The State v Ernest Ezekiel and Others

On 2 December 2016, the first and second accused persons (Ernest Ezekiel and Crispen Chikwata), who were artisanal gold miners, were at Chizevezeve Bar in Shurugwi when they picked a quarrel with the deceased, accusing him of causing problems at Wanderer Mine. The second accused pulled out a machete and handed it to the first accused, who wrestled with the deceased. The deceased successfully disarmed them and chased them out of the bar. Within approximately 15 minutes, the two accused returned armed with two spears and accompanied by three additional accused persons (the 3rd, 4th, and 5th accused). On seeing them, the deceased fled by jumping over the bar's perimeter fence, with all five accused persons chasing him in hot pursuit. The deceased was found dead on the morning of 3 December 2016 with severe injuries to his stomach, his intestines protruding. All five accused placed themselves at the scene and admitted seeing the deceased seriously injured and pleading for help, but none rendered assistance. The third accused snatched the machete from the deceased. Post-mortem showed death from hypovolemic shock, damage of epilon, and stabbing injury.

• Whether all five accused persons could be convicted of murder when acting in common purpose
• Whether the accused persons had the requisite mens rea for murder under section 196A of the Criminal Law (Codification and Reform) Act
• Whether constructive or legal intention was sufficient to ground liability for murder
• The application of common purpose liability where the actual perpetrator could not be definitively identified

All five accused persons were found guilty of murder with constructive intent. Sentences imposed: Accused 1, 2 & 4: 20 years imprisonment each; Accused 3: 22 years imprisonment (as the leader and most mature); Accused 5: 5 years imprisonment (given his youthfulness, being approximately 17 years old).

Where two or more persons act in common purpose to commit a crime, and each has the requisite mens rea (whether through intention, knowledge, or realization of risk that the crime would be committed), they may all be convicted as co-perpetrators under section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23], even if the actual perpetrator cannot be identified. The conduct of the actual perpetrator is deemed to be the conduct of every co-perpetrator. Constructive or legal intention - consisting of foresight that circumstances may possibly exist coupled with recklessness - is sufficient mens rea for a murder conviction. When accused persons pursue a victim while aware that some of them are armed with lethal weapons intended for use against the victim, and subsequently fail to render assistance when finding the victim mortally wounded, this demonstrates the requisite common purpose and mens rea for murder. The deliberate failure to assist a seriously injured victim after participating in the attack is evidence that the common objective had been achieved.

The court expressed serious concern about the prevalence of violence among artisanal miners and their apparent misconception that conflicts must be resolved through killing. The court emphasized the need to respect life and noted that none of the accused showed any remorse. The court described the accused as having "hunted the deceased like they were hunting a wild animal" and noted that the deceased died "the most painful and cruel death." The court observed that the death would probably haunt the first accused for the rest of his life. The court also noted the need for rehabilitation, particularly for the younger accused persons who were unsophisticated and had limited education.

This Zimbabwean High Court case demonstrates the application of section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which codifies the doctrine of common purpose in criminal law. The case is significant for establishing that co-perpetrators can be convicted of murder even when the actual perpetrator cannot be identified, provided the State proves each accused had the requisite mens rea through intention, knowledge, or realization of risk. The judgment emphasizes that constructive intention is sufficient for murder convictions where accused persons act in concert knowing lethal weapons are being deployed. The case also highlights the court's concern about violence among artisanal miners and the need to protect the sanctity of life. The differential sentencing approach, particularly the reduced sentence for the youngest accused, demonstrates judicial consideration of individual circumstances while maintaining accountability for all participants in a common purpose crime.