19900430 TZCA Dar es Salaam1

IK 111:LE COURT OF APPZ!u, OJ.:' ':i:llJZi\!JIA AT t:IWAJJZA CRHIIHAL APPEAL tO, 123 OF 1989 _ li[WAI:IBA l.:U\.8i;.!TGAHYA., • • • APPELLAHT versus THE REPUBLIC. • • • • • • lDSPOHDilJT (Appeal from the convic·~ion of the Ihg11 Court of l\,,nzania at Tc:.bora (Chipeta 2 J.}_ da;l;ed the 26th c1a;y of May, 1989 in Criminal Sessions Case Ho .. 37 of 1985 JUDGHEi{T OF TEE COURT While other people are reaching for the starG, there are still in our midst a sizeable number of people 1tl10 are completely enslaved by the forces of darkness~ namely belief in witchcraft and its attendant evils• The appellant l,IlilJ'IBA Nll.,3I:.NGAHYA belongs to this group. Ile was charged with the murder of his mm mother. The High Court si'tting at Shil".yanga (Chipeta, J.) convicted him and sentenced him to dea-'Gl1 .. This appeal is against both conviction and the sentenc~ of death. There was no witness to this mv..rcler. '\,facn the deceased wai lcilled, there was only the appellant and the· dece2,sec.l at home o The trial c01,1..rt l1ad therefore to choose between the versioi1 given by the prosecution witnesses who were not at the scene 8.11.a. that 6 iven by the appellant who was at the scene,. Both P.W.1 Ka;nbalp Kgoc,-oro s/o Masinge..nya _.4ie appellant's yom1ger 'brother and P.W.,2 liiashauri George e, co-vill~er, ax-rived at the scene following an alarm. P.W.1 had not long be;fore left hor.ie to talce t~1e cat-cle to a watering poncl leaving the appellant cmc. 2 their mother the deceased at home o W'J.1en these two wi tncsses arrived at tlJJl scene, they found a lot of p·eople including Stmgu.sungu had already arrived and were intcr1°ogating the appella;.1t. The deceased was l;; ing dead 0 bleeding from.a heac~ wound. Accordiilg to these witnesses, the _appellant at first denied kilU,ng his moJcher h.1.t later cha,1ged and adrnitbd the . killing saying: "I do not want to trouble you.- I am the .one who did it • 11 ,. He e::i::plained further that he had used an axe in l::illing the deceased, and that he had d.ecided to kill her because she bad killed his father ancl two children throu.gh witchcraft 11 But in his defence in court, the appellent denied killing ·i:;he deceased, he said tba t J.;he deceasccl. uas ldlled by banc!.i ts who arrived at his home early that morning. He told the :ii.rial court that on· arrival, the band.its wen-'ti stre.ight to where the decco,scd wc.:.s seated and attacked her with aJ."! axe. They ran away• into the bush and he did not give chase. The. lean1ed tri2.l judge considcrec.l these conflicting versions, and having c!.~ne so 3 he accepted the version given by P. Wo 1 and P. W. 2, that the appellant had con.feoscd to tho ldlling and that it w2,s a true confession of guilt because it was well corroborated by the evidence of \ PtW.1 regarding a visit to the witchdoc·cor. Ile considered the appellant's '-t.1- version as a· ridiculous fabrication. In this appealf the appellant complained that taJ.r..ing in-co accotmt his dc:fence at -~he trial nnd th.at there w,,s no eyewitness who saw him assault the dece2.i:;ed 3 the learned· trial judge erred in not believing his defcnceo At the hearing of tb.c appo2.J., Nro But2.mbala who appeared for the appellant urgoa. us to disregard. the appcllan tr s all aged confession. because it was extracted under duress b°'J Sv.ngusungu. I-Io added that oven tho confession to his uncle P .. W.3 w2.s similarly tainted because the feo.r instilled by S\:.:i"lg1.Ui>'Ungu was still operating on him. IIe therefore urged. us -~o 2.llow the appeal. t ' "' 3 >I Ao part of llis 0011:fcssion to SungumE:cn and other villagers, the c,ppollant c:rcplaincd that he b.a.d v.sed an a;-rc in killing the doccn.secl, and tli..--:, t he bad kill ec1- lier b.ocnusc she wc1s rGspons i bl c for the don:chs of l~is father nnd chHcLrcn th.i.'ough wi tchcr11f·t. His younger brot!1er P. W.1 testified tb.at a clc1.y before tho inciden-'.:; ~ he and tho uppolla.n-t had visit0d a wi.•fohdoctor. They bt1d gone to const:1 t him on tho myoto:rious dea:chs ·i;l10ir mother as being responsible for ·i;hooo cl0aths and &:lvisod the appol12.11t to move away from tho village but tlrn:t he should not do anyt:1ing bad. · The following day tho docoo..sod wan killed+ The appellant confirmed this visit to the witchdoctor but ho ::mid tbat tho witchdoctor clid not While find mzy cause for his child.rens 1 doe,-'chs1,,· .L ' we are fully 2,war~ of the intimidating atmosphere crcnted by Sungv.sw.,.gu during their inter:roga:tions [l.11d ·chat in these circtunGt2.ncos a suspect is lilrnly to ma.lee an involimtary confcosion 9 we are satisfied however that ·0he confef:\Sion r.iacie by the appellant to his uncle was f':ree from thi~ inJ:-imid.a.ting atmosphere c?l1d that therefore it wns voluntary. We al~o think that the le,:,,rned judge was rig~ht in te.king into account tlJ.,_) visit to the witc:1doctor ns strengthening the truth of the appcllant1 s com:eGsion and concluding that the confession was true., The appollant 1 G ba;1dit story was in our view rightly rejected by the learned t:cic,,l jndc·e as a ridiculous · fabrication. lfo reasonable man wou.lcl llc1v0 belmved in tho mani.ler the appellant allegedly dicl while his motltc1:> wao being fe.t2,lly ntt_acked .. The appellant claimed in his defence that he clid. ;.10t ao to ·foe witchdoctor to consult on the cause o:f hin children ts deaths encl ·i;l1at of his father~ rather he went there to litck a cure for his·slck child and that in any case l10 does not bw.ieve in witchcraft+ Ifo added that that being th.a purpose of ~s visit, the witchdoctor did not aay anything about the deaths of b.is children. But in another part of his evidence~ l10 gave a d.ifferent version indicating that he had indecc:t visited the wi tchdoctoi~ for the purpose of a post 4 'cJw.r:1in.ation to find ou.t thG cnuso of the dmd;~1s of his cllilclren and. for ho said that tho witchclocfor found !10 cause for -~l10sc deaths oven if he 112,cl f ouncl. one~ l~o wov.J.cl not ha,ve bcli0vcd l.1in ! ~°j)eco..use wHchcloctors have no rolinblc instrt.1Jno:;.1ts~ First of all if lie . ·. docs 110·1; believe in wHchcrait, why clicl Ile t2lrn tho tro1.1.ble of visiting i.. i,..t- t- .. ··one of those doctors of d.D,rkness? Soconclly, l.:.is youiiger brotl1c.:r had no to lie e.gainst l1i.11 when he sn.ic1- tlk'1t the appellant truly believed. in the witchdoctor'~ findii.1gs. Thirdly, how clic1 he I1opo to get a 01.u·c for siclc ·child wf.::..en he ha.d gone to see tho wifohcl9ctor without it? On the whole, we a.re sc1tisfiecl that the evidence supportine the . 2.ppcllant I s conviction is so atiaon1 th.."1t tl::.ore cru1 bo no doubt e,t all his guilt. 1990. . ' . ,./<. ~.:· .> JlJSS:1ICE OF LPP:&\L - ..... t .. -......,. .....::,.;_ . ,.. ...,, JUSTICE OF LPP1~AL L. H. }1FALILA ' :JPSTI9E OF APP~~L, copy of tho orir;inr~l. SJ1:l-TIOR D~FUTY REGI3'i'R:'.R. ~ ·". ) -~·~l .,,~: • •