Facts

The appellant was charged with the murder of his father and sentenced to death. At a
funeral, the wife to the deceased and mother to the appellant, brewed a sweet beer known
as Munkoyo. The appellant strongly warned his nephews not to take to the beer saying that
his mother and their grandmother was a witch. The court discovered a ploy made by the
appellant to poison the drink so as to kill his father, whom he had always believed was
responsible for the death of his children. In fact, in warn and caution statement by the police
and at a committee headed by village headmen, the accused admitted to poisoning the
drink.

Issue

Whether the charge of murder could be substantiated in this case and whether the sentence
to death was appropriate.

Held

The court held that the accused’s actions could be linked back in a strong causal chain to
the victim’s death. There was no evidence of a Novus Actus Interveniens. The court was of
the view that it was not a mere coincidence that he warned his nephews not to drink Maheu
from the calabash.   He displayed the Mens Rea  of implied malice in that he knew the
poisonous drink would kill his father or at least cause him grievous harm. Hence the Murder
charge was appropriate. The court however adjusted his sentence to death citing the
existence of an extenuating circumstance. They recalled the case of Chishimba v The
People  where it was held that belief in the existence of witchcraft is an extenuating
circumstance.Hence the learned trial Judge should have taken into account this factor and
accepted it as an extenuating factor. Therefore, the appeal against sentence was allowed.

Commentary

This case may well be classified under those cases where the presence of an extenuating
circumstance  reduced the sentence from capital punishment. See the case of  Kapesh and
Another v People (Appeal No. 99/100/2015) [2017] ZMSC 94  which discusses the
requirements for the extenuating circumstance of witchcraft to succeed. (N.B. another thing
to extract from this case is the holding of the court that where there is evidence supporting a
defense not raised by the accused, that defense must be considered by the trial court.)- This
proposition was used by defense counsel in the case of  Mwabuka v The People [2014]
ZMSC 29

LEGAL DISCLAIMER:  Vigilante Scholar is not a body licensed with dispensing legal
advice in the capacity of a legally mandated entity. The views and opinions we
share are subject to correction, verification and authentication by the reader with
the legally mandated government authorities. We acknowledge that the Council of
Law Reporting retains copyright in all reported cases. Therefore, the cases we
share subscribe to our opinion of the respective case and are to be used only for
educative purposes i.e. discussion. This also applies to any photos and/or
paraphernalia used under the exercise of fair use policy.

Please feel free to comment below.

VIGILANTE SCHOLAR TEAM