The State v Patrick Kashiri

The accused and deceased were lovers who cohabited in Epworth as husband and wife. They had misunderstandings over children from other unions, prompting the deceased to leave for N'anga Village Buhera. On 18 February 2017, the accused followed her to the rural home for possible reconciliation, but discussions were futile. On 19 February 2017, after failed reconciliation attempts and the deceased pouring water (used to bathe a baby) on him, the accused went to a room, obtained a sharp object (an okapi knife according to the state, scissors according to the accused), and followed the deceased to the bathroom/toilet where she was bathing. He stabbed her multiple times on the right shoulder, chest, and neck while she was in a nude state. The deceased ran out screaming for help and died on 27 February 2017 from the injuries sustained.

• Whether the accused had the requisite intention to kill the deceased
• Whether provocation was sufficient to vitiate the requisite intention and reduce murder to culpable homicide under section 239 of the Criminal Law (Codification and Reform) Act
• Whether the defence of self-defence under section 253 of the Criminal Law (Codification and Reform) Act was available to the accused
• Whether the accused committed murder with actual intention as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act

The accused was found guilty of murder with actual intention as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 25 years imprisonment.

Provocation under section 239 of the Criminal Law (Codification and Reform) Act can only succeed as a partial defence to murder if the accused's reaction was spontaneous and instantaneous, showing complete loss of self-control such that a reasonable person in the accused's circumstances would have reacted similarly. Where the accused exercises self-restraint, takes time to arm himself, and then attacks in a calculated manner, this demonstrates he retained self-control and formed the requisite intention. Once a person is capable of some self-control, he becomes capable of forming mens rea. Actual intention to kill under section 47(1)(a) is established where the accused sets out to cause death and foresaw death was substantially certain to occur, as evidenced by the use of a lethal weapon, forceful blows to vulnerable parts of the body (neck, chest, shoulder), and the manner and circumstances of the attack.

The court observed that the defence of self-defence was not seriously pursued and appeared to have been raised as a gamble in case the provocation defence failed. The court noted that gender-based violence in intimate relationships, particularly attacking a woman in a vulnerable state (nude, bathing) after she refuses reconciliation, demonstrates a superiority complex and total disregard for the victim's autonomy and dignity. The court emphasized that such cruel, inhuman and degrading treatment in the context of domestic violence must be met with severe sentences to send a message to perpetrators and protect society. The court referenced the constitutional right to life and noted that no one has the right to take away this God-given and constitutionally enshrined right. The judgment stressed that courts must pass severe sentences for gender-based violence to express societal displeasure and deter such conduct in progressive and civilized communities.

This case is significant in Zimbabwean criminal law jurisprudence for its firm rejection of provocation as a partial defence where the accused's reaction was calculated rather than spontaneous. It underscores that for provocation to succeed under section 239, the reaction must be instantaneous, showing complete loss of self-control. The case also highlights the courts' strong stance against gender-based violence and domestic violence, particularly violence directed at women who seek to end relationships. The judgment emphasizes that possession and use of lethal weapons like okapi knives in domestic contexts, combined with attacks on vulnerable body parts, demonstrates actual intention to kill. It reinforces that severe sentences are necessary to deter violence as a means of resolving disputes, especially in the context of intimate partner violence.