A recent decision of Zimbabwe’s high court, sentencing a woman to four life sentences for the murder of her four daughters, aged between one and nine, ended what has been perhaps the most sensational trial in many years. Media reports were full of gruesome details of how the mother had killed her children, murders apparently carried out in response to the increasingly bitter relationship between the parents. But the case also put the spotlight on two other issues – first, a lack of understanding of the law on sentencing by counsel for the accused and the prosecutor, and second, the plight of a baby, born to the accused in prison.
One of Zimbabwe’s most sensational recent criminal trials has led to a woman being found guilty of murdering her four daughters, first poisoning them, then slitting their throats and setting the house on fire.
Judgment on sentencing of Emelda Marazani, delivered last month by Harare high court judge Munamato Mutevedzi, dealt professionally with the matter – as you would expect from someone who, before his judicial appointment two years ago had been chief magistrate and before that the deputy secretary of the Judicial Service Commission. But in the course of his decision, he pointed to two serious legal problems.
The first concerns what the judge described as a ‘worrying lack of appreciation of the sentencing regime and the attendant sentencing principles which must inform the punishment of an accused convicted of murder.’ He was here referring to the lack of knowledge on the issue shown by both counsel who appeared for the accused and by the prosecutor.
He would have to remind practitioners of these elementary principles, said the judge, and he hoped the addition of his voice ‘may add a few decibels’ to make past pronouncements of the courts ‘more audible’.
Both counsel for the accused and the prosecutor ‘generalised their views’ on what would constitute an appropriate sentence to impose in the case, ‘in complete disregard’ of the criminal code, said the judge. The code says that if there are aggravating circumstances, then someone convicted of murder is liable to be sentenced to death or life imprisonment or to a term of at least 20 years.
This in turn means a court must first rule on whether there were aggravating circumstances before considering an appropriate punishment to impose. If these were present, then the sentencing court has few options – it must choose to impose the death penalty, life imprisonment or a sentence of no less than 20 years.
In other words, counsel and the prosecutor should have made submissions on whether there were aggravating circumstances, but neither had done so. This was important because the court had a wider range of sentencing options if aggravating circumstances were not present.
Even if there were aggravating circumstances, however, there were categories of prisoner on whom the death penalty could not be passed: no one under 21 or older than 70 could be sentenced to death. Nor could the death penalty be imposed on a woman.
In this case, the accused was a woman. If the court found there were aggravating circumstances in her case, then it had a choice of just two alternatives. It could impose either life in prison or a term of no less than 20 years. But if there were no aggravating circumstances, then the court’s had a complete discretion as to sentence. It was only then that it would be appropriate for counsel and the prosecutor to urge that the court exercise its discretion in sentence.
Torture or mutilation
So, what constitutes aggravating circumstances? The criminal code gave ‘guidance’ as to what would be considered ‘aggravating’. For example, it would amount to aggravating circumstances where the murder was one of two or more murders committed by the accused ‘during the same episode’, where the accused had inflicted ‘torture or mutilation’ on the victim or victims, where the murder was premeditated or the victim was a minor. Only one of these factors needs to be present for the court to hold there were aggravating circumstances, and a court was also free to regard other factors as ‘aggravating’, said Judge Mutevedzi.
Marazani was convicted of the ‘gruesome and barely explainable murder of her four very young children aged between one and nine years’, the judge pointed out. Several elements of what constituted aggravating circumstances were obviously present in that there was more than one murder committed and that the victims were all children. Further, she used multiple fatal methods to kill her victims, a factor held by the judge to be another aggravating feature.
For these and other reasons, he held he had to find aggravating features were present. He could not impose the death penalty as women were exempt from such a punishment which meant he had just two options: life imprisonment or a term of not less than 20 years.
Here again, the judge complained that counsel and the prosecutor had got things wrong in their respective submissions by proposing options that were not allowed in terms of the Criminal Procedure and Evidence Act.
Having dealt with these problems, the judge turned to the culpability of Marazani’s husband, Lameck Brande. He couldn’t ‘escape responsibility for the death of his children,’ Judge Mutevedzi said. ‘A married man who shamelessly hops from one woman to another and engages in multiple intimate relationships in the manner that Lameck did, does not only hurt his spouse but also hurts his children and many other innocent third parties who become collateral damage in those promiscuity escapades.’
He, like his wife, Marazani, claimed to love the children, but both parents only thought about themselves. Lameck’s actions had significantly contributed to the mother’s ‘rage and bitterness leading to the massacre of the children,’ the judge said.
‘Highly dangerous individual’
He concluded that Marazani was ‘a highly dangerous individual’ and that the courts would be ‘completely irresponsible’ if they were to consider giving her a second chance. ‘She does not deserve it. She does not deserve to return to society.’
He therefore imposed life imprisonment for each of the murders.
Incidentally, there had been some suggestion during the trial that Marazani might have been suffering from a psychological illness that could explain her actions. According to reports in the local media about the trial, she claimed she was psychotic, in an abusive marriage and that her husband had countless affairs and scorned her for ‘bearing girls’.
In its judgment, however, the court found she had failed to prove that she was mentally ill at the time of the murders.
Child born in prison
But there was another serious legal problem identified by the judge, perhaps even more worrying than his problem that counsel and the prosecutor didn’t understand the law on aggravating circumstances.
As he ended his decision on sentence, Judge Mutevedzi pointed out that Marazani has a two-year-old child, a daughter, born in prison. ‘The child needs protection,’ said the judge. He had ‘scoured’ the Children’s Act and related legislation, hoping to deal with the protection of the child as part of his judgment on sentence. But he could find nothing helpful, he said.
‘My hands are tied and [I] simply hope that the appropriate government institutions will take responsibility and ensure that the child is given full protection,’ he concluded.
When a judge has to rely on his ‘sincere hope’ that a baby will be taken care of, rather than on legislation that imposes a strict duty on state institutions to care for such a child, then there’s a very serious problem indeed.
- ‘A matter of justice’, Legalbrief, 25 April 2023