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Fidelis Munyoro Chief Court Reporter
A Gweru man escaped the hangman’s noose after the Supreme Court quashed a death penalty imposed for murdering a fellow villager whose cattle he claimed grazed on his cotton crop.Bvumai Machena will serve 20 years in jail after the higher court found extenuating circumstances.
He had been on death row for 11 years since November 3 2004.
Acting Judge of Appeal Justice Andrew Mutema ruled that the High Court erred when it convicted Machena of murder with actual intent in view of the circumstances surrounding the case.
“The court therefore concludes that the appellant (Machena) had constructive intent to kill, not actual intent,” said Justice Mutema, who heard the appeal with Chief Justice Godfrey Chidyausiku and Justice Anne-Mary Gowora.
In considering the issue of extenuating circumstances, the lower court ruled that Machena had actual intent and found no extenuating circumstances.
But Justice Mutema ruled that constructive intent on its own together with other factors could constitute extenuation.
“It therefore follows that the court a quo misdirected itself on the issue of extenuation,” said Justice Mutema.
“In light of this misdirection, this court is at large on the issue of extenuation and an appropriate sentence in this matter. Having found extenuating circumstances, Justice Mutema set aside the sentence of death imposed on Machena by the lower court and substituted a 20-year term of imprisonment.
Machena was sentenced to death by retired Bulawayo judge Justice Misheck Cheda for the murder of his relative Edward Gasura in 2002.
The trial took place in Gweru where the High Court was sitting on circuit.
Machena fatally stabbed Gasura with an Okapi knife after accusing his son, Paul, of letting their cattle graze in his cotton field.
The court heard that on the fateful day, Machena went to Gasura’s homestead twice intending to confront him over the incident.
On his first visit, an emotionally charged Machena advised Paul to inform his father about the destruction their cattle had caused to his crop.
However, the court found that Machena’s crops were not destroyed by Gasura’s cattle, but that he had acted on suspicion.
Upon Machena’s return during the evening, a bitter argument ensued between the two men. Machena produced an Okapi knife and stabbed Gasura to death.
On January 29 2004, Justice Cheda convicted Machena of murder with actual intent and sentenced him to death after finding no extenuating circumstances.
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