The State v Tungamirai Madzokere and Others

On 29 May 2011, members of the MDC-T political party gathered at Glen-View 4 Shopping Centre to celebrate "T-Shirt visibility day" - an unsanctioned political gathering. Inspector Petros Mutedza led a police detail to disperse the gathering. After being ordered to disperse at Glen-View 4, the group relocated to Glen-View 3 Shopping Centre in defiance of police orders. When the police followed them to Glen-View 3, the group violently resisted, attacking the police with stones. Inspector Mutedza was struck by a stone on the left side of his head, causing a depressed skull fracture and brain damage, resulting in his death. Seven accused persons from an original group of 29 were charged with murder and alternatively with public violence, based on the doctrine of common purpose. The accused included a local councillor (Tungamirai Madzokere), a youth deputy secretary (Yvonne Musarurwa), and other alleged MDC-T members or associates.

• Whether the accused persons participated in the killing of Inspector Mutedza acting in common purpose
• Whether the doctrine of common purpose applied to establish criminal liability for all participants in the mob violence
• Whether the identification evidence was sufficient to prove individual accused persons' presence and participation at the scene
• Whether the defences of alibi raised by certain accused persons were credible
• What was the actual cause of death - stoning or a fall from a vehicle
• Whether mere presence at the scene or association with the group was sufficient to establish criminal liability
• Whether providing transport to fleeing participants constituted being an accessory after the fact

Accused 1 (Tungamirai Madzokere): Found GUILTY of murder with actual intent. Not guilty of public violence (subsumed in murder charge). Accused 2 (Yvonne Musarurwa): Found GUILTY of murder with actual intent. Not guilty of public violence (subsumed in murder charge). Accused 3 (Last Maengehama): Found GUILTY of murder with actual intent. Not guilty of public violence (subsumed in murder charge). Accused 4 (Lazarus Maengehama): Found NOT GUILTY and DISCHARGED on both counts. Accused 5 (Phineas Nhatarikwa): Found GUILTY of being an accessory after the fact of public violence (competent verdict). Not guilty of murder. Accused 6 (Edwin Muingiri): Found NOT GUILTY and ACQUITTED on both counts. Accused 7 (Paul Nganeropa Rukanda): Found NOT GUILTY and ACQUITTED on both counts.

The binding legal principles established are: (1) Under the common purpose doctrine, where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each is responsible for specific criminal conduct committed by one of their number which falls within their common design - the principle that "he who does a thing through another does it himself" applies. (2) When a group attacks with stones accompanied by death threats ("kill the frogs"), actual intention to kill can be inferred and ascribed to all participants in the common purpose. (3) An accused person has an obligation to furnish the State with material details of an alibi defence timeously to allow investigation; failure to raise an alibi in a warned and cautioned statement may result in the defence being rejected as recent fabrication (applying S v Manuwa). (4) Positive identification by credible eyewitnesses who knew or had close opportunity to observe the accused, corroborated by other evidence and the accused's own suspicious conduct, can establish guilt beyond reasonable doubt. (5) A person who, knowing that public violence has occurred, provides transport to enable participants to flee the scene is guilty as an accessory after the fact under s 206 of the Criminal Law (Codification and Reform) Act. (6) Mere presence at a preparatory gathering does not establish criminal liability in the absence of evidence of conspiracy or presence at the actual scene where the crime was committed.

The court made several non-binding observations: (1) On the nature of witness testimony: "Witnesses who testify on anything are not expected to recount events as if they were recording machines. People will observe or hear certain things but put emphasis on different aspects of what they hear and see" (citing Moyo v Nkomo). Minor inconsistencies in witness accounts do not necessarily taint the evidence - what matters is whether there is a common thread. (2) The court noted that in volatile, dangerous situations like mob violence, witnesses cannot be expected to follow events with the same accuracy as watching a film - some may focus on different details than others, yet all may be telling the truth. (3) The analogy was given of a doctor noticing a child's runny nose while a lady notices its floral dress - both are truthful despite apparent inconsistency. (4) The court observed that politically-motivated violence presents particular challenges for law enforcement and requires careful assessment of each participant's role rather than blanket prosecution. (5) The court commented that flight from a crime scene may be interpreted as admission by conduct, as "the guilty are always afraid," though this was used as corroborative rather than primary evidence.

This case is significant in Zimbabwean criminal law for its comprehensive application of the common purpose doctrine in the context of politically-motivated mob violence. It demonstrates how the doctrine ascribes collective criminal responsibility to all participants in joint unlawful enterprises, regardless of who struck the fatal blow. The judgment provides detailed guidance on: (1) the elements required to establish common purpose liability; (2) the treatment of alibi defences and the obligation of accused persons to raise such defences timeously with investigating officers; (3) the assessment of identification evidence in mob violence cases; (4) the distinction between mere presence at a scene and active participation or association with criminal conduct; and (5) the requirements for conviction as an accessory after the fact. The case also illustrates the court's careful individual assessment of each accused person's culpability despite their alleged participation in the same violent incident, showing that common purpose does not eliminate the need to prove each accused's nexus to the crime.