The State versus Makaika Milanzi and Others

On 18 June 2009, seven accused persons were alleged to have committed a robbery at 2 Crackley Lane, Mount Pleasant, Harare, the residence of Christopher Mushonga (the deceased), who was married to a government Minister entitled to police protection. During the robbery, the armed gang attacked the police guard Tirivacho Mbizi, disarmed him of his AK-47 rifle, handcuffed him with his own handcuffs, and severely assaulted him. They held occupants of the house hostage, tied them up, and ransacked the house, stealing cellphones (Nokia 2630 and HTC), money, and a motor vehicle. The deceased was savagely assaulted with the rifle butt while sitting defenceless on his bed. Mariah Mandizha (the deceased's sister) was also assaulted and lost teeth. The deceased was hospitalized but never fully recovered from his injuries and died on 15 August 2009. The accused were arrested in July 2009 following police investigations that traced stolen cellphones to them. A Nokia 2630 was traced to the 1st accused through Caroline Zihoya and Chipo Barangwe. The HTC phone was recovered from the 2nd accused. The 3rd and 5th accused allegedly led police to the recovery of the stolen AK-47 rifle. The trial commenced before Chatukuta J in June 2011 but had to be restarted (trial de novo) before Chitapi J after one assessor passed away and the accused refused to consent to continuing with one assessor.

• Whether the accused persons were guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act (constructive intent)
• Whether the State proved the identity of the perpetrators through circumstantial evidence
• Whether applications for discharge at the close of the State case under section 198(3) of the Criminal Procedure and Evidence Act should be granted
• Whether the plea of autrefois acquit applied where accused had been acquitted of robbery charges in the Magistrates Court
• Whether extenuating circumstances existed to avoid the mandatory death sentence under the law applicable at the time of the offence
• Whether indications leading to recovery of the stolen firearm were freely and voluntarily made or were forced
• The proper approach to sentencing for murder committed before the 2013 Constitution came into effect

Accused 1 (Makaika Milanzi), Accused 2 (Antony Kumbula), and Accused 3 (Stephen Zimowa) were found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act and each sentenced to death. Accused 4 (Tichaona Soda) and Accused 5 (Asani Chikwanda) were found not guilty and acquitted. Accused 6 (Tendai Jongwe) had charges withdrawn at the close of the State case and was discharged. Accused 7 (Crispen Sibanda) had the indictment withdrawn before plea. The death sentences carried an automatic appeal to the Supreme Court.

1. Where an accused is found in possession of property stolen during a robbery in which a person was killed, and fails to provide a plausible innocent explanation for such possession, the only reasonable inference is that the accused acquired the property during the robbery and participated in it, thereby having constructive intent for any resulting death. 2. In applying the plea of autrefois acquit, the court must be satisfied that: (i) the convicting or acquitting court was competent to try the charge now faced; (ii) the trial was based on a competent indictment from which a valid judgment could be passed; and (iii) the acquittal was on the merits. An acquittal for robbery by a Magistrates Court does not bar a subsequent murder prosecution in the High Court arising from the same incident. 3. The law applicable to criminal offences, including sentencing provisions, is the law in force at the time of the commission of the offence, not the law in force at the time of trial or sentencing, pursuant to section 17(1) of the Interpretation Act and the presumption against retrospectivity. 4. Under section 196 of the Criminal Law (Codification and Reform) Act, co-perpetrators who share a common purpose in committing a crime are liable for the conduct of each other unless dissociation is proved. 5. Evidence obtained through illegal means such as assault and torture, where the process is not properly documented and the voluntariness of participation (such as in pointing out stolen property) is in serious doubt, should not be relied upon by the court. 6. Under the pre-2013 constitutional regime, where murder is committed with constructive intent (section 47(1)(b)) during an aggravated robbery, the death sentence is mandatory unless extenuating circumstances are found, applying a balancing test between aggravating and mitigating factors.

The court made several important observations: (1) Applications for discharge under section 198(3) should be rare and not used as fishing expeditions, and prosecutors should withdraw charges where evidence is clearly insufficient rather than forcing such applications. (2) Court officials who handle exhibits must exercise greater care and diligence; the loss of exhibits in this case (two cellphones) was deprecated and could constitute dereliction of duty or even theft. (3) Defence counsel must be careful in cross-examination not to solicit evidence about an accused's involvement in other crimes, which may be prejudicial to their client's case. (4) The court expressed approval for the practice of consulting with assessors on sentencing matters, though the ultimate responsibility remains with the judge alone. (5) The court noted that while the 2013 Constitution and 2016 legislative amendments changed the framework for imposing the death penalty (making it discretionary where aggravating circumstances exist rather than mandatory absent extenuating circumstances), in this case even under the new discretionary framework, the aggravating circumstances would far outweigh mitigating factors. (6) The court observed that delay in trial, while relevant to sentencing, must be assessed in context, including whether the delay was explained and whether the accused asserted rights to a speedy trial. (7) The court commented that sentencing is a lonely and onerous task for a judge, and consultation with assessors as societal representatives should be the norm rather than the exception, though without usurping the judge's ultimate responsibility.

This case is significant for several reasons: (1) It clarifies the application of the retrospectivity principle in criminal law, holding that the law in force at the time of the offence applies despite subsequent constitutional and legislative changes. (2) It addresses the complex transitional issues arising from the 2013 Constitution's provisions on the death penalty (section 48(2)) and subsequent legislative amendments in 2016, holding that pending cases commenced before these changes should apply the procedure in force at the time. (3) It applies the principles of circumstantial evidence in murder cases where direct identification evidence is limited. (4) It reaffirms that possession of recently stolen property without innocent explanation can ground a conviction for the offence during which the property was stolen. (5) It demonstrates the court's approach to common purpose liability under section 196 of the Criminal Law (Codification and Reform) Act in gang robberies resulting in death. (6) It addresses the exclusion of evidence obtained through illegal means (assault, torture) even where such evidence might implicate an accused. (7) It clarifies that autrefois acquit does not apply where a lower court acquitted of robbery but never determined a murder charge arising from the same incident, as the lower court lacked jurisdiction over murder. (8) It demonstrates the court's approach to determining extenuating circumstances under pre-2013 law, applying the balancing test from cases like R v Mharadzo and S v Jacobs.