The State v Aspias Shumba and Others

On 17 March 2012, seven police officers conducted a raid at Ashley Mine Compound allegedly to search for illegal beer outlets and to investigate a robbery of the first accused's (Officer in Charge) wife's purse. During the raid, the police officers, led by Accused 1 (an Inspector with 25 years' service), violently entered the deceased Luxmore Chivambo's residence. The deceased was assaulted with baton sticks and booted feet by Accused 2, 4, 6, and 7 at his residence. The deceased and other suspects were taken to the ground near the police vehicle where, on orders from Accused 1, they were further indiscriminately assaulted with baton sticks and booted feet by Accused 1, 2, 3, 4, 6, and 7. Despite the deceased's deteriorating condition, he was detained rather than taken for medical attention. The deceased subsequently died from multiple injuries sustained during the assault. The post-mortem report by Dr. Gabriel Aguero concluded that death was due to multiple injuries from assault. All seven accused were charged with murder. Accused 5 did not participate in the assaults and was ordered to make suspects sing revolutionary songs; he was himself assaulted by Accused 1 for refusing to assault suspects.

• Whether the accused committed murder with actual intention
• Whether the accused committed murder with constructive intention (dolus eventualis)
• Whether the accused acted in self-defense or used reasonable force to effect a lawful arrest under s 42 of the Criminal Procedure and Evidence Act
• Whether the accused are liable as accomplices under s 197(1) of the Criminal Law (Codification and Reform) Act
• Whether the accused negligently caused the death of the deceased thereby committing culpable homicide under s 49 of the Criminal Law (Codification and Reform) Act
• Whether the accused violated the constitutional rights to human dignity and life under sections 48 and 50 of the Constitution

Accused 5 (Lee Makope): Found not guilty and acquitted. Accused 1, 2, and 3 (Aspias Shumba, Motion Jakopo, and Simon Mafunda): Found guilty of culpable homicide and sentenced to 6 years imprisonment each, with 2 years suspended for 3 years on condition they do not commit an offence involving violence. Accused 4, 6, and 7 (Michael Makwalo, Benedict Tapfuma, and Blessing Saidi): Found guilty of culpable homicide and sentenced to 4 years imprisonment each, wholly suspended for 3 years on condition they do not commit an offence involving violence.

Where police officers acting with common purpose indiscriminately assault an arrestee using baton sticks and booted feet, causing multiple injuries from which the victim dies, and where a reasonable person would have foreseen the possibility of death but the accused failed to guard against it, the accused are guilty of culpable homicide under s 49 of the Criminal Law (Codification and Reform) Act. All participants in a common purpose assault are liable for the death regardless of who struck the fatal blow, pursuant to s 197(1). The use of force to effect arrest must be proportionate and reasonable under s 42 of the Criminal Procedure and Evidence Act; indiscriminate and excessive force causing death cannot be justified as lawful arrest or self-defense. Police officers who assault arrestees violate constitutional rights to human dignity (s 50) and life (s 48), and such conduct warrants custodial sentences that reflect the different levels of moral blameworthiness based on rank and experience.

The court observed that police brutality is condemned worldwide because society looks to the police as a law enforcement agency to protect them and uphold the law, not to abuse and inhumanly treat them. The court noted that allowing police brutality would lead to anarchy and chaos and cause society to lose confidence in not only the Zimbabwe Republic Police but the entire justice system. The court emphasized that in a progressive democratic society, there is no place for wanton disregard of human life under the guise of upholding the law. The court also commented that the trauma of having a criminal charge hanging over one's head for 4½ years is highly mitigatory, and that the accused will live with the trauma of having caused the death of a civilian for the rest of their lives. The court noted that no amount of compensation will bring back the deceased to his family.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It affirms that police officers are not above the law and will be held accountable for brutality and violations of constitutional rights; (2) It reinforces constitutional protections of the right to life (s 48) and the right to be treated humanely with dignity when arrested (s 50); (3) It demonstrates the application of common purpose liability under s 197(1) of the Criminal Law (Codification and Reform) Act in cases where multiple accused assault a victim; (4) It clarifies that in culpable homicide cases based on negligence, sentencing should reflect the objective foreseeability of death and the moral blameworthiness of the accused; (5) It establishes that courts will differentiate sentences based on rank, experience, and level of participation even where accused acted with common purpose; (6) It sends a strong message that police brutality will attract custodial sentences to deter such conduct and maintain public confidence in the justice system.