Zim man wins appeal against death sentence
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Setting aside the death sentence imposed on Elson Munsaka, Deputy Chief Justice, Justice Luke Malaba sitting with Justice Anne-Marie Gorowa and acting Judge of Appeal, Justice Meshack Cheda, the court remitted the case back to the trial court so that it could establish his age at the time of the commission of the offence.
The court found that from the facts of the case, Munsaka must have been 17 when he committed the offence and that if this was the case, then the trial court had no jurisdiction to sentence him to death.
The law, the court said, is clear that any person under the age of 18 years cannot be sentenced to death.
The Supreme Court directed that the matter be remitted back to the trial court so that a proper enquiry into his age at the time of the commission of the offence is made and thereafter he be sentenced accordingly.
The facts of the case are that on 27 April 1999, Fidres Sibanda, of Gcekeni Village in Tsholotsho District, was coming from Membe area when he met Munsaka at a bus stop at Luhoja area.
Munsaka told Sibanda that he was from Binga and had come to Tsholotsho in search of employment as a cattle minder.
Sibanda took him to his homestead and introduced him to other family members as someone he had engaged to assist in the fields.
On the same night, Sibanda and Munsaka shared the same sleeping hut. The following day the pair was not seen around the homestead and the door to Sibanda was locked from outside using a padlock.
On 30 April, Sibanda's brother, Ben, decided to push open the window to the bedroom and on peeping through the window he was horrified to see his brother lying on the bed with an axe stuck to his neck.
Munsaka through his lawyer, Mr Tanaka Muganyi, of Dube-Banda, Nzarayapenga and Partners argued that the trial court erred in holding that the matter was one where youthfulness could not be regarded as an extenuating circumstance.
"The uncontroverted evidence of the appellant shows that he was under the age of 18 at the time he committed the offence. The appellant's youthfulness ought to be extenuating circumstances and the sentence of death imposed by the court a quo ought to be set aside and substituted with a sentence of imprisonment," submitted Mr Muganyi.
Mr Simbarashe Timothy Makoni, of the Attorney General's Office conceded that if it is accepted that when his trial took place he was 26 years old then when the offence was committed in 1999 he was 17 years old.
"The main issue therefore becomes how old was the appellant when this offence was committed. The State in its papers submits that appellant was 18 years old when he committed the offence.
"In the absence of an investigation into extenuation, more precisely the appellant's age, the respondent (State) will humbly submit that the sentence of death cannot be supported," submitted Mr Makoni.
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