R v Khoviwa (Criminal Case 20 of 2023) [2023] MWHC 116 (20 December 2023)

IN THE HIGH COURT OF MALAWI CRIMINAL DIVISION Zomba Registry Criminal Case No. 20 of 2023 THE REPUBLIC VS CHARLES KHOVIWA CORAM: HONOURABLE JUSTICE D. H. SANKHULANI Limbe, of Counsel for the State Chirwa, of Counsel for the Convict Malipa, Court Clerk and Official Interpreter Miboga, Court Reporter souoyos pe eee oe re ee JUDGMENT ON RESENTENCING Sankhuiani, J Background Information On 16" September, 2003, the Convict, Charles Khoviwa, was, after full trial, convicted by the High Court, sitting with a jury, at Mulanje of the offence of murder contrary to Section 209 of the Penal Code. We shall provide the particulars of the charge and the material facts surrounding the commission of the offence, when we get to the actual determination of the appropriate sentence to be imposed herein. Suffice it to say, at this stage, that, upon being convicted, the Convict was sentenced to the then mandatory death penalty. On 9" April, 2004, the then president of this Great Republic commuted the Convict’s death penalty to life imprisonment. Subsequently, the Convict appealed to the Supreme court against both his conviction and sentence, and the appeal was dismissed. Later on, the Convict was brought before the HC for resentencing hearing, pursuant to the decision of the High Court in Kafantayeni & Others vs Attorney General [2007] MLR 104 and also the 2010 decision of the Supreme Court of Malawi in the case of Yasini v Republic (MSCA Criminal Appeal No 25 of 2005, Unreported). The State objected to the resentencing hearing in respect of the Convict, on the ground that his appeal against sentence had earlier been dismissed by the Supreme Court. By a ruling that ensued, the High Court declined to conduct resentencing hearing on the ground that, since his appeal against sentence had earlier been dismissed by the Supreme Court, the Convict could not come to the High Court for resentencing hearing. The Convict then appealed to the Supreme Court against the High Court’s ruling declining to conduct a resentencing hearing. By a ruling that ensued, the Supreme Court held, in essence, that an appeal does not extinguish the right to a resentencing hearing, and, so, ordered a resentencing hearing relating the Convict herein before the High Court. This matter now comes up before this Court for a resentencing hearing, in respect of the mandatory imposition of the death penalty that was meted out to the Convict, pursuant to the order of the Supreme Court referred to above. We proceeded to conduct a resentencing hearing on the strength of the said order and also on the strength of the Kafantayeni Case (Supra), which declared all mandatorily imposed death sentences for murder to be unconstitutional and, therefore, invalid and also on the strength of the Yasini Case (Supra), which heid that all persons sentenced to the mandatory death sentence are entitled to a resentencing hearing. We held the resentencing hearing in the presence of both parties hereto who appeared through Counsel. May it be noted that in support of the resentencing hearing, there are three affidavits that were filed. Of the three affidavits, two were sworn by Chimwemwe Chithope Mwale, of Counsel, one in 2016 and the other one this year (2023). The third affidavit is one sworn by the Convict himself. The Convict also filed submissions in support of the resentencing hearing. On its part, the State did not file any affidavit. Instead, it only filed submissions on resentencing hearing. After the resentencing hearing, we adjourned the matter to a date to be set for judgment on resentencing. Hence our delivery of judgment on resentencing on today’s date. The Applicable Legal Principles lt was held in the Republic vs. Payenda (Criminal Cause 18 of 2015) [2015] MWHC 489 (23 April, 2015) that in cases of such a nature as the present one, the actual sentencing takes place at resentencing, the previous sentence having been declared constitutionally invalid. Since the actual sentencing takes place at resentencing, it means that the general legal principles of sentencing apply to resentencing hearings, just as they do to sentencing for any other crime. By ‘general legal principles’, we mean those legal principles of sentencing that are applicable to sentencing for murder as they are to sentencing for all other crimes. 3 Accordingly, we shall, at this juncture, restate those general legal principles of sentencing that we think we are relevant to the present matter. The first general legal principle of sentencing that we would like to restate is that a sentence should be one that fits the crime, the offender, is fair to society and is blended with a measure of mercy (Rep vs. Muhamad Abdul Ibrahim [2010] MLR 311). The second general legal principle of sentencing that we would like to restate is that every sentence must “adequately reflect the revulsion felt by the great majority of citizens” (per Chikopa J., as he then was, in Steven Mbewe vs. Republic, Criminal Appeal Case Number 48 of 2006, Unreported). The third general legal principie of sentencing that we would like to restate is that, at sentencing, the court should bear in mind the various aims of punishment such as retribution, deterrence, incapacitation and rehabilitation, the most important one being rehabilitation (see the Payenda Case, supra). The fourth general legal principle of sentencing that we would like to restate is that every sentence must have reasons therefor provided (R vs. Matebule (Confirmation Case 150 of 1997) [1997] MWHC 29 (12 November, 1997). The fifth and last general legal principle of sentencing that we would like to restate is that ultimately the sentencing process is all about arriving an appropriate sentence in each given case (see the Matebule Case, supra). The Applicable Legally-Accepted Considerations Regarding considerations that must be taken into account when sentencing murder convicts, the case on point is the Payenda Case (supra). In that case, Honourable Justice Professor Kapindu said as follows, and we quote with approval: “In my considered view, the decision of Kenyatta Nyirenda, J in the case of Republic vs Margaret Nadzi Makolija, Homicide (Sentence ReHearing) Case No. 12 of 2015, has properly summarised the important considerations that have to be taken into account when sentencing convicts in murder cases. The following considerations have been outlined: The maximum punishment must be reserved for the worst offenders in the worst of cases. Courts will take into consideration the age of the convict both at the time of committing the offence and at the time of sentencing. Young and old offenders are preferred to receive shorter sentences, Courts will always be slow in imposing long terms for first offenders, the rationale being that it is important that first offenders avoid contact with hardened criminals who can negatively affect process of reform for first offenders. Courts will have regard to the time already spent in prison by the convict and will usually order that the sentence takes effect from the date of the convict’s arrest thus factoring in time already spent in prison. Courts will however discount this factor if the time spent was occasioned by the convict themselves, that is, where they skip bail or because of unnecessary adjournments. Courts also have to look into the personal and individual circumstances of the offender as well as the possibility of reform and social re-adaptation of the convict. Arguably, this may relate to the convict’s individual circumstances at the time of committing the offence and at the time of sentencing, that is, their “mental or emotional disturbance”, health, hardships, etc. The learned Judge also quoted the case of Republic vs Samson Matimati, Criminal Case No. 18 of 2007 (unreported) in support of this proposition. The Court may take into account the mariner in which the offence was committed, that is, whether or not (a) it was planned rather than impulsive, (b) an offensive weapon was used; (c) the convict was labouring under intoxication at the time of committing the offence even though intoxication was not successfully pleaded in defence; 7. Puress, provocation and lesser participation in the crime may be mitigating factors in certain circurnstances. 8. Remorse, lack of clear motive, childhood deprivation and abuse, good conduct in prison, effect on the victim, likelihood of committing further acts of violence, sense of moral justification, and in appropriate cases, socioeconomic status; 9. The learned Judge concluded that this list of aggravating and mitigating circumstances is not exhaustive,” The dictum reproduced above, though not exhaustive, aptly captures most important legally-accepted considerations that must be taken into account when sentencing murder convicts. The rest of the legally-accepted considerations that are relevant to the present matter will be dealt with when we get to the actual determination of the appropriate sentence herein. This Court’s Determination On Appropriate Sentence We now get to determine the appropriate sentence for the Convict herein. And our starting point shall be to outline the material facts of the present matter, so as to put everything in context. We must point out that the Convict's trial record is reportedly missing. As such, we shall outline the material facts as gotten from the judgment of the Supreme Court dismissing the Convict’s appeal against conviction and sentence (see Charles Khoviwa vs. The Republic [2010] MLR 45). The Particulars of the charge were that the Convict, on 1 January, 2002 in Mulanje District in the Republic of Malawi, with malice aforethought, unlawfully caused the death of Texen Namboya (hereinafter referred to as ‘the Deceased’). The material facts are that the crime was committed in full view of eye witnesses who readily gave evidence at the Convict’s trial, on the side of the prosecution. The first witness, who gave evidence for the prosecution, was Aramson Muchiwa. 6 He is an uncle of the Convict. He said that on 1* January, 2002, he found the Deceased struggling with the daughter of one Waheliwa over a chair. The Deceased wanted to take away the chair claiming that it was brought there by his father. The witness got hold of the Deceased and asked him to leave the place. The Deceased refused to listen. He insisted that he wanted to take away the chair. He assaulted the witness. Then the Convict and one Roid Peter came to the place and intervened. They beat up the Deceased. The witness pleaded with them to stop assaulting the Deceased, but they did not listen. The Deceased began to run away from the place. The Convict and Roid Peter pursued him. The witness tried to call them back, but he was unsuccessful. They continued with the chase. The second witness was Dalitso Walasi. His evidence was that on the material day he had gone to a grocery to buy soap and as he was walking back from the grocery store he saw the Convict and Roid Peter chasing the Deceased. He noticed that the Deceased fell down after one of his pursuers had tripped him. Then he saw Roid Peter stabbing the Deceased with a knife. The Convict also stabbed the Deceased with a knife. They both stabbed him in the chest. After stabbing the Deceased, the handle of the Convict's knife broke away leaving the blade embedded in the Deceased's body. The Deceased managed to stand and run briefly before he collapsed and fell down. He died later, on the same day. Soon after the incident, the Convict and Roid Peter were arrested and remanded to Blantyre Prison. Roid Peter retained a private practice lawyer, got released on bail and evaded trial. Subsequently, the Convict was tried for, and convicted of, murder contrary to Section 209 of the Penal Code and sentenced to the then mandatory death penalty. This marks the end of the material facts surrounding the commission of the offence herein which we thought were important for purposes of putting things in their proper context. In arriving at an appropriate sentence, a court essentially considers aggravating factors of the offence, mitigating factors of the offence and mitigating circumstances of the offender. All that may be said about sentencing as a process boils down to this. Therefore, in the matter at hand, in determining the appropriate sentence for the Convict, we shall consider the aggravating and mitigating factors of the offence herein and the mitigating factors of the Convict. At this juncture, we would like to register our gratitude to Counsels for both sides hereto for their industry in coming up with the comprehensive submissions that we have on record. These submissions have been of great help to us. Accordingly, in determining the appropriate sentence herein, we shall have regard to these submissions. We now get to consider the aggravating factors of the offence herein, if any. At this juncture, it should be noted that the Convict’s submissions did not raise any aggravating factors of the offence herein, which is obvious. The State’s submissions, however, did raise one aggravating factor of the offence herein, which is that a weapon, a knife, was used in the commission of the offence. We entirely agree with the State on this. Accordingly, the fact that a weapon was used shail count as the first aggravating factor of the offence herein. The second aggravating factor of the offence herein, which has not been raised but we have found, is that the offence involved group action, since the Convict and Roid Peter acted in concert. That is all, in terms of aggravating factors of the offence herein. Having dealt with the aggravating factors of the offence herein, we now get to consider the mitigating factors of the offence herein. In this regard, it should be noted that the Convict's submissions did put forward several mitigating factors of the offence. So, here, we shall consider each of the mitigating factors, as put forward by the Convict and even those, if any, not put forward but as may found by this Court. We shall also consider the State’s responses to the mitigating circumstances of the offence as raised by the Convict, which we shall refer to, where necessary. The first mitigating factor of the offence herein, as advanced by the Convict, relates to his degree of involvement in the offence. According to the Convict, it was not him who actually stabbed the Deceased but Roid Peter. However, the evidence outlined above, as confirmed by the aforesaid judgment of the Supreme Court dismissing the Convict’s appeal against conviction and sentence, is unequivocally to the effect that both the Convict and Roid Peter stabbed the Deceased with a knife. We, accordingly, dismiss the Convict’s submission in this regard. The second mitigating factor of the offence herein, as advanced by the Convict, relates to provocation, arguing that the Deceased provoked him and Roid Peter. The Convict, therefore, submits that the Deceased’s 8 provocative acts should count in his favour. In this regard, the Convict relies on witness statements made by Muchiwa and Walasi in support of the resentencing hearing. Those statements have been attached to the affidavit in support of resentencing hearing sworn by Chimwemwe Chithope Mwale sworn in 2016. However, both those statements were not made under oath. And, also, both persons were not called to testify and be subjected to cross-examination, Therefore, we are unable to attach any weight to any of those statements, and we ignore them, accordingly. We are thus left with the evidence outlined above, as confirmed by the aforesaid judgment of the Supreme Court dismissing the Convict’s appeal against conviction and sentence. According to that evidence, there is not even a single trait of provocation of the Convict by the Deceased. And, true to this, the defence of provocation was, in fact, dismissed. In the premises, we dismiss the Convict’s submission in this regard. The third mitigating factor of the offence herein, as advanced by the Convict, is that at the time of the offence he was heavily intoxicated. In this regard, the Convict relies on a witness statement made by Walasi in support of the resentencing hearing. That statement has been attached to the affidavit in support of resentencing hearing sworn by Chimwemwe Chithope Mwale sworn in 2016. However, that statement was not made under oath. And, also, Walasi was not called to testify and be subjected to cross-examination. Therefore, we are unable to attach any weight to that statement, and we ignore it, accordingly, with the consequence that the alleged intoxication of the Convict shall not count as a mitigating circumstance of the offence herein. The fourth mitigating factor of the offence herein, as advanced by the Convict, is absence of premeditation. We entirely agree with the Convict in this regard. From the material facts outlined above, it is clear, and we so find, that the offence herein was not premediated. The actions of the Convict were impulsive. Therefore, absence of premeditation shall count as a mitigating factor for the offence herein. In terms of mitigating factors of the offence herein, we did not find any additional ones to consider, apart from those advanced by the Convict. So, this marks the end of consideration of the mitigating factors of the offence herein. Having considered aggravating and mitigating factors of the offence herein, we shall now consider the mitigating circumstances of the Convict herein. In this vein, 9 it should be noted that the Convict’s submissions did put forward several mitigating circumstances of the Convict. So, here, we shall consider each of the mitigating circumstances as put forward by the Convict and the State’s responses thereto, which we shall refer to, where necessary. We shall also consider those mitigating circumstances, if any, not put forward but as may found by this Court. The first mitigating circumstance of the Convict, as advanced by him, is his age at the time of offence. According to the Convict, he was aged between 24 years and 25 years at the time of committing the offence. The Convict, therefore, submits that his youthful age at the time of the offence ought to count in his favour. The State is agreeable to this submission. Indeed, case law of this Great Republic generally affords youthful age protection against long custodial sentences (see Republic vs. Ng’am bi [1971-1972] ALR Mal 457). In affirming this position, the case of R vs. Keke (None) [2013] MWHC 45 (17 June, 2013) held that for ages between 19 and 25, commission of a crime may be a result of impetuous, immaturity, youth or adventure. We entirely subscribe to this view. In the matter at hand, it is not in dispute that the Convict was aged between 24 years and 25 years at the time of the offence. Therefore, the youthful age of the Convict at the time of the offence shal! count as his mitigating circumstance herein. The second mitigating circumstance of the Convict, as advanced by him, is the fact that he is a first offender. The State is also agreeable to this submission. it is trite that the fact that a convict is a first offender is his or her mitigating circumstance counting against a long custodial sentence (see R vs. Chikazingwa (1984-86) 11 MLR 160). in the matter at hand, it is incontrovertible that the Convict is a first offender. Therefore, the fact that the Convict is a first offender shall count as his mitigating circumstance herein. The third mitigating circumstance of the Convict, as advanced by him, is the fact that he was convicted by a jury. The Convict submits that, while there is no challenge to his conviction, in line with the presumption in favour of a convict when dealing with an absence of relevant court records, his conviction by jury is a relevant factor in his favour. We summarily dismiss this submission. It is not in dispute that the Convict’s conviction, which was even upheld by the Supreme Court, still stands. Therefore, any attempt to somehow call into question the conviction through the backdoor in these proceedings cannot be entertained. Therefore, the fact that the Convict was convicted by a 10 jury shall not herein count as his mitigating circumstance. The fourth mitigating circumstance of the Convict, as advanced by him, is his previous good character. In this regard, the Convict relies on interview statements made by his Village Headwoman and his brother-in-law. However, all those statements were not made under oath. And, also, these persons were not called to testify and be subjected to cross-examination. Therefore, we are unable to attach any weight to any of these statements, and we ignore them, accordingly. In the premises, we find that there is no evidence on record of the Convict’s previous good character, with the consequence that the same shall not count as his mitigating circumstance herein. The fifth mitigating circumstance of the Convict, as advanced by him, is his capacity for rehabilitation and reintegration. In his affidavit in support of resentencing hearing, the Convict depones that during his time in custody, he reformed and held various leadership positions, including being secretary for his church and being chairman for 22 different churches in prison. He also depones that he was a leader of all other inmates as well as doing and teaching tailoring. Further, the Convict depones that after being released from custody on bail, he has reintegrated into society and works as a builder and carpenter, to earn a living. Lastly, the Convict also depones that upon being released form custody, he married a lady with whom he fell in love whilst in custody. In our opinion, all this, which has not been controverted in any way, is clear is proof that the Convict is capable of reform and reintegration into society. Therefore, the Convict’s proven capability for reform and reintegration into society shall count as his mitigating circumstance herein. The sixth mitigating circumstance of the Convict, as advanced by him, is forgiveness by the Deceased’s family. In this regard, the Convict relies on interview statements made by the Deceased’s cousin, one Agnes Julius. However, that statement was not made under oath. And, also, Agness Julius was not called to testify and be subjected to cross-examination, Therefore, we are unable to attach any weight to that statement, and we ignore it, accordingly. In the premises, we find that there is no evidence on record of the Convict’s previous good character, with the consequence that the same shall not count as his mitigating circumstance herein. Th seventh mitigating circumstance of the Convict, as advanced by him, is the effect of his incarceration on innocent third parties. Unfortunately for the Convict, 11 we did not find any legally admissible evidence showing the sort of hardship envisaged by this particular submission. We, therefore, find that there is no evidence on record of the sort of hardship envisaged by the present submission, with the consequence that the alleged effect of his incarceration on innocent third parties shall not count as his mitigating circumstance. What we take as constituting the eighth mitigating circumstance of the Convict, as advanced by him, are alleged previous serious violations of the Convict’s constitutional rights. The first constitutional rights violation raised is the Convict’s imprisonment that he has suffered in pursuance of an unconstitutional sentence, exacerbated by terror that he could be executed at any moment. However, in our most- considered opinion, the appropriate remedy for this violation is the present resentencing exercise. In addition to this, we shall, in our sentencing take into account the length of time in which the Convict had been in custody, which was 18 years, before being released by the Supreme Court on bail pending resentencing. In the premises, the Convict’s imprisonment that he has suffered in pursuance of an unconstitutional sentence shall not count as a separate mitigating circumstance for him. The second constitutional rights violation raised is the delay he has endured this far. According to the Convict, he has suffered two instances of unreasonable and unjustifiable delay, in contravention of his rights to a fair trial. According to the Convict, firstly he was held on remand for one year and eight months, before he was finally tried. Secondly, according to the Convict, he has been forced to wait until now to be sentenced. In our view, however, the delays that the Convict has endured will be taken care of by the position we have already taken that, in our sentencing, we shall take into account the length of time in which the Convict had been in custody, this far. Therefore, the delays that the Convict has endured shall not count as a separate mitigating circumstance for him. The third constitutional rights violation raised is that the Convict has been subjected to cruel and inhuman treatment throughout his incarceration by virtue of the deplorable prison conditions, in contravention of the Constitution and applicable international law. We, however, find the Convict’s line of thought in this regard to be faulty. If the so-called deplorable prison conditions were to be counted as a mitigating circurnstance, then the same would automatically accrue, at sentencing, to all convicts that have not been on bail, which would be absurd. 12 As it has rightly been contended by Counsel for the State, considering deplorable prison conditions as a mitigating circumstance does not speak to the individualized nature of sentencing. In the premises, the so-called deplorable prison conditions that the Convict has allegedly been subjected to shall not count herein as his mitigating circumstance. This marks the end of consideration of mitigating circumstances of the Convict, as advanced by him. Apart from these, we did not find any additional mitigating circurnstance of the Convict to consider. So, this also marks the end of consideration of mitigating circurnstances of the Convict, and indeed of all aggravating and mitigating factors herein. We now come to the actual determination of the appropriate sentence to be imposed herein. May it be noted, at this juncture, that the Convict, on the one hand, prays for a sentence that results in his immediate release whereas the State, on the other hand, submits that imprisonment for a fixed term of years is apposite herein. For starters, as we have already mentioned, the Convict herein is a first offender. Therefore, ideally, he was supposed to benefit from the prescriptions of Sections 339 and 340 of the Criminal Procedure and Evidence Code, for purposes of sentencing. However, Sections 340 of the Criminal Procedure and Evidence Code allows a court, on good grounds to be set out in the record, to impose a sentence of imprisonment to a first offender without having recourse to Sections 339 of the Criminal Procedure and Evidence Code if it is satisfied that there is no other appropriate means of dealing with the convict. In the matter at hand, bearing in mind the seriousness of the offence involved, this Court is of the considered view that the Convict ought not to benefit from the prescriptions of the two provisions we have just referred to above. Therefore, the Convict shall not to benefit from the prescriptions of Sections 339 and 340 of the Criminal Procedure and Evidence Code, for purposes of the present resentencing. We so hold. The maximum penalty for the offence herein is death or life imprisonment. It was held in the Payenda Case (supra) that murder, perhaps with the exception of genocide, is the most serious offence known to the law of this Great Republic and so, the sentence that the court was going to pass had to reflect that fact. We cannot agree more. Accordingly, the sentence we are going to mete out herein 13 will reflect the fact that murder, with the exception of genocide, is the most serious offence known to the law of this Great Republic. In addition to that, the sentence will also have to reflect the fact that life was lost permanently, and without any possibility of restitution. Bearing in mind the seriousness of the offence herein, consideration of the aggravating and mitigating factors of the offence had above, consideration of the mitigating circumstances of the Convict had above, the applicable legal principles and the legally-acceptable considerations discussed above, we find that the Convict herein does not deserve a death penalty, since, in our most-considered opinion, he does not fail in the category of the ‘worst of murderers’ (see the Payenda Case, supra). And it was heid in the Payenda Case (supra) that a convict who must be given a life term should be one who only marginally fails to reach the threshold of the category of the ‘worst of murderers’. In the present matter, we, again, find that the Convict herein does not deserve life imprisonment, because, in our most-considered opinion, he does not marginally fail to reach the threshold of the category of the ‘worst of murderers’, him being way below that. Instead, we find that a custodial sentence of 36 years is apposite herein. On the foregoing, this Court hereby sentences the Convict, Charles Khoviwa, to 36 years’ imprisonment with hard labour, with effect from the date of arrest. The Convict has got the right to appeal against this sentence to the Supreme Court of Appeal within 30 days from the date hereof. Pronounced in Open Court at Zomba this 20" day of December 2023 D. H. SANKHULANI JUDGE 14