Chimenya v Republic (Criminal Appeal 8 of 2006) [2009] MWSC 40 (21 December 2009)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CRIMINAL APPEAL NO 8 OF 2006 (Being High Court Criminal Case No. 66 of 2000 sitting at Mwanza) BETWEEN: FLIAS: CHIOV IGIN VA. sis sna nan sue sins is anene av ne ee nb lee nade cee nr APPELLANT AND THE: Fe PL. « sacpaepceaivs verre nn rele poem ce emcernene RESPONDENT CORAM: THE HON. JUSTICE I. J. MTAMBO, SC, JA THE HON. JUSTICE A. K. TEMBO, SC, JA THE HON. JUSTICE A. K. C. NYIRENDA, SC, JA Mmame, Counsel for the Appellant Phillipo, Counsel for the Respondent Manda, Court Interpreter Ethel Matunga Chisale (Ndunya) S. P. S. JUDGMENT NYIRENDA, SC, JA The appellant was charged with murder contrary to section 209 of the Penal Code (Cap 7:01) of the Laws of Malawi. Upon full trial by the High Court sitting with a jury the appellant was found guilty and was convicted as charged. The Court proceeded to sentence him to suffer death in accordance with the law as was the position then. The appeal to this Court is against sentence only. The main ground of appeal states as follows: The death sentence meted out herein was excessive against the back ground that there were mitigating factors and further that mandatory death sentence as provided under section 210 of the Penal Code contravene the Constitutional provisions in Malawi. The other ground of appeal is clearly misconceived and we do not intend to waste our time on it. It says the lower Court erred on a point of law in not directing the jury to carefully consider the mitigating factors. Surfice to say it is not the duty of the jury in our criminal justice system to consider sentence against a convict. That has remained the responsibility of the judge. In dealing with the main ground of appeal it is necessary that we present an outline of the facts of the case. The deceased was an aunt to the appellant and they all lived in the same village with several other members of the extended family. The appellant was designated head of the family. It is said that there were frequent illnesses in the family sometimes resulting into deaths. As head of the family the appellant took it upon himself to establish what was causing the illnesses and the deaths. He decided to consult witch doctors in the area and indeed he consulted several of them, ten to fifteen according to him. The appellant said all the witch doctors informed him that it was the deceased who was a seasoned witch and responsible for all the illnesses and the deaths. He then resolved that the only way to deal with the problem was to eliminate the deceased. While contemplating how to eliminate the deceased he met Mr Elinimo who had an antique fire arm. He persuaded Elinimo to sell him the fire arm. The appellant bought the fire arm and in his own words: The reason I bought the gun after visiting the witch doctor and seeing that there was no remedy because this lady was much experienced with witch craft and in my thoughts I saw it wise to possess a gun and eliminate who was causing all these problems. Having bought the fire arm the appellant, on the fateful day, went to the house of the deceased in the evening and found the deceased in the house. The old lady noticed there was someone who had come into the house but could not exactly tell who it was because in the appellant’s own testimony the lady asked who had come into the house. The appellant did not respond but instead he fired at her. The ammunition went through the chest causing a small wound at the chest but a very big wound at the back according to the Report of Post-Mortem Examination. That was to be the end of the old lady. After the event the appellant disappeared from the village but was arrested some days later by the police. Counsel for the appellant urges the Court to consider a reduction of the sentence. It is submitted that the appellant did what he did genuinely convinced that the deceased was responsible for the loss of life and the illnesses in the family and as head of the family he had to do something to protect the rest of his family including himself. This submission is to say the appellant did not kill out of spite and that he can not be considered a ruthless murderer to deserve the death sentence. Counsel has referred the Court to the case of Rajendra Prasad v State of U-ttar Pradesh, AIR, 1979 S. C. 916 where some considerations are attempted on the death sentence. It is there stated: --Judges -- should not award the death penalty save for special reasons which have direct nexus with the necessity for hanging the murderer by law. --that one stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the_ situation, unless the inherent testimony oozing from that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a blood thirsty tiger, he is to quit his territorial tenancy. We wish to observe that our Courts will certainly wait for appropriate circumstances before imposing the death sentence. We reiterate what the Court said in Twoboy Jacob v The Republic MSCA Criminal Appeal No. 18 of 2006 (unreported) that: --offences of murder indeed differ and that they will always differ so greatly from each other and it is wrong and unjust that they should attract the same penalty or punishment. The same view was taken in Winston Ngulube and Michael Ngulube v The Republic, MSCA Criminal Appeal Case No. 35 of 2006 where the Court emphasized that where a person is convicted of murder, the court still retains the discretion to impose the sentence of death or a lesser sentence depending on the availability of aggravating or mitigating circumstances in the case. We should add that in determining the appropriate sentence the Court will carefully scrutinize the facts and evidence before it, consider the manner in which the murder was committed, the means used to commit the offence, the personal circumstances of the victim, the personal circumstances of the accused and what might have motivated the commission of the crime. What is true though is that a court can not and indeed should not attempt assemblage of factual particulars as it will be appreciated that the same set of facts could lead to different conclusions depending on the situation of the offender, the victim and the community at large. The appellant in the case at hand actually prepared to kill the deceased. He went around and bought a deadly weapon; all for the purpose of killing the deceased. Having acquired the gun the appellant went to the old woman’s house and shot the unsuspecting woman, instantly killing her. The old lady died a terrible death to say the least. We have borne in mind that the appellant is a fist offender and that he probably was motivated by his wild belief that the lady was a witch. That belief is not available to the appellant as a mitigating factor. As it is the old lady was killed in cold blood and in the most brutal circumstances. We are of the view that this is a proper case for the sentence of death. We therefore uphold the sentence imposed by the High Court and dismiss the appeal. DELIVERED in Open Court at Blantyre on this 21st day of December 2009. Signed: HON. JUSTICE I. J. MIMMBO, SC, JA HON. HON. JUSTICE A. K. TEMBO, SC, JA “Justi E A. K. C. aa SC, JA