PROSECUTION V.NDAYISABA

# PROSECUTION V.NDAYISABA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2013-10-04 - Case/document no.: RPA 0280/09/CS - Collection: Supreme Court

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PROSECUTION v. NDAYISABA [Rwanda SUPREME COURT – 2013SC – RPA 0280/09/CS (Kayitesi, P.J., Hatangimbabazi and Munyangeri, J.) October 4, 2013] Criminal law – Murder – Provocation – Penalty based on the provocation - Article 75 of the Organic Law No 01/12/OL of 02/05/2012 instituting the Penal Code Facts: The appellant was charged with the crime of murder committed against Habiyambere Ignace by hitting him the steel reinforcement bar on the heart side. The prosecution based on the guilty plea of the accused that he hit him the steel reinforcement bar twice on the heart side. The High Court found him guilty and sentenced him to 20 years of imprisonment. The accused appealed to the Supreme Court requesting for the penalty reduction based on provocation. Held: 1. The appellant was provoked since he had been attacked in his domicile while he fled from that place and hit his wife who fell down with her child, while they had no link with the conflicts. This caused him bitterness and anger that he should not bear when he committed the offence. 2. The provocation is the ground of penalty, therefore, the penalty of the appellant has to be once again reduced. Appeal granted, The appellant sentenced to 5years of imprisonment, With costs to the public treasury. Statutes and statutory instruments referred to: Organic Law no 01/12/OL of 02/05/2012 instituting the Penal Code. Law nº 15/04 of 12/06/2004 relating to evidence and its production Decree No 21/77 of 18, August, 1977 instituting the book of Penal Code Cases referred to: Prosecution v. Mbanzamihigo RPA 0274/08/CS of January 7, 20011 S v. Graeme Michael Eadie 2002 1 SACR 663 (SCA) na Cassation, Chambre Criminelle, 18/07/1972, Bulletin Criminel Cour de Cassation Chambre criminelle N. 247 P. 647(1972).

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JUDGMENT I.BRIEF BACKGROUND OF CASE [1] The High Court, Nyanza Chamber found that he was guilty of the crime of having killed (murder) Habiyambere Ignace by hitting him a steel reinforcement bar on the heart side, and sentenced him to twenty (20) years of imprisonment, because it was his first time to be prosecuted before the justice. [2] Ndayisaba Disvald was not satisfied by the court’s decision and appealed to the Supreme Court,arguing that the penalty should be reduced because he has killed Habiyambere Ignace due to provocation because he met him at his house and beat his wife who carried a child on the back.. [3] The case was tried in public on 2nd September, 2013, Ndayisaba Disvald being present and assisted by the counsel BASHAYIJA David and the prosecution represented by MUTAYOBA Alphonse. II. LEGAL ISSUE TO BE EXAMINED IN THE CASE AND ITS ANALYSIS. Whether or no there are other grounds that can lead again to the penalty reduction for Ndayisaba Disvald [4] Ndayisaba argues that the High Court has been partial on the side of the prosecution and did not interrogate other witnesses namely GAKWAYA Pierre, KARANGWA, USABYIMANA Eburoje, HARERIMANA Damien and NGOBOKA who saw how he was attacked . The fact of not interrogating them is against the law no 15/04 of 12/06/2004 regulating the evidence and its production. In addition to that, he keeps stating that the court did not consider his explanations concerning how the people who attacked his domicile were fighting and when he wanted to intervene so that they can stop fighting, they turned to him and beat him, he ran away and fled to his house, they followed him with stones and pieces of woods,they found his wife carryng a child on back in the kichten, they beat her and fell down with the child. When Ndayisaba heard the child and her mother screaming,he went out with the steel reinforcement bar and asked Habiyambere to leave his wife alone. Instead of leaving him, he came closer to him and therefore, Ndayisaba hit him the steel reinforcement bar twice on the heartside and he died. [5] Bashayija David,the Counsel argues that apart from pleading guilty of the offense and seeking forgiveness, his client started with a good action of intervening to stop the fightings. He added that the fact ofentering his house forcefully is an offence of violating a person’s domicile punishable by the law, and that beating his wife who carried their child on the back should be

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considered as provocation; therefore, the penalty given to him must be reduced based on article 75 of the Organic Law No 01/12/OL of 02/05/2012 instituting the Penal Code. [6] The representative of the prosecution said that it was useless to interrogate other witnesses since the guilty plea of Ndayisaba was enough for the Court to convict him; and that he himself stated that the people who entered his house were drunk, without weapons and that he hit the deceased the steel reinforcement bar twice on the heartside. All these prove that even if he might have been provocated, he did not kill Habiyambere accidentally, therefore, the High Court had the duty to confirm that he had premeditated to kill the the deceased .He added that the penalty given to Ndayisaba has been reduced from life imprisonment up to twenty years since it was the first time he committed the crime and that if he gets another penalty reduction,it cannot be against the law. [7] Article 65, par. 2 of the law no 15/04 of 12/06/2004 abovementioned provides that “Only the court can assess the relevance, pertinence, admissibility or rejection of testimonial evidence. It shall not be influenced by the number of the witnesses. It shall mainly consider their knowledge of the facts and the objectivity and sincerity of their testimonies”. While article 75 par. 1 of the Organic Law Nº 01/2012/OL of 02/05/2012 abovementioned provides that “If provocation of the offender is proven, the reduction of penalties shall be as follows: 1° in case of a felony punishable by life imprisonment or life imprisonment with special provisions, the penalty shall be reduced to imprisonment of two (2) years to five (5) years; … [8] The Supreme Court finds that, the documents found in the case file indicate that the witnesses NIYIRORA Léonard and NDAYAMBAJE Vianney assserted that the cause of the death of Habiyambere is the fighting that occurred to Ndayambaje’s house between Habiyambere(the deceased) and KAYIGI , When Ndayisaba intervened to stop them fighting ,they turned to him but he ran away towards his house ,all of them being three followed him, arriving there, they began beating his wife who carried a child on the back. When Ndayisaba heard his wife and the child screaming , he went out with a steel reinforcement bar that he hit Habiyambere who came closer to him on the heartside and this resulted to his died (page 6 and 7) and the aforementioned are similar to the way Ndayisaba explained the commission of the alleged crime. [9] The Supreme Court finds that Ndayisaba has been provocated, since Habiyambere and those who were with him entered his house forcefully while he fled from that place and when arriving there, they began to beat his wife who fell who fell down with the child she carried on the back ,while they had no participation in the fighting , this caused Ndayisaba the bitterness and anger that he should not bear when he committed the offence, and this is similar to the decision of the court in the case between the Prosecution v. Mbanzamihigo, RPA 0274/08/CS of 07/01/2011 [10] The Supreme Court then realizes that as provided by article 75 of the Organic Law no 01/2012/OL of 02/05/2012 abovementioned and as emphasized by the doctrines of criminal law1 and courts of other countries2 that provocation is the ground of reduction of a penalty; the 1 Carel R Snyman, Criminal Law, Durban, Lexis Nexis, 2008, pp234-244

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penalty of Ndayisaba will be once again reduced, and be sentenced to five (5)years of imprisonment. III. COURT’S ORDER [11] Rules that the appeal of Ndayisaba requesting the reduction of a penalty is granted. [12] Sentences him to 5years imprisonment including the time he spent in prison.. [13] Orders that the decision of the case nºRP0177/08/HC/NYA, of 30/10/2009 changes only with regards to the penalty. 2 S v. Graeme Michael Eadie 2002 1 SACR 663 (SCA) na Cassation, Chambre Criminelle, 18/07/1972, Bulletin Criminel Cour de Cassation Chambre criminelle N. 247 P. 647 (1972).