Kone Musimo and Others v The State

The three appellants, aged 41, 35, and 28 years respectively, were convicted on their own plea of guilty to kidnapping under s 93(1) of the Criminal Law (Codification and Reform) Act. They had approached a 51-year-old complainant at his village residence and asked him to come with them for a traditional initiation and circumcision ceremony called "zviremba". When he refused, they threatened him with violence and forcibly abducted him out of fear for his life. The complainant was detained for two months and three days during which he was forced to undergo their traditional initiation and circumcision rituals. Upon his release, he reported the matter to police. The appellants admitted upon arrest that they forcibly abducted and kidnapped the complainant for the purpose of undergoing circumcision. They were sentenced to 24 months imprisonment with 8 months suspended for five years.

• Whether the sentence of 24 months imprisonment (with 8 months suspended) was so harsh as to induce a sense of shock
• Whether the trial court failed to consider other sentencing options or give reasons for not considering them
• Whether the trial court failed to give appropriate weight to mitigating features, particularly the role of cultural beliefs in the commission of the offence
• Whether ignorance of the law or cultural imperatives should operate as a strong mitigating factor in sentencing
• The relationship between cultural offences/defences and constitutional rights under the new Constitution of Zimbabwe
• How to balance individual constitutional rights (particularly the right to personal liberty) against the cultural background of accused persons in criminal cases

The appeal against sentence was dismissed. The sentence of 24 months imprisonment with 8 months suspended for five years was confirmed.

The binding legal principles established are: (1) The crime of kidnapping aims to preserve the individual right to personal liberty, which is constitutionally entrenched and must be jealously guarded; (2) While cultural beliefs and ignorance of the law can operate as mitigating factors reducing moral blameworthiness in sentencing, they do not detract from the seriousness of the offence of kidnapping, particularly where the deprivation of liberty was lengthy (over two months); (3) Section 63(b) of the Constitution provides that no person exercising rights in Chapter 4 shall do so in a way inconsistent with the provisions of that chapter - therefore cultural practices cannot justify the deprivation of another person's constitutional right to liberty; (4) Courts must assess sentences against both the express provisions of the Criminal Law Code and the Constitutional provisions in Chapter 4; (5) The length of the period during which the complainant endured loss of liberty does not affect the fact that there was loss of liberty, unless it was only for a transient period for which the principle of de minimis non curat lex could apply.

The court made extensive obiter observations on the broader issue of cultural offences/defences in criminal law. Hungwe J discussed the "dual nature of the legal-social consequences" in former colonies and the need to develop a new constitutional culture in Zimbabwe. The judgment observed that with the justiciable rights in the 2013 Constitution, courts have a duty to interpret the law in a manner that has "a powerful steering or filtering effect" and to develop a constitutional culture. The court suggested that cultural expert evidence should be led in future cases where a cultural offence/defence is raised, to guide the court as to the nature of the conflict between the accused's conduct and the general law. The judgment raised the question whether the promotion and protection of cultural rights could be strengthened by seeking the counsel of traditional leaders under s 282 of the Constitution in the fair administration of the criminal justice system, leaving this question open for further discussion by the Law Development Commission. The court discussed the academic definition of "cultural offences" and noted the worldwide phenomenon of courts having to resolve problems of socio-legal complexity where there is conflict between legal norms and social cultural norms. The judgment acknowledged that had the cultural defence point been properly taken, "it may well have operated as a defence to a limited extent."

This case is significant in Zimbabwean jurisprudence for its extensive discussion of the tension between cultural practices and constitutional rights in the post-2013 Constitution era. It addresses the difficult question of how courts should approach "cultural offences" - acts that are criminal under the dominant legal system but condoned or endorsed within a minority culture. The case highlights the need for courts to balance individual constitutional rights (particularly the right to personal liberty under Chapter 4 of the Constitution) against the cultural background of accused persons. The judgment suggests that cultural expert evidence may be necessary in future cases where cultural offences/defences are raised, and raises questions about the potential role of traditional leaders under s 282 of the Constitution in promoting and protecting cultural rights within the criminal justice system. It represents an important step in developing a constitutional culture for interpreting criminal law in Zimbabwe.