[1951] EACA 175

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

## ERIA GALIKUWA, Appellant (Original Accused)

#### v

# REX, Respondent

# Criminal Appeal No. 85 of 1951

(Appeal from decision of H. M. High Court of Uganda—Low, J.)

#### Murder—Witchcraft—Provocation.

The appellant was convicted before the High Court of Uganda of murder. He admitted that having been threatened with death unless he paid the witch-doctor Sh. 1,000 and being unable to obtain this sum, he killed the deceased in order to save his own life.

$Held$ (20-6-51) after reviewing the authorities:

(1) The act causing death must be proved to be done in the heat of passion, i.e. in anger; fear of immediate death is not sufficient.

(2) If the facts establish that the deceased was performing some act in the presence of the accused which he believed, and an ordinary person of his community would genuinely believe, was an act of witchcraft against him and the accused was so angered as to be deprived of his self-control, the defence of grave and sudden provocation was open to the accused.

(3) A belief in witchcraft *per se* did not constitute a circumstance of excuse<br>or mitigation for killing a person believed to be a witch or wizard when there is no immediate provocative act.

(4) The provocative act must amount to a criminal offence under the criminal law.

(5) The provocation must be not only grave but sudden and the killing have been done in the heat of passion.

(6) The provocative act might indicate a future intention on the part of the doer and might therefore be of such a nature as to come within the definition of legal provocation.

Cases cited: Rex v. Kimutai (1939) 6 E. A. C. A. 117; Rex v. Mawalwa (1940) 7 E. A. C. A. 62; Rex v. Sitaki Matata (1941) 8 E. A. C. A. 57; Rex v. Fabiano and Others (1941) 8 E. A. C. A. 96; Rex v. Wabwiro (Cr. App.

Appeal dismissed.

## Appellant absent, unrepresented.

### Walther, Crown Counsel (Uganda), for Crown.

JUDGMENT.—The appellant was convicted before the High Court of Uganda of the murder of one Juko and appeals against his conviction on the ground that he killed the deceased in the heat of provocation and therefore the offence charged should have been reduced to manslaughter.

The facts are not in dispute. Some time during 1949 the appellant had Sh. 320 stolen from him and early in 1950 he got in touch with the deceased, who had a considerable reputation as a witch-doctor, in the hope that the deceased might recover the stolen money. Juko was clearly an unscrupulous rogue who saw in the appellant's credulity an opportunity for unjust enrichment. On his first visit<br>to the appellant's house he exacted Sh. 70 as fees and a chicken; on his second visit he demanded Sh. 320 and a goat and threatened the appellant that his "medicine would eat him up" unless he paid. The money and goat were handed over and another goat was killed and eaten. In January, 1951, deceased paid appellant a third visit accompanied by one Laurencio whom the learned trial Judge very properly treated as an accomplice in the swindle. Laurencio's account of what happened during this visit differed somewhat from the appellant's but the trial Judge accepted the appellant's account. This time the deceased demanded Sh. 1,000, a sum which the appellant did not have, but which he promised to raise in a few days. That evening as the three of them were sitting in the dark in appellant's hut the appellant heard deceased's "medicine" demanding the money and threatening that it would "eat him if you don't pay us". Appellant promised to pay. The following night at about 8 p.m. the demand was repeated by the "voice". At the preliminary inquiry both Laurencio and the appellant said that on this occasion the voice threatened that if the money was not paid the appellant would be killed at noon the next day. This was not repeated at the trial but the trial Judge has accepted it. At the trial the appellant's evidence was that the voice said: "If you go out to borrow the money we will go with you and if you don't get money we will kill vou by sucking your blood". It may also be noted in the appellant's favour that he told the committing Magistrate that the hen and the goat which he had given to the deceased on the previous visits had died instantly, without the deceased "giving them anything".

The appellant giving evidence on oath at the trial said that it was as the result of this threat to his life that he decided to kill the deceased, "which I did in the early morning and thus saved my life". In cross-examination he said: "When I heard the voice I was much frightened. I slept with Juko that night... I woke about 6 a.m. and got my stick from the banana plantation and came back and hit him. I greeted him when I first went out. When I beat him he was under the blanket so I don't know if he was asleep. I had told him I was going that morning to pledge my land and get the money. But as there was no one would give me Sh. 1,000 I decided to silence him. I felt quite normal. I thought if I did not raise the money I would be killed. I honestly thought that. I thought he would kill me by witchcraft". The medical evidence showed that the deceased had been battered to death by five separate blows on the head, the skull being cleanly split by one such blow with fractures in all directions. The doctor's opinion was that the appellant, who is aged and feeble, must have exerted all his strength to inflict such injuries.

The trial Judge found that when the appellant heard the "voice", even if he knew that it emanated from the deceased, he had the honest belief that it was the deceased's "spirit medicine" or, at any rate, something supernatural; the Judge further held that it was a reasonable belief in the circumstances. He then considered and rejected the plea of provocation on the ground that it did not meet the test of immediate retaliation in the heat of passion without there being time for that passion to cool or for the forming of an intent to kill.

This Court has often had occasion to consider the exceptional circumstances in which a belief in witchcraft may be taken into consideration and this appeal affords a convenient opportunity to collate the pronouncements which have from time to time been laid down on this subject:

(1) The first condition is that the act causing death must be proved to have been done in the heat of passion, that is in anger: fear alone, even fear of immediate death is not enough. This view has not always been very clearly expressed. In Rex v. Kimutai (1939) 6 E. A. C. A. 117 the Court said:

"The plea that the deceased had bewitched or threatened to bewitch the accused has been consistently rejected except in cases where the accused has been put in such fear of immediate danger to his own life that the defence of grave and sudden provocation has been held proved."

See also Rex v. Mawalwa (1940), 7 E. A. C. A. 62, the headnote of which reads: $-$

"That the appeal must be dismissed as the accused had not been put in such fear of immediate danger to life that the defence of grave and sudden provocation could be held proved."

The words "fear of immediate danger to his own life", which might seem more appropriate to a plea of self-defence, did not escape criticism and were explained and interpreted in two subsequent cases, Rex v. Sitake Matata (1941), 8 E. A. C. A. 57 and Rex v. Fabiano and Others (ibid at page 96). In the former case, the Court referring to Kimutai's case explained that nothing therein said should be taken to mean that there can be any other provocation which will have the effect of reducing murder to manslaughter than that defined in the Penal Code. In the latter case, the Court after referring to the cases of Kimutai and Mawalwa said:-

"In our opinion the principle in those cases is stated somewhat too narrowly and perhaps not altogether accurately in that the words 'in the heat of passion' used in (the Penal Code) are more properly preferable to the emotion of anger than to that of fear. . . With reference to what was said in the case of Rex v. Kumwaka (14 K. L. R. 137 cited in Kimutai's case) we desire to make it clear that where the Court in that case refers to the emotion of fear as founding a defence of grave and sudden provocation, it must be implied that concurrently with a finding of the existence of that emotion, the Court must hold that the accused did the act causing death in the heat of passion for (the Penal Code) makes that an essential constituent of a defence of provocation."

(2) If the facts proved establish that the victim was performing in the actual presence of the accused some act which the accused did genuinely believe, and which an ordinary person of the community to which the accused belongs would genuinely believe, to be an act of witchcraft against him or another person under his immediate care (which act would be a criminal offence under the legislation against witchcraft) and the accused is thereby angered to such an extent as to be deprived of the power of self-control and induced to assault the person doing the act of witchcraft, then in such case the defence of grave and sudden provocation will be open to the accused. Rex v. Fabiano and Others (supra at page 101), Rex v. Wabwiro (Cr. App. No. 82 of 1949, unreported).

(3) A belief in witchcraft *per se* does not constitute a circumstance of excuse or mitigation for killing a person believed to be a witch or wizard. when there is no immediate provocative act: Rex v, Fabiano (supra page 101).

A mere belief founded on something metaphysical, as opposed to something physical, that a person is causing the death of another by supernatural means, however honest that belief, does not constitute in law a circumstance of excuse or mitigation for killing when there is no provocative act: $\text{Re} x$ v. Kajuna (1945), 12 E. A. C. A. 104. See also Rex v. Akope (1947), 14 E. A. C. A. 105: Rex v. Mpinga and Others, Cr. Apps. 201, 202, 203 of 1949, unreported. There must be an overt act of witchcraft: Rex v. Kyetele, Cr. App. No. 59 of 1950, unreported; Rex v. Mwasio, Criminal Appeal No. 106 of 1950, unreported; Rex v. Adoniya, Criminal Appeal No. 3 of 1951, unreported; Rex v. Kyakurugaka, Criminal Appeal No. 21 of 1951, unreported. The act or insult must be something of a physical nature which is visible or audible to the person to whom it is done. Rex v. Petero Wabwire (Criminal Appeal No. 82 of 1949, unreported).

(4) The provocative act must amount to a criminal offence under the Criminal Law (Witchcraft) Ordinance or other similar legislation: $Rex$ v. Fabiano (supra); Rex v. Augustini Kabyanga, Criminal Appeal No. 135 of 1950, unreported; Rex v. Kindamba, Criminal Appeal No. 7 of 1950, unreported.

(5) The provocation must be not only grave but sudden and the killing have been done in the heat of passion. Rex v. Akope and Another (1947), 14 E. A. C. A. 105; Rex v. Rutagengwa, Criminal Appeal No. 76 of 1949, unreported; Rex v. Kindamba, Criminal Appeal No. 7 of 1950, unreported.

(6) The Penal Code does not say that the unlawful act or insult done to or in the presence of the person accused must be one entailing immediate consequences of a wrongful nature, and there might be upon occasion a wrongful act which was indicative of a future intention on the part of the doer and which therefore might be of such a nature as to come within the definition of legal provocation. Rex v. Petero Wabwire, Criminal Appeal No. 82 of 1949, unreported.

We have now to consider the validity of the plea put forward in the present case in the light of the conditions laid down by this Court in the cases cited.

In the first place it appears from the authority of $\text{Rex } v$ . Kyetele (supra) that a threat of the nature alleged in the instant case will not amount to an overt act of witchcraft by the deceased so as to provide the appellant with the defence of provocation. The facts in Kyetele's case, as given in the record which we have read, were closely similar to those in the present case. In that case, the deceased woman had been the appellant's concubine and he honestly believed that she had bewitched him, and paralysed his arms and then demanded money and presents before she would cure him. On the day of her death she demanded more money and told the appellant that the devil would return to him if he did not pay the money. Appellant thereupon killed her because he thought he never would recover from his illness.

It seems therefore that a mere threat to cause injury to health or even death in the near future cannot be considered as a physical, provocative act.

In any case, the appellant's own evidence shows clearly $(a)$ that he was motivated not by anger but by fear alone. He struck, not in the heat of passion, but in despair arising from the recognition of his inability to raise the money demanded and his hopeless fear of the consequences; and $(b)$ that he was not suddenly deprived of his self-control but acted as he did deliberately and intentionally because he could see no other way out of the impasse.

Furthermore as the first assessor pointed out in his opinion the appellant had ample time to raise the alarm or report to his chief. Instead he chose deliberately to take the law into his own hands.

These conditions do not satisfy the definition of provocation and the learned trial Judge correctly rejected the plea and found the appellant guilty of murder.

He did not, however, consider whether on the evidence a plea of self-defence could have availed the appellant, and on the state of the authorities we are not surprised that he did not for in no case that we know of has this Court ever considered or decided whether an act of witchcraft which the victim honestly believes will occasion immediate death or injury can bring into play the doctrine of se defendendo. This Court has held that such an act under certain circumstances may amount to grave and sudden provocation but an act done in self-defence is not necessarily an act done in passion produced by provocation. In these territories self-defence as an answer or a partial answer to a homicide is governed by the principles of the English Common Law (vide section 18 Uganda Penal Code) so that it is difficult to see how an act of witchcraft unaccompanied by some physical attack could be brought within the principles of the English common law. However, in this case it is not necessary for us to decide the point because the appellant did not defend himself immediately against any act of witchcraft.

It follows, therefore, that whatever sympathy may be felt for the appellant, this Court cannot but dismiss the appeal and confirm the conviction.