The State v Million Munga and Obert Muleya and Headman Munkombwe

On 26 August 2013 at Muntania Mufwakuchela's homestead, the two accused persons (Million Munga aged 51 and Obert Muleya aged 39) were involved in an altercation with the deceased's son. The deceased, Jairos Chabwe Muleya, an elderly man, attempted to intervene to achieve peace and quell the misunderstanding. The accused persons then assaulted the deceased with clenched fists and booted him all over his body several times. The accused persons subsequently fled from the scene. The deceased was taken to Binga Hospital and later transferred to Mpilo Central Hospital where he died on 31 August 2013. Both accused persons had been drinking beer for the entire day prior to the assault. A third accused person mentioned in the charges was since deceased. The post-mortem report prepared by Dr Jekenya gave the cause of death as intracranial haemorrhage, head injury, assault.

• Whether the accused persons were guilty of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
• Whether the accused persons should be convicted of the lesser charge of culpable homicide
• What appropriate sentence should be imposed for culpable homicide in circumstances where an innocent peacemaker was killed

Both accused persons were found not guilty of murder but convicted of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each accused was sentenced to 8 years imprisonment.

Where accused persons assault an innocent third party who is attempting to intervene as a peacemaker in a dispute, using excessive force that results in death (intracranial haemorrhage from assault), they are properly convicted of culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. A custodial sentence is warranted for culpable homicide even where mitigating factors exist (first offenders, guilty plea, family responsibilities), particularly where the victim was an innocent elderly person attempting to achieve peace and the accused used unwarranted excessive force.

The court made observations expressing concern about the tragic circumstances of the case, questioning what could have so incensed the accused persons to assault with excessive force an elderly man who was merely trying to achieve peace and was not the instigator of any conflict. The court emphasized the unfortunate nature of an innocent peacemaker becoming a victim of violence, noting that such conduct resulting in the loss of an innocent life was particularly serious. The court also noted that both counsel were in agreement that only a custodial sentence would meet the justice of the case, with which the court concurred.

This case demonstrates the Zimbabwean courts' approach to culpable homicide where excessive force is used against an innocent third party attempting to mediate a dispute. It illustrates the application of sections 47 and 49 of the Criminal Law (Codification and Reform) Act, the acceptance of limited pleas from murder to culpable homicide, and the balancing of mitigating factors (first offenders, guilty pleas, family responsibilities) against aggravating factors (victimization of an innocent peacemaker, excessive force, loss of life). The case reinforces that even where significant mitigating factors exist, a custodial sentence is appropriate where an innocent life is taken through unlawful violence.