The State v Godfrey Shumba and Jonathan Zambakiyana

On 31 July 2016 at around 0001 hours at Musanditeera Gold Panning Area, Chimanimani, the deceased Aaron Mtisi was fatally assaulted by a group of men. The first accused, Godfrey Shumba, had lost petrol and bread to the deceased who was known for robbing tuck shop owners in the illegal gold panning area. A group of approximately 15 men, including the first accused and one Maxwell, armed themselves with machetes and sticks and went to the panning area to confront the deceased. The second accused, Jonathan Zambakiyana, was allegedly forced to accompany the group as he knew the location of the panning site and was a friend of the deceased. When the group arrived, the deceased jumped into a river and hid in reeds. The group poured petrol on the reeds and set them alight, forcing the deceased out. The deceased was then savagely and indiscriminately assaulted with machetes and sticks all over his body. He sustained severe injuries including deep cuts to his left ankle, left knee, hand, and a broken neck, from which he died due to excessive blood loss. The first accused denied participation, claiming he was forced by Maxwell to join the group. The second accused maintained he was compelled to go with the group under threat and was under guard during the assault, and did not participate in assaulting the deceased.

• Whether the State proved beyond reasonable doubt that the first accused murdered the deceased with actual intention as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act
• Whether the second accused actively and intentionally associated himself with the commission of the murder so as to be liable as a co-perpetrator
• Whether the second accused's defence of compulsion under section 243 of the Criminal Law (Codification and Reform) Act was established
• What constitutes common purpose and co-perpetration under section 196A(2) of the Criminal Law (Codification and Reform) Act

First accused (Godfrey Shumba): Found guilty of murder with actual intention as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Sentenced to 20 years imprisonment. Second accused (Jonathan Zambakiyana): Found not guilty and acquitted.

1. For liability as a co-perpetrator under section 196A(2) of the Criminal Law (Codification and Reform) Act, both actus reus (participation) and mens rea (requisite intention) must be proved beyond reasonable doubt. 2. Mere presence at the scene of a crime, without active and intentional association with the commission of the crime, does not establish liability as a co-perpetrator. 3. The defence of compulsion under section 243 of the Criminal Law (Codification and Reform) Act is established where: (a) there was an unlawful threat to kill or cause serious bodily injury; (b) the accused believed on reasonable grounds that implementation was imminent; (c) the threat was not brought about by the accused's fault; and (d) the accused believed on reasonable grounds he could not escape and his conduct was necessary to avert the threat. 4. A person acting under compulsion lacks the requisite intention (mens rea) to commit the crime. 5. Actual intention to kill can be inferred from: pre-planning and organization; the use of lethal weapons such as machetes; targeting of vulnerable body parts such as the neck; the intensity and brutality of the attack; and conduct showing death was substantially certain to result.

The court made observations about the shortcomings in the police investigation, noting that the investigating officer failed to take the accused persons for indications at the scene (though this was explained by security concerns), failed to interview witnesses provided by the second accused, and failed to interview independent tuck shop owners who could have shed light on the events. The court stated that an investigating officer should properly and thoroughly leave no stone unturned to assist both the state and the court in reaching a just decision. The court also observed that the delay in reporting crimes in the illegal gold panning area should be understood in the context of the pervasive illegality in the area, where many atrocities and killings went unreported, and should not automatically discount a witness's credibility. The court noted the constitutional protection of the right to life under section 48 and emphasized that the sanctity of human life should never be understated. In sentencing, the court observed that while the legislature provided for capital punishment, life imprisonment, or shorter terms for murder, a lengthy imprisonment term was appropriate in this case given the gang nature of the attack and the brutal manner in which it was carried out, balancing justice with mercy while maintaining public confidence in the justice system.

This case provides important guidance on the application of the common purpose doctrine and the requirements for liability as a co-perpetrator in Zimbabwean criminal law. It clarifies that mere presence at the scene of a crime, even when the person may have facilitated access to the victim, is insufficient to establish criminal liability in the absence of the requisite intention and active participation. The judgment demonstrates the proper application of the statutory defence of compulsion under section 243 of the Criminal Law (Codification and Reform) Act, emphasizing that all elements must be proved including lack of mens rea. The case also illustrates how courts assess actual intention in murder cases through consideration of pre-planning, weapons used, body parts targeted, and the nature and intensity of the attack. It reaffirms the constitutional protection of the right to life under section 48 of the Constitution and the seriousness with which courts view murder committed by groups in a brutal manner.