Kisanga and Makame, JJ.A. and Mapigano, Ag. J.A.: This is an appeal against conviction for murder and the A sentence of death passed on the appellant by the High Court (Kazimoto, J.) sitting at Songea.
The appellant is a grandson of the deceased man. He (the appellant) has a brother called Danstan who was mentally sick. Both of them were staying together at the appellant's home. On a number of occasions the appellant had B consulted witchdoctors who told him that the deceased had killed a number of people in the family and had caused temporary sterility of his own daughter through witchcraft, and on being asked the deceased confirmed this. C
On the day of the incident the deceased visited the appellant's home to see Danstan, the sick grandson. There were different versions of what transpired there between the appellant and the deceased, but the trial judge found, and rightly so in our view, that there was an exchange of words between them in the course of which the deceased D threatened to kill the appellant by witchcraft, following which the appellant picked up an axe and brutally attacked the deceased with it causing his death instantly.
The appellant's defence was one of provocation through witchcraft, but the trial Court rejected it and convicted him for murder as charged, Mr. Kisusi, the learned advocate, who represented the appellant in this Court, filed a total of E eight grounds of appeal. Essentially his complaint is that the appellant's defence was refused on insufficient grounds.
In dealing with the matter before him the learned trial judge properly directed himself that although mere belief in F witchcraft is no defence to a charge of murder, a threat to kill by witchcraft may in certain circumstances constitute legal defence to that charge and for that view he relied on the decision of the court of Appeal for Eastern Africa in Yovan v Uganda [1970] E.A. 405. He specifically referred to the following passage in that judgment: G
In considering this case the trial judge to a large extent relied on the principles relating to provocation as explained by this Court in the case of Eria Galikuwa v R [1951] 18 E.A.C.A. 175 and, having held that the substantive act of provocation here H was a threat to cause the appellant's death, said, following that decision, that "a threat to cause death cannot be considered as a physical provocative act". With respect we are of the view that the decision in the Galikuwa case should not be regarded I as laying down a general rule but must be interpreted
KISANGA AND MAKAME JJA AND MAPIGANO Ag JA
A with reference to the facts of that case. There may be cases where a threat to kill taken with the other existing circumstances could amount to legal provocation.
B The facts in that case were that the appellant had suspected the deceased, his step mother, of having killed his two children by witchcraft or poison. On his blaming her, she retorted that he (the appellant) would also die before he could bury the children. Whereupon the appellant attacked her by cutting her with a panga causing her death C instantly. In considering the appellant's defence of provocation the Court said:
This is a difficult case because the act of the deceased in threatening to cause the death of the appellant, presumably by D witchcraft, must be viewed not in isolation but in the context of the appellant's children having just died, the appellant honestly believing the deceased to have been responsible for their deaths, and the deceased knowing of this belief. We are unable to say that the uttering of such threats by the deceased, in these circumstances, could never constitute a wrongful act and thus Elegal provocation.
The Court, however, found that the killing was pre-meditated because the appellant, when he armed himself with a panga and went to the deceased's house, intended to kill her.
F In the instant case the trial judge found that the appellant killed the deceased in revenge for the past deaths and misfortune he had caused to member of the family. In his view there was nothing sudden in the threat uttered by the deceased to the appellant because prior to the day of the incident the appellant had heard the deceased confessing G to have caused deaths and misfortune to members of the family. His reasoning comes out rather clearly in the following passage of his judgment:
H The accused was no stranger to the deceased. Since 1980 he had been taking the deceased to witchdoctors who told him that the deceased had caused death by witchcraft and the deceased was alleged to have admitted killing his victims by witchcraft in order to pay or reduce debts. The accused had been hearing these confessions. It was not sudden when the I accused heard the alleged threat that he wanted to kill accused or Danstan in order to reduce debts. ... ... As the threat to
KISANGA AND MAKAME JJA AND MAPIGANO Ag JA
cause death did not come as a shock I hold that the accused was not put in fear of any danger to his life or that of his brother A when he killed the deceased.
With due respect the learned judge misdirected himself on some material point here. There was no evidence that the B deceased had in the past threatened to kill the appellant. The evidence merely shows that the appellant had heard the deceased confessing to have caused deaths and misfortune to some family members, but there is no suggestion that prior to the day of the incident the deceased had threatened to kill the appellant. As far as the appellant is C concerned, therefore, the deceased's threat to kill him on the day of the incident was sudden and must have come to him as a shock. Such a sudden threat has to be viewed in the context of the deceased's previous admissions, in the appellant's presence, to have caused deaths and misfortune to some family members, and the appellant's honest belief in his having the power to do so. Had the learned judge directed himself on these lines we are unable to say D for certain that he would have necessarily come to the same conclusion.
In this respect it is perhaps pertinent to point out here that in killing the deceased the appellant did not follow the deceased; rather it was the deceased who had gone to the appellant's home, and that would tend to incline more to E the view that the killing was in circumstances of provocation rather than premeditation.
The learned judge went to say that even if the killing was in the circumstances of provocation, he would have found F that there was sufficient time for the appellant's passion to cool because the appellant went to the kitchen, some 23 feet away, where he picked the axe with which he killed the deceased. Mr Kisusi complains that the finding that the kitchen was 23 feet away was not supported by the evidence. This complaint is justified. We could find nothing G in the evidence showing or indicating the distance between the kitchen and the place where the threat was uttered. On the other hand our impression of the evidence is that the kitchen was in the vicinity and that the appellant simply entered there and picked the axe. Even assuming for the sake of argument that the distance of 23 feet was H established on the evidence, such a distance, in our view, was too short and could not provide time for the appellant's passion to cool.
In all the circumstances of the case we are not satisfied that the charge of murder was proved beyond reasonable I doubt. As we have made it abundantly clear, we are increasingly of the view that
A had the learned trial judge properly directed himself as shown above,
he might well have come to a different conclusion. The appellant is entitled to the benefit of that doubt. In the result the appellant's conviction for murder is quashed and the sentence of death set aside. We substitute therefore a conviction for manslaughter contrary to section 195 of the Penal Code.
B The appellant has been in custody since 1989, but the killing which was really brutal was rooted in the belief of witchcraft which ought to be discouraged. This was a bad case of manslaughter which came very near murder, and C which calls for a severe sentence. We think that a sentence of twelve (12) years' imprisonment will meet the justice of the case. It is ordered accordingly.
Order accordingly.
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