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Martin Stobart
CHRONICLE of 29 November 2013 carries a very ‘interesting’ story titled “Man escapes hangman’s noose” I have to say that the upholding of Abel Sibanda’s appeal by the Supreme Court judges Elizabeth Gwawunza, Bharat Patel and Anne-Mary Gorowa left me a bit numb where it matters the most: inside the cranium. The death sentence had been handed down by Justice Maphios Cheda on Abel Sibanda, 33.
An employee goes to the bush to look for firewood in the company of the wife of his ‘master’ (was the wife not a joint employer in the first place?). The wife, Virginia Mnkandla, 31, is eight months pregnant. She proceeds to seat herself pretty much within one metre from the worker and the object (the log) being cut. Now, I live in a village. Invariably there is not a single day in a week when I do not cut a log or fell a tree. Therefore I am qualified enough to tell your readers, Mr Editor, about tree cutting. Here is a brief mental picture of the scene. Mnkandla sits within a half metre between Sibanda (the accused) and the object being cut.
The deceased, surprisingly if not strangely or suspiciously, is facing away from Sibanda with her back towards the target. The accused, equally surprisingly deems it safe enough to cut the tree. Do we have to stress that set up was too close for comfort? However, what we cannot ignore easily is extremely suspect. To me it reads romantic as if it was authored by Dame Agatha Christie… By romantic I simply mean fictitious at best and suspicious at worst.
By passing the death sentence on the accused was Justice Maphios Cheda really wrong? By quashing both the conviction and sentence were the three judges correct?
If I am wrong myself it is because I am relying on what I have read in the Press. I have read this story for the umpteenth time and the impression I have got has been that Justice Cheda was right and that juxstapositionally the Supreme Court judges’ reasons as pronounced by them are very tenuous, unconvincing and shallow to the intellectual mind.
What I have observed over the many years of life which God has blessed me with is that our society, I mean the intelligentsia and the intellectual fraternity is reluctant if not scared to criticise the judiciary. We seem to think that judges especially operate on planet Mars or Jupiter. I could cite so many High Court outcomes which have left me aghast and perplexed. Society should be liberated enough as to see the merit of standing the judiciary on its head for the scrutiny.
Personally I have always thought that Justice Maphios Cheda was Zimbabwe’s most progressive and principled judge. The judgment I have herein cited lacks quality. I say this with due respect to the three Supreme Court judges. Somehow, I get the sneaking feeling that the anti-death sentence crusade is surreptiously influencing the hitherto impenetrable judicial system.
The foregoing story viewed through a mental prism, is hardly the way two people go about looking for firewood. Indeed this case is curiously interesting. Defence council was pro-deo. We know what that means: Pro-deo lawyers are the less experienced, the juniors or ‘rookies.’
Ipso facto, we cannot say that the upholding of the accused’s appeal had anything to do with a strong defence. What we can postulate on is that since there was only one ‘witness,’ the accused defence counsel was presented with the easiest of tasks to exploit the apparent loopholes. And so the quashing of the original sentence was in a way a fait accompli. The judges bought into the half-baked defence that ‘there was nothing to show that the accused intended to kill the deceased.’ What a pity!
The scene I have described above amply and sufficiently demonstrates that the possibility of murder with actual intent as advanced by Justice Maphios Cheda clearly preponderates and ousts any other incidental evidence in favour of the accused.
The position and propinquity to the object being do not present us with a conundrum in deducing that the accused murdered Mnkandla with actual intent. Clearly the presiding judge transformed the mental picture into the actual commission of the crime.
The accused himself admits to the sitting position of the deceased. Are we therefore expected to believe that both the accused and the deceased were so mentally feeble as to fail to see or sense the danger posed by their nearness to each other? Were they both in compos mentis — both were not in control of their minds — at least at the time of death of Mnkandla?
Where I find the judgment as handed by the appeal judges really wanting is the leniency when they impose a six-year jail term and still go on to suspend a third of it. Does human life still have a meaning and value especially in our law courts? In upholding the accused’s appeal did the learned judges use incisive analysis? I do not think so, quite frankly. This is a case which should attract the attention of the Prosecutor General.
Was the Appeal Court provided with a diagram of the scene? If not, why not? A diagram is key and constitutes an indispensable aid as it gives a situational depiction of the scene.
A diagram would show that the accused and the deceased were apart by only an arm’s length and given the nature of the work which was being undertaken an accident would not be bizarrely stranger than fiction. Even strangest was that the Appeal Court believed the story of the accused.
Sibanda callously and cowardly killed an innocent pregnant woman. He gets an effective (4) year jail term which is further reduced by one third by remission leaving him with only 2 years 8 months to serve if my arithmetic is anything to go by.
In any case he has already served a huge chunk of it if not the whole sentence. This case was fraught with suspicion from the start when Sibanda asked his master’s wife to accompany him to fetch firewood, of all the tasks. And at 0600 hours for that matter.
Is it possible that a worker can ask his employer’s wife/husband to accompany him/her to the bush for whatever purpose?
Here we see Justice Maphios Cheda’s ability, depth of analysis and intellectual dexterity in making judicial conclusion on display.
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