By Mashudu Netsianda
A man who raped and tortured his three-year-old stepdaughter to death had his bid to use the constitution to escape the death sentence quashed when the High Court yesterday ruled that he deserved to be hanged.
Samson Mutero (43) of Gore village in Mberengwa raped the child in a bush before assaulting her all over the body with an unknown object until she fell unconscious.
He then carried the now-deceased toddler, Chipochashe Ndlovu, to his homestead where she later died as result of the assault.
Mutero was in 2015 found guilty of murder with actual intent by Justice Lawrence Kamocha who was sitting on circuit in Gweru and was sentenced to death.
After the sentence, Mutero filed an appeal at the Supreme Court challenging his conviction and sentence.
Adv Tawanda Zhuwarara, who was invited as amicus curiae (friend of the court) during the appeal hearing, argued that the High Court could not impose the 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 was fixed.
He argued 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.”
In April this year Supreme Court judge Justice Anne-Mary Gowora sitting with Justices Elizabeth Gwaunza and Susan Mavangira confirmed the conviction but upheld the appeal against sentence.
She set aside the death sentence and remitted the matter to the same court for consideration of an appropriate sentence in terms of the law.
The Supreme Court judges said the sentence was invalid as it was passed outside the law.
There was no law aligned to the provisions of the Constitution at the time.
The General Laws Amendment Act 3 of 2016 has now made provision for the amendment of section 47 of the Criminal Law Code.
In his judgment, Bulawayo High Court judge Justice Kamocha had ruled that 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 the right sentence in the circumstances.
In re-sentencing Mutero yesterday, Justice Kamocha ruled that there were no extenuating circumstances.
“I was unable to find anything which can be regarded as an extenuating circumstance. In the result, the sentence of this court is that you be returned to custody. The sentence of death be executed upon you according to the law,” ruled the judge.
The state case was that on September 20, 2013, 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.
He then carried the little girl to the homestead, where he lied to his wife that she was under epilepsy episode attack.
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 to the police, leading to Mutero’s arrest.
A postmortem revealed the cause of death as unascertained due to decomposition as well as lacerated rectum and sexual abuse.
Miss Nokuthaba Ngwenya, who represented the State, said the murder was committed in aggravating circumstances.
“The murder was premeditated and accompanied with physical torture. It was committed during the course of rape against a victim who was a minor,” she said.
Mutero was represented by lawyers from Mhaka Attorneys. The Chronicle
