PROSECUTION v. PFAKUBAHA

# PROSECUTION v. PFAKUBAHA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-07-08 - Case/document no.: RPA 0252/12/CS - Collection: Supreme Court

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PROSECUTION v. PFAKUBAHA [Rwanda SUPREME COURT – RPA 0252/12/CS (Nyirinkwaya, Kayitesi and Mukandamage, J.) July 8, 2016] Criminal Law – Attempted murder – None could deny to have committed attempted murder while the fact that the victim did not die was not due to his/her will – Decree - Law nº 21/1977 of 18/08/1977 instituting the penal code, article 21 Criminal Law – Drunkenness – It is not one of mitigating circumstances – Decree - Law nº 21/1977 of 18/08/1977 instituting the penal code, article 70 Criminal Law – Pleading guilty in half – When the accused does not fully plead guilty, it cannot be considered to reduce his/her penalty – Decree - Law nº 21/1977 of 18/08/1977 instituting the penal code, article 82. Facts: The Prosecution filed a case before the High Court, Rusizi chamber, stating that the accused hit her wife called Nyirarekeraho Consolée with the blow of the machete, with intention to kill her when she was about to feed cows. The court rendered verdict on 23 June 2012, founding Pfakubaha Pascal guilty for attempted murder to his wife and sentencing him to ten (10) years of imprisonment, reducing his penalty because he is the first offender. He lodged an appeal against the decision to the Supreme Court, stating that the Court made a mistake when qualifying his act as attempted murder to his wife instead of assault and battery. He further states that the court did not reduce his penalty enough, as he was sentenced to the high penalty of ten years of imprisonment while he pleaded guilty and sought forgiveness from the Judicial Police to courts. The representative of the prosecution states that the ground is baseless because Pfakubaha Pascal did not push his wife with the machete, but hit her with the blow of machete in the head and neck, proving that he was intending to kill her because he aimed at the dangerous part of the body, with the killing weapon, thus, the attempted murder convicted to him by the High Court should be sustained. Held:1. The fact that Nyirarekeraho did not die was not due to the mercy of the accused, but rather to the fact that his plan was challenged by people following the call of their son, thus he is found guilty of attempting murder, as the High Court chamber of Rusizi concluded, instead of being the crime of assault and battery as he is defending himself. His appeal is without merit. 2. A part from not pleading guilty in sincere way, the accused does not plead guilty for the offence he is charged with because the offence he admits from the day he was arrested to the appeal level is battery and assault committed to his wife. Furthermore, the offence he committed was accompanied by cruelty especially that he used savagery to kill his wife, hitting her with the blow of machete to the whole body. Therefore, the penalty reduction he requests is not granted. 3. Drunkenness is not one of mitigating circumstances even in case of full guilty plea. Appeal lacks merit. Appealed judgment is sustained. Court fees charged to the public treasury.

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Statutes and statutory instruments referred to: Organic - Law n⁰ 01/2012/OL of 02/05/2012 instituting the penal code, article 142. Law nº 59/2008 of 10/09/2008 on prevention and punishment of gender based violence, article 25 Decree - Law n⁰ 21/77 of 18/06/1977 instituting the penal code, articles 21,82 and 70. Case laws referred to: RPA 0150/08/CS rendered on 30/04/2010 Prosecutor vs Pte SENZIRA Jean Claude Doctrines : Htpp:// www.catie.ca/enpif/summer Judgment I. THE BRIEF BACKGROUND TO THE CASE [1] The case started in the High Court, Rusizi chamber, where the Prosecution was accusing Pfakubaha Pascal for having hit her wife called Nyirarekeraho Consolée with the blow of the machete, with intention to kill her when she was about to feed cows. The court rendered verdict on 23 June 2012, founding Pfakubaha Pascal guilty for attempted murder to his wife and sentencing him to ten (10) years of imprisonment, reducing his penalty because he is the first offender. [2] Pfakubaha Pascal appealed against the decision to the Supreme Court on 2 September 2012, stating that the Court made a mistake when qualifying his act as attempted murder to his wife instead of assault and battery. He further states that the court did not reduce his penalty enough, as he was sentenced to the high penalty of ten years of imprisonment while he pleaded guilty and sought forgiveness from the Judicial Police to courts. [3] The chearing was held public on 30 May 2016, Pfakubaha Pascal was assisted by Counsel Rwabigwi Augustin while the prosecution was represented by Niyonkuru Françoise, the Nationl Prosecutor. II. ANALYSIS OF LEGAL ISSUES Regarding the offence to be charged to Pfakubaha Pascal. [4] Pfakubaha Pascal states that he appealed the case due to the fact that he did not plan to kill his wife albeit the Court declared him guilty of complicity in assassination. He explained that his son called Ntuyahaga Alfred cut him on his arm with a machete when he was with his wife called Nyirarekeraho, and then took the machete and shook it so as to be able to escape yet the machete reached and cut his wife, and then wounded her neck, and that the first Court likely to declare him guilty of assault and battery, and that he requests the Court of the appeal to correct it. [5] Counsel Rwabigwi Augustin, assisting the accused, argues that the offence Pfakubaha Pascal committed was battery and assault and not attempted murder, requesting that it should have corrected in the appealing court.

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[6] The representative of the prosecution states that the ground is baseless because Pfakubaha Pascal did not push his wife with the machete, but hit her with the blow of machete in the head and neck, proving that he was intending to kill her because he aimed at the dangerous part of the body, with the killing weapon, thus, the attempted murder convicted to him by the High Court should be sustained. THE VIEW OF THE COURT [7] With regard to the murder committed against someone’s spouse, article 25 of the Law nº 59/2008 of 10/09/2008 on the prevention and punishment of gender- based violence states : “ subject to the provisions of the Penal Code, any person guilty of killing his/her spouse shall be liable to life imprisonment”. [8] As for article 21 of the Decree- Law nº 21/1977 of 18/08/1977 instituting the penal code that was into force at the time the offence was committed provides that “An attempt 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”. [9] However, during his defense before the Court, Pfakubaha Pascal states that he cut Nyirarekeraho with a machete by accident, during the interview in the Prosecution he admited that he surprised his wife and then cut her with machete on head since her son Ntuyahaga and she used to violate him. This statement corroborates with the testimonies as provided by different witnesses who heard him boasting to kill his wife in the near future. [10] The case file records statements of witnesses accusing Pfakubaha Pascal to have planned to kill his wife, among those witnesses both Mukarurangwa Costasie and Munyeshongore Jean Nepomuscène confirm that after they prepared the beer, Pfakubaha Pascal revealed to them that he wanted people from both Mpinga and Gikundamvura villages to spend the whole week without cultivating their fields as he planned to kill someone, on that occasion Vestine asked him about the one he targeted to terminate and he replied that it was no other than his wife (Quotes 9, 10, 11, 12, 13 and 14), those statements are evidences proving that Pfakubaha Pascal had a plan to kill Nyirarekeraho Consolée, his wife. [11] Furthemore, it is clear that in testimonies as provided by Ntuyahaga Elias stating that on 25/07/2010 he heard the scream, and when he went for help he found Pfakubaha Pascal, his father, already cut his mother in the back and on the head to the extent that her machoir was cut into pieces, and that they were not living in harmony where he used to tell her that he will once kill her, his statement also corroborates with other statements stated above by witnesses who confirm that they were called for by Ntuyahaga, and when they reached home they found that Nyirarekeraho was cut on the head near the ears, and her body was wholly bloody, and there was a machete bearing blood by her side, and that Pfakubaha Pascal amboushed her near the bridge when she was bringing some grass to domestic animals. [12] Basing on the articles provided above and testimonies of different witnesses as provided above, the Court finds that Pfakubaha Pascal plotted to kill his wife since he boasted of it before executing the plan and then went to ambush her near the bridge where she would pass bringing the grass to the calves before killing her, and when Nyirarekeraho reached there Pfakubaha immediately cut her with machete, the tool that can kill, and he hit in the most

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sensitive part since he hit in the head as proved by the report of expert which was prepared by Dr. Pombe Raphael who tested Nyirarekeraho Consolée on 25/07/2010, confirming that she has a wide haemorrhagic wound on the face, neck and hands, and there is a reason to fear a fracture of the left parietal bone and the brain spine (large plaie hémorragique de la face, cou et mains et qu’il ya lieu de craindre une fracture de l’os pariétal gauche et du rachis de cerveau). [13] The representative of the Prosecution states that that article regarding the appeal is without merit since Pfakubaha Pascal did not throw away his wife with a machete as he states rather he hit her with a machete in the head and on the neck, it is clear that he planed to kill her as he amboushed her and then hit her in the most sensitive part with a killing tool, and that the crime of complicity in assassination of which he was declared by the High Court cannot be amended by the Court of appeal. [14] The Court finds that the fact that Nyirarekeraho did not die was not due to the mercy of his husband Pfakubaha, it was rather due to the fact that his plan was challenged by people following the call of their son Ntuyahaga Elias as stated above, thus he is found guilty of attempting to kill, as the High Court of Rusizi concluded, instead of being the crime of assault and battery as he is defending himself. His appeal is without merit. 2. Whether the penalty inflicted to Pfakubaha Pascal could be reduced [15] Pfakubaha Pascal states that he requested the Court to reduce penalty once again as he admited the crime from the Judicial Police up to the Court, and apologised for the crime yet the Court sentenced him with a questionable punishment of ten (10) years of imprisonment, and that his wife had forgiven him, to the extent that she visites him at the prison and that he committed such a crime due to beer consuption. [16] Rwabigwi Augustin, the Counsel, supporting him states that he requests the Court to remit the punishment of Pfakubaha Pascal since he admits charges of which he is accused and requests for forgiveness due to the fact that the crime was due to alcohol consumption, and that he has a clean criminal record, and that he is currently in harmony with his wife as she regularly visits him at the prison. [17] The representative of the Prosecution states that Pfakubaha Pascal cannot benefit penalty reduction once again since the High Court remitted the punishment by basing on the fact that he has a first offender, and that the forgiveness he is requesting is filled with malignancy as he is not revealing his plan to commit the crime, hence the appealed judgment is sustained. THE VIEW OF THE COURT

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[18] Article 82 of the Decree – Law n⁰ 21/77 of 18/06/1977 instituting the penal code provides " The judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence" while article 83 (2) of the same Decree- Law provides that " If there are mitigating circumstances, the life imprisonment is replaced by a penalty of imprisonment of not less than two (2) years. [19] It is clear that the judgment RP 0032/10/HC/RSZ rendered by the High Court on 23 June 2012, the fact that Pfakubaha Pascal was the first offender was considered, and instead of sentencing life imprisonment he was sentenced to ten (10) years basing on article 82 and 83 mentioned above. [20] With regard to the penalty reduction requested by the accused, the court finds that a part from not pleading guilty in sincere way, Pfakubaha Pascal does not plead guilty for the offence he is charged with because the offence he admits from the day he was arrested to the appeal level is battery and assault committed to his wife. Furthermore, the offence he committed was accompanied by cruelty especially that he used savagery to kill his wife, hitting her with the blow of machete to the whole body. Therefore, the penalty reduction he requests is not granted. [21] Regarding the fact that he alleges to have committed the offence due to drunkenness, the court finds that it should not be considered as a mitigating circumstance even in case of a sincere guilty plea, considering the provisions of article 70 (2) of the Decree- Law mentioned above providing that " A person who has voluntarily deprived him/herself of the use of his/her mind during the commission of the offence shall remain criminally liable, even if such deprivation would have not been caused for the purposes of committing an offence." Furthermore, it was the view of the court in the case law RPA 0150/08/CS rendered on 30 April 2010 the Prosecution vs Pte Senzira Jean Claude for murder, where the court decided that the fact that the accused started by depriving himself of his mind before committing the offence could not be considered as a mitigating circumstance. [22] Considering the provisions of the Law and motives mentioned above, the court finds the appeal lodged by Pfakubaha Pascal without merit. III. THE DECISION OF THE COURT [23] Dismiss the appeal lodged by Pfakubaha Pascal; [24] Decides that the judgment RP 0032/10/HC/RSZ rendered by the High Court, Rusizi chamber on 23 June 2012 is sustained; [25] Orders that the court fees be charged to the public treasury.