) he or she has the intention or
realisation referred to in section forty-seven but has completely lost
his or her self-control, the provocation being sufficient to make a reasonable
person in his or her position and circumstances lose his or her self-control.
(2) For the avoidance of doubt it is declared
that if a court finds that a person accused of murder was provoked but that:
(a) he or she did have the intention or
realisation referred to in section forty-seven; or
(b) the provocation was not sufficient to
make a reasonable person in the accused's position and circumstances lose his
or her self-control; the accused shall not be entitled to a partial defence in
terms of subsection (1) but the court may regard the provocation as mitigatory
as provided in section two hundred and thirty-eight."
Provocation
can only be a partial defence to the crime of murder. It reduces murder to
culpable homicide. It does so if the accused acts after being provoked, and
causes death, with the intention or realization referred to in section forty
seven. Section 47 (1)(a) and (b) of the Code, provides for the intention
required for one to be convicted of murder as follows,;
"(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."
The
accused must therefore intent to kill the deceased, or realize the presence of
the real risk or possibility that his conduct may cause the deceased's death
but nevertheless continues to engage in that conduct, despite the realization
of that possibility. It is therefore necessary to examine the accused's
conduct. He was, taken to his bedroom after the first encounter with the
deceased. His mother who took him in said she left him in his bedroom. He
remained there for two to three minutes. He took a double edged dagger, and
come out of the house through another door. The dagger was in its sheath. He
advanced towards the water tape where the deceased was. He stood five meters
away and asked the deceased why he had assaulted him. He obviously knew that
another encounter would ensue. He knew the deceased had objected to being challenged
by him. Coming out and standing five meters away, and asking the question he
did was a daring act spurred on only by the weapon which was in his hand. If
another encounter ensued the accused already knew, from the first encounter
that he would not be able to match the deceased. He therefore had put his trust
in the dagger. When deceased advanced he removed the dagger from its sheath and
used it. What he had realised, happened. He stabbed the deceased, who
subsequently died.
The
next question which arises for consideration is whether the accused had
"completely lost his self-control". In my view he had not. He while in his room
decided to arm himself with a double edged dagger, before coming out. He had
obviously weighed his chances of a second encounter with clenched fists, and
decided against it. He was able to carefully decide, on how he would come out,
and came out through a safer exit. He avoided the door through which he had
been taken into the house. The deceased would quickly see him and take from him
the element of a surprise appearance, and the advantage of positioning himself
where he thought was an opportune place for the second encounter. When he had
taken his stand five meters from the water tape where the deceased was he
announced his presence, by asking the deceased why he had assaulted him. He let
the deceased advance towards him. All he had to do was to wave the dagger
between them. The deceased walked into the trap, to his death.
The
above shows the accused had the intention or realisation referred to in section
forty-seven; and had not completely lost his self control. The defence
of provocation needs no further consideration. It cannot succeed in this case.
I therefore need not give a detailed consideration to whether the provocation
was sufficient to make a reasonable person in the accused's position and
circumstances lose his self-control. A reasonable man would not have wanted a
second encounter. He would if he had to come out do so in a manner that did not
attract the deceased's attention. He would avoid the deceased and would not
taunt him to a second encounter.
We are therefore satisfied that the defence of
provocation cannot, succeed in this case. The accused may not have intended to
kill the deceased. He however clearly realised that there was a real risk or
possibility that his conduct may cause death, and continued to engage in that
conduct despite his realization of that risk or possibility.
Self defence
The
defence of defence of person is provided for in s 253 of the Code. It provides
as follows;
"(1) Subject to this Part, the fact that a
person accused of a crime was defending himself or herself or another person
against an unlawful attack when he or she did or omitted to do anything which
is an essential element of the crime shall be a complete defence to the charge
if:
(a) when he or she did or omitted to do the
thing, the unlawful attack had commenced or was imminent or he or she believed
on reasonable grounds that the unlawful attack had commenced or was imminent,
and
(b) his or her conduct was necessary to
avert the unlawful attack and he or she could not otherwise escape from or
avert the attack or he or she, believed on reasonable grounds that his or her
conduct was necessary to avert the unlawful attack and that he or she could not
otherwise escape from or avert the attack, and
(c) the means he or she used to avert the
unlawful attack were reasonable in all the circumstances; and
(d) any harm or injury caused by his or her
conduct
(i) was caused to the attacker and not to
any innocent third party; and
(ii) was not grossly disproportionate to that
liable to be caused by the unlawful attack.
(2) In determining whether or not the
requirements specified in subs (1) have been satisfied in any case, a court shall
take due account of the circumstances in which the accused found himself or
herself, including any knowledge or capability he or she may have had and any
stress or fear that may have been operating on his or her mind."
The provisions of s 253 (1)(a) to
(d) of the Code, must all be satisfied before the defence of person can succeed
as a complete defence. This is because the word "and" is used to link the
subsections to each other. The word "and" is a conjunctive. It joins the
requirements of subs (1) (a) to subs (1) (b), and subs (1) (b) to subs (1) (c),
and carries on with the same arrangement to subs (1) (d) (ii). The joinder of
the requirements means they should all be satisfied for the defence to succeed
as a complete defence. Section 253 (2) of the Code, confirms this by pointing
out that the court must determine whether or not the requirements specified in
subs (1) have been satisfied. This means they must all be satisfied other wise
the legislature would have said the court should determine whether some of the
requirements have been satisfied.
In terms of s 253 (1) (a) of the Code one can
kill in self defence, against an unlawful attack, if he does or omits to do
anything which is an essential element to the crime of murder, when the
unlawful attack had commenced or was imminent or the accused on reasonable
grounds believed that the unlawful attack had commenced or was imminent. If the
unlawful attack has not commenced and is not imminent, as was the case when the
accused armed himself and positioned himself for a second encounter, the
provisions of section 253 (1)(a) of the Code can not be said to have been
satisfied. If one gets away from a n unlawful attack and comes back to initiate
another attack in which he hopes to defend himself, the defence of defence of
person will not be available because in terms of section 253 (1)(b) of the Code
his conduct was not necessary to avert the unlawful attack. The unlawful attack
had been stopped. The accused had been assisted by Tapfumaneyi and Concilia to
escape from it. He cannot say he had no means of escaping because he came back
to purposefully place himself in danger for the second time. He could not
reasonably, have believed that his conduct in coming out was necessary to avert
an unlawful attack and that he could not otherwise escape from or avert the attack.
The initial attack had ceased and the accused had been taken to the safety of
his bedroom. He was safe to leave his bedroom as demonstrated by his leaving it
without being attacked. He could have gone away to a place of safety. There was
no need for him to challenge the deceased, or draw his attention to his having
come out of the house. A reasonable man could have quietly gone to report the
incident to the police.
Even if he had been under an
unlawful attack the means he used to avert the purported unlawful attack was
not reasonable in all the circumstances. He came out with a double edged
ceremonial dagger to fight the deceased who was not armed. The supremacy of his
weapon, far out weighed the deceased's ability to beat him with his bare hands
and feet. The harm he caused was grossly disproportionate to that the deceased
could have caused on him using his hands and booted feet.
The inquiry, into the accused's
conduct, cannot be complete, without considering the circumstances in which he
found himself, including any knowledge or capability he may have had and any
stress or fear that may have been operating on his mind. As already said, the
accused, deliberately, created the circumstances, in which he stabbed the
deceased. He had been taken away from a fight with the deceased. He chose to
come out, and position himself for a second encounter, which he was sure to
win. The knowledge, capabilities, and the stress or fear he mighty, have had,
cannot assist him. He knew the deceased was able to beat him, so he should not
have come out. Mr Mandevere said he was afraid to remain in the house fearing
the deceased could come and beat him there. If that was so he could have come
out through another door as he did and left the house, to report the case to
the police or to seek safe shelter elsewhere. It is also common cause that
there was a locking device which the accused could have used to lock himself
inside his bedroom. He therefore came out because he wanted a second encounter
with the deceased.
It is apparent that the
accused's claim to the defence of person has failed on many aspects. His
failure to satisfy the requirements of s 253 (1) of the Code is therefore clear
evidence that his defence of self defence has dismally failed.
In terms of s 254 of the Code
an accused person charged with the crime of murder can be found guilty of
culpable homicide if "all the requirements for defence of person specified in
section two hundred and fifty-three are satisfied except that the means
he used to avert the unlawful attack were not reasonable in all the
circumstances."
Section 254 of the Code provides as follows;
"If a person accused of murder was defending himself
or herself or another person against an unlawful attack when he or she did or
omitted to do anything that is an essential element of the crime, he or she
shall be guilty of culpable homicide if all the requirements for defence of
person specified in section two hundred and fifty-three are satisfied in
the case except that the means he or she used to avert the unlawful attack were
not reasonable in all the circumstances."
In this case the accused failed
to satisfy the requirements of the defence of person. If he had satisfied all
of them "except that the means he used to avert the unlawful attack were not
reasonable in all the circumstances" he would have succeeded in relying on the defence
of person as a partial defence to the charge of murder. He would have been
found not guilty of murder but guilty of culpable homicide. The fact that he
failed on all of the requirements of s 253 (1) of the Code means, the partial
defence provided in s 254 of the Code is also not available to him.
He is therefore found guilty of murder with
constructive intent.
Attorney- General's
Criminal Division, legal practitioners for the State
Sawyer and Mkushi, legal practitioners for the accused