The State v Tinashe Chikosha and Walter Nenyere

The two accused persons were convicted of murder as defined in s 47(1)(a) of the Criminal Law (Codification and Reform) Act, having caused the death of the deceased with actual intent to kill him. The murder was committed in the course of a robbery. The accused persons had planned to rob the deceased and his companion, pretending to be police officers. The first accused person, who was 28 years old at the time, stabbed the deceased with an okapi knife he was carrying, inflicting a fatal blow. The second accused person was 23 years old. After stabbing the deceased, they took his cellphones. The first accused was a family man with four children, and the second accused had a wife and a three-year-old child. Both were first offenders. The offence was committed in a public place near a market where other persons were present.

• Whether the murder was committed in aggravating circumstances as required for consideration of the death penalty under s 337 of the Criminal Procedure and Evidence Act as amended
• Whether the new constitutional and legislative provisions regarding the death penalty applied to the case
• What constitutes aggravating circumstances under s 47(2) and (3) of the Criminal Law (Codification and Reform) Act
• Whether the second accused should be treated differently in sentencing despite not being the one who inflicted the fatal blow
• What mitigating factors should be considered in sentencing for murder committed with actual intent during a robbery

The court found that the murder was committed in aggravating circumstances and that it would be an improper exercise of discretion not to consider imposing the death sentence. In accordance with Rule 49 of the Criminal Procedure (High Court) Rules, 1964, the accused persons were afforded the opportunity to show cause why the sentence of death should not be passed. The final sentence was not imposed in this judgment as it deals only with the question of aggravating circumstances and sets the stage for the sentencing hearing.

Murder committed in the course of, in connection with, or as a result of robbery constitutes murder in aggravating circumstances under s 47(2)(a)(iii) of the Criminal Law (Codification and Reform) Act. Under the new constitutional framework (s 48(2) of the Constitution and amended s 337 of the Criminal Procedure and Evidence Act), the death penalty may only be imposed for murder committed in aggravating circumstances, and the court has discretion whether to impose it even where such circumstances exist. Under the doctrine of common purpose, a co-accused person who participates in a planned robbery that results in murder has the same culpability as the person who inflicted the fatal blow, and the mens rea and actus reus of the principal offender are imputable to the accomplice. The moral blameworthiness of an accomplice is not diminished merely because they did not personally wield the weapon.

The court observed that while the new provisions introduce the concept of aggravating circumstances and judicial discretion, this does not preclude consideration of extenuating circumstances if established. However, the court noted that courts have consistently taken a serious view of murders committed during robberies, as it is the duty of courts to protect members of the public against such offences which have become disturbingly prevalent. The court commented that people must feel they can enjoy the sanctity of their homes, attend business premises, or go abroad without being subjected to unlawful interference and attack. The court also noted that while the policy of law is to be lenient with first offenders to give them opportunity to reform, this consideration is outweighed where there is loss of life in the course of a robbery. The court observed that persons aged 28 and 23 who are family men would appreciate the value of life and cannot be considered so young as to lack maturity.

This case is significant as one of the early High Court decisions interpreting and applying the new constitutional and legislative framework for the death penalty in Zimbabwe following the 2013 Constitution. It clarifies the fundamental changes introduced by s 48(2) of the Constitution and the amended s 337 of the Criminal Procedure and Evidence Act, including: (1) the requirement that murder be committed in aggravating circumstances before the death penalty can be considered; (2) the discretion reposed in the court whether to impose the death penalty even where aggravating circumstances exist; (3) the expanded categories of persons exempt from the death penalty, including all women (not just pregnant women) and persons under 21 (raised from 18). The judgment provides guidance on what constitutes aggravating circumstances, particularly murders committed in the course of robbery. It also confirms the continued application of the doctrine of common purpose in attributing equal culpability to co-accused persons.