A Chitungwiza member of an apostolic sect who fatally assaulted her son for being initiated into the Nyau cult (zvigure) walked away free after the High Court acquitted her of murder after finding she had acted lawfully in the corporal punishment she administered.
The court found she had used a light switch, had not hit vulnerable parts of the body, had used moderate force, and could not have forseen the fatal result, which could also have been generated by previous recent assaults on the boy by others.
Madzimai Yeukai Mutero and her brother Madzibaba Ocean Mutero, who is still at large, teamed up to beat the 12-year-old Desmond Matsatse with mulberry sticks for joining the Gule WaMkulu.
Gule Wamkulu was a secret cult, involving a ritual dance practiced among the Chewa people in Malawi. It is usually performed by members of the Nyau brotherhood, a secret society of initiated men and the brotherhood operates within Zimbabwe
Madzimai Yeukai denied the charge of murder when her trial opened at the High Court in September last year, arguing that she administered corporal punishment her son to curtail the excesses of juvenile delinquency.
She also wanted to stop the boy from joining Nyau, a cult that is against her teachings as the family belonged to the Christian apostolic sect.
After a fully contested trial, Justice Munamato Mutevedzi acquitted Madzimai Yeukai finding her action to discipline her son within the confines of the law.
In her testimony the woman ticked all the requirements which must be met for her actions to remain within the bounds of moderation and so be legal.
Justice Mutevedzi criticised the prosecution inferring that the parent or other authorised person exceeded moderation when punishing a child simply on the basis that death ensued such as in this case.
This is a classic case that evokes the raging debate regarding the administration of corporal punishment on children by parents and guardians.
“We have already described the weapons used for the assault, and concluded that they were thin mulberry sticks which are ordinarily used by parents in the administration of corporal punishment on their minor children,” said Justice Mutevedzi.
“There was nothing out of the ordinary about them. We have also noted that the injuries which were observed by the witnesses (who included the investigating officer) on the body of the deceased illustrated that moderate force must have been used to assault the boy.
“The assault was therefore not vicious in any way. The assault was directed at non-vulnerable parts of the body.”
What complicated the case was no evidence showed that Madzimai Yeukai ever assaulted her son on the head yet a pathologist’s report concluded the boy died of head injuries.
However, there was evidence that the boy frequently engaged in fights with other children some of whom were older than him.
During the days preceding his death, he had been brutally attacked by an adult who had lifted him up and hit his head on the ground.
The boy had been attacked at the Nyau rituals, but the extent of the injuries he sustained were not established but one of the assaults was directed on the head.
His attacker who operated a tuck-shop in the area closed shop and disappeared after hearing about the boy’s death. It was on this basis also that Justice Mutevedzi found it difficult to apportion any blame on the boy’s mother.
“Taking the evidence and the circumstances of this case in their totality our conclusion is that the accused assaulted the deceased in the normal course of parental discipline,” he said.
“It was unfortunate that the bid for discipline resulted in the tragic consequences which may have been aided by the deceased’s own violent behaviour in the community.”
Further the judge saw no indication that the woman could have foreseen the possibility of death even in the remote sense of the word possibility.
“The weapons she used, the force she applied and the parts of the boy’s body she aimed at all vindicate her,” he said.
The judge could not agree with the prosecutor’s contention that Madzimai Yeukai be convicted of culpable homicide, as this was equally unsupportable.
For one to be convicted of a lesser charge of culpable homicide, it must be shown that the accused ought to have, as a reasonable person, foreseen that his or her actions could lead to death.
But in this case, the judge had shown how the punishment meted out on the boy remained within the permissible limits, adding that any reasonable parent who believes in the effectiveness and correctness of corporal punishment as a disciplinary measure would have acted in the same manner and use the same light switches that the woman used.
“This death resulted from a permissible assault,” said the Justice Mutevedzi.
He said the prosecutor should have proved that in addition to the assault Madzimai Yeukai should have reasonably foreseen that death might result from that assault. Or if she realised that death could occur from her conduct that she negligently failed to guard against the possibility of the occurrence of death.
And in this case, the court was constrained to hold that in this case, there was no way that the woman could have reasonably foreseen the possibility of death hence she was not expected to guard against the occurrence of a death which she did not reasonably foresee as a possibility.
Assault is a permissible verdict for the crime of murder and Madzimai Yeukai could have been convicted of assault in the murder trial if the evidence supported that.
But in this case, the court held that Section 241 of the Criminal Law Code permits parents to administer corporal punishment on their minor children.
It also held the view that the corporal punishment did not degenerate into impermissible conduct. On that basis, the charge of assault could not be sustained.
A lot of criticism has been directed at the administration of corporal punishment on children by parents, teachers and other persons acting under the authority of the law.
Section 241 of the Code is complemented by Section 7 of the Children’s Act which restates the permission of parents and guardians to administer reasonable punishment on their children in certain terms.
Once the court found that it was permissible at law to administer corporal punishment the woman did not do anything outside the law.
Her beating of the boy remained reasonable and she did not harbour any intention actual or legal, to hurt the boy let alone kill him. *Herald*
