The State v David Chimukoko and Graciano Kazingizi

### Preamble
1
HH 736-18
CRB 23/14
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THE STATE

versus

DAVID CHIMUKOKO

and

GRACIANO KAZINGIZI

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 10, 11, 12, 19 & February 2014, 22, 30 & 31 July 2015,

20 October 2016, 1 November 2017, 9, 16 & 20 November, 5 December 2018

Assessors: 1. Mr Chivanda

2. Mr Mhandu

Criminal Trial

N. Mazvimbakupa, for the state

C. Warara, for the defence

MUSAKWA J: The accused stand charged with murder. It is alleged that on 26th May 2012 and at Chimukoko Business Centre the accused or one or both of them unlawfully and with intent to kill or realising that there was a real risk or possibility that their conduct might cause death, caused the death of Cephas Magura by assaulting him with stones and logs several times all over the body thereby killing him.

The court will not reinvent the wheel. The facts, defence and evidence led for the state will be culled from judgment number HH-729-15 in which I dismissed the accused persons’ application for discharge at the close of the sate case.

The facts as outlined are that the accused and other ZANU-P.F. members were at Chimukoko Business Centre. The deceased who was the MDC-T district chairman was also at the Business Centre attending a rally. The ZANU-P.F. members gathered at Chimukoko Community Hall where there was an agricultural dry show. The accused persons mobilised their members to disrupt the MDC-T rally. As a result ZANU-P.F members advanced towards the MDC-T rally whilst armed with logs and stones. The MDC-T members commenced to flee. As they fled a stone was thrown by the first accused and it struck the deceased on the head and he fell down. Both accused persons caught up with the deceased whom they assaulted with fists and logs all over the body. The deceased sustained injuries from which he died on the spot. A post-mortem examination revealed that he died from severe head injury due to brain oedema as a result of assault.

In their defence outline the accused persons confirm their presence at the dry show. The first accused was a councillor for Mudzi Rural District Council. When the first accused arrived at the venue he met two Police Officers with whom he exchanged greetings. Since they were attending a developmental meeting, no Police clearance was required.

Later there were skirmishes between ZANU-P.F. and MDC-T youths. This led to an end of the dry show. The disturbances were attributed to MDC-T youths who shouted obscenities through a loud hailer. The accused persons claim they were picked up on account of their positions in ZANU-P.F. Initially, only a report of assault was made. A report of murder was made a day later. The nature of the commotion was such that it was difficult to identify anyone.

The state led evidence from five witnesses. George Zhuwawo told the court that he saw the first accused before the disturbances. The first accused stated that they did not tolerate MDC in Chimukoko. When disturbances broke out he ran behind the deceased. He did not see who struck the deceased.

Robert Dombo told the court about barricades on the road as they made their way to the venue. When he arrived he did not see the accused persons. After people gathered there was chanting of ZANU-P.F. slogans, dancing and beating of drums. Consultations were done with Police Officers and it was decided that the meeting be cancelled. The attacks then commenced. The witness confronted the first accused who turned against him. He was struck on the cheek with a brick by the second accused. He fled as he was pursued by the two accused. As he fled he looked back and saw the first accused throwing a stone which struck someone who fell down. The victim turned out to be the deceased. When he looked back again he saw the deceased being attacked as he lay on the ground.

After the attack he went to the Police station. A statement was not recorded as he was in pain. He was hospitalised for six days and discharged on 2 June 2012. Police officers then visited his home on 13 June to record a statement.

During cross-examination there were issues regarding his statement to Police. For example, he was asked whether he knew the accused persons before the incident. Although he claimed to have known the accused persons prior to the incident, his statement was to the effect that he only knew them in connection with the case. He admitted that although the deceased was attacked by a mob, he only managed to identify the accused persons. When he started to flee he did not see the accused persons but when he looked back that is when he saw the first accused pick up a stone. His evidence on his observation of the attack on the deceased did not remain consistent as will be highlighted during analysis.

Joyce Chikura an employee of Agritex testified about attending a meeting on the day in question. The meeting was in preparation for conducting a dry show. She explained a dry show as being an exhibition of crop harvests.  The venue was outside the hall. Minutes were recorded. Before the meeting she had seen the second accused. The second accused said he was looking for six brave men and they went away. The men later returned but she did not observe whether the second accused was amongst them. The first accused was also in attendance.

There was another gathering at some open space. A pick-up vehicle was conveying people to that gathering. Disturbances ensued such that there was no closing prayer. Later the first accused approached and told her that Police would be conducting investigations. She was told not to disclose the minutes of the meeting. She was quizzed on this aspect during cross-examination. She was adamant that the first accused insisted that the minutes and attendance register should not be disclosed.

Fungai Mahachi also gave a background similar to that given by Robert Dombo regarding the barricades that had been erected.  When things got tense he engaged Police officers. The first accused who was present told him he could not do anything. The first accused also stated that MDC was not allowed in the area. They resolved to return to Kotwa.

ZANU-P.F. supporters burnt newspapers. They sang and denounced the then MDC-T leader. As women were being evacuated the first accused called out for the witness to be dealt with. He was then struck on the back with a stick. He was mobbed and the first accused disappeared. His jacket, cell phone and cash were taken away. When he went to a Police vehicle, its windows were closed and it was driven off. He was taken under a tree where he was assaulted for some time. After they let him go he went towards a bridge. A police vehicle later came and he was conveyed to the Police station.

This witness estimated that the MDC-T supporters could have numbered about forty. Those from ZANU-P.F. were much more. He also stated that he saw the second accused in the company of the first accused but he did not see the role he played.

It emerged during cross-examination that he gave two statements, one on 26 May and the other on 13 June. The first statement was recorded at Kotwa whilst the second one was recorded at Nyamapanda. When the first statement was recorded he had not known about the deceased’s death.

Peter Chabveka was the organiser of the rally. He also confirmed the placing of barricades at Nyamhondoro and Chimukoko Dip Tank. He consulted with Police Officers.

When the commotion started he saw the two accused persons. The first accused demanded to see the clearance letter from Police. They then held him by the hands and demanded to know what they wanted at Chimukoko. The first accused stated that Chimukoko was out of bounds for MDC and this was echoed by the second accused. He saw Fungai Mahachi and others being assaulted. The two accused were among the people chasing the group in which the deceased was. A stone was thrown and it struck the deceased who was ahead of the witness. He did not see the person who threw the stone.

The accused persons testified in their defence. According to the first accused, as ward councillor he used to be invited to developmental meetings as well as meetings of school development associations. Thus he was invited to attend an agricultural dry show meeting that was held on the fateful day. He arrived after the meeting had commenced.

Having been briefed at the meeting and whilst he was making comments, the first accused saw people who were conducting road run. The people went behind the shops. Police officers approached him and informed him that there was a meeting being convened by MDC and as such they should not engage in violence.

When commotion escalated they resolved to disperse. He saw people running towards the MDC supporters. He did not get an opportunity to identify anyone in the crowd. The first accused advised the Agritex official to keep minutes of the meeting they had held. He did not get an opportunity to talk to Police officers when violence broke out. He was surprised on the following day when the second accused advised him that they were wanted at Nyamapanda Police station where they got detained.

The first accused confirmed the presence of Police officer Mashipe. When Mashipe told him to manage or control the situation he told him that he had no control over what was happening as he feared being caught in the crossfire. He confirmed passing through Joyce Chikura’s residence whom he advised to keep minutes of the meeting. The first accused also made uncharitable remarks about Joyce Chikura. In particular he stated that Joyce Chikura used not to implement resolutions and that she wept and wet herself when she was asked to submit a statement. He also claimed that there was never animosity between ZANU-PF and MDC. In response to a question by the court he stated that he managed to restrain the people he was with.

The second accused testified that at the material time he was the youth chairman for the district. He arrived at the venue when the meeting was in progress. Youths arrived running. A motor vehicle with a loud hailer arrived and it was announced that if anyone was assaulted they should retaliate. The people denounced the then head of state and chief Chimukoko. Police officers arrived and asked for the first accused. The first accused advised him that Police officers had stated that there was a meeting of MDC supporters at the community hall.

When commotion broke out the second accused went home. He had only seen Mashipe talking to the first accused. Mashipe had advised that those doing road run were ZANU-PF youths. According to him Joyce Chikura lied that he had asked for six brave men. He never went towards the MDC supporters.

The court was concerned that despite the presence of Police officers at the scene, the state made no effort to lead evidence from any of them. Having made this observation, the prosecutor secured Sergeant Mashipe for the court.

Sergeant Mashipe is attached to the Police Internal Security Intelligence. In 2012 he was based at Nyamapanda Police Station and posted to Kotwa Police Post.

On the material day he went to Chimukoko Business Centre in the company of another officer. Their duty was to cover a meeting that was to be held by the MDC.

As MDC supporters converged at the venue another group of people gathered about 400 metres across the road. The witness approached the first accused who advised him that they were having a developmental meeting. He advised the first accused about the purpose of their presence. They also emphasised that there should not be a disruption of the MDC meeting. The first accused assured them that there would not be a disruption. At this initial encounter the first accused was in the company of the second accused.

After a short while people from the other group approached the MDC gathering whilst singing revolutionary songs and beating drums. The witness and his colleague again approached the first accused and warned him about the potential risk. People advanced towards the MDC supporters whilst armed with sticks and stones. Stones were thrown all over and MDC pamphlets were burnt and scattered. The witness and his colleague were caught in the melee as they were not in uniform. Nonetheless they managed to board a motor vehicle which took them to Kotwa Post. Arrangements were made for the deployment of Police officers to the scene. Around 5 p.m. that day they learnt about the death of one person.

The witness further explained that their role was to provide security. Other Police officers were expected but they had not yet arrived when violence broke out. When violence broke out the first accused was among the mob. He did not observe the second accused. The witness was adamant that the people who attacked the MDC meeting came from the developmental meeting. During that time it was rare for any other political party to hold a meeting. The officers had received information to the effect that there would be disruption of the MDC meeting. They suspected that the developmental meeting was actually a political meeting. The witness also explained that although he had recorded a statement at Nyamapanda Police Station, he had never been contacted to attend court.

The first issue to consider is whether the accused persons participated in the violence that led to the deceased’s death. If our finding is that the accused persons were part of the violent mob, the second issue is whether they are liable for murder.

In dealing with the first issue, it is common cause that the accused persons were present at Chimukoko Business Centre at the time violence broke out. The accused persons’ evidence is that they dispersed when violence broke out.

We accept evidence of Robert Dombo, Fungai Mahachi and Peter Chabveka that as a build up to the resultant violence, some roads were barricaded. This gels with the evidence of Sergeant Mashipe that they had gathered information to the effect that the MDC meeting would be disrupted.

Sergeant Mashipe impressed as a credible witness. He was very forthright in his testimony. It is curious why the initial prosecutor did not seek to lead evidence from him. It is even more curious that no attempt was made to call the convenors of the developmental meeting, especially the chairperson- one Katsande. A suspicion arises that either there was poor investigation of such a serious matter or there was suppression of evidence.

Despite having a statement recorded from him, there appeared a reluctance to lead evidence from Sergeant Mashipe. This is why the witness had to be called by the court. His evidence was that he approached the accused persons from the on-set upon arrival with his colleague. This aspect was not disputed. He wanted assurances that there would be no violence. This is because they doubted the veracity of the developmental meeting. It was known that political meetings by opposition political parties were generally not entertained in the area. Robert Dombo, Fungai Mahachi and Peter Chabveka stated in their testimonies that the accused persons told them MDC was not tolerated in the area.

We also accept Joyce Chikura’s testimony to the effect that the second accused asked for some six brave men. She had no motive to lie about such an occurrence. She also testified that the first accused later approached her and told her that Police would approach her on account of the disturbances. The first accused did not deny approaching the witness as he explained that he wanted to ensure that minutes of the dry show were preserved to prove that their gathering was innocent. Joyce Chikura was adamant that the first accused had told her not to disclose the minutes and the attendance register. Surely, if the meeting was a genuine dry show preparation why would there have been concern about the minutes? In any event, no attempt was made to place those minutes before the court. During her evidence in-chief, Joyce Chikura did not appear settled. This was especially so when it came to explaining how the developmental meeting ended or how the violence flared up.

When violence broke out Sergeant Mashipe observed the first accused amongst the attacking mob. He did not observe the second accused at that stage. But earlier on he had seen the two accused persons together when he engaged the first accused on the need to maintain peace. Robert Dombo and Peter Chabveka maintained that the accused persons were part of the attacking mob. According to Robert Dombo when violence broke out he was attacked by both accused persons. Peter Chabveka stated that when the first accused declared that MDC was not tolerated in the area, he was supported by the second accused.

With the above evidence we come to the conclusion that both accused persons took part in the attack of MDC supporters. They associated with each other in unlawful conduct whereby they instigated violence against MDC-T supporters. I now move to the next issue-whether the accused persons are liable for murder or any other permissible verdict.

There is no evidence to prove that the accused persons set out to kill the deceased or any other person. Intention is defined in the following not so helpful manner by s 13 (1) of the Code-

“Where intention is an element of any crime, the test is subjective and is whether or not the 	person 	whose conduct is in issue intended to engage in the conduct or produce the 	consequence he or she 	did.”

Where a person deliberately applies force to another with the intention of killing the other he commits murder. Can it be said or inferred from the facts of the present matter that it was the accused’s deliberate intention to kill? I do not think so. One has to look at such factors as the nature of the weapon used, the position of the accused vis a vis the deceased and the amount of force applied in inflicting the injury. We have no evidence that the accused persons set out to outrightly kill any person.

It is necessary to analyse the reliability of the witnesses’ observations for purposes of determining whether the accused persons realised the real risk or possibility of causing death or acted negligently. In doing so it has to be pointed out that the sole witness to the particular attack on the deceased was Robert Dombo. The rest of the witnesses did not see either of the accused persons throwing a stone at the deceased. None of the other witnesses claimed to have seen either of the accused persons specifically attacking the deceased person.

According to PJ Schwikkard and SE Van Der Merwe in their book Principles of Evidence, the credibility of a witness can be decisive to the outcome of a case. In that vein, a variety of factors must be considered. These are-

The quality of the witness’s testimony as compared to the quality of evidence of conflicting witnesses.

Consistency of the particular witness, both within the content and structure of his own evidence and with the objective facts.

Integrity and candour.

Age, where it is relevant.

Capacity and opportunity to be able to depose to events.

Personal interest.

Temperament and personality.

Intellect.

Objectivity.

Weight to be attached and relevance of version.

The authors refer to the case of Heef v Neel 1994 1 PH F 11.

George Zhuwawo was candid that he had no clear observation of how the deceased was attacked. After running for about 200m he realised that the deceased had been struck. He stopped after running for another thirty metres. He saw a mob that had surrounded the deceased. He only managed to rest at Rukudzo River.

George Zhuwawo stated that Robert Dombo was ahead of him whilst he was ahead of the deceased. He was not very clear on this as he said initially Robert Dombo was ahead of him. At the time the deceased was struck he was not aware of Robert Dombo’s position.

Robert Dombo claimed that as he fled he looked back and saw the first accused throwing a stone. He ducked and the stone struck another person. The person who was struck got off the road and fell down. He continued to flee and later stopped. When he looked back he saw accused persons and others holding sticks with which they beat the deceased.

Under cross-examination Robert Dombo stated that the deceased was ahead of him when he was struck. He was asked if he was running when the deceased was struck and he stated that he was not running. When a stone was thrown he dodged and it struck the deceased. He was asked if he saw both the accused and the deceased and he said no. He was further asked if he was running and he said yes.

It must be appreciated that in the heat of the moment the witness could not have had a proper opportunity to make observations. He was fleeing danger like others. He did not explain how he was able to look back as he fled. This is apart from the fact that he was not clear whether he had stopped when he saw the deceased being struck. Having at one stage stated that when one is running one can make observations he was specifically asked about George Zhuwawo’ position. He then flipped and stated that he did not see as when running one cannot observe that. He equivocated. If he saw deceased being struck as he fled, it does not accord with the probabilities, taking into account his age and the exigencies of the situation. This is a witness who denied the generally held view that MDC-T was not tolerated in the area at the material time.

Even the distance from which he made the observations was not canvassed. The case was compounded by the absence of a plan of the scene of incident. It does not appear that indications were sought from the witnesses.

From such unclear evidence it is unsafe to accept that the first accused is the one who struck the fatal blow. This then excludes a verdict of murder or culpable homicide.

What has to be considered next is the most appropriate permissible verdict. In terms of the Fourth Schedule to the Code, the relevant permissible verdicts to the present charge are:

Culpable homicide; or

Any crime of which a person might be convicted if he or she were charged with culpable homicide.

A person charged with culpable homicide may be found guilty of public violence or assault. Having found that the accused persons were at the forefront of instigating the disturbances, it follows that they cannot escape liability for public violence.

Accordingly the accused are found not guilty of murder but are found guilty of public violence.

Sentence

In mitigation Mr Warara filed written submissions in which are outlined the accused persons’ personal circumstances.

First Accused

He is 52 years old, married to two wives and has eight children. Seven of the children, including two other orphans are still attending school. The accused is the ZANU-PF district chairman for Mudzi. He is a subsistence farmer and owns a residential stand at Kotwa Growth Point.

Second Accused

He is 46 years old. He also owns a residential stand at Kotwa Growth Point. He is married and has three children who are still minors. The accused is also a subsistence farmer. He has two cattle and an unspecified number of goats. He is the ZANU-PF secretary for finance for Mudzi district.

Both accused persons are first offenders. It is the practice of the courts to treat first offenders with some measure of leniency.

Upon their arrest the accused persons were incarcerated for six months until their admission on bail in October 2012. Upon committal for trial they were incarcerated for four months.

It is a fact that the accused persons awaited trial for two years. Thereafter the case took four years to be completed. The delays related to the completion of the matter are not entirely those of the accused’s making. However, the accused (through their counsel) did also contribute to the delay. Following the conclusion of the defence case on 12 October 2016 defence counsel intimated that he intended to secure a witness, one Trymore Kahuni who was not immediately available. The matter was postponed sine die. The matter was re-set at the court’s own instance on 1 November 2017 and again it was stated that the witness was in Mudzi and the defence required assistance to secure him. That is when the state fortuitously indicated that Sergeant Mashipe was available, as this would have necessitated another postponement. Reconvening the court thereafter became problematic taking into account that the trial judge was no longer conducting trials. In other instances assessors were not immediately available as they were engaged in other matters.

Public violence is inherently serious. Defence counsel cited authorities such as S v Muyambo and Another 1980 ZLR 409, S v Simbi 1996 (1) ZLR 167 and S v Jakata 1998 (1) ZLR 57 in which prison terms ranging between twelve and eighteen months were imposed. Mr Warara has urged the court to impose either a fine, a wholly suspended prison term or community service. His justification for such punishment is that this is an exceptional case on account of the mitigating factors and the fact that political violence is not as prevalent as it was during the time of commission of the offence. That notwithstanding, the court takes judicial notice of the 1st August 2018 public violence of unimaginable proportions that erupted in Harare and six people died in the process. The cases cited by Mr Warara are distinguishable as there was no loss of life.

The case of S v Mushonga 1975 (1) SA 247 (RA) serves to underscore the seriousness with which public violence is viewed by the courts. In that case the accused was part of a group of young men numbering about twenty who vented their frustrations at motorists following the end of a soccer much. Thus they went on a rampage of stoning motor vehicles. The accused also threw stones, one of which dented a motor vehicle. He was twenty years, which age was a determining factor in the sentence of six months’ imprisonment which was imposed. Half of the sentence was suspended on condition of good behaviour.

When the Attorney-General appealed against sentence, it was held that since public violence is a serious offence the interests and security of the public must outweigh considerations of personal interests of the offender. In light of the fact that at the time the appeal was heard the accused had already served the sentenced he was sentenced to two years’ imprisonment of which one year and nine months were suspended.

Violence has hitherto blighted the politics of this country. People must learn to tolerate opposing political views. People must freely exercise their political rights. It will also not be ignored that there was an element of provocation on the part of MDC supporters as they denigrated the then head of state.

To some extent the accused persons could have been punished more severely had this case been completed much earlier. However, a message must be sent to the public in general that public violence is frowned upon by the courts. In light of the loss of life, it would send the wrong message to society if the court does not impose an effective prison term. Thus a combination of personal and general deterrence is warranted. Nonetheless the accused persons will benefit from a suspension of a portion of the sentence.

According to s 36 (3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it is aggravating where public violence results in bodily injury. It is also aggravating where an accused person instigates attack on Police. Although Police officers in attendance were not attacked they were also caught in the melee and had to flee. The accused persons were aware of the presence of Police officers as they had interacted with them. The maximum punishment provided is a fine not exceeding level twelve or imprisonment not exceeding ten years or both such fine and imprisonment.

Accordingly, each accused is sentenced as follows-

Four years’ imprisonment of which one year is suspended for five years on condition during that period the accused does not commit any offence involving public which upon conviction he will be sentenced to imprisonment without the option of a fine.

Warara & Associates, accused’s legal practitioners