The State v Makina Likonge Mutaipi

The 77-year-old accused was charged with murdering Michael Stali Simasiko (72 years old) on 25 May 2011 at the deceased's homestead. On the day of the incident, both men attended a beer party at Angela Tshuma's homestead for cutting thatching grass in Siamuwele area at Mapucula in Jambezi. During the drinking session that started around 0900 hours, an altercation arose between the accused and deceased when the accused attempted to regulate how the deceased was drinking beer, accusing him of taking large quantities. The deceased responded that he was free to drink as he had worked for the beer. The accused then made a comment about his dead children, to which the deceased allegedly responded by saying the accused had killed and eaten his own children (an accusation of witchcraft). Other people intervened and stopped the fight. The deceased went to lie down, fell asleep, then woke up and left for home. The accused subsequently armed himself with a hardwood stick (88cm long, 2.5cm diameter, weighing 480 grams), went past his own home to the deceased's homestead, and inflicted a vicious and brutal assault on the deceased. The deceased suffered multiple injuries including bruising to the face, chest and leg, multiple rib fractures (some with double fractures), pneumothorax and haemothorax (400ml blood in chest cavity). The deceased died from pneumothorax resulting from chest injuries.

• Whether the accused possessed the requisite intent to kill (mens rea for murder)
• Whether the accused's alleged intoxication negated his ability to appreciate the consequences of his actions
• Whether the provocation by the deceased (accusation of witchcraft) provided a defence
• Whether the accused acted with actual intent or constructive intent to kill

The accused was found guilty of murder with constructive intent.

Where an accused, after an altercation, deliberately arms himself with a weapon, proceeds to the victim's homestead, and inflicts a vicious and brutal assault with full appreciation that such an attack could result in death, but recklessly continues with the attack, the accused is guilty of murder with constructive intent (dolus eventualis). Moderate intoxication does not negate the requisite intent for murder where the evidence shows the accused had the capacity to form intent and acted with deliberation. Provocation, even serious provocation such as accusations of witchcraft, does not constitute a complete defence to murder where the accused's subsequent deliberate actions demonstrate intent.

The court observed that both the accused and deceased were elderly men (77 and 72 years old respectively) and that the deceased was a member of the committee of elders. The witness Josiah Shoko remarked that such fighting did not befit their status as old people. The court also noted that the stick used as the murder weapon, though dry at the time of trial, must have been heavier when used given the severe injuries it inflicted on the deceased. The court noted the comment made by the deceased accusing the accused of killing and eating his own children was completely irrelevant and had no bearing to the beer talk, suggesting the gratuitous and provocative nature of the insult.

This case illustrates the application of the doctrine of constructive intent (dolus eventualis) in Zimbabwean criminal law. It demonstrates that even where an accused may not have had the direct intention to kill, murder can be established where the accused foresaw the possibility that death might result from his actions but proceeded recklessly regardless. The case also clarifies that moderate intoxication and provocation (even serious provocation such as accusations of witchcraft) do not negate criminal liability for murder where the accused's subsequent actions demonstrate deliberate planning and appreciation of consequences. The case shows that courts will examine the accused's conduct holistically, including premeditation (arming himself, bypassing his own home to reach the victim's homestead) and the nature of the assault (vicious and brutal) to determine mens rea.