State v Zvioneso Chaira and Andrew Guduza and Gregory Guduza

On 5 March 2016, three accused persons - Zvioneso Chaira (1st accused, uncle), Andrew Guduza (2nd accused), and Gregory Guduza (3rd accused, brothers) - were involved in the fatal shooting of Josiah Kusemwa at Mukaradzi River, Mutate farm in Mt Darwin. The deceased, a gold buyer, was with his girlfriend Ketai Nyauyanga and nephew Langton Bvukumbwe when approached by the 3rd accused who pretended to have gold to sell. Negotiations ensued over price ($25-27 per gram). When the price was agreed and a scale produced for weighing, no gold was produced. Instead, the 2nd accused announced they were under arrest. The 1st and 2nd accused brandished illegally possessed firearms (a .38 Special Taurus revolver and a Luger Grand Power pistol respectively), which the 1st accused had obtained from his security guard workplace by falsely reporting them stolen. The witnesses fled. The deceased was shot once in the face by the 2nd accused using the pistol given to him by the 1st accused. The deceased died from brain injury. The accused searched the deceased's body, taking a scale, 5.5 grams of gold, and US$300. They fled but were later arrested in Arcturus, where the firearms and the deceased's scale were recovered from the 2nd accused's Peugeot 504.

• Whether all three accused acted in common purpose in the commission of murder
• Whether the 2nd accused acted in self-defence when shooting the deceased
• Whether the doctrine of common purpose remained applicable after the enactment of the Criminal Law (Codification and Reform) Act
• Whether the murder was committed with actual intent
• Whether each accused could be held criminally liable for the murder despite only one firing the fatal shot
• Whether the death penalty was applicable given the constitutional developments

All three accused were found guilty of murder with actual intent. Each was sentenced to 35 years imprisonment, taking into account nearly three years already spent in detention. The court declined to impose life imprisonment, finding no strong indication the accused were beyond rehabilitation despite the aggravating circumstances of murder committed during a robbery.

The binding legal principles established are: (1) The doctrine of common purpose remained applicable under common law for offences committed before the 2016 codification in the Criminal Law (Codification and Reform) Act, as s 3(1) of the Act only excluded Roman-Dutch criminal law to the extent areas were covered by the Code; (2) Common purpose can arise instantaneously without antecedent agreement and can be inferred from active association with furtherance of the common design; (3) Each participant in a common purpose is judged on his own mens rea, but the actus reus consists of the act by which he associates himself with the common purpose; (4) Where participants carry loaded weapons in a robbery, death is substantially foreseeable, and all participants who actively associate with the enterprise are liable for murder if death results, regardless of who fired the fatal shot; (5) Withdrawal from common purpose requires active countermanding or "stepping on the lit fuse," not mere last-minute withdrawal; (6) Active association can include providing weapons, brandishing firearms, helping to surround the victim, playing a negotiating role in the ruse, and stealing property afterward; (7) Self-defence is not available where the accused created the threatening situation by brandishing weapons at victims during a planned robbery.

The court made several non-binding observations: (1) The practice of giving unsworn evidence from the dock is anachronistic and unhelpful, and no prejudice results from an accused answering questions under oath even when not giving full testimony; (2) Minor discrepancies in witness testimony are not material unless they go to the root of the matter; (3) In assessing whether life imprisonment is appropriate where the death penalty is not available, courts should consider the probability of the accused committing similar offences if released after serving their sentence and whether they are beyond rehabilitation; (4) The amended provisions recognizing 20 years as minimum for aggravated murder (where death penalty not imposed) can inform sentencing even when not directly applicable; (5) The fact that an accused is a first offender carries less weight when the crime is serious; (6) Claims of remorse carry no weight when the accused has spun a yarn or manufactured contrived explanations to avoid responsibility; (7) Having medical conditions like tuberculosis treated in prison is not a mitigating factor as medical care is available in prisons.

This case is significant for its application and clarification of the doctrine of common purpose in Zimbabwean criminal law during a transitional constitutional period. It confirms that common purpose continued to apply under common law even after the enactment of the Criminal Law (Codification and Reform) Act for offences committed before the 2016 amendments that codified the doctrine. The judgment illustrates how common purpose can arise instantaneously without prior agreement and how slight assistance or active association in a robbery-murder can render all participants equally liable for murder with actual intent. It also demonstrates the high threshold for successfully claiming dissociation from a common purpose, requiring active countermanding rather than mere withdrawal. The case further addresses sentencing in aggravated murder cases post-constitutional changes, recognizing that while the death penalty was not applicable due to timing and constitutional developments, serious sentences short of life imprisonment (35 years) can be appropriate where rehabilitation remains possible.