The State v Liverson Mukubwa

On 6 July 2014, at Mafuva Village, Headman Nerupiri, Gutu, Masvingo, the accused, Liverson Mukubwa, was in a love relationship with the deceased, Violet Tohwechipi (aged 30 years). The accused suspected the deceased of infidelity. The accused purchased petrol in a 5-litre red plastic container, which he left for safekeeping with Tamari Mahlaba, a bar lady at Chidzerwe bottle store where he was a patron. At around 3:00 am on 6 July 2014, following an argument over alleged promiscuity, the accused poured petrol on the deceased and set her alight. The deceased, severely burnt, naked with skin peeling off, ran to her uncle Rabson Mapasure's homestead. She told both Rabson and the police that "Liverson Mukubwa has poured petrol on me and lit me up." She was rushed to Nerupiri Clinic, then Gutu Mission Hospital, and died en route to Masvingo General Hospital. The post-mortem revealed she died of severe burns (approximately 80% of her body). The accused fled to South Africa and remained there from 2014 to 2017, returning only to be arrested on 23 May 2017. He denied the charge, claiming he was in South Africa at the time and that the deceased committed suicide after he ended their relationship when he caught her with another boyfriend on 29 June 2014.

• Whether the accused was guilty of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Cap 9:23]
• Whether the dying declaration by the deceased was admissible in evidence
• Whether the accused's confirmed warned and cautioned statement was obtained voluntarily and admissible
• Whether the accused's alibi defence that he was in South Africa at the time of the offence was credible
• Whether the accused acted with actual intent to kill

The accused, Liverson Mukubwa, was found guilty of murder with actual intent in contravention of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23] and sentenced to life imprisonment.

A dying declaration is admissible in a murder trial when five requirements are satisfied: (1) the declarant must be dead at the time of trial; (2) the trial must be for the murder or culpable homicide of the declarant; (3) the statement must relate to the cause of the declarant's death; (4) at the time of making the statement, the declarant must have been dangerously ill and without hope of recovery; and (5) the declarant must have been a competent witness. A dying declaration may be oral and need not be in writing to be admissible. Where an accused alleges that a confirmed warned and cautioned statement was obtained through duress, the onus is on the accused to prove on a balance of probabilities that the statement was improperly obtained. Flight from the jurisdiction immediately after the commission of an offence and remaining absent for an extended period is evidence inconsistent with innocence and may be considered in assessing guilt. In cases of murder with actual intent involving premeditation, extreme cruelty (such as burning a victim alive), and complete lack of remorse, life imprisonment is an appropriate sentence notwithstanding that the crime may have been motivated by passion in the context of a romantic relationship.

The court made strong observations about gender-based violence and intimate partner femicide, stating that "any person, especially women have a right to walk in and out of a love relationship without losing one's life" and that "a love relationship surely cannot be a question of life and death in our civilised society." The court emphasized that while this was "in more probabilities a crime of passion," such classification does not meaningfully mitigate the offence where the conduct demonstrates premeditation, extreme cruelty, and callousness. The court expressed shock at the accused's "absolute lack of remorse" and his claim that the deceased committed suicide, describing his conduct as demonstrating that "the sanctity of human life means nothing to you." The court also commented on procedural delays in the criminal justice system, noting that the 5-year delay in finalizing the matter was partly due to the unavailability of a police witness who had relocated to Botswana, changes in pro deo counsel, and the accused's own flight from justice for three years.

This case is significant in Zimbabwean criminal law for its comprehensive application of the common law principles governing the admissibility of dying declarations under section 254(1) of the Criminal Procedure and Evidence Act [Cap 9:07]. The court meticulously applied the five English common law requirements for admissibility of dying declarations and emphasized that such declarations may be oral and need not be in writing. The case also reinforces that in intimate partner violence cases, particularly femicide, courts will impose severe sentences reflecting the gravity of the offence, the vulnerability of victims, and society's intolerance for violence against women in the context of romantic relationships. The judgment affirms that individuals have the right to enter and exit relationships without fear of lethal violence, and that crimes of passion do not meaningfully mitigate moral blameworthiness where the accused demonstrates premeditation, cruelty, and lack of remorse.