State v James Ackim and Lameck Ackim

Two brothers, James Ackim (first accused) and Lameck Ackim (second accused), were charged with the murder of Jokonia Choga Muunganirwa on 31 January 2010 at Chemhanza Hill in Chevakadzi Resettlement Area, Bindura. The deceased was part of an undercover investigation team from Billabonge farm investigating theft of aluminium pipes. The deceased's wife left a pot with a hole for repair at the accused's homestead. On 31 January 2010, the deceased went to collect the pot from the first accused's homestead. He was last seen at the first accused's tuck-shop around 2pm, wearing specific clothing. Both accused persons were seen following him. The deceased never returned home. After searches failed, police arrested the accused persons in March 2010. During police custody, both accused alleged they were tortured and assaulted. They led police to Chemhanza Hill where human bones, the smashed pot, burnt clothing remnants similar to what the deceased wore, and weapons (stones and stick) were recovered. Both accused gave confirmed warned and cautioned statements admitting to the murder, but later alleged these were extracted through torture involving the "bridge technique" and assaults.

• Whether the confirmed warned and cautioned statements were admissible given allegations of torture and assault
• Whether pointing out evidence is admissible despite inadmissible confessions under s 258(2) of the Criminal Procedure and Evidence Act
• Whether circumstantial evidence established the identity of the deceased, cause of death, and perpetrators beyond reasonable doubt
• Whether the accused had actual intent to murder
• Whether extenuating circumstances existed
• What sentencing procedure applies to cases where plea was entered before the effective date of the Constitution (22 August 2013) but conviction occurred after
• Application of the Sixth Schedule to the Constitution regarding sentencing procedure
• The proper sentence for murder with actual intent with extenuating circumstances

Both accused persons were convicted of murder with actual intent with extenuating circumstances. Each was sentenced to 20 years imprisonment. The court considered the 8 years already served in pre-trial incarceration, the torture and mental anguish suffered, their status as first offenders with families, balanced against the brutal nature of the killing and desecration of remains.

The binding legal principles established are: (1) Confessions extracted through police assault (including deliberate tightening of leg irons) are inadmissible even if confirmed by a magistrate, where the accused establishes on a balance of probabilities that assaults occurred and negated voluntariness. (2) Under s 258(2) of the Criminal Procedure and Evidence Act, pointing out evidence and facts discovered as a result remain admissible even where the underlying confession or statement is inadmissible, provided the pointing out itself was done freely and voluntarily without force. (3) For criminal cases where the accused pleaded before the effective date of the Constitution (22 August 2013), the Sixth Schedule paragraphs 2 and 18(9)-(10) require application of the pre-Constitution sentencing procedure, including consideration of extenuating circumstances, notwithstanding s 48(2) of the Constitution. (4) Intoxication that clouds normal inhibitions constitutes an extenuating circumstance in murder cases, reducing moral blameworthiness. (5) Confirming magistrates have a duty to investigate circumstances of injuries sustained in police custody rather than accepting explanations at face value, as such injuries may indicate involuntariness of confessions.

The court made several non-binding observations: (1) The conduct of the investigating team in arresting the accused's parents as "human bait" to induce the accused to surrender was illegal and constituted improper investigative techniques warranting criticism. (2) It is a "notorious fact" that leg irons and handcuffs do not normally cause injury unless deliberately tightened by the officer, and such deliberate tightening is inconsistent with the exercise of volition. (3) The confirming magistrate abdicated his responsibilities to the accused and the criminal justice system by failing to investigate the circumstances of injuries allegedly caused by handcuffs and leg irons. (4) Section 48(2) of the Constitution is an enabling provision for promulgation of sentencing law, not an operative sentencing provision itself, following S v Mutero SC 28/2017. (5) The court could not impose the death penalty for murders committed in the interregnum between the effective date (22 August 2013) and promulgation of the General Laws Amendment Act No 3 of 2016 (1 July 2016) where pleas were entered during that period. (6) The 8-year pre-trial delay, caused mainly by absence of a state witness on international duty, resulted in deprivation of normal family life and constituted significant mitigation militating against life imprisonment or sentences in the 20-25 year range typically imposed for murder with actual intent with extenuating circumstances.

This case is significant for: (1) establishing the procedure for sentencing in transitional cases where plea was entered before the effective date of the 2013 Constitution but conviction occurred after; (2) confirming that the Sixth Schedule paragraphs 2 and 18(9)-(10) override constitutional provisions, requiring courts to consider extenuating circumstances for pre-effective date pleas; (3) demonstrating the court's approach to torture allegations and the inadmissibility of confessions obtained through assault, even when confirmed by a magistrate; (4) affirming the admissibility of pointing out evidence under s 258(2) even where the underlying confession is inadmissible; (5) illustrating the application of circumstantial evidence principles to establish identity of victim and perpetrators in absence of DNA evidence; (6) addressing the responsibility of confirming magistrates to investigate assault allegations rather than accepting cursory explanations; (7) demonstrating that intoxication can constitute an extenuating circumstance where it clouds normal inhibitions in otherwise mindless brutality.