THE State V Innocent Nyakabau

### Preamble
1
HH 249-21
CRB 36/20
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THE STATE

versus

INNOCENT NYAKABAU

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 2, 9, 13 July and 14 August 2020 & 25 June 2021

Criminal Trial

Assessors:	Mr Mabandhla

Mr Mhandu

L Masango, for the State

N Chigoro, for the accused

CHITAPI J:  The accused appeared before the court charged with the crime of murder as defined in s 47 of the Criminal Law (Codification & Reform) Act, [Chapter 9:23]. The allegations were that on 26 December 2018, the accused acting with intent to kill or realizing that his conduct might result in death assaulted Stella Karidza at Tsiga village Chief Marinda, Maramba with a switch all over the body thereby causing injuries which resulted in the death of the said Stella Karidza. When the charge was put to the accused, he replied that although he admitted the charge, he did not intend to kill the deceased. The court recorded a plea of not guilty. The accused offered a guilty plea to the lesser charge of culpable homicide and the prosecutor accepted the plea. The prosecutor and the defence counsel prepared a state of agreed facts in lieu of leading formal evidence on the circumstances of the case. The statement was produced as exhibit 1.

The agreed facts were stated as follows

On 26 December 2018, accused had gone to confront the deceased on allegations that she was bewitching his sister such that his sister could not get married. The deceased had been in her field weeding.

The accused then force marched the deceased from her field with the intention of going to Mudzinganyama Village where accused’s aunt, Vainet Mudzinganyama resided. The accused believed that the deceased and his aunt were bewitching his sister together.

The accused became with the deceased who was now refusing to continue with their journey to Mudzinganyama Village and took a switch from a Mutamba tree and started to assault the deceased, all over her body.

The accused was refrained from further assaulting the deceased by Costa and Bradda Karidza. The accused and deceased were escorted back to Tsiga Village.

The deceased passed away when she got to her homestead.

A post mortem examination was conducted by Doctors Yehilyn Iglesias and Aisa Serranno who concluded that the cause of the death was traumatic shock, sever lung contusions and multiple injuries on the chest.

Accused admits having assaulted the deceased but denies having had the intention to bring about her death. His intention had been to force the deceased whom he believed to have bewitched his sister to release his sister so that she could get married.

Accused this denies either having had intent to kill or having realised the possibility that his conduct would result in the deceased’s death.

Accused pleads guilty to negligently causing the death of deceased, that is, contravening s 49 of the Criminal Law (codification & Reform) Act [Chapter 9:23], and the State accepts the limited plea.

In addition to the agreed facts, the following exhibits were produced by consent. The post mortem report was produced as exh 2. It was compiled by doctors Iglesias and Serrano after examining the remains of the deceased on 10 January 2019 at Parirenyatwa Hospital Harare. The doctors observed that the deceased was a female adult aged 69 years old. The doctors observed surface wounds in the form of multiple contusions and haemorrhage in the back, lumbar and scalp areas. They also observed 5th right rib haemorrhage-infiltrate and 2, 3 and 4th left rib infiltrate and multiple contusions. On the posterior there were multiple contusions with haemorrhage. Further multiple contusions with haemorrage were observed on the focal areas. In relation to the cause of death, the doctors expressed the opinion that the deceased died of traumatic shock, severe lung contusions and multiple injuries on the chest and back.

Additional exhibits produced by consent were: the switch used by the accused to assault the deceased and the certificate of weight of the switch. The two exhibits were marked exhs 3 (a) and 3 (b). the switch weighed 700 grams and measured 2.10 metres. The last exhibit to be produced was the accused’s confirmed warned and cautioned statement as exh 4. In relation to the contents of the said statement, the accused stated as follows-

“Accused Person’s reply in English (Translation)

I admit the offence I am facing. I killed Stella Karidza. What happened is that on 26 December 2018 I went to the deceased’s field intending to ask her to when she would rid my sister of a spell she cast on her which made her fail to secure marriage. I asked her about this because in 2013 we went to Chief Chinanga, a messenger was released for us so we could go with him to a traditional healer to conduct consultations with the healer over my sister’s failure to contract marriage. Stella Karidza was implicated as being responsible for bewitching my sister. We started walking together towards Vanessa’s home which person she said helped her bewitch my sister in order that she does not get married. Whilst on the way Stella Karidza said she was no longer willing to go to Vanessa’s homestead which then angered me. I began assaulted the deceased with a switch I loped from a nearby tree. I struck her with the switch on her back, shoulders and on the breasts. I hit her whilst she sat down. At that time Costa arrived and stopped me from further assaulting the now deceased. Costa and I walked back to my homestead but I did not get to my home with him. The deceased went to her home with her child called Tarisai. After a short while I heard people crying saying “Innocent you have killed a people.”

The court thereafter considered the statement of agreed facts together with the other evidence of exhs 2, 3 (a) and 3 (b) and 4. The court was satisfied that the lesser charge of culpable homicide had been established. The accused was formally acquitted on the charge of murder and convicted of culpable homicide in terms of s 49 of the Criminal Law (Codification & Reform) Act.

The hearing proceeded to the defence counsel addressing in mitigation and the State counsel in aggravation. The personal circumstances of the accused were that he is a peasant farmer aged 35 years old, married with five minor children and is the sole breadwinner for his family and an extended family that includes close relatives. He was a first offender who pleaded guilty. It is the tradition of the criminal justice system that courts invariably treat first offenders who plead guilty with a measure of lenience. Ordinarily, such offenders are spared the rigours of sentencing them to effective imprisonment unless the nature of the offence, the circumstances of its commission and/or the accused’s past record render it unavoidable to impose effective imprisonment. The accused in this regard stands convicted of negligently causing the death of the deceased. Every person has a right to life as given in s 48 of the Constitution. It has often been stated by constitutional law scholars that the right to life is the mother of all human rights and quite rightly so because all other human rights are predicated on the person who claims the right being alive. The accused therefore committed a very serious offence in the eyes of society and the law. Society under the circumstances expects that the negligent taking away of a life is adequately punished.

The accused acted out of emotion because of his belief in witchcraft. The accused and his extended family appear to be firm believers in witchcraft. They consulted a traditional healer to find out who had cause lightening to strike the accused’s brother whose house was struck by lightning resulting in the brother dying in the mishap. The witch doctor who was consulted named the deceased as the one responsible for the lightning strike. The deceased is said to have confessed to being the one responsible. The deceased was also named as the one responsible for the failure of the accused’s sister to attract paramours and in the process to get married. In this latter regard, the accused’s relatives gathered and accosted the deceased in regard to her charms which were responsible for the deceased sister’s misfortune of failure to attract men to marry her. This was in 2013. The deceased promised to undo the charms so that the accused’s sister would succeed in attracting the marrying type lovers. However, 5 years went by and the accused’s sister’s misfortune of not being married at age, 30 years remained.

The tragedy before the court happened because the accused decided to confront the deceased on her undertaking to have undone the curse which her charms had cast on the accused’s sister. The deceased on being accosted by the accused, then told the accused that she could only perform the undoing of the curse if the accused accompanied her to the house of her co-witch and also to her daughter called Vainet. The accused and the deceased commenced their journey to visit the named persons.

The deceased however made an about turn and said that she could not go against her oath and perform the undoing ritual. The accused failed to persuade the deceased verbally to go on with the programme. It was then that the accused became incensed, took a switch from a nearby tree and struck the deceased discriminately with it until the deceased later passed on at her home after she had been assisted by well-wishers to return to her home.

Our law does not recognize witchcraft practice and criminalizes it in ss 97-102 of the (Criminal Law (Codification and Reform) Act, engaging in witchcraft or wizadry and employing non-natural means to resolve crime or disputes. In terms of the provisions of s 101 of the Criminal Law Codification and Reform Act, where an accused has committed any offence, out of a belief in witchcraft such belief is not a defence to the charge but may be taken as mitigatory factor in the court’s discretion depending on the circumstances of each case. In casu, the accused legal practitioners attempted to persuade the court on the veracity of the practice in witchcraft. He however was not suitably qualified to give evidence on the issue and certainly not an expert in that regard as contemplated in s 98 (4) of the Criminal Law (Codification and Reform) Act. In terms of the provisions of s 98 (4) a suitably qualified person because of his or her knowledge of the practice of witchcraft may give expert evidence on whether the practice which forms the subject matter of the charge is commonly associated with witchcraft or is practiced by the community where the practice took place. In casu, albeit the charge on Criminal Law (Codification and Reform) Act, it would still have assisted had the accused’s counsel led expert evidence on the witchcraft issues which arose in this case. The reasonableness of the accused’s beliefs could not be readily ascertained in the absence of acceptable evidence on the witchcraft beliefs of the accused.

The sentence for crimes of negligence are largely informed by the degree of negligence exhibited by the accused in that such degree becomes a measure of the accused’s moral blameworthiness. The accused in casu mounted a vicious attack on a defenceless 69-year-old woman who easily could have been his grandmother. It is abhorrent to attack the elderly both by societal standards and by law. The accused even used a switch as if he was chastising his own child. The injuries inflicted were multiple and the nature of the assault indiscriminate. Severe force was used judging by the nature of injuries. Even accepting that the cause of the assault was anger caused by the accused’s strong belief in witchcraft and that he believed that the deceased was responsible for his sister’s misfortunes and the death of the accused’s brother by lightning strike, the fact that the deceased was unco-operative did not constitute good reason or cause to subject the deceased to assault, let alone of the magnitude inflicted by the accused. The assault was in contravention of s 52 of the constitution which entrenches the right of every person to bodily and psychological integrity which include “freedom from all forms of violence from public and private sources.” The assault was also a violation of s 53 of the constitution which prohibits the subjection to “physical or psychological torture or to cruel inhuman or degrading treatment or punishment.

The degree of negligence was high. The accused’s legal practitioner and state counsel referred the court respectively to the cases of S v Mavenga & Anor HMA/4/18 and S v Hahleki HH 260/17 as authority that where an accused commits an offence because of his or her belief in witchcraft, the court considers the belief as a mitigatory circumstance. I agree subject to the rider that the circumstances of each case will determine the extent to which the belief should be held to be mitigatory. In this case the extent of mitigation wanes significantly in the light of the vicious nature of the assault perpetrated by the accused upon a defenceless old woman, such beating being viewed as taboo in terms of the Zimbabwean cultural, religious and traditional values. Diverse as they may be, none would condone the practice of young persons subjecting their parents and grandparents to assault or assault of the elderly to be specific as happened in this case.

The accused paid compensation of 8 beasts and 8 goats. The salutary gesture is common in Zimbabwe culture and traditions. The court will take this factor as highly mitigatory especially taken together with the guilty plea and the first offender status of the accused.

Accused’s counsel has suggested that the court should impose a non-custodial sentence. The legislated sentence for culpable homicide as provided for in s 49 is imprisonment for life on the highest end scale and or any definite period of imprisonment or a fine up to or exceeding level fourteen or both. The offence is therefore viewed seriously by the legislature and very rightly so because society must guard against causing loss of life through the negligent conduct by societal members. Deterrent sentences are called for to remind members of society of their responsibility towards each other and to remind them not to take the law into their hands. Courts as custodians of the constitution and the law must be seen to effectively apply it. Serious crime must be visited appropriately with a sentence which reflects such seriousness. A non- custodial sentence in such a case given all the circumstances of its commission, the accused’s circumstances and beliefs and societal interests would result in the public losing confidence in the criminal justice system. A custodial sentence with part suspended to reflect the court’s appreciation of the accused’s first offender statues, his plea of guilty and his beliefs in witchcraft and other mitigatory factors referred to will meet the justice of the case.

The accused is sentenced as follows:

8 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition the accused does not within that period commit any offence of negligence in which a life is lost by reason of his negligence for which he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, applicant’s legal practitioners

Chigoro Law Chambers, respondent’s legal practitioners