Part 2 - Aggravating circumstances set out in the Criminal Law Code
Section 47 of the Criminal Law Code, as already stated, deals with aggravating circumstances in murder cases. Section 47(2) sets out circumstances which a court must treat as aggravating, while section 47(3) sets out further circumstances that a court may find aggravating. And — again as already stated — section 47 is not exhaustive: a court may treat other factors, not listed in the section, as aggravating in the light of the facts of the particular case. But only if the court finds that there are aggravating circumstances, whether listed in section 47 or not, will the possible imposition of the death penalty become an issue.
In all cases of murder a constant factor is that the accused with actual or legal intention caused the death of a person. This is what makes murder such a serious offence, because it violates a person’s right to life, guaranteed by section 48 of the Constitution, but it is not in itself an aggravating factor. All murder is serious, but there has to be something more than the killing of a person to make it aggravated murder.
The cases referred to in this section are cases where the death penalty has been imposed both before and after 2013—
(a) where the death penalty has been imposed because aggravating circumstances have been found to be present or
(b) where the death penalty has not been imposed despite the presence of aggravating circumstances.
Murder during commission of certain crimes [section 47(2)(a) of Code]
This provides that the court must treat as an aggravating circumstance that the murder was committed by the accused in the course of, or in connection with, or as the result of, the commission of any of the following crimes (or of any act constituting an essential element of any such crime)—
- an act of insurgency, banditry, sabotage or terrorism; or
- the rape or other sexual assault of the victim; or
- kidnapping or illegal detention; or
- robbery; or
- hijacking, or
- piracy; or
- escaping from lawful custody; or
- unlawful entry into a dwelling house; or
- malicious damage to property if the property in question was a dwelling house and the damage was effected by the use of fire or explosives.
Each of these will be dealt with below, citing any relevant case law.
Killing by bandits [section 47(2)(a)(i) of the Criminal Law Code]
Killing whilst implementing a plan to unlawfully overthrow the lawful government will attract the death penalty. So too where an individual kills in furtherance of political objectives by, say, planting a bomb in a public place. Armed gangs have previously operated in Zimbabwe in attempts to destabilise the country and cause unrest. Members of the security forces were killed during battles with armed dissidents who also killed civilians in order to induce the civilian population not to support the government forces. The actual perpetrators of these murders received the death sentence. Accomplices to such murders also received the death penalty unless the degree of participation was very minor or other factors were present such as a high degree of compulsion to force them to participate in the armed activities.
In S v Nzima & Anor S-55-84 armed bandits had opened fire on the police, killing one officer and injuring another. The appellants were young men but they had joined the gang to wage war. The death penalty was upheld.
In S v Sibanda S-5-87 a gang of armed bandits had attacked a mine to sabotage and stop its operations. They had killed a number of persons during this attack. They were found guilty of murder with constructive intent and the death penalty was upheld.
Killing whilst committing rape or sexual assaults [section 47(2)(a)(ii) of the Criminal Law Code]
Such murders are very likely to attract the death penalty, the courts being concerned to protect women from lethal sexual attacks. The worst type of such murder is clearly where the rapist decides, either before or after the rape, to kill the victim so that she cannot identify him to the police. Far more frequently the killing occurs as a result of violence used by the rapist to overcome resistance from the victim. Here the killing may be done only with constructive intent, but the fact that the killing occurred consequent upon a rape attack may still move the court to impose the death sentence.
In S v Mapiro A-106-71 the accused committed a rape and a brutal murder. He was under the influence of drink and there had possibly been some provocation but the court nonetheless found that there were no extenuating circumstances.
In S v Chihota HH-234-15 the court imposed the death penalty upon a man who had brutally raped his 12–year-old niece whom he should have protected. He then strangled her to death in order to cover up the rape and stop her from disclosing what had happened to her and identifying him.
In S v Phiri HB-19-16 the accused, aged 30, had raped and killed a girl aged 15. He was found guilty of rape and murder with actual intent. He had meticulously planned to commit the crime. The court found that the accused had preyed on a vulnerable young girl. He was sentenced to life imprisonment for the murder.
Murders during robberies and unlawful entry into a dwelling house [section 47(2)(a)(iii) and (iv) of the Criminal Law Code]
Murders committed during the course of robberies and housebreakings have often in the past attracted the death penalty, the courts stressing the need to protect the public against these crimes. The particular factors surrounding the death must, however, be carefully considered in order to decide whether the death penalty is justified. In detailing some of the factors which are relevant, a distinction can be drawn between the principal offender and an accomplice.
In the absence of extremely strong mitigatory factors the person who kills someone during the course of the robbery or a housebreaking will almost certainly receive the death penalty. This is particularly so where he has carried firearms or other dangerous weapons to the scene of the crime to use in event of resistance or disturbance by the victim or guards. If, however, the killer was not armed and, for instance, killed a victim who had disturbed him during the course of what was planned to be a non-violent theft by using, say, his fists and feet and was found to have had only a constructive intent to kill, it is possible that the death penalty might not be imposed.
If an accomplice accompanies a person whom he knows to be armed and likely to use the weapon with fatal effect during the housebreaking or robbery, the blameworthiness of the accomplice is of a high order. As McNally JA said in S v Ndebu & Anor 1985 (2) ZLR 45 (S) at 47; 1986 (2) SA 133 (ZS):
The mere fact that one of a number of wrongdoers carries a weapon does not necessarily mean, when the wrongdoing leads to murder, that he alone will face the death penalty... [It is] a valid point... that, although the unarmed man’s moral blameworthiness may be lower than that of his armed colleague, it may still be so high that the death penalty is appropriate.
If, however, the killer murdered not with a weapon but with blows from fists and feet and the accomplice, who had played only a minor role in the criminal enterprise such as standing look-out, was found to have only constructive intent, then the death penalty would not usually be appropriate.
In S v Chiramba S-146-82 a young man aged between 20 and 23 brutally attacked a man and his wife after breaking into their house. He beat the man with an iron bar and strangled the wife. The death sentence was upheld.
In S v Ndlovu S-34-85 the court said it was the duty of the courts to protect members of the public against this type of offence which had become disturbingly prevalent. In the absence of weighty extenuating circumstances, murder during the course of robbery will attract the death penalty. Here the murder was committed with actual intention and it was a brutal and merciless attack on an elderly, innocent and defenceless man in the sight of his wife. The attack was carried out after a demand for money had not been met. The appellant had shown no remorse. It was argued that his fellow robber had played a more dominant role in the robbery but the court found that the appellant had actively joined in the savage assault by striking the deceased with a knobkerrie.
In S v Muchenje S-81-85 robbers had entered a house with intent to steal. The elderly house owner had confronted them with a weapon but they had disarmed him, then brutally assaulted him and he had later died. They had also assaulted his wife. They were found guilty of murder with constructive intent only. Nonetheless the court found that the death penalty was appropriate as there were no extenuating circumstances.
In S v Sibanda 1992 (2) ZLR 438 (S) the death penalty was upheld for murder committed in the course of a robbery. The appellant had murdered the deceased with actual intention to kill. The trial court was unable to find any feature which diminished the appellant’s moral culpability. He had callously and brutally killed a defenceless and terrified man who had done him no harm. The appeal court pointed out that warnings had frequently been given that, in the absence of weighty extenuating circumstances, a murder committed in the course of a robbery will attract the death penalty.
In S v Masuku S-234-96 an 18-year-youth murdered with actual intent a 56-year-old woman during the course of a robbery. He struck her with stones and stabbed her with a pair of scissors. After the killing he stole various items. The death penalty was upheld despite the youthfulness of the offender.
In S v Ncube S-179-98 the appellant stabbed to death a young man in the process of robbing him. The death penalty was upheld and the court said that even if the evidence established that only attempted robbery was committed, the death sentence would still be justified.
In S v Mutsinze HH-645-14 the accused was convicted on two counts of murder and one count of armed robbery. The court found that the murders were committed in circumstances of aggravation. The robbery was carefully planned and the accused and his accomplices went armed to the business centre intending to use the weapons to overcome any resistance. The judge decided not to impose the death penalty expressing the view that until such time an Act of Parliament was promulgated defining “the terms on which courts will impose the death penalty”, including the definition of “aggravating circumstances”, it might not be proper to impose a death penalty. If section 47 of the Criminal Law Code had been in its current form when this case was dealt with, it is likely that the death penalty would have been imposed because the aggravating circumstance pertaining to the killing during a robbery would probably have outweighed the mitigating circumstances found by the court, namely that he had many wives and 10 children, he was a first offender and a church leader, he had been in prison for 13 years awaiting his fate and he had lost his mother and son whilst in prison.
In S v Mlambo HH-351-15 the accused shot and killed a money-changer. The accused had pursued the money-changer and had forced him at gun point to surrender his bag of money. He had then ordered the money-changer to surrender the money he had in his pockets. As the deceased was emptying his pockets the accused had shot him in the chest, and the deceased died in the clinic to which he had been taken. Both counsel agreed that the murder had been committed in aggravating circumstances. When the deceased was shot he was defenceless and terrified and was no threat to the accused. This was a callous murder and there was no mitigation to diminish the moral culpability of the accused. The judge said: “This case screams loudly for the imposition of death penalty.”
In S v Chikanga HH-555-15 the deceased, aged 83, had been paid money by the Government. He had buried the money close to his home. The accused and an accomplice went to the deceased’s house armed with knives and a pick handle with the intention of robbing him of the money. They viciously attacked both the deceased and his elderly wife. The accused’s accomplice fatally stabbed the deceased. The accused had common purpose with the accomplice and the accused had legal intention as he realized that during the course of the robbery the accomplice might stab to death the deceased. The two forced the badly injured deceased to reveal where he had concealed the money. They then took the money and shared it. The court decided that the accused had escaped the death penalty by a whisker. It took into account that the accused was guilty of murder with legal intention and that when they realized that the deceased had been seriously injured they had attempted to tie a cloth around his abdomen to avoid further exposure of his bowels and intestines.
In S v Milanzi HH-398-17 the three accused carried out a robbery with a firearm at the residence of the deceased. They attacked the police officer guarding the premises, disarmed him, handcuffed him with his handcuffs and severely assaulted him. They proceeded to hold the occupants of the house, including the police guard, hostage or captive tied with ropes in one of the workers quarters whilst part of their group ransacked the house taking away valuables. They subjected the occupants of the house to savage attacks and assaults. The deceased was assaulted with the butt of an AK rifle as he sat on his bed defenceless. The deceased never fully recovered from his injuries and succumbed to them and died. The three robbers were sentenced to death.
In S v Matibe S-23-17 a murder was committed in the course of a robbery. When his fellow robber produced a pistol and shot the deceased the appellant did nothing to stop him. The appellant helped to dump the body. He participated in the disposal of the property belonging to the deceased and he shared in the loot. The court found that there was very little difference, if any, between the conduct of the appellant and the fellow robber who shot the deceased. The degree of participation in the crime was equal. The court dismissed the appeal against conviction and against the imposition of the death penalty.
In S v Dolosi & Ors HH-210-15 police officers connived with accused one and others to rob building materials at a police farm. The police officers agreed to provide their service pistols to facilitate the armed mission while accused one and another civilian were to provide getaway vehicles. When they went to the farm they knew the building materials were under guard by security guards. During the criminal enterprise the deceased went to investigate and was shot. The accused were found guilty of murder and sentenced to death.
In S v Luphahla & Anor HB 65-16 two robbers set upon a couple who were strolling along the Zambezi River. They assaulted the man with logs and then took away the woman and killed her by assaulting her with logs. The robbers then threw the woman’s body into the river. One accused was 34, the other 28 years old. The elder accused was a first offender, married and a father of two minor children. He was the sole breadwinner. The younger accused was a vendor, married with children and had a previous rape conviction. They were sentenced to life imprisonment.
See also S v Moyo & Anor HB-162-11.
In S v Kufakwemba & Ors (supra) the court stated that murder during the commission of another offence has always been considered as an aggravating circumstance.
Murder during kidnapping, hijacking or piracy [section 47(2)(a)(iii) and (iv) of the Criminal Law Code]
The offences listed here seem rather arbitrary. Piracy in particular: Zimbabwe does not harbour many pirates. And if kidnapping is to be included, why not human trafficking?
Killing of guard during escape from lawful custody [section 47(2)(a)(iii) of Code]
In S v Chauke & Anor 2000 (2) ZLR 494 (S) dangerous prisoners attempted to escape by seizing weapons from prison guards. A gun battle ensued in which a prison guard was killed. The court found that even if the fatal bullets had been fired by fellow prison guards during the gun battle, the appellants must have foreseen a gun battle in which anyone in the vicinity might get killed as a result of the exchange of gun fire. The trial court found that there were no extenuating circumstances and the appeal court upheld this finding.
In S v Mashayamombe HH-933-15 an escaped convict had raped and killed a female prison officer after breaking into her house. He was sentenced to life imprisonment, the court finding that the death penalty would have been appropriate but that there was at that time a gap in the law because the legislature had not yet spelled out what constituted aggravating circumstances.
More than one murder [section 47(2)(b) of the Criminal Law Code]
This provides that it is an aggravating circumstance that the murder was one of two or more murders committed by the accused during the same episode or was one of a series of two or more murders committed by the accused over a period of time.
Murder with torture or mutilation [section 47(2)(c) of Code]
This provides that it is an aggravating circumstance that the murder was preceded or accompanied by physical torture or mutilation inflicted by the accused on the victim.
Location of murder and means used [section 47(2)(d) of Code]
The court must treat as an aggravating circumstance the fact that the victim was murdered─
- in a public place; or
- in an aircraft, public passenger transport vehicle or vessel, railway car or other public conveyance;
by the use of means (such as fire, explosives or the indiscriminate firing of a weapon) that caused or involved a substantial risk of serious injury to bystanders.
For a case where the murder was carried out in a public place see S v Masango HH-726-16.
Premeditation [section 47(3)(a) of Code]
Generally premeditated murders are more heinous than unplanned, spontaneous killings. If the accused decided to advance that he would kill his victim, planned how he would do it and then executed the plan, in the absence of strong mitigation, this may tip the scales in favour of the death penalty. The Criminal Law Code thus provides that in the absence of other circumstances of a mitigating nature, or together with other circumstances of an aggravating nature, the fact that the murder was premeditated is to be regarded as an aggravating feature.
Section 47(3)(b) of the Criminal Law Code provides that in the absence of other circumstances of a mitigating nature, or together with other circumstances of an aggravating nature, it is to be regarded as an aggravating circumstance that the murder victim was─
- a police officer;
- a prison officer;
- a minor;
- a pregnant female;
- a person who was of or over 70 years;
- physically disabled.
In South Africa it has been recognized as an aggravating circumstance that the accused killed his father or his mother.
In S v Muhlaba A-76-73 the policeman was carrying out his duties at the time he was killed.
In S v Muchaparara & Anor HH-99-04 the accused shot and killed two police officers.
The fact that the accused has previous convictions is not listed as an aggravating factor in section 47 of the Criminal Law Code: understandably, because few people manage to commit more than one murder in their lifetime. For that reason previous convictions should not given much weight as an aggravating factor unless perhaps the criminal record is especially bad.
The provision that aggravation applies even where the act constituted only an essential element of a listed crime is far too wide. If only one but not all of the essential requirements of the crime has been satisfied then the crime in question is not committed and it is therefore illogical and wrong to take this into account in aggravation.
Constructive intent, in the context of murder, means that the killer realised there was a real risk or possibility that his conduct might cause death and persisted in his conduct despite that realisation. The term “constructive intent” has, however, been criticised on the basis that it may be misunderstood to imply that subjective foresight of the real risk of death may be artificially attributed to an accused which the accused may not have had. The term “legal intent” is sometimes used as a substitute but this term is not easily understood as portraying what this state of mind entails; this state of mind is also referred to by using the Latin term “dolus eventualis”.
Note that under the current law a person who was under 21 at the time of the murder may not be sentenced to death.
Whatever the circumstances of the case, such emotive language should not be used
See S v Petrus 1969 (4) SA 85 (A) at 90
There seems to be no Zimbabwean case on this matter. This however is the approach adopted in the South African case of S v Felix & Anor 1980 (4) SA 604 (A) at 612.