19750315 TZHC Iringa

V. IN THE HIGH COURT OF TANZANIA 'T IRINGA ORIGIi1AL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIOI-JS CASE NO. 15 OF' 1974 THE REPUBLIC VERSUS S . OTI KIKAMULYA I - OBEDI/O BOIMANDA Charge: Murder.c/.196 of the Penal Cde:. ;JU,DGM'E NT MWESIUMO, AG. J- :- -• i The accused Oweti s/o Kilamulya otherwise known as Obedi sb Boimanda has pleaded not guilty to a charge on the information for the murder of bne Kibwengo sb Mangita, it being contedded by the prosecutioh that on or about the 17th day of February 1973 at 1ti4enzali vill:ge, Lupembe Division, in the District of Njornbe within Iririga Region, th aàcused did murder. Kibwengo s/o Mangita. - It Was uncontrovertedl tablished before this court that the accused and •the deceased and otherpeople we-e residents of that village of Luwenzali. .. '. It then transpired .t1at one day the deceased Kibwengo th/o Mangita disc1oèd to his.d.aughter one S6phia (P.w.l) that he the deceased was thirtyof -hiiñ.fIesh and thushe was doing to-bewitch the children of Fungo, Hands and Owet and then wouldfcast on' theLrflesh.r. When SOhi.a heard that she reperted to Fungo and to their&1i- leader one Mwakamzima. Inturn the cell—leader repc-rtecl to their village chairman one Sajeni s/o Likokoto. As a result of that. inforñ- ation Kibwngo was called, before the chairman who ruled that lKibwenqo 6h(J his wife and their raughter be tak.n to a mster native Doctor. to verify whetherKibwengo was a wizard or not. That Doctor coifirmed that Kibw€ngo was a wizard and when askcd • Kibwengo admitted that he was so. The ht Doctor told Kibwengo to look for another master:Natjve. Doctor whoou1d 'dean him of his witchcraft. • S •' On'et tht first -Mastet Native Doctor the. chairman •. convened a meetin' of the villagers whJln he tolld what the Doctor had said about Kibwengo. Before the ho4se of KibweftgcA was cleaned of witchcraft the said Kibwengo absconded from that village. S S Sodn thereafter a child -"of Fungo died'. That child was one of those armked for being killed;an eated upon by Kibwengo. S ;h.ortily there- after ant. r earmarked child, this time of the accused, fell sick. The accused reportd that to the cell—leader. They failed to trace Kibwengo at. his home but his wife cilled at the 'home-of -the accused purportedly to 'see the sick child and she spent the night there.. The following morning Kibwengo. called at the home of the accused and just as Kibwengo sat down outside the house where the child was sick, that child passed away. - That pr.onipted the village chairman the following morning to ask 2 Kibwengo before a gathering of vi11àgei who had come thcre for the mourning over the death of the child, whether it was he (Kibwengo) who had killed that child bywitchdraft and in reply Kibwengo admitted to - have done so. On hearing that the chairman referred the matter to the ward secretary at their Heedquartdrs at Lupembe.. The group that went there included Japhet.(PW2),Ludariko, Kibwenoo..;' the accused. The ward secretary, aftér ading'the letter froth the chairman, asked Kibwengo about those allegations and Kibwengo admitted in the presence of those people that he was the one who had killed thern daughter of the accused and when further asked whether he had cleaned his house of witchcraft he replied that he had not d on so for want of money which was needed for payment of charges to the.Master Native Doctor for that exercise. Then the ward secretary ordered them to go back to their village and specifically further tld.Kibwengo to go and clear witchcraft from his home but Kihwengo repli. that he had no money to pay a native Doctor who would clearhihue ofwitchcraft. . The group then started returning hcnd and oii the way as they were approaching a river called_.Ud.Cka river Kibwengo and the accused . were infront of the other two, Japhet and Ludariko.. . According to the evidence of the accused.Kibwenjo increased hs steps as if preparing for. running away from the rt of the g'oup. When the tc- cusod noticed that he told him to slow iown and wait for the othcr two but Kibwengo did not heed that and matchd on. Thus the accused decided to chase him and caujht him and ordered him to put down his panda which Kthwengo complied with 0 Then he tied him with a rope and. 1'ibwengo askcd the acused tqhat the latter wahted to do with him anc.he (Kibwngo) o threatened him that even if he succeeded in killing him the accused would still face some problems from one Ndege Sanzago Madagalla to .whc.rfi Kibwengo had entrusted his witchcraft medicines. When the accused assertedly heard that threat of being killed and hen he remembered the hCrvemeñt over his daughter's suddCn demise just recently he lost his control and pushed Kibwengo into that river from the bridge. This was also accentuated by a recollection that the previousyear Kibwengo had run awiy when he had be€n required to clear witchcraft ftdrn his. hdd. The adsCdwtchéd his victim till the latter sank and drow S and then the accused threw the deceased's stick and bill—huok into th same river anJ when the other two people arrived there he told them that Kibwengo had run awiy. Later on the acuscd confessed to their village chairman that he had killed the deceased in the manner described above whereupcn the said chairman reported the mttr to their ward secretary who in turn sent a messenger ne Samuel s o Mangula who ariested the accused, took him to the scene to look for the dead body and when they f?lled to recover it he surrendered the accused to the police at Wjobe who ultimately charged him arid brought him before the ccurt. As I had atJlr)gtIy told the Gentlemen Assessors in my summing- up there was lit4e,if any, dispute at all over the factual issues but on those facts as summarized above there sprang legally contentious issues. On theone hand the learned State Attorney argued that that fatal act amounted to murder while the learned defence counsel COntended that his cl&ent had been provoked by the dCce - ised who had confessed that he had killed the accusedts daughter by witchcraft and at the river he shocked him by threatening that he would kill the accused similarly by 'witchcraft which he had deposited with one Ndee Sanzago Madagalla. On this Cgel ques t ion I directed the two Gentlemen Assessors to dirt their attention and action to the following question - "Would anordinaryperson, jit in the position of theaccused, have acted in the way the accused did ? In.otherwords would an 9;dinary. person, having içnown and..believed that his daughter had been killed by the d6le. 111, 00 who in addition to that threatens 3 .- also to kill him liketise by Witchcraft have throwr the utterer into the river is the accused confessedly did t" After brief deliberations each Gentlemeh Assessor exprcssed his opinion which concurred with one anotheraizd hiéh was to the effect that they held the accused to he Guilty of murder s charged be,Ueving that the fatal act at the river was calculted revenge f or the loss of the accueds daughter0 .. .. Unlike the Jury in England 'the.;.Assessors' opit -iion here is not binding to the coUrt. S Killings arising from witchcraft practices aè fairly common and old in the Criminal record of this, country 0 The learned Defence Counsel 41r6 D 0 C0 Nbezi cited two authurities, apparently unreported cases, on this subject. One i.s:thedase of Masaga s/o Simon vs R decided by the East African Court of Appeal, Crim.tha4. Appeal No 170 of 1970 which was followed by OnyIukeJ:. In High Court Criminal Sessions No 264 of 1971, the case of R vs. Mpendekeje Tuvinje. He contended that the efet of thoè 'authorLties - 'is 'to' wicTez the •drea of provocation caused by witchcraft belief h:1aying down the following 'nditions- That the accused must believe the confession of witchcraft by the deceased. That that confesinmust' tome as: a shock to the accused. In the instant case, the learned Defence Counsel firther pointed out, that th confssion of the killing of the accusLd' rlaughtcr..,by the deceascd did not come as a shock for ample time had elapsed since it had Jeen made giving him time to cool down but the threat which the accused belIeved at the bridge that the decased would ewi'e kill the accused by wItchcraft irstanténeously resulted in'the'accused's loss of self—control çnc1 thus he dumped the deceased to death into €htt river. S. . .5 He concluded that reduced the gravity of the offence from murder to manslaughter by reason of provocatiQn0 With that view I respectively agree though with greater respect I I have fcund myself at variance with the two Gentlemen assessors whom I thank for their great assistance in the trial • . Under th. cLrcütnstariès of the caeX .conider and view it possible that at hearing that threat the çused •was:.thrown into a heart of passion that possibly rmade him su dden.r 1oseielf—controi an in that h5eat of passion he did the fatal act of drowningthe dec se 5 d into'that ' •. river. . . • Consequently unlike the two Gentlemen Assessors 1 I find him not guilty of murder by reasun of a legal defence of provocation but, on the weight of evidence as outlined herein above I find him Guilty of a lesser offence of Manslaughter contrary to sedtion 195 of the Penal Code 5 and I convict him of that offence adcordin.gly . Delivered in open •court at Njombe. this 15h day 5 Of March 1975. S ' • . E.A.MSISUM0 •. S AG. JUDGE •;. S Pros:(Mr. Mbilinyi S.A.): No record of previous convictions, Mr. D.C. Mbezi, D.C. (In Mitigation): This is a very unfortunate killing arising from a firm belief of witchcraft 0 • 0 0 0 0 0 /4 - 4 - The circumstances Surrounding' the killing are 'very clearly - mitigating to the offence0 The accused has two wives who have a total of eleven children. He had another wife who died and left two children All these depend on him and some of these children are supposed to atted school at the initiative, of the accused0 It is for the benefit of the children that I ask the court to, be' ienient. The accusod.may bd over 50 years of age and up to"now he has maintained a very cle:ar icord up to thi,g crime0 He has been n remand for about. 23 month.s with this serious charge hanging ohim In view, of thE, foregoing I pray the court to be meriful to the 'accused Allocutus (Accused): I am sorry Lor my' .affairs at home for which there : nobody to take care of,, This killing:has landed mu 'iPtc trouble 0 I repent for what happened 0 Sentence: The conduct of the' deceased was not only a menace and provocaUqe to that village but indeed amounted to a threat to all the villagers because of the belief they firmly held that he was going about bewitching other people's children, However, tI'L ''e off'lirectaoia in assessing sentences for such offences, in my view sh uld partly if not predominantly, be aimed at deterring people from., taking the 'law into 'their own hands when dealing with witchcraft suspects and people should be taught to be restraint and resort. to the'norrrtal channels laid down by law0 Moreover, the deterrent sontexices may, I hope, act as a reminder to the authorities concerned, in ciiuding if I may add, .chairmen and secretaries at different levels that when such matters are reported to them they should not take theth- so lightly as did the chairman and particularly the .Lupembe ward :$ecretbry in this case0 : Either stupidly not realizing the gaviy of the matter or negligentl lgno'-ng it they allowed the ccused and deceased to travel together long distances to and back frcm th ward Headquarters at Lupembe without providing for the boarëst prccautiQns anç as a result. the deceased easily fell victim of the accusedts loss of seif—cuntrol. Taking all the circumstances of. the case Including the Vital fact that human life has been 'lost in a 'violent manner, I am of a view that a sentence of 0 years imprisonment would meet, justice of the case0 He is so setenced R/A to EACA explained0 1 . 15/3/75 . E.A. MWESIUMO AG JUDGE For Republic: Mr. W.X. Mbilinyi, S0A0, For Accused: Mr0 D.C.Mhezi, D.C. Assessors thanked and discharèc1, 4/741. 15/3/75 . , E.A. MWESIUMO AG0 JUDGE