PROSECUTION vs MATAGBARO

# PROSECUTION vs MATAGBARO

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-01-29 - Case/document no.: RPA 0046/12/CS - Collection: Supreme Court

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PROSECUTION v. MATABARO [Rwanda SUPREME COURT – RPA 0046/12/CS (Mugenzi, P.J.,Kayitesi na KarimundaJ.) January 29, 2016] Criminal law – Ambush – Attempted assassination – The fact that he had ambushed her nears the front yard of her residential house indicates that he had ambushed and implies that the crime of which he is guilty attempted assassination instead of attempted murder – Organic Law 01/2012/OL of 02/05/2012 instituting the penal code, articles 139 and140. Criminal law – Murder – Assassination – Assassination does not exist in the new penal code, its constituent elements are now aggravating circumstances for offences against the life and dignity of the human person Criminal law Determination of the penalty – Aggravating circumstances of the crime he committed are enough to sentence him to life imprisonment, however, given the presence of the mitigating ones, he must benefit the reduction of the penalty . Facts: The case started from the High Court, Rusizi Chamber. Matabaro Pierre Célestin was indicted for gashing Mukankundiye Vestine on the different deadly parts of the body. He pleaded denying the qualification of the crime but accepting that it was him who had gashed her, which had been confirmed by various witnesses who participated to the rescue and led to the failure of her purpose as her. The Court found him guilty of attempted murder and sentenced him to life imprisonment after the Court had denied its reduction since, according to the Court; his guilty plea was not sincere. He appealed to the Supreme Court requesting the reduction of the penalty based on the statements of the witnesses which must not be considered because of the conflicts that they had, the fact that the medical report demonstrated that she had not sustain excessive incapacity and that he was the first offender. In the course of the hearing however, he pleaded guilty and requesting the reduction of the penalty. The Prosecutor as to him, there is no ground as to what he must benefit the reduction of the penalty since he must not pretend that the victim had ever gashed his wife and revenge in return while she had been also punished for that. He prayed the Court to uphold the ruling of the appealed judgment. Held: 1. There is an ambush because the accused had initially inquired about the whereabouts of the victim, what she was doing and her hours of going back at her house and hence walked some distance ahead of her and ambushed her near her residence, which implies that the crime of which he is guilty is attempted assassination instead of attempted murder. 2. She must be punished for attempted murder by ambush because the qualification "assassination" does no longer appear in the new penal code. Instead, its constituent elements, premeditation of killing and ambush have been since then aggravating circumstances for offence against the life and the dignity of the human person.

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3.The fact that he committed a felony and that the latter had massive negative impact on the victim as he had been gashed on the deadly parts and left her scars that she is forced to live with are serious grounds enough to uphold the life imprisonment as imposed. However, though he had initially admitted the crime though he seemed denying it, the fact that even now he pleads guilty and shed more light on its commission and requests forgiveness, his first offender status and that witnesses attested that he was actually a person of integrity are mitigating circumstances which must entail the reduction to 20 years of imprisonment. Appeal has merit; Appealed judgment only changed with regard to penalties; He is sentenced to 20 years of imprisonment Court fees to the public fund. Statutes and statutory instruments referred to: Organic Law 01/2012/OL of 02/05/2012 instituting the penal code, articles 139 and140 Decree-Law N° 21/77 of 18/08/1977 instituting the penal code, articles 21, 82 and 83. Organic Law n° 31/2007 of 25/07/2007 relating to the abolition of the death penalty No case was referred to Judgment [1] This case started at the High Court, Chamber of Rusiizi. Matabaro Pierre Célestin was indicted for having gashed Mukankundiye gashed Mukankundiye Vestine four times on different parts of the head on September 15, 2004. The gashed parts are just above the breast and on the nape. Thaccused in his defence denied the qualification of an offence bur admitting to be him who gashed Mukankundiye Vestine. [2] In the judgment NO RP 0021/08/HC/RSZ which was rendered on August 4, 2011, the Court found that Matabaro Mtabaro pleads guilty of having gashed Mukankundiye Vestine and the witnesses attested that they heard Mukankundiye screaming that she was being killed by Matabaro Matabaro Pierre Célestin. They testified further that when they arrived for the rescue, they realized that her head was repeatedly gashed, on the nape and just above the breast. The Court confirmed that there has been ambush with intent to murder because the offender had to wait for her just near her residential house and that all gashed parts of the body are deadly ones. The Court inferred that the fact that he did consumed his the crime of killing her was due to those who intervened for rescue. The Court concluded that he is guilty and deserve no reduction of the penalty because his guilty plea was not sencere. He was sentenced to life imprisonment. [3] Matabaro Pierre Célestin appealed to the Supreme Court disputing that the statements of both Rimenyande and Ntabanganyimana had not to be considered b the conecause of the conflicts between them. He added that the medical report indicated that the victim did not face excessive incapacity. Further, he states, he was the first offender and was examplary in the

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society and that all of these have been left out and sentenced to the heavier penalty. He requests the the reduction of the penalty. [4] The hearing took place on December 29, 2015, Matabaro Pierre Celestin was present and assisted by Mugabonabandi Jean Maurice while the Prosecution was Mutayoba Alphonse, a National Prosecutor. [5] At the outset of the hearing, Matabaro Pierre Célestin declared to the Court that he changes his grounds of appeal and commits himself to pleading guilty that she seeks forgiveness and that he seeks the reduction of the penalty. II. ANALYSIS OF LEGAL ISSUE [6] Matabaro Pierre Célestin pleaded that initially he had not made a total admission of the crime be cause he wanted to decline his liability. However, he Added, then he admitted that it is him who gashed Mukankundiye Vestine three times with a machete with intention of killing her because she had also gashed his wife, which she was imprisoned for. He denied that there was no reason as to why he had to ambush her as they were neighbours because he could not miss her when needed. He admitted rather that he met her on his way while he was coming from cutting the timbas and he felt willful to retaliate due to the anger that was burning his head and that he was drunk. He pleaded further that the fact that Mukandutiye Vestine did not die was due to people who rushed for the rescue. He concluded that he regret all of that and hence asks for forgiveness and hence asks thus Court to show leniency and reduce his penalty because considering the time that he had spent in prison, he was actually corrected. [7] Mugabonabandi Jean Maurice, his councel, adduced that Mukankundiye Vestine is the sister-in-law of Matabaro Pierre Célestin, that they are neighbours and he could not ambush her as if she was not at his disposal. He articulated that Mukankundiye Vestine had hever gashed the wife of Matabaro Pierre Célestin on the head and that though he was not imediately provoked, there was provocation. He insisted that that ange and drankdness is the reason Pierre Célestin Matabaro gashed Mukankundiye Vestine. He added that the fact the accused conceded that the victime’s live was lackily saved is an indication that his guilty plea is sincere. In conclusion, he prayed the court to base on article 83 and 83 of Decree law NO 21/77 of 18/08/1977 instituting the penal code which was into force at the time of the commission of the crime for Matabaro Pierre Célestin to benefit the reduction of the penalty. [8] The Prosecutor lamented that Matabaro Pierre Célestin must not pretend his lancuna that hi sis wife had ever gashed his wfe and retalites especially that Mukankundiye Vestine had been punished in consequence and that till then Matabaro Pierre Célestin demonstrates nothing which might have been done by the victim that might have incited him to gash her to that extent, which implies that he had ambushed her as testified by Niyonsenga Daphrose who explained that Matabaro Pierre Célestin bypassed them carrying timbas which after a short while was followed by the screaming of Mukankundiye Vestine that she was being killed by Matabaro Pierre Célestin. He concluded that his guilty plea was not sincere. He requested the Court to uphold the ruling of the appealed judgement.

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THE VIEW OF THE COURT [9] Article 21 of the Decree law No 21/77 of 18/08/1977 instituting the penal code which was into effect at the time of the commission of the crime provides, ''an attem pt is punishable when the plan to commit an offence has been demonstrated by observable and unequivocal acts constituting the beginning of the offence meant to enable the commission and that were suspended or failed in their purpose only because of circumstances beyond the offender’s control'' [10] Article 82 of Article 21 of the Decree law No 21/77 of 18/08/1977 instituting the penal code which was into effect at the time of the commission of the crime provides that the judge ''the judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence and he/she must justify his decision in case he/she accepts those circumstances while article 83(2) of that Decree-Law provides that in case there available mitigating circumstances, the penalty of life imprisonment may be replaced by the term of imprisonment of not less than two years. [11] The case file demonstrates before either the Judicial Police or Prosecution and even during the hearing of the case on merit, that Mtabaro Pierre Célestin stated that immediately after Mukankundiye was released she had bribed people to kill him and that he plotted with people to beat her elder son, which resulted in him to take refuge. He added that at the very day of the commission of the crime he insulted him that he is arrogant while he he possesses nothing and that he used to hide himself from being seen by the administrative athorities. He declared that it is all those insults that exacerbated his anger, the reason why he hacked her. He opposed however that he had neither premediated the commission of the crime nor he ambushed her. ( identification code 6, 10, 11, 24 and 30) Both Ntabanganyimana Mvugerihame and Rimenyabake Védaste also testified that they heard a person nocking the timba down and started hacking and they thought it was the banana stem that he was cutting but when they heard a peson screaming that he/ she was being killed by Matabaro Pierre Célestin, they rushed and when he saw them, he ran toward the banana plantantion ( identifications code 2-3). As to Niyodusenga Daphrose, Matabaro Pierre Célestin bypassed them being together with Mukankundiye Vestine but he heard Mukankundiye Vestine screaming that she was being killed by Mtabaro Pierre Celestin. [12] Interrogated by the Judicial Police Officers, Nyirabahinde the mother of Matabaro Pierrem Célestin also testified that Matabaro Pierre Célestin bypassed her twice chating with Mukankundiye Vestine but she went immediately to bed while Mukankundiye went down toward her house. She testified further that immediately after lying down to bed, she heard the daughter of Mukankundiye crying that Matabaro Pierre Célestin had gashed her mother (identification code 4). [13] The Court finds that though Matabro Pierre Célestin denies having ambushed with intention of leaving the the beliefs that the allged crime is attempted murder instead of attempted assassination, the statement made by both Niyodusenga Daforoza and Nyorabahinde indicate that Matabaro Pierre Célestin had initially inquired the whereabout of Mukankundiye Vestine, what she was doing and her hourse of returning home, the reason why he bypassed her three times and on the lat time he insured that she was going back home being lonly and then ambushed near her

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hopuse and gashed her. This implies that he walked some distance before her and wait for killing her. With regard to this case, this fact of waiting for her near her residence is the constituent element of the ambush as provided for by article 139 of Organic Law 01/2012/OL of 02/05/2012 instituting the penal code1. It demonstrates that the crime that Matabaro Pierre Célestin is guilty of is attempted assassination instead of attempted murder as he retends. [14] The Court views that since the time the legislator had repealed death penalty2 till Organic Law as referred to above was inacted, assassination and murder were all punished by life imprisonment and it is this penalty which is applicable for whoever guilty of murder based on the provisions of article 140 of that Organic Law. This implies that there is no benefit with regard to the penalties from the new penal code in favor of Matabaro Pierre Célestin. However, the qualification, ''assassination'' does not appear in the new law instead its constituent elements, premeditated killing and ambush have been since then aggavating circumstances of offences against the human person including murder. Hence, since the qualification assassination no longers appear in the Law, Matabaro Pierre Célestin must be be sentenced for attempted murder with ambush. [15] With regard to the issues of the reduction ofthe penalty, the Court notes that Matabaro Pierre Célestin had committed a felony which had a massive negative impact on Mukankundiye Vestine since she had been hacked on the deadly parts of her body and that she is forced to live with scars that were caused by Matabaro Pierre Célestin who pleaded that it was due to the grudge which resulted from the fact that she had also gashed his wife in addition to the insults. The Court deduces that those circumstnces are serious enough for Mtabaro Pierre Célestin to be sentenced to life imprisonment as imposed by the High Court. However, since he has admitted the crime since the initial judicial intervention, though his guilty plea was not sincere before the the High Court but instead explains himself with intention likely to deny it, the fae pleads fact that he pleads guilty again and shed further lights on its commission and seeks forgiveness pleading that he had been corrected due to all that time he spent in prison in addition to the fact that he is the first offender and that the witnesses testified that he was a person of integrity must constitute for him the mitigating circumstances and beneficial for his re-integration in the Rwandan society. [16] Bsed on the holdings above, the Court decides that the penalty of life that had been imposed by the High Court must be replaced by 20 years of imprisonment. III. THE DECISION OF THE COURT [17] Decides that appeal launched by Matabaro Pierre Célestin has merit; [18] Holds that the judgment N˚RP 0021/08/HC/RSZ rendered by the High Court, the Chamber of Rusizi on August 4, 2011 is changed only with regard to penalties; [19] Sentences Mtabaro Pierre Célestin to 20 years of imprisonment; 1 An ambush consists of waiting, for a certain period of time in one or various places, for an individual, either to kill him/ her, or to commit violence against him/her. 2 Organic Law n° 31/2007 of 25/07/2007 relating to the abolition of the death penalty

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[20] Orders the court fees to be paid from the public fund.