A recent decision by Zimbabwe’s supreme court illustrates, yet again, the problem of ritual killings – murders in the name of witchcraft – and how the courts should deal with them. But this particular case, in addition to being one of the most tragic and gruesome that the courts have ever faced, had an additional twist: the apex court noted that recent changes to the law ending capital punishment in Zimbabwe have inadvertently created two categories of people under sentence of death. This was discriminatory, the judges said, and they called for an amendment to ensure that all such prisoners had the same rights of appeal.
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Ritual killings are a plague in Zimbabwe as well as in other countries in the region, but in this case even the three supreme court judges presiding over the appeal, presumably hardened after hearing so many cases of murder and violence, could scarcely believe what they were reading.
The two accused, Tafadzwa Shamba and Tapiwa Makore, were convicted and sentenced to death in 2023. Through an automatic appeal process, their case ended up at the supreme court earlier this year and the judges handed down their decision last month.
Even someone unaware of the original trial and the findings that led to their conviction would have been tipped off that this was a particularly horrific case by the opening remarks of the court: If this hadn’t been an automatic appeal, one would be left wondering ‘what possessed those involved … to embark on (the appeal)’, the judges said, pointing to the ‘overwhelming evidence’ against the men and also to the especially ‘brutal and senseless’ killing involved.
Plan to ‘sacrifice’ child for prosperity
The victim in the case was Tapiwa Makore, aged just seven. He was the nephew and namesake of the second accused, Tapiwa Makore. The two accused men worked together, Makore employing Shamba, and they were involved in growing cabbages at a rural garden.
At some stage Makore felt he needed to increase the size of his cabbage-growing business and concluded that someone should be killed as part of a ritual to ensure the business prospered. Who better to be sacrificed for this intention than Makore’s seven year old nephew, a child who even shared Makore’s name?
So the men lured the child to the uncle’s home where he was plied with alcohol and passed out. While the two of them waited for nightfall to carry out the next part of the plan, the child’s mother noticed that the child was missing and a search party – including the dissembling uncle – tried to find him. The uncle did not let on where the child was hidden and the search party was unsuccessful.
Child ‘butchered’, pieces packed into plastic bags
What happened next was described like this by the court: ‘After nightfall, like a sheep to the slaughter, (the child) was carried to the foot of a nearby mountain where he was butchered.’ The two men cut the child into pieces, dismembering the whole body. Then they packed the body parts into plastic bags. They took the bags to the uncle’s home, dumping some parts near the graveyard where dogs soon found them.
Both men were later arrested but strongly denied their guilt. The evidence, however, was overwhelming and included an initial confession by one of them. Both were sentenced to death, triggering an automatic appeal to the highest court. In their appeal, one asked for a life sentence instead. The other challenged his conviction, but said that if his conviction was confirmed, he should get just 15 years in prison.
The judges had strong views about the seriousness of the crime: ‘There is no doubt that this was one of the most heinous, heartless, brutal and indeed despicable killings ever recorded in the history of this country.’ It shook the very foundations of humanity, they said.
Two prisoner categories created by death penalty abolition
The case was made more complex for the court because the death penalty has been abolished in the time since sentence was passed on the two men. But the court isn’t obliged to impose life imprisonment in every case where the death penalty was originally handed down and so the court needed to sentence afresh.
This is where the judgment becomes even more interesting. The judges point out that the law abolishing the death penalty has had an unintended effect: it creates two categories of prisoner in cases where the death penalty has already been passed.
First, there are prisoners already on death row at the time capital punishment was scrapped. These are people who have ‘exhausted all appeal remedies’ available. Under the new law, they must be given a fresh hearing on sentence before the high court. This court must re-sentence the prisoner as if he or she had not been previously sentenced. And once that sentence has been passed, the prisoner then has a further right to appeal to the supreme court. In other words, this group of prisoners have two opportunities of appeal.
But there is, at least at the moment, a second group of prisoners whose fate is tied up with the death penalty laws. These are people who had not yet ‘exhausted all appeal remedies’ available at the time the new law came into effect. In the case of this group of prisoners – like Makore and Shamba in the case before the supreme court here – they have the right of automatic appeal to the supreme court only. And not, like the other group, two opportunities for the courts to reconsider their sentence.
The judges wrote that a prisoner in this second category ‘does not have the benefit enjoyed by other prisoners under sentence of death’ (i.e. those who have already exhausted all appeal remedies), who could access ‘a new sentencing process, complete with a fresh right of appeal’. This discrepancy existed even though a prisoner in the second category had also been sentenced to death.
Parliament should ‘revisit’ death penalty abolition law – court
The court said it caused ‘an unnecessary, if not undesirable, discrimination against this type of prisoner who really is in the same predicament as the prisoner … on death row.’
The judges said they therefore called on the legislature to ‘revisit’ the Death Penalty Abolition Act and amend it to allow even those prisoners whose automatic appeals are yet to be heard to benefit from the new sentencing regime. ‘Doing so will ensure that there is no discrimination.”
It would have the desirable effect that the sentence of those prisoners whose appeals have not yet been exhausted may be sent back to the high court to be re-sentenced and for that new sentence passed by the high court then to be appealable to the supreme court. In other words, all prisoners under sentence of death, whether their appeals had been finalised or not, would be put in the same position.
In the case of the two men who murdered the child, Tapiwa Makore, the supreme court confirmed the convictions of both men, then set aside the death sentence in both cases and sentenced the pair to life imprisonment instead.
This means that, thanks to the change in the law, the two have escaped execution. But thanks to an oversight in the law, they have had just one chance of appeal. Others, however, whose appeal process had already been complete before the change to the law on capital punishment, are entitled to two appeals. Once to the high court and then, by way of a second appeal, to the supreme court.
It’s significant that the court was concerned about the rights of even such prisoners as those in this case, convicted of a quite unspeakable crime. But of course whether parliament will pay any attention to the apex court’s concerns is a quite different question.
- Written on 29 June 2025