The State v Aluwisi Joe

The accused, Aluwisi Joe, aged 19 years at the time of the offence, was charged with murdering Solomon Munyezi (aged 32). Both men were involved in a love triangle with Petty Mupinga. On 6 November 2018, the deceased accompanied the accused to Petty Mupinga's grandmother's homestead at Mhakwe Village, Hwedza. The deceased demanded that Petty choose between them. A quarrel ensued and developed into a physical fight. The accused stabbed the deceased in the left chest with an Okapi knife, causing a pulmonary vein rupture and hypovolemic shock, resulting in death. The accused initially told the village head and police that he fought the deceased with bare hands, but later admitted to stabbing him with a knife he retrieved from Petty's bedroom because he was losing the fight. At trial, the accused raised defences of provocation and self-defence, claiming the deceased had armed himself with a knife and later an axe, which the court rejected as a recent fabrication.

• Whether the accused acted in self-defence when he stabbed the deceased
• Whether the accused's version at trial was consistent with his confirmed warned and cautioned statement
• Whether the murder was committed in aggravating circumstances warranting a minimum sentence of 20 years
• What is an appropriate sentence for murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act considering the accused's youth

The accused was found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 15 years imprisonment.

Where an accused person's defence at trial is inconsistent with admissions made in a confirmed warned and cautioned statement properly admitted under section 115B(1) of the Criminal Procedure and Evidence Act, the court is entitled to reject the defence as a recent fabrication and convict on the basis of the admissions. A person who, realizing they are losing a physical fight, retrieves a dangerous weapon such as a knife and stabs their opponent in a vulnerable area such as the chest, acts with constructive intent (dolus eventualis) where they realize or ought to realize that death is a probable consequence and proceeds regardless. This constitutes murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act. An accused has a duty to flee from a losing fight rather than resort to lethal force. Where murder is not committed in the aggravating circumstances specified in section 47(2) or (3), but other aggravating factors exist, a court may exercise discretion under section 47(4)(b) to impose a sentence below the 20-year minimum, taking into account mitigating factors such as the offender's youth and period of pre-trial incarceration.

The court observed that the prohibition on the death penalty for persons under 21 years at the time of the offence (section 48(2)(c)(1) of the Constitution of Zimbabwe 2013) requires proper verification of an accused's age, and the State should address this issue clearly where there is ambiguity. The court noted that any sentence imposed cannot relieve the deceased's family of their loss or absolve the offender from the lifelong stigma of having taken human life, making the assessment of an appropriate sentence particularly difficult. The court emphasized that once lost, human life is irreplaceable, and courts have a duty to guard jealously the life of every human being. The court reiterated that violence should never be an option to settle scores as it carries inherent risks to life and limb, and courts will continue to remind society of this principle.

This case illustrates the Zimbabwean courts' approach to murder committed with constructive intent (dolus eventualis) under section 47(1)(b) of the Criminal Law (Codification and Reform) Act. It demonstrates that courts will reject defences of self-defence or provocation where they are inconsistent with admissions made in confirmed warned and cautioned statements. The judgment emphasizes that human life is sacrosanct and protected as a fundamental right under the Constitution of Zimbabwe. It shows the court's exercise of sentencing discretion under section 47(4)(b) for youthful offenders, balancing the seriousness of taking human life against mitigating factors such as age and pre-trial detention. The case also confirms that resort to violence to settle disputes will attract severe punishment, and that an accused who is losing a fight has a duty to flee rather than escalate to the use of lethal weapons.