‘High Court cannot impose death penalty’

Fidelis Munyoro Chief Court Reporter—
The High Court cannot impose death sentence until the legal controversy over the operation of Section 337 of the Criminal Procedure and Evidence Act and Section 48 (2) of the Constitution is fixed, a legal expert has said. This controversy came to light following submissions made by lawyer Advocate Tawanda Zhuwarara in the appeal case of a Mberengwa man — Samson Mutero — who was condemned to death for killing his three-year-old stepdaughter.

Adv Zhuwarara was invited as amicus curiae (friend of the court) to make submissions on the question of law that had arisen in the matter.

Mutero raped the minor before assaulting her all over the body with an unknown object until she fell unconscious.

He carried the now-deceased toddler to the homestead, where she later died as result of the assault.

In his judgment, Bulawayo High Court judge Justice Lawrence Kamocha, ruled there were aggravating circumstances in the manner in which Mutero murdered his stepdaughter before convicting him of murder with actual intent.

Justice Kamocha said Mutero’s actions were heinous and only capital punishment was right sentence in the circumstances.

Mutero’s appeal was heard by three judges of the Supreme Court sitting in Bulawayo last week.

Adv Zhuwarara submitted that it was legally untenable for a court to conflate section 48 (2) of the Constitution and Section 337 of the Criminal Procedure and Evidence Act.

“Ordinarily, such discord is resolved in favour of the Constitutional provision, however, this is complicated by the absence of a statutory provision that speaks to the operationalisation of section 48 (2) of the Constitution,” said Adv Zhuwarara.

“In the present matter, it is submitted that the court a quo applied the wrong test in passing the sentence of death and as such, this court is empowered to interfere with the sentence.”

The opinion by Adv Zhuwarara comes at a time when two death-row prisoners — Farai Ndlovu and Wisdom Gochere launched a legal assault on the validity of the death penalty last month.

The two, who are being represented by another prominent lawyer Mr Tendai Biti, are arguing that the death penalty is not in conformity with the new constitutional dispensation.

Charges against Mutero rose on September 20 2013, when he was at his homestead in the company of the girl and her mother. Mutero took the girl into a bushy area on the pretext that he wanted her to assist him in fetching firewood.

Once in the bush, Mutero raped the girl before assaulting her all over the body with an unknown object until she fell unconscious. Mutero carried the little girl to the homestead, where he lied to his wife that she had suffered from epileptic fits in the bush.

The girl later died and Mutero arranged for her to be buried in Nkomonye Village under Chief Nyamhondo, Mberengwa.

The village head, however, became suspicious and reported the matter, leading to Mutero’s arrest.

A post-mortem revealed the cause of death as unascertained due to decomposition as well as lacerated rectum and sexual abuse.