Francis Mhomho v The State

On 17 December 2003, the appellant, Francis Mhomho, a private soldier in the Zimbabwe National Army, was on joint army and police border patrol duties along the Zimbabwe-Mozambique border near Nyamapanda Border Post. At around 2100 hours, he and Constable Leonard Lamazolo laid an ambush at a point suspected to be used by illegal border crossers. The deceased, Shorai Domingo, and one Trymore Chirenje approached their position. The appellant ordered them to approach and moved toward them. When they met, one of them attacked the appellant and tried to wrestle his service rifle. During the scuffle, the appellant lowered his rifle and cocked it. On seeing the policeman, the two stopped attacking and fled. The appellant fired one shot to the side of the direction of flight of the person he could see because of bright clothing. The shot struck the deceased in the back in the lumbar region, exited through the sternum, and killed him. The appellant was charged with murder and pleaded not guilty, claiming lawful killing under section 42(2) of the Criminal Procedure and Evidence Act, or alternatively culpable homicide.

• Whether the appellant was entitled to the protection of section 42(2) of the Criminal Procedure and Evidence Act for lawful killing during an arrest
• Whether the deceased had committed a First Schedule offence for which he could be lawfully arrested
• Whether the appellant used reasonable force in the circumstances to prevent the deceased from escaping
• Whether the appellant acted negligently in discharging his firearm without taking reasonable precautions
• Whether the sentence imposed was manifestly excessive

The appeal against conviction was dismissed. The appeal against sentence was allowed. The sentence imposed by the trial court (five years imprisonment with labour, of which 2 years was suspended for five years on conditions of good behaviour) was set aside and substituted with a sentence of eighteen months' imprisonment with labour.

For law enforcement officers to invoke the protection of section 42(2) of the Criminal Procedure and Evidence Act (lawful killing during arrest of a person committing or suspected of committing a First Schedule offence), they must demonstrate that they took other reasonable steps to prevent the suspect from escaping before resorting to the use of lethal force. The mere fact that a suspect flees does not justify shooting them. The arrestor must first use other means to capture the suspect, including (where circumstances permit) giving oral warnings, firing warning shots into the ground or air, and attempting to shoot at non-lethal areas such as the legs. Each case depends on its merits to determine whether the arrestor acted reasonably - the question being whether they could reasonably have prevented the suspect from escaping otherwise than by killing them. Failure to take such reasonable steps before using lethal force constitutes negligence and may result in conviction for culpable homicide.

The Court observed that in sentencing for culpable homicide committed by law enforcement officers in the execution of their duties, courts must appropriately balance the interests of society against those of the accused. While sentences must emphasize the sanctity of life and the extreme danger of firearms, they should also take into account: (1) that the offence was committed during lawful duty performance; (2) that in less precipitous circumstances the killing would have been lawful; (3) the accused's previous diligent performance of duties; (4) that the incident was out of character; and (5) the traumatic impact on the accused, including premature termination of a promising career. The Court noted that in such cases, it may not be necessary to suspend a portion of the imprisonment sentence, suggesting that a shorter unsuspended sentence may better reflect the appropriate balancing of interests than a longer partially suspended sentence.

This case is significant in Zimbabwean criminal law (and relevant to South African jurisprudence given the similarity of legal principles) as it clarifies the requirements for invoking the defence of lawful killing under section 42(2) during arrests. It establishes that merely having grounds to arrest for a First Schedule offence is insufficient - law enforcement officers must demonstrate they took reasonable steps to prevent escape before resorting to lethal force. The judgment emphasizes the progressive use of force principle: oral warnings, warning shots, and attempting to incapacitate rather than kill. It also illustrates the application of culpable homicide principles where an officer acts in the line of duty but with negligence rather than malice. The case balances society's interest in protecting life and regulating use of firearms by law enforcement against recognition of bona fide errors made during lawful duty execution.