High Court backs corporal punishment as mother cleared of murdering own son; 13-year-old died after being beaten for joining Nyau dancers

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By Mary Taruvinga

HIGH Court judge Justice Munamato Mutevedzi has cleared a Harare woman who was accused of murdering her13-year-old son during corporal punishment, ruling that there was nothing amiss with her conduct.

The suspect, Yeukai Graham Mutero, was accused of killing her son Desmond Matsatsi earlier this year after assaulting him for having joined the Nyau dancers.

Mutero however, walked out of court a free woman following a full trial in which the judge established that she was right to discipline her child.

It also emerged that her son was a culprit who had been involved in various fights before, which could have caused his death.

The judge said corporal punishment remains legal and cannot be classified as a criminal offence if one proves that the intent was purely for discipline.

“It is against the above background, that it becomes difficult to apportion any blame on the accused person,” said the judge.

“Taking the evidence and the circumstances of this case in their totality, our conclusion is that the accused assaulted the deceased in the normal course of parental discipline.

“It was unfortunate that the bid for discipline resulted in the tragic consequences which may have been aided by the deceased’s own violent behaviour in the community”.

The judge also said there was no indication that Mutero could have foreseen the possibility of death.

“The evidence before us also reveals that the deceased was a sturdy boy who easily overpowered his mother when she wanted to assault him.

“Had she not called for her brother’s assistance, she would not have been able to punish him. With those seemingly harmless weapons, the accused assaulted the deceased on the buttocks, back and thighs.

“Generally speaking an assault on those parts of the human anatomy is not commonly known to lead to fatalities.”

He said the law says a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward.

The law also says a school-teacher shall have authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student; the authority shall be a complete defence to a criminal charge alleging the commission of a crime of which the administration of the punishment is an essential element.

“It follows, therefore, that in cases of murder resulting from corporal punishment administered by a parent or other authorised person, it is not enough for prosecution to simply allege assault.

“The assault on its own is not criminal. The State must, therefore, lead evidence which tends to show that the accused acted beyond the bounds of moderation.

He added, “It was on the basis of that permission that we concluded that the accused did not do anything outside the law.

“Her beating of the deceased remained reasonable. She did not harbour any intention actual or legal, to hurt the deceased let alone kill him.

“For those reasons, we are not convinced that the state managed to prove its case beyond reasonable doubt as required at law. Accordingly, the accused is found not guilty and is acquitted of the charge of murder.”

Mutero was accused of killing her son Desmond on January 20 this year.

Court heard she teamed up with her brother Ocean who is yet to be accounted for.

This was after Desmond had been mischievous with neighbours with members of the community always complaining against his conduct.

Mutero reached a breaking point after she was told that Desmond had joined Nyau dancers.

She then summoned her brother who tied Desmond to a bed before she beat him up using a mulberry tree stick.

The following morning she left for work leaving her son still in bed.

Desmond’s sibling later found her brother dead while still in bed leading to the mother’s arrest.