The State v Lydia Kahwema

On 26 February 2018 at Mangatu Village, Chief Marange, Mutare, the accused's 13-year-old son, Tafadzwa Kahwema, was sent home from school for not having a ball point pen. This annoyed the accused, who then assaulted the deceased with switches several times all over his body and hit his head against the wall. The deceased sustained severe injuries including traumatic force, subcutaneous/intramuscular secondary to blunt force and head injury, from which he died. A post mortem examination was conducted by Dr T. Javangwe who concluded the cause of death was traumatic force, subcutaneous/intramuscular secondary to blunt force and head injury.

• Whether the accused was guilty of murder or culpable homicide
• Whether the accused negligently caused the death of the deceased by assaulting him in circumstances where she ought to have foreseen that serious injuries or death could occur
• Whether the accused failed to act reasonably by failing to guard against the possibility of death given the excessive corporal punishment imposed
• Appropriate sentence for culpable homicide in the context of domestic violence against a child

The accused was found guilty of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. She was sentenced to 8 years' imprisonment of which 4 years' imprisonment was suspended for 5 years on condition that she does not within that period commit any offence involving use of violence on the person of another for which she is sentenced to imprisonment without the option of a fine. The effective sentence was therefore 4 years' imprisonment.

A person is guilty of culpable homicide where they assault another in circumstances where they ought to have foreseen that serious injuries or death could occur, and fail to act reasonably by failing to guard against the possibility of death. Excessive corporal punishment by a parent that results in the death of a child constitutes culpable homicide where the parent was negligent in failing to foresee the risk of death. The degree of negligence is assessed by examining whether the conduct bordered on recklessness and the extent of the moral blameworthiness. In sentencing for culpable homicide involving domestic violence against a child, courts must balance the offense and the offender while tempering justice with mercy, but must impose custodial sentences that reflect the gravity of the offense and send a clear message that such violence will not be tolerated. A guilty plea must be recognized as a valuable tool for smooth administration of justice and should be rewarded through sentence reduction.

The court observed that section 48(1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 protects the fundamental right to life, meaning no one should take away another's God-given right to life. The court commented that courts are duty-bound to mark their abhorrence of domestic violence by passing appropriate sentences. The court further observed that a civilized community should uphold a homely atmosphere which is peaceful and readily available to resolve differences in a peaceful manner. The court noted that the penalty provision for culpable homicide reflects that a sentence of up to life imprisonment can be considered in appropriate cases, indicating that society and the legislature view the offense as serious. The court commented that the child in this case was subjected to torture both at home and at school, and that the right to education was offended by being chased away from school. The court observed that this was one of the worst types of domestic violence on a vulnerable child by a parent, and that the irresponsible and cruel conduct called for a custodial sentence.

This case is significant in Zimbabwean criminal jurisprudence (and relevant to South African law by comparison) for emphasizing the seriousness with which courts view domestic violence, particularly against vulnerable children. It demonstrates that excessive corporal punishment by parents that results in death will attract substantial custodial sentences. The case reinforces constitutional protections including the fundamental right to life (s 48(1) of the Constitution), the right to education, and children's rights to protection from violence. It establishes that parents have a duty of care and protection toward their children, and breach of this duty through violent conduct, even if not intentional killing, will be severely punished. The judgment sends a clear message that domestic violence of any nature will not be tolerated and that courts must mark their abhorrence of such conduct with appropriate sentences to maintain societal confidence in the justice system.