The State v Fabion Kufazvinei

On 9 January 2004, the accused, then aged 45 years, together with his brothers Elliot and Morelife Kufazvinei, proceeded to the deceased's homestead. The accused armed himself with a 410 Wellby shotgun. The accused and deceased had a long-standing dispute over land. When they approached the homestead, the deceased fled in terror. The accused and his companions pursued and caught up with her. The accused's brother grabbed the deceased by her hand, and the accused fired a shot hitting the deceased on the chest. The deceased managed to free herself and tried to escape. The accused caught up with her and shot her once in the head. The deceased ran into the house and locked herself inside. The accused and his brothers axed the door and got inside. The accused again shot the deceased in the head and she died instantly. Post-mortem examination revealed the cause of death as laceration of both arms, gunshot wound of the chest, and two gunshot wounds on the head. The accused had a long history of mental illness dating back from the war of liberation (1979-1980), had attended Zion Christian Church for treatment, and had a history of drug and substance abuse (mbanje and alcohol). He was diagnosed with acute psychosis in 2005 and was examined at Mlondolozi Special Institution between 17 September 2012 and 5 November 2015.

• Whether the accused was suffering from a mental illness at the time of committing the offence
• Whether the accused's mental illness was of such severity that he could not be held criminally liable for his actions
• Whether a special verdict of not guilty by reason of insanity should be returned
• What order should be made regarding the accused's detention and treatment

1) Accused is found not guilty by reason of insanity. 2) In terms of section 29(2) of the Mental Health Act [Chapter 15:12], the accused is to be returned to prison for transfer to a Mental Institution for further treatment and care.

Where there is a reasonable possibility that at the time of committing an offence, the accused was suffering from a disease of the mind to such an extent that he could not appreciate the nature or wrongfulness of his conduct, or could not act in accordance with such appreciation, the accused cannot be held criminally liable and must be found not guilty by reason of insanity. In such cases, the court must order the accused to be detained in a mental institution for treatment and care in terms of section 29(2) of the Mental Health Act [Chapter 15:12] if the accused is found to be a danger to society.

The court noted the accused's long history of mental illness dating back to the war of liberation (1979-1980) and his attempts to seek treatment through religious means at the Zion Christian Church. The court also observed the accused's history of drug and substance abuse, particularly smoking mbanje and drinking alcohol excessively, which may have contributed to or exacerbated his mental condition. The psychiatrist's observation that the accused is a danger to society informed the court's decision to order detention in a mental institution rather than release.

This case demonstrates the application of the insanity defense in Zimbabwean criminal law, particularly in murder cases. It illustrates the court's approach to considering psychiatric evidence and the standard for determining criminal responsibility where mental illness is at issue. The case also highlights the procedure for dealing with accused persons found not guilty by reason of insanity, including their detention in mental institutions for treatment and care under the Mental Health Act. It underscores the principle that criminal liability requires mental capacity and that individuals suffering from severe mental illness at the time of committing an offence may not be held criminally responsible for their actions, even in serious crimes such as murder.