State v Energy Baisai alias Energy Chipinda

On 3 December 2020 at Chitsanza Village, Chief Chamutsa Buhera in Manicaland, the accused, aged 18 years, brutally killed three people: Erina Hlabati, Tafa Chitsanza, and Milliah Chinotimba. The accused attacked the victims using a burning wooden log (4.9kg), and stones weighing 10kg and 2kg. He assaulted each victim all over the body with the burning log and crushed their skulls with stones, causing instant death. The accused claimed he acted to avenge his parents' deaths in 2002, which he believed were caused by witchcraft. He stated that from age 9 he had recurring dreams about this, and that on the night in question, his deceased parents' spirits led him to the scene and his late father possessed him during the killings. The accused spared one person, Anesu Mwatsikesimbe. The accused gave a detailed confirmed warned and cautioned statement admitting to the killings and explaining that he killed Tafa Chitsanza to avenge his parents' deaths, while the other two became victims though he claimed he had no initial intention to kill them.

• Whether the accused committed the actus reus of murder in respect of all three counts
• Whether the accused possessed the requisite mens rea (actual or legal intent) to commit murder
• Whether the accused's claim of spiritual possession by his deceased father's spirit negated criminal responsibility
• Whether the accused's belief in witchcraft and alleged spirit possession affected his mental capacity and intent

Count 1: Guilty of Murder with Actual Intent - Life imprisonment. Count 2: Guilty of Murder with Actual Intent - Life imprisonment. Count 3: Guilty of Murder with Actual Intent - Life imprisonment. In mitigation, the court considered that the accused was a youthful first offender who genuinely believed he had been misled about his parents being bewitched, and the period spent in custody. In aggravation, the court noted the brutal and heartless manner of the killings, the crushing of victims' heads, and complete disregard for the sanctity of life. The court stated the accused deserved three death sentences but was saved by his tender age (18 years at the time of the offence).

A claim of spiritual possession by a deceased person's spirit does not negate criminal responsibility for murder where the accused demonstrates coherent recall of events, logical narration, ability to make deliberate choices during the commission of the offence, and there is no scientific evidence of mental impairment. Actual intent to kill can be inferred from: (1) stated intention to kill in revenge; (2) use of lethal weapons; (3) prolonged deliberate attacks on vulnerable parts of the body; (4) the severe and brutal nature of injuries inflicted; (5) continuation of assault until death occurs; and (6) post-offence conduct demonstrating awareness of having killed. Belief in witchcraft, even if genuine, does not provide a defence to murder where the accused acts with the requisite mens rea.

The court observed that if the accused's parents' spirits had genuinely been involved, they should have fought their own war rather than putting the accused in a position where he committed such terrible crimes. The court commented that the accused's behaviour in court, claiming to be possessed during cross-examination, was "purely stage acting." The court noted that the accused "acted like a barbarian of the Gothic period" and showed "no regards to the sanctity of life." The court also noted an inconsistency in the accused's stated age, claiming to be 18 years old in both 2020 and 2022. The court observed that the accused appeared to have been misled by his grandmother who later abandoned him, suggesting some sympathy for how the accused came to hold his beliefs about witchcraft, though this did not excuse his actions.

This Zimbabwean High Court case demonstrates the courts' approach to defences based on belief in witchcraft and alleged spiritual possession in murder cases. The case is significant for establishing that claims of spiritual possession, without scientific evidence of mental impairment, will not negate criminal responsibility for murder. The judgment illustrates that the ability to provide coherent, detailed accounts of events is inconsistent with a defence of lack of control due to possession. The case also addresses sentencing considerations for youthful offenders in particularly brutal multiple murder cases, showing that while youth may save an accused from capital punishment, life imprisonment remains appropriate for heinous crimes. The case reflects the tension between traditional beliefs in witchcraft and spirits, and the application of modern criminal law principles requiring proof of mens rea based on objective evidence.