PROSECUTION v. NZARORA

# PROSECUTION v. NZARORA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-07-15 - Case/document no.: RPAA 0127/12/CS - Collection: Supreme Court

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PROSECUTION v. NZARORA [Rwanda SUPREME COURT – RPAA 0127/12/CS (Mukanyundo, PJ, Rugabirwa and Nyirandabaruta, J.) July 15, 2016] Criminal Law – Offence committed under drunkenness – Alleging that the offence was committed because of drunkenness has no interest to the accused, because if he/she drank, knowing that he would get drunk, he wanted or at least accepted the consequences in the event that they happened. – Decree - Law Nº 21/77 of 18/08/1977 instituting the penal code, article 70. Criminal Law – armed robbery – When it is proved with strong evidence that the accused has the habit to be a thief he/she is found guilty – Law Nº 15/2004 of 12/06/2004 relating to evidence and its production, article 119. Facts: The case started in the Intermediate Court of Huye, where the Prosecution was alleging against Nzarora and another one for having, on 22 October 2009, around 2h30 AM, broke the door of the room in which Nsengiyumva was sleeping, hit him and cut him with the blow of machete in the head and then took 30.000 Frw from him and he died later. The court found Nzarora guilty for the offences he was charged with, sentenced him to the life imprisonment while his fellow was acquitted. He lodged an appeal against the decision before the High Court, the chamber of Nyanza, which dismissed his appeal. He appealed against the judgment in the Supreme Court, stating that his penalty should be reduced because he pleads guilty in a sincere way. The Prosecutor contends that he should not benefit penalty reduction for he did not accept his offence willingly since he failed to explain the way he committed it. Held: The defence of the accused that he committed the crime due to the fact that he was drunkard, implying that he was out of control, cannot help him in this case since the law provides that in that case, the offender bear the consequences resulting from his drunkenness. Evidences in the case file prove that the accused had a habit to be a thief, hence, he is guilty of armed robbery as it was declared by the High Court. Appeal dismissed. Appealed judgment sustained. Court fees charged to the public treasury. Statutes and statutory instruments referred to: Decree - Law nº 01/2012/OL of 02/05/2012 instituting the penal code, article 71. Law nº 15/2004 of 12/06/2004 relating to evidence and its production, articles 65 and 119. Decree - Law nº 21/77 of 18/08/1977 instituting the penal code, articles 70, 82 and 83. Case laws referred to: RPAA 00155/08/CS rendered on 4 March 2011, Prosecution vs Ndagijimana Emmanuel. RPAA 0106/09/CS rendered on 19 July 2013, Prosecution vs Tumushime Alexis. RPA 0217/11/CS rendered on 26/06/2015, Prosecution vs Gashirabake Jean Baptiste.

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Doctrine: Nyabirungu mwene Songa, «Droit Pénal Général Zaïrois», Editions Droit et Société, 1989, p.245. Judgment I. THE BRIEF BACKGROUND OF THE CASE [1] The case started in the Intermediate Court of Huye, where the Prosecution was alleging against Nzarora Jean Claude and Hategekimana Vincent, stating that on 22 October 2009, around 2h30 AM, they broke the door of the room in which Nsengiyumva was sleeping, hit him and cut him with the blow of machete in the head and then took 30.000 Frw from him and he died later. [2] The Court rendered the verdict of the judgment nº RP 0531/09/TGI/HYE on 22/06/2010, found Nzarora Jean Claude guilty for the offences he was charged with, sentenced him to the life imprisonment while Hategekimana was acquitted. [3] Nzarora Jean Claude lodged an appeal against the decision before the High Court, the chamber of Nyanza, which rendered the judgment nº RPA 0621/10/HC/NYA on 05/01/2012, dismissing his appeal. The court motivated that though Nzarora pleads guilty and seeks forgiveness, his penalty cannot be reduced because he does not explain how the offence was committed, because he states that late Nsengiyumva died due to the fact that he fell on the chair, while the medical report proves that he has a huge wound and the jaw bone was broken, proving that something hit and killed him and before he dies he told to witnesses that Nzarora hit him with the blow of machete. [4] Nzarora Jean Claude appealed against the judgment in the Supreme Court, stating that his penalty should be reduced because he pleads guilty in a sincere way. [5] The hearing was held public on 13 June 2016, Nzarora Jean Claude assisted by Kabasenga Berthilde, the Counsel, while the Prosecution was represented by Uwombonye Hirwa Sudi, the National Prosecutior. II. ANALYSIS OF LEGAL ISSUES 1. Whether Nzarora Jean Claude pleads guilty in a sincere way that could lead his penalty to be reduced [6] Regarding committing a crime circumstances, he states that the day on which late Nsengiyumva was killed, there was his brother in law called Hategekimana Vincent drinking beers at Nsengiyumva's bar, during midnight, Hategekimana went back home, left him there requesting for more drink but Nsengiyumva did not serve him as the later was completely drunkard, after refusing to serve him he went to serve himself a gallon filled with banana beer by force with intention to take it with him yet Nsengiyumva refused that, that is when Nzarora took a tabouret stool and bit him with it and then felt down fainted, after that he went back home to

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rest, saying that all he did was a result of drunkenness, he concluded by requesting penalty reduction as he accepts the crime voluntarily. [7] With regard to circumstances in which the offence was committed, he states that the same day as the one late Nsengiyumva was killed, he passed all the day with his brother in law called Hategekimana Vincent, drinking alcohol in Nsengiyumva’s bar, when it was around midnight, Hategekimana went home, left him in the bar, asking for alcohol but Nsengiyumva refused to serve it to him because he was drunk. After noticing that he refused to give him another beer, he went to take it by force and wanted to take the jerkan full of beer but Nsengiyumva took it from him. That’s when Nzarora took a chair (stool), hit it at his head and he fell down. He states that after noticing that, he immediately left and went to sleep. He adds that every single act he committed was due to the fact that he was drunk. He ended requesting the penalty reduction, as he then pleads guilty in a sincere way [8] Kabasenga, the Counsel, supporting him states that the High Court refused that Nzarora Jean Claude should benefit the penalty reduction for he failed to explain the circumstances of the crimes he committed, and that the Supreme Court should apply the penalty reduction as he accepts the crime and apologises for it, irrespective of the fact that he committed assault and battery which resulted into death due to the fact that he was drunkard. He further states that the Judge based on the provision of the article no. 401 of the penal code that was into force at the time of the offence, and then declared Nzarora guilty while the later did not kill late Nsengiyumva intentionally as he did not bit him with a machete as he had not it, rather he bit him with a chair (stool) after misunderstanding between them, hence the concern should be based on the pre crime circumstances and crime analysis by basing on the article no. 321 of the penal code determining assault and battery that resulted into non intended murder. [9] The representative of the Prosecution states that Nzarora should not benefit penalty reduction for he did not accept his offence willingly since he failed to explain the way he committed it as he stated that he did not bit late Nsengiyumva with a machete while the report of expert proved that he was killed with a machete, and that witnesses interviewed revealed that he did not commit the crime alone, that there was an accomplice. [10] He further states before the High Court, that the Prosecution did not recognize the crime acceptance of Nzarora due to the fact that he used to constantly change his statements, thus he should not benefit the penalty reduction as per the article no. 35 of the law nº 13/2004 of 17/05/2004 relating to the code of criminal procedures that was into force at the time of the crime. The view of the court [11] With regard to the penalty reduction as requested by Nzarora Jean Claude basing on his guilty plea and forgiveness seeking, article 82 of the Decree – Law nº 21/77 of 18/08/1977 instituting the penal code that was into force when the offence was committed stipulates that The judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence. The decision to accept mitigating circumstances must be

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justified. As for article 83 of the same Decree Law provides for the way penalties are reduced in case there are mitigating circumstances. [12] Article 71 of the Decree Law nº 01/2012/OL of 02/05/2012 instituting the penal code provides that “The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances”. [13] Relating to Nzarora Jean Claude, the case file proves that he committed the crime with an accomplice who went unidentified, due to the fact that they planned to go to steal Nsengiyumva, where they dig his house, found him laid down, and then cut him everywhere on his body, with particular emphasis on his head which consequently resulted into his death. [14] Witnesses including Mushimiyimana Venansiya, Ingabire Clémentine (Neighbour to the late Nsengiyumva) and Komeza John who were interviewed before the Judicial Police all stated that shortly after they heard scream at Nsengiyumva's, they immediately came for help, reaching there, criminals had already left but Nsengiyumva was screaming saying that Nzarora and someone else who he did not identify are the ones who macheted him. Particularly, Ingabire Clémentine who reached there among the first, she stated that she heard them hitting the door with the big stone commonly known as "Gatarina". [15] The Court finds that in his defence before the same Court, Nzarora was not saying the truth regarding the committing crime circumstances, as both him and his counsel stated that he bit Nsengiyumva with a tabouret stool which wounded his head following misunderstanding between them when he came to drink beer in Nsengiyumva's bar, nevertheless, previously mentioned witnesses revealed that Nzarora sneaked into the house after hitting the door with the big stone called "Gatarina", and found Nsengiyumva on the bed and then started macheting him seriously, more to that, the report of expert proves that late Nsengiyumva had a big sore on the head to the extent that his brain was visible, and one of his jaw bones was broken, she stated: " « fine and long wound about 10 cm, front, with fracture of the frontal bone and externalisation of cerebral gray matter ». [16] Additional fact proving that Nzarora was not saying the truth is that he stated, before the Court, that the day on which he killed Nsengiyumva he had been drinking beer being together with his young brother called Hategekimana Vincent, yet when Hategekimana Vincent was interviewed before Judicial Police about the last visit of Nzarora to his residence he said that there was five months from his last visit. [17] Relating to Nzarora Jean Claude, the case file proves that he committed the crime with an accomplice who went unidentified, due to the fact that they planned to go to steal Nsengiyumva, where they dig his house, found him laid down, and then cut him everywhere on his body, with particular emphasis on his head which consequently resulted into his death. [18] The Court finds that the defence of Nzarora and the fact that his counsel who states that the later committed the crime due to the fact that he was drunkard, it implies that he was out of control, thus he cannot help him in this case since basing on the article no. 70, paragraph 2, of the penal code which stipulates that, “intended loss of consciousness in the time of committing a

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crime is worth the committed crime, though the offender would not willing to commit such a crime”. [19] It was also viewed as such by a law scholar named Nyabirungu mwene Songa explaining in his book entitled «Droit Pénal Général Zaïrois»1, where he states: The individual who intoxicate him/herself voluntarily must anticipate the possible consequences of his act and have to answer for it if ever they occur. If he drank, knowing that he would get drunk, he wanted or at least accepted the consequences in the event that they happened. « l individu qui s’enivre ‟ volontairement doit prévoir les conséquences possibles de son acte et devoir en répondre si jamais elles se produisaient. S’il a bu, sachant qu’il s’enivrera, c’est qu’il a voulu ou tout au moins accepté les conséquences dans l’éventualité où elles se produiraient » [20] It was also confirmed in various case laws rendered by this Court including judgment RPAA 00155/08/CS rendered on 04 March 2011, Prosecution vs Ndagijimana Emmanuel, judgment RPAA 0106/09/CS rendered on 19 July 2013, Prosecution vs Tumushime Alexis, and judgment RPA 0217/11/CS rendered on 26 June 2015, Prosecution vs Gashirabake Jean Baptiste. 2. Whether there are evidences proving that Nzarora Jean Claude committed armed robbery [21] Nzarora Jean Claude states that he did not commit theft as he did not steal Nsengiyumva money amounting to 30.000 Rfr after killing him basing on the fact that the Prosecution failed to prove that he stole that amount. [22] The Counsel Kabasenga supporting Nzarora states that he did not commit armed theft as there is no evidence that Nsengiyumva possessed that money then, except statements as provided by those who came for help who stated that Nzarora took with him clothes containing that money. Indeed, late Nsengiyumva did not accuse him of stealing that money, and there is no evidence that he took those clothes with him as he was not caught with them. [23] The representative of the Prosecution states that Nzarora committed armed theft basing on the fact that shortly after killing Nsengiyumva, he took with him the clothes containing 30.000 Frw as witnessed by those who came for help following scream of Nsengiyumva. The view of the Court [24] Relating to the code of criminal procedures, article 119 of the Law Nº 15/2004 of 12/06/2004 relating to evidence and its production, that stipulates that:« In criminal cases, evidence is based on all grounds, factual or legal provided that parties have been given a chance to be present for cross-examination», as to article 65 of the same Law, provides that “Only the court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies”. 1 Nyabirungu mwene Songa, «Droit Pénal Général Zaïrois», Editions Droit et Société, 1989, p.245.

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[25] Basing on the provisions of those articles, the Court finds that witnesses interviewed during investigation process including Nyirabazungu Perina, Komeza John, Mushimiyimana Venansiya and Ingabire Clementine revealed that it was the third time that Nzarora assaulted Nsengiyumva, and that local leaders have restricted him from that area for he used to be a threat to the security of Nsengiyumva, the fact being that he robbed him 10.000 Rfr for the very first time, 15.000 Rfr for the second time, and 30.000 Rfr for third - being the last time when he even killed him with a weapon, thus the Court finds that all these acts prove that theft was a habit to Nzarora, hence, he is guilty of armed theft as it was declared by the High Court. III. THE DECISION OF THE COURT [26] Dismiss the appeal lodged by Nzarora Jean Claude. [27] Sustains the judgment RPA 0621/10/HC/NYA rendered by the High Court, Nyanza chamber, on 5 January 2012. [28] Orders that the court fees be charged to the public treasury because the accused is in jail.