‘Drunk­en­ness can be con­sid­ered mit­i­ga­tory’

Chronicle (Zimbabwe) - - National News - Pa­trick Chi­tumba Mid­lands Bureau Chief

DRUNK­EN­NESS can be con­sid­ered as a mit­i­ga­tory fac­tor when the court is as­sess­ing an ap­pro­pri­ate sen­tence for an ac­cused per­son, Bu­l­awayo High Court Judge Jus­tice Maxwell Takuva has said.

Sen­tenc­ing a 39-year-old Mberengwa man to 15 years in prison for the grue­some mur­der of his 34-year-old friend over $5, Jus­tice Takuva said the law al­lows drunk­en­ness as a mit­i­ga­tory fac­tor. He was sit­ting at the Gweru High Court Cir­cuit. Takawira Ndlovu ap­peared be­fore Jus­tice Takuva with as­ses­sors Mrs Chipo Ju­nia Baye and Mr Welling­ton Matemba fac­ing one count of mur­der.

He was con­victed against his plea of not guilty to crush­ing the head of his friend, Never Zhou, with a wooden stool weigh­ing 2kg lead­ing to his death and was sen­tenced to an ef­fec­tive 15 years in prison.

“The court ac­cepts that the ac­cused was in­tox­i­cated at the time of the com­mis­sion of the mur­der. The law al­lows in­tox­i­ca­tion as a mit­i­ga­tory fac­tor when a proper sen­tence is be­ing as­sessed. There is a lot of de­bate with some ar­gu­ing that in­tox­i­ca­tion should be con­sid­ered as an ag­gra­vat­ing fac­tor.

“Some ar­gue that it is wrong for the law to pun­ish a sober per­son more than a drunk per­son. In other words there is a de­bate on whether or not to con­sider in­tox­i­ca­tion as a mit­i­ga­tory fac­tor. One view is that this should be an ag­gra­vat­ing fac­tor,” said Jus­tice Takuva.

The judge said the Crim­i­nal Law (Cod­i­fi­ca­tion and Re­form) Act on the other hand makes drunk­en­ness an of­fence.

“If you vol­un­tar­ily get your­self in­tox­i­cated and go on to com­mit an of­fence, you will be con­victed of a crime un­der sec­tion 222 of the Cod­i­fi­ca­tion. That is the think­ing of the ci­ti­zens in the coun­try. As the law stands, in­tox­i­ca­tion is a mit­i­ga­tory fac­tor and in this case, the ac­cused was drink­ing from 2PM up to 7PM,” he said.

Jus­tice Takuva said Zhou had been pes­ter­ing Ndlovu for $5 to buy home­made beer from the time they ar­rived at Siphilisiwe Nya­mande’s home­stead for a home­made beer drink­ing party.

He said while Zhou had been an ag­gres­sor at first, Ndlovu later ig­nored pleas from fel­low vil­lagers to un­nec­es­sar­ily cause his friend’s death.

“The de­ceased is the per­son you knew and in­stead of show­ing mercy, you de­cided to crush his head. Af­ter that you didn’t of­fer any as­sis­tance, you sim­ply walked away. We have a duty to sat­isfy the so­ci­ety’s ex­pec­ta­tions by bal­anc­ing ret­ri­bu­tion and re­ha­bil­i­ta­tion in ar­riv­ing at the sen­tence and you are sen­tenced to 15 years in prison,” said Jus­tice Takuva.

Ndlovu in his de­fence told the court: “He asked me for $5 to buy beer and when I told him that I didn’t have it, he stabbed me on the lower lip once. I then struck him sev­eral times with a wooden stool, lead­ing to his death.”

Pros­e­cu­tor, Mr Miri­rai Shumba, told the court that on Septem­ber 22, 2010, Ndlovu and Zhou were at Nya­mande’s home­stead, Mazinyani Vil­lage, Chief Bankwe, Mberengwa, drink­ing home­made beer.

Mr Shumba told the court that when the beer got fin­ished at around 5PM, Ndlovu ap­proached Zhou and took him to a se­cluded place out­side the home­stead.

Af­ter a short pe­riod Ndlovu came charg­ing af­ter the de­ceased shout­ing that he (de­ceased) had stabbed him. The pair chased each other into a kitchen. “Even­tu­ally they got out of the kitchen hut and it is then that the ac­cused armed him­self with a wooden stool and struck the de­ceased with it once on the head,” the court heard. — @pchi­tumba1

Jus­tice Maxwell Takuva

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