The State v Mehluli Tshuma

In September 2019, the accused consulted a witchdoctor (Tsikamutanda) who advised him that the deceased, a 73-year-old woman, was bewitching him and sucking his blood. Despite a cleansing ceremony, the accused continued to believe the deceased was the source of his spiritual problems and illness. He consulted another prophet who confirmed this belief. On 25 September 2019 at around 1100 hours, while the accused was allegedly on his way to report the deceased for witchcraft at Inyathi Police Station, he encountered the deceased passing by his homestead. The accused handed his wife the knobkerrie he was carrying, picked up a log weighing approximately 1.710 kg, and attacked the deceased without warning. He struck her six times on the head and upper body. When the deceased asked why he was assaulting her, he did not respond and continued the assault until she collapsed and died. The accused then placed the broken pieces of the log on her head and proceeded to the bus stop to report his crime. A neighbor, Onias Ncube, discovered the body with a wheelbarrow and water containers nearby.

• Whether the accused possessed the requisite mens rea (actual intent) to commit murder
• Whether belief in witchcraft can constitute a full or partial defence to murder
• The proper application of section 101 of the Criminal Law (Codification and Reform) Act regarding witchcraft belief
• Whether witchcraft-provocation could operate as a partial defence
• The appropriate sentence for murder committed in aggravating circumstances under section 47(4)(a) of the Criminal Code

The accused was found guilty of murder with actual intent in contravention of section 47(1)(a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and sentenced to 20 years imprisonment.

Section 101 of the Criminal Law (Codification and Reform) Act expressly provides that belief in witchcraft shall not be a defence to murder, assault or any other crime, though such belief may be taken into account when imposing sentence. A genuine belief that the victim was a witch does not negate the mens rea required for murder. Where an accused arms himself with a deadly weapon, deliberately attacks a victim with sustained violence causing fatal injuries, and continues the assault despite the victim's pleas, the requisite actual intent to kill is established. The circumstances of a brutal attack on a defenceless elderly victim using a weapon with sufficient force to break it into pieces, leaving the victim to die, constitute aggravating circumstances warranting the mandatory minimum sentence under section 47(4)(a) of the Criminal Code.

The court made extensive observations about the prevalence of belief in witchcraft across African communities in Zimbabwe, noting that such beliefs are interwoven in the social fabric and exist in both urban and rural areas, even in affluent communities. The court commented that the accused was "to a large extent the victim of the Tsikamutandas (witch-hunters) who go around the villages manipulating people and offering no discernible solutions to the people they purport to assist." The court acknowledged that every citizen has a Constitutional right to hold whatever belief they desire, but noted the case "reflects the clash between religion, culture and the belief in witchcraft and the supernatural." The court reviewed several prior cases dealing with witchcraft-related killings (S v Hamunakwadi, S v Chiurunge, S v Techu & Ors, S v Hahlekiye) and discussed the evolution of the jurisprudence on witchcraft-provocation as a potential partial defence, though distinguished the present case from those authorities.

This case reinforces the clear legal position in Zimbabwe that belief in witchcraft cannot serve as a defence to murder, as expressly provided in section 101 of the Criminal Law (Codification and Reform) Act. The judgment addresses the tension between deeply rooted cultural beliefs in witchcraft prevalent in African communities and the rule of law. It confirms that while courts may consider such beliefs as mitigating factors in sentencing, they do not negate criminal liability or the requisite mens rea for murder. The case also illustrates the application of the mandatory minimum sentence provisions under section 47(4)(a) for murder in aggravating circumstances. It highlights the court's concern about the role of witch-hunters (Tsikamutandas) in manipulating vulnerable people and the importance of following lawful channels (reporting to village heads or police) rather than taking the law into one's own hands. The judgment contributes to the jurisprudence on so-called 'witch killings' and demonstrates the judiciary's balancing of cultural sensitivity with the need to protect human life and uphold the rule of law.