The State v Ephraim Tinashe Mungareka and Others

The deceased, Ephraim Hlazo Mungareka (77 years old), had previously been arraigned before Chief Ziki in 2017 for practicing witchcraft, which he allegedly admitted. After Clive Mungareka (son of accused 2 and sibling of accused 1) died, the family consulted four traditional healers who implicated the deceased as having bewitched Clive, causing his death. On 21 June 2019, the five accused persons, who were relatives of the deceased (grandchildren and daughters-in-law), confronted him, labeled him a witch, and assaulted him from morning until noon using leather whips, electric cables, sjamboks, mulberry tree switches and whips. The assault was prolonged, sustained, and conducted in full view of villagers. The accused indicated they were tired and promised to return in the evening to resume the assault. The deceased was taken home in a wheelbarrow by his daughter, where he died two days later on 23 June 2019. The post-mortem revealed multiple whip lashes, distended abdomen, bruising of intestines, ruptured spleen with intra-abdominal bleeding, with the cause of death being haemorrhagic shock, abdominal bleeding, and abdominal trauma.

• Whether the accused persons were guilty of culpable homicide through their assault on the deceased
• What is the appropriate sentence for culpable homicide involving a prolonged and sustained assault on an elderly relative based on witchcraft accusations
• Whether mitigation factors including first offender status, guilty pleas, family circumstances, cultural beliefs in witchcraft, and the juvenile status of one accused warrant leniency in sentencing

Accused 1 (Ephraim Tinashe Mungareka), accused 2 (Faith Gumbo), accused 4 (Makazvei Zvihari), and accused 5 (Eudiborn Mungareka) were each sentenced to 3 years imprisonment, with 1½ years suspended for 5 years on condition they do not commit any offence involving violence upon another person. Effective sentence: 1½ years imprisonment for each. Accused 6 (Tellmore Mungareka, the juvenile) was sentenced to 2 years imprisonment wholly suspended for 5 years on the same condition regarding violence.

Persons who assault another based on witchcraft accusations, resulting in death, are guilty of culpable homicide where the degree of negligence is very high. Even where accused persons hold genuine cultural beliefs in witchcraft and feel provoked by the alleged bewitching of a family member, this does not justify taking the law into their own hands through violent assault. There are proper lawful traditional mechanisms for resolving witchcraft disputes. A custodial sentence is appropriate for adult accused in cases of culpable homicide involving prolonged, sustained assault on an elderly vulnerable victim, even for first offenders who plead guilty, as society must be protected and human life must be valued. However, juvenile offenders may receive wholly suspended sentences to allow for rehabilitation and education where they may have acted under the influence of adult co-accused.

The court observed that the accused persons will forever live with the stigma of having caused the deceased's death, as society generally does not distinguish between murder and culpable homicide, and they will be viewed as murderers by relatives and others. The court noted that to unsophisticated rural people from Bikita who share strong belief in witchcraft, death may not be viewed as visiting anyone naturally, and after traditional healers implicated the deceased, the accused felt provoked and believed it was their duty to lynch the witch and revenge their beloved relative's loss. The court stated this explains the accused persons' conduct, as they are not inherently wicked persons. The court emphasized that it would be remiss to treat the accused differently on the basis of gender alone, as they all took active roles in the assault. The court commented that a fine would be inappropriate in such a serious matter, and that community service would send wrong and harmful signals to society who may harbor the view that those accused of witchcraft should be violently dealt with.

This case illustrates the Zimbabwean courts' approach to sentencing in culpable homicide cases arising from witchcraft accusations in rural communities. It demonstrates the balance courts must strike between acknowledging cultural beliefs in witchcraft as a mitigating factor while condemning vigilante violence and protecting the sanctity of human life. The judgment emphasizes that strong cultural beliefs do not justify taking the law into one's hands, and that traditional dispute resolution mechanisms should be used instead. It also shows differential treatment of juvenile offenders in allowing for rehabilitation and education. The case highlights the importance of deterrent sentences for violent offences while recognizing first offender status and genuine remorse through guilty pleas.