Tinashe Chikosha and Walter Nenyere v The State

The two accused persons were convicted of murder. The offence was committed on 28 September 2013. Accused 1 (Tinashe Chikosha) was the one who carried and used an okapi knife to commit the murder. Accused 2 (Walter Nenyere) was born on 30 December 1992, making him 20 years and 9 months old at the time of the offence. Accused 2 did not have a birth certificate but produced his National Identity card as proof of age. Both accused were first offenders with families. The murder was committed in a very cruel manner resulting in loss of life.

• Whether the death penalty could be imposed on accused 2 given his age at the time of the offence
• What appropriate sentence should be imposed on each accused person for murder
• The application of section 338(b) of the Criminal Procedure and Evidence Act regarding age limitations for death sentences

Accused 1 (Tinashe Chikosha): Sentenced to death, to be executed according to law and returned to custody. Accused 2 (Walter Nenyere): Sentenced to 20 years imprisonment.

A death sentence may not be imposed on a person who was under 21 years of age at the time of committing the offence, in accordance with section 338(b) of the Criminal Procedure and Evidence Act. Where the death penalty is precluded by age, the court must consider an appropriate alternative sentence, taking into account the seriousness of the offence, the youthful age of the offender, their prospects for rehabilitation, and whether a definite period of imprisonment (as opposed to life imprisonment) would better serve the interests of justice and allow for reform.

The court expressed hope that imposing a definite period of imprisonment rather than life imprisonment would give the second accused person an opportunity to reform when he is released from prison. This reflects the court's view that rehabilitation remains an important sentencing objective even in serious cases of murder, particularly for youthful offenders. The court also noted that submissions during allocutus that merely ask the court for mercy or a chance to look after family, without substantive mitigating factors, carry little weight at the sentencing stage.

This case demonstrates the application of section 338(b) of the Criminal Procedure and Evidence Act which prohibits the imposition of the death penalty on persons under the age of 21 at the time of committing the offence. It illustrates the court's approach to sentencing in murder cases where co-accused have different levels of culpability and where one accused falls within the statutory age protection. The case also shows the court's consideration of rehabilitation prospects when imposing definite sentences on youthful offenders as opposed to life imprisonment.