S v KUFAKWEMBA & ORS (HH)

S v KUFAKWEMBA & ORS

HIGH COURT, HARARE

[Criminal Trial HH 795-16]

December 8, 2016

CHATUKUTA J

Constitutional law - Constitution of Zimbabwe, 2013 - Declaration of Rights - Section 48 - Right to life - Permissibility of death penalty for murder where aggravating circumstances exist - Requirement that "a law" should define what constitute aggravating circumstances - "Law" not limited to Act of Parliament - Can include judicial precedent.

Criminal procedure - Sentence - Offences under Criminal Law (Codification and Reform) Act [Chapter 9:23] - Murder - Death penalty competent when murder committed in aggravating circumstances - What constitute - Murder committed during armed robbery - Such murder committed in aggravating circumstances.

At the end of the accused persons' trial for murder committed during the course of a robbery, the question arose whether the death penalty was competent. Section 48 (2) of the Constitution of Zimbabwe, 2013 which protects the right to life, provides as follows:

"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..."

The issue was whether or not there is a law that defines what constitutes aggravating circumstances and consequently whether or not the court could impose the death sentence. In some previous cases in the High Court, other judges had taken the view that an Act of Parliament was required to define the terms on which the court could impose the death penalty and, until such an Act was passed, the death penalty could not be imposed.

Held, that under s 332 of the Constitution, the word "law" means more than just an Act of Parliament. It includes unwritten laws, such as customary law. Section 48 (3) of the Constitution, which protects the lives of unborn children, expressly provides that an Act of Parliament must make provision for such, but no such requirement was provided in s 48 (2) of the Constitution.

Held, further, that the common law had, through judicial precedent, defined "aggravating circumstances". The courts had always expressed the view that murder committed in the furtherance of other crimes such as rape or robbery amounts to murder committed in "aggravating circumstances". The common law, which is also part of our law, provides for what constitute aggravating circumstances in the commission of a crime, as a plethora of decisions of the superior courts demonstrate. Notwithstanding the absence of a definition of aggravating circumstances, it is possible, from the particular facts of a case, to make a finding of what constitutes aggravating circumstances.

Held, further, that before the promulgation of the present Constitution, the Criminal Procedure and Evidence Act [Chapter 9:07] had made the death penalty mandatory for murder unless extenuating circumstances were found. "Extenuating circumstances" were not defined but this has not prevented the courts from finding such circumstances exist. Aggravating circumstances, being circumstances that worsen the accused's moral blameworthiness, are the converse of extenuating circumstances. In the absence of extenuating circumstances, and of necessity the presence of aggravating circumstances, our courts have imposed the death penalty. One circumstance that has been found to be aggravating, warranting the imposition of the death penalty, is the murder of a person during the commission of a robbery. There is a plethora of case authority on this point. What constitutes aggravating circumstances can be gleaned from our common law and in particular from precedents. As such, the law envisaged in s 48 (2) of the Constitution already exists in sources of law other than an Act of Parliament.

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Held, further, that the legislature has already provided in the Criminal Law (Codification and Reform) Act [Chapter 9:23] that killing a person during the course of a robbery is an aggravating circumstance.

Held, further, that the amendment to the Criminal Law (Codification and Reform) Act outlining what constitute aggravating circumstances in determining the appropriate sentence for murder, although not having retrospective effect, merely restates or reconfirms what have always been considered to be aggravating circumstances. Murder during the commission of another offence has always been considered as committed in such circumstances. The amendment should therefore not be considered as filling any lacuna created by the new Constitution because none existed.

Held, further, that whilst the Constitution recognises that the law that defines aggravating circumstances is in existence, the Constitution has changed the law in two respects. The first is that a court now has a discretion whether or not to impose a death sentence, even where there are aggravating circumstances. Secondly, the onus to prove whether or not the death penalty should or should not be imposed has been shifted to the State.

Cases cited:

Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General & Ors 1993 (1) ZLR 242 (S), referred to

Chimuchenga v The State SC 35-00 (unreported), referred to

Chinamora v Angwa Furnishers (Pvt) Ltd & Ors 1996 (2) ZLR 664 (S), referred to

In re: Chinamasa 2000 (2) ZLR 322 (S), referred to

Kanhumwa & Ors v The State SC 71-07 (unreported), referred to

Majaradha v The State SC 71-06 (unreported), referred to

Masuku v The State SC 234-96 (unreported), referred to

Matongo & Ors v The State SC 61-05 (unreported), referred to

Mbaya & Anor v The State SC 23-10 (unreported), referred to

Ncube v The State SC 179-98 (unreported), referred to

Ndlovu & Anor v The State SC 73-00 (unreported), referred to

S v Chauke & Anor 2000 (2) ZLR 494 (S), referred to

S v Chihota HH 234-15 (unreported), referred to

S v Malundu 2015 (1) ZLR 83 (H), referred to

S v Mlambo HH 351-15 (unreported), referred to

S v Mubaiwa & Anor 1992 (2) ZLR 362 (S), referred to

S v Mutsinze HH 645-14 (unreported), referred to

S v Paliza HH 111-15 (unreported), referred to

S v Sibanda 1992 (2) ZLR 438 (S), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 48, 48 (2), (3), 331, 332, Sixth Schedule para 10

Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom), s 113

Criminal Law (Codification and Reform) Act [Chapter 9:23], ss 47 (1)(b), 126 (3)

Criminal Procedure and Evidence Act [Chapter 9:07], s 337

General Laws Amendment Act (No 3 of 2016), s 8 (2)

Precious Stones Trade Act [Chapter 21:06]

Article cited:

Navok Andrew Capital Sentencing Discretion in Southern Africa: A Human Right Perspective on the Doctrine of Extenuating Circumstances in Death Penalty Cases (2014) 1 AHRLJ 24, 24-42

C Chimbari with Mr Nyazamba, for the State

M Moyo, for the first accused

S Rugwaro with Mr Uchena for the second accused

Mr Kunze, for the third accused

Mr Mboko, for the fourth accused

CHATUKUTA J:

The accused persons were charged with contravening s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ("the Code") which deals with murder. It was alleged that on 19 November 2011, the accused persons proceeded to 10 Gardner Road, Ruwa, where they assaulted one Aldo Carlo ("the deceased"), by knocking his head on to the floor, kicking him with booted feet and striking him all over the body with a log. The deceased sustained injuries from which he died on 6 January 2012.

The accused were alleged to have stolen more than US$ 2 500, plus three firearms - a Colt .45 pistol, a Webley .22 revolver and a Smith & Wesson .357 revolver. They ransacked the house and stole various clothing items and a Nokia 5230 cellphone. They also took the deceased's Isuzu KB 280 which they used to flee from the scene. On the same night, that is 19 November 2011, the vehicle was recovered by the police abandoned in Epworth, Harare. The deceased's Webley revolver was recovered in the vehicle.

The learned judge summarised the evidence of the accused persons' arrest and the outline of their defences, and continued as follows:

The following facts are common cause arising from the evidence that was adduced from the State witnesses and the accused persons. There was a housebreaking at the deceased's home on 19 November 2011. The deceased was about 80 years old. The persons who broke into the deceased's house severely assaulted the deceased and Pfungwadzapera, the deceased's security guard. The deceased was taken to hospital and he subsequently died on 6 January 2011. According to the post mortem report, the pathologist observed that the deceased had intra-cerebral haematoma in the frontal region and subdural haematoma. He concluded that the cause of death was brain damage due to severe head injuries secondary to assault. Pfungwadzapera was also taken to hospital where he was admitted for about 10 days after sustaining head injuries.

The first and second accused persons were known to each other. The second and third accused persons were also known to each other; the third and fourth accused persons were equally known to each other. The fourth accused person knew the deceased prior to the date of the robbery. He had done some construction work for him. The fourth accused person and the first State witness, that is, Pfungwadzapera, knew each other as they had worked together at the deceased's home. The third and fourth accused persons resided in the same area, that is, in Goromonzi. They were both in the construction industry.

It was also common cause that one of the guns, the Colt .45 pistol belonging to the deceased, was recovered at the first accused's home concealed under a bed. The second gun was recovered at the third accused's homestead concealed in a disused hut. It is also common cause that the first accused led to the arrest of the second accused, the second accused led to the arrest of the third accused and the recovery of the revolver from the third accused and the third accused led to the arrest of the fourth accused person.

The issue for determination before us is in our view whether or not the accused persons were the persons who broke into the deceased's home and fatally assaulted him and robbed him of his property. In other words, the issue for determination is the identity of the assailants.

The court then considered the evidence in detail, and continued as follows:

It is our finding that, given the totality of the evidence adduced, the only inference that can be drawn is that the accused persons were the assailants who were at the deceased's residence on 19 November 2011 with the intention to commit robbery. The accused were willing to use force in order to achieve their goal. They severely and indiscriminately assaulted the deceased well aware that their conduct might result in the death of the deceased. The possibility of death of the deceased was not remote given the nature of the assault. We are therefore of the view that the State proved its case beyond reasonable doubt.

We accordingly find all the four accused persons guilty of contravening
s 47 (1)(b) of the Code.

The court then dismissed an application to arrest judgment and continued as follows:

Sentence

The starting point in determining the sentence to be imposed is s 48 of the Constitution of Zimbabwe, 2013 ("the Constitution"). Section 48 (2) of the Constitution provides that:

"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..."

The issue that has exercised the minds of this Court of late with the advent of the new Constitution is whether or not there is a law that defines what constitutes aggravating circumstances and consequently whether or not this Court can impose the death sentence.

There has been a divergence of views starting with the decision of Hungwe J in S v Mutsinze HH 645-14 (unreported). After finding that the murder was committed in aggravated circumstances, Hungwe J decided not to impose the death penalty. His decision was premised on the fact that the law on the imposition of death penalty was changed by the advent of the new Constitution and that there was no law defining what constitutes aggravating circumstances. HUNGWE J observed at page 14 that:

"The omission of reference to extenuating circumstances and the introduction of aggravating circumstances in our view must be interpreted to mean that what is envisaged is an Act of Parliament which will define the terms on which courts will impose the death penalty. Alternatively, and in any event, the absence of the definition of the term or what amounts to 'aggravated circumstances' must mean that these were to be defined in the envisaged law. Before such an Act of Parliament is enacted, I interpret the legal position to be that, in keeping with its international obligations and international best practices Zimbabwe intends to move away from the death penalty. Therefore, unless the State applies for a finding that aggravated circumstances exist, the court cannot impose this penalty in the spirit of the new law. In our view the accused must benefit from the absence of a specific law setting out the exact definition of what constitutes special circumstances."

Kudya J in S v Malundu 2015 (1) ZLR 83 (H) agreed with the views expressed by Hungwe J in Mutsinze case (supra) that the contemplated law that complies with the constitutional provision is not yet in place.

The import of the remarks by Hungwe J is that:

1. the law noted in s 48 (2) of the Constitution is an Act of Parliament;

2. there is an absence of the definition of the term or what amounts to aggravating circumstances and this has to be defined in an Act of Parliament;

3. the court cannot impose the death sentence until a specific law is enacted; and

4. the absence of such an Act shows the legislature's intent to move away from the death penalty.

It appears that the term "law" was narrowly perceived by Hungwe J in Mutsinze case (supra) to refer to an Act of Parliament. He appears to have stated that unless the legislature enacts a statute which clearly defines and outlines what constitutes aggravating circumstances, only then can the death penalty be imposed. The question that arises is whether the legislature intended to limit the definition of the term "law" to an Act of Parliament.

Section 332 of the Constitution provides the meaning of the term "law". It states that:

"'law' means –

(a) any provision of this Constitution or of an Act of Parliament;

(b) any provision of a statutory instrument; or

As provided in the above section, an Act of Parliament is among the many other "laws" applicable in Zimbabwe. It is therefore clear that the term "law" must be interpreted in a broad sense and not be confined to an Act of Parliament - see Chinamora v Angwa Furnishers (Pvt) Ltd & Ors 1996 (2) ZLR 664 (S) at 682B-E. See also In re: Chinamasa 2000 (2) ZLR 322 (S). In the Chinamora case (supra), GUBBAY CJ, in discussing s 113 of the Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom), which is similar to s 331 of the present Constitution, stated at 682B-D that:

"Second, the decree can only be made to secure the fulfilment of 'an obligation imposed on him by law'. This means, in my view, an obligation placed upon a person by the law as distinct from any other type of obligation, such as social, moral, ethical or religious, which may be imposed upon him.

The law imposes obligations in several ways: unilaterally by means of legislation; by order of court; or the imposition may arise by virtue of the common law. These obligations are ties whereby one person is bound to perform for the benefit of another. In every instance, it is the law that fastens the knot. Thus, under the common law - which, as the unwritten law in force in Zimbabwe, falls within para (c) of the definition of 'law' - there is an obligation to observe a duty of care towards others; an obligation to abide by the terms of a contract entered into with another party; and an obligation arising from a family relationship, such as the reciprocal duty of support between husband and wife, and a duty upon parents to maintain their minor or dependent children."

A law referred to in s 48 (2) of the Constitution does not refer only to an Act of Parliament. The Constitution differentiates between a law and an Act of Parliament, by careful stating in s 48 (3) of the Constitution, that provides as follows:

"(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 subsection clearly expresses an intention of the legislature that the protection of the unborn children should be provided for under an Act of Parliament and not the other laws as defined in s 332 of the Constitution. The legislature must have been mindful of the different sources of law when it enacted the various subsections to s 48 of the Constitution. Had it intended that the law envisaged in subsection (2) of s 48 be an Act of Parliament, it would have stated so as it did in subsection (3). This cannot have been by omission but by design.

In S v Mlambo HH 351-15 (unreported), BERE J held similar views that the law envisaged in s 48 (3) of the Constitution is common law and that our courts have defined what constitutes aggravating circumstances. He stated the following at 12:

"There is no need to pretend that until s 48 (supra) was enacted our common law position through precedent had not defined 'aggravating circumstances'. Our courts have always expressed the view that murder committed in the furtherance of other crimes such as rape or robbery amounts to murder committed in 'aggravating circumstances' to warrant the imposition of the death penalty. I shudder to think that the enactment of s 48 (2) of the Constitution should be interpreted to have changed our common law position. That argument does not sound attractive to me because the legislature could not have intended to create such a lacuna in our law. There are numerous instances in our law when the courts have determined and made specific findings of the existence of aggravating circumstances and went on to impose death penalty."

Similar sentiments were echoed by MUSAKWA J in S v Paliza HH 111-15 (unreported) where he observed at page 7 that:

"The law referred to in s 48 of the Constitution which provides for the passing of the death penalty already exists. The framers of the present Constitution could not have been oblivious of that fact. The only snag is the absence of what constitutes aggravating circumstances. That notwithstanding, the common law, which is also part of our law, provides for what constitutes aggravating circumstances in the commission of a crime as a plethora of decisions of the superior courts demonstrate. Notwithstanding the absence of a definition of aggravating circumstances it is possible, from the particular facts of a case, to make a finding of what constitutes aggravating circumstances. Within a legal context aggravating circumstances are ordinarily understood to be those circumstances that reduce an accused person's moral blameworthiness."

See also Musakwa J's remarks in S v Chihota HH 234-15 (unreported) at 10-12. Musakwa J proceeded to give other instances where the imposition of sentence is dependent on factors that have not been defined in the respective statutes. Examples given are where statutes provide for the imposition of a minimum mandatory sentence unless a court finds that special circumstances exist. The examples of the crimes identified at 7 are:

"(a) stock theft, in contravention of s 114 (2) as read with subsection (3) of the Code;

(b) unlawful dealing in or possession of precious stones in contravention of s 3 (1) of the Precious Stones Trade Act [Chapter 21:06]."

Prior to the promulgation of the new Constitution, the sentence for murder was considered in terms of s 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] without question. The section provides for the imposition of the death sentence unless the court finds that there are no extenuating circumstances. There is no definition of what constitutes extenuating circumstances in the Criminal Procedure and Evidence Act. This Court has not however been constrained by this absence from not imposing the death sentence. Extenuating circumstances have been found to be those circumstances that lessen the accused's moral blameworthiness - see Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General & Ors 1993 (1) ZLR 242 (S) at 278A-B.

Aggravating circumstances, being circumstances that worsen the accused's moral blameworthiness, are the converse of extenuating circumstances. In the absence of extenuating circumstances, and of necessity the presence of aggravating circumstances, our courts have imposed the death penalty. One circumstance that has been found to be aggravating, warranting the imposition of the death penalty, is the murder of a person during the commission of a robbery. There is a plethora of case authority on this point - see S v Chihota (supra), S v Chauke & Anor 2000 (2) ZLR 494 (S); S v Mubaiwa & Anor 1992 (2) ZLR 362 (S); Masuku v The State SC 234-96 (unreported); Ncube v The State SC 179-98 (unreported); S v Sibanda 1992 (2) ZLR 438 (S); Mbaya & Anor v The State SC 23-10 (unreported); Majaradha v The State SC 71-06 (unreported); Chimuchenga v The State SC 35-00 (unreported); Ndlovu & Anor v The State SC 73-00 (unreported); Matongo & Ors v The State SC 61-05 (unreported); Kanhumwa & Ors v The State SC 71-07 (unreported) and S v Mlambo (supra). In most of these cases, the courts have given their approval to the remarks by GUBBAY CJ in S v Sibanda (supra) at 443F-H:

"Warnings have frequently been given that, in the absence of weighty extenuating circumstances, a murder committed in the course of a robbery will attract the death penalty. This is because, as observed in S v Ndlovu SC 34-85 (unreported):

'...it is the duty of the courts to protect members of the public against this type of offence which has become disturbingly prevalent. People must feel that it is possible for them to enjoy the sanctity of their homes, to attend at their business premises, or to go abroad, without being subjected to unlawful interference and attack.'"

It is evident from the above that what constitutes aggravating circumstances can be gleaned from our common law and in particular from precedence. As such, the law envisaged in s 48 (2) of the Constitution already exists in sources of law other than an Act of Parliament. In the present case, the first to third accused's legal practitioner conceded that common law could have been the law perceived by the legislature in s 48 of the Constitution. It is only Mr Mboko who persisted in arguing that the law envisaged was an Act of Parliament yet to be promulgated.

In any event, the legislature has already provided in the Code that killing a person during the course of a robbery is an aggravating circumstance. Section 126 (3) of the Code provides that:

"(3) For the purposes of subsection (2), robbery is committed in aggravating circumstances if the convicted person or an accomplice of the convicted person –

(a) possessed a firearm or a dangerous weapon; or

(b) inflicted or threatened to inflict serious bodily injury upon any person; or

on the occasion on which the crime was committed." (my emphasis).

This has been reaffirmed in the General Laws Amendment Act (No 3 of 2016) ("the Amendment Act") perceived to be the law envisaged in s 48 of the Constitution. On 1 July 2016, the Amendment Act was promulgated, amending the Code. Section 8 (2) (under Part XX of the Schedule to the Amendment Act) clearly and elaborately outlines what constitute aggravating circumstances in determining an appropriate sentence for murder. It provides:

"(2) In determining an appropriate sentence to be imposed upon a person convicted of murder, and without limitation on any other factors or circumstances which a court may take into account, a court shall regard it as an aggravating circumstance if –

(a) the murder was committed by the accused in the course of, or in connection with, or as the result of, the commission of any one or more of the following crimes, or of any act constituting an essential element of any such crime (whether or not the accused was also charged with or convicted of such crime) –

(i) an act of insurgency, banditry, sabotage or terrorism; or

(ii) the rape or other sexual assault of the victim; or

(iii) kidnapping or illegal detention, robbery, hijacking, piracy or escaping from lawful custody..."

The Amendment Act came into effect after the commission of the present murder and the new Constitution and does not in my view have retrospective effect. Although its enactment is said to be an alignment with the Constitution (see the preamble to the Amendment Act), the Amendment Act appears to me to merely restate or reconfirm what have always been considered to be aggravating circumstances. The murder during the commission of another offence has always been considered as such. The Amendment Act should therefore not be considered as filling any lacuna created by the new Constitution because none existed. One can say that it is cosmetic.

It further appears from the Amendment Act that it was not the intention of the legislature in the Constitution to move away from the death penalty as suggested by Hungwe J. Had the legislature intended to move away from the death sentence, it would not have made provision for what constitutes aggravating circumstances in murder cases.

However, whilst the Constitution recognises that the law that defines aggravating circumstances is in existence, the Constitution has changed the law in two respects. The first is that a court now has a discretion whether or not to impose a death sentence even where there are aggravating circumstances. Secondly, the onus to prove whether or not the death penalty should or should not be imposed has been shifted to the State. Section 337 of the Criminal Procedure and Evidence Act made it mandatory that, in the absence of extenuation, the court must impose the death penalty. It further places the onus on the accused to satisfy the court that the death penalty should not be imposed. Section 48 (2) of the Constitution has shifted the burden of proof to the State. The shift is understandable given that the onus to prove an accused guilty, rests with the State. The onus to prove that the death penalty is warranted should equally rest on the State and not on the accused - see Andrew Navok Capital Sentencing Discretion in Southern Africa: A Human Right Perspective on the Doctrine of Extenuating Circumstances in Death Penalty Cases (2014) 1 AHRLJ 24, 24-42.

In order to give effect to this shift, s 337 of the Criminal Procedure and Evidence Act must be read in conformity with the Constitution as enjoined in terms of para 10 of Part 4 of the Sixth Schedule of the Constitution. Paragraph 10 provides that –

"10 Continuation of existing laws

Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution."

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