The State v Andison Munkuli

### Preamble
1
HB 55/21
HC (CRB) 11/21
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THE STATE

Versus

ANDISON MUNKULI

HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J Ndubiwa and Mr J.L.M. Zulu

HWANGE 15 AND 16 MARCH 2021

Criminal Trial

Mrs M Cheda, for the state

Ms C Munyeza, for the accused

MAKONESE J:	This is one of those tragic cases where a biological parent through the use of violence, and in an attempt to discipline a child, caused an unnecessary loss of life.  Parents must never take the law into their own hands and seek to resolve domestic disputes by resorting to brute and lethal force against those they are supposed to protect.

The 46 year old accused is facing one count of murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act (Chapter) 9:23.  The accused denies the charge and tenders a limited plea of guilty in respect of the lesser charge of culpable homicide.  The state conceded that the limited plea has been properly tendered.  We are in agreementwith that view.  On the second count, the accused is facing a charge of physical abuse in violation of section 4 (1) the Domestic Violence Act (Chapter) 5:16.  The accused admits the charge on the second count.

The brief background to this matter is set out in a statement of agreed facts which has been tendered into the record of proceedings.  The circumstances surrounding the death of the deceased are common cause.  The accused resided at his own homestead in Binga.  The deceased was aged 17 years at the time she met her death and she used to reside at the same homestead with the accused.  The accused was deceased’s father.  The deceased was at the material time at school and writing her final ‘O’ Level examinations at the end of 2020.  The deceased was six months pregnant at that time.  Deceased desired to get married to her boyfriend, the one who had impregnated her.  The accused was strongly against the idea.  On 24th April 2020 the deceased insisted on going ahead with the marriage.  At around 1800 hours, the accused summoned the deceased, together with her mother OttiliaMunkuli.  They were under a baobab tree.  The deceased was kneeling facing the accused.  The accused went into his bedroom and emerged armed with three wooden spears.  Accused shoved one spear into the ground next to the deceased.  He shoved another spear into the ground next to Ottilia.  Accused stood up carrying the third spear and assaulted Ottilia using the spear three times at the back.  The spear broke into pieces.  The accused who was seething with anger then kicked the deceased once in the stomach with booted feet.  The accused then struck deceased twice at the back of the head using clenched fists.  The deceased and Ottiliafled from the homestead and sought refuge at Margaret Muleya and Falls Mangombe’s homesteads, respectively.

On the 25th April 2020 the deceased and Ottilia proceeded to Janet Mumpande’s homestead in Tobwe, Binga.  The deceased was complaining of abdominal pains arising from the assault in her stomach.  On 6th May 2020 Ottilialeft her homestead leaving the deceased behind.  The deceased followed her.  Ottilia enquired from the deceased as to why she had followed.  Deceased did not respond. She fell to the ground facing downwards.  Ottilia sought medical assistance from Kariyangwe hospital.  A nurseattended to the deceased.She observed that she had no pulse.  She had died.

The state tendered a Post Mortem Report compiled by Doctor Gregori at United Bulawayo Hospital on the 11th May 2020.  The pathologist concluded that the cause of death was:-

septic shock

uterine contusion with fetal death

abdominal contusion

An examination of the generative organs further revealed that there was uterus gravid with a baby inside.  The contused surface or cut surface drains had blood and placenta detached on one of the sides.

From the evidence that has been placed before the court it is clear that the accused negligently caused the death of his daughter by kicking her in the abdomen with full knowledge that she was pregnant.  Whilst there is no evidence to show that accused’s desire and intention was to bring about the death of his daughter, the state has proved beyond reasonable doubt that accused is guilty of culpable homicide.

In the result and accordingly accused is acquitted and found not guilty on the charge of murder.  Accused is found guilty of culpable homicide.  The accused is guilty of physical abuse on the second count on his own plea of guilty.

Sentence

It is accepted that parents stand in loco parentis in respect of their children and immediate dependents.  Children look up to their parents for protection.  Children expect to be shown love and compassion by their parents.  The accused in this matter has been convicted of a serious offence.  Accused took the law into his own hands and sought to inflict pain upon his own daughter in order to discipline her.  Accused was aware that the deceased who was 17 years old at the time was 6 months pregnant.  Accused believed that it was his right as a father to discipline the errant child.  Accused was angry with the deceased’s mother whom he blamed for the pregnancy.  The assault perpetrated upon the deceased was brutal and severe.  The accused aimed his kick at the deceased’s stomach.  He must have been aware that there was a likelihood that the unborn child and the mother could die as a result of such an attack.

The court shall take into account all the mitigating factors of this case as set out by accused’s defence counsel.  Accused is a first offender who has pleaded guilty to the lessor charge of culpable homicide.  He has shown a certain measure of remorse and contrition.  His marriage broke up as a direct result of this offence.  Accused is a family man.  His dependents will undoubtedly suffer hardship as a result of any custodial sentence being imposed.

In assessing an appropriate sentence, the court must take into consideration accused’s personal circumstances.  These must be balanced against the due administration of justice.  The sentence imposed against the accused must fit the offence and the offender.  The sentence must not be arbitrary but must reflect the seriousness of the offence.  A custodial sentence is inevitable.  The court must send a clear message that parents have no right to inflict physical harm upon their children or dependents.  This case reflects badly on the accused.  He was expected to protect his daughter and ensure that she and the unborn baby were safe and sound.  Accused did the opposite.  In a fit of rage he kicked the deceased in the stomach.  The report by the pathologist reflects that deceased suffered serious injuries.  The cause of death was:-

septic shock.

Uterine contusion with fetal death.

abdominal contusion.

The injuries reflected in the Post Mortem Report indicate that accused used extreme and severe force.  The accused caused tragic and unnecessary loss of human life.

In our view, an appropriate sentence is as follows:

“Count 1

Accused is sentenced to 10 years imprisonment of which 2 years is suspended for 5 years on condition accused is not within that period convicted of an offence involving violence and for which upon conviction he is sentenced to a term of imprisonment without the option of a fine.

Effective: 8 years imprisonment

Count 2

Accused is sentenced to 12 months imprisonment wholly suspended for 5 years on condition accused is not within that period convicted of an offence for which upon conviction he is sentenced to imprisonment without the option of a fine.”

National Prosecuting Authority, state’s legal practitioners

Ndove and Partners, accused’s legal practitioners