[1945] EACA 37

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and Sir Norman Whitley, C. J. (*Uganda*)

REX, Respondent (Original Prosecutor)

## KAJUNA s/o MBAKE, Appellant (Original Accused)

Criminal Appeal No. 255 of 1945

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal law-Murder-Provocation-Belief in witchcraft as possible element of provocation.

The appellant killed his father in the honest, though no doubt mistaken belief, that the latter was causing the death of the appellant's child by supernatural means.

He was convicted of murder and appealed.

*Held* $(15-11-45)$ .—(1) That 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 a person when there is no provocative act.

(2) That such a belief is not a reasonable one.

Rex v. Fabiano and Others 8 E. A. C. A. 96 followed and affirmed.

Appellant absent, unrepresented.

Kingsley, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).— The accused was convicted of the murder of his father Mbake and sentenced to death. He has appealed to this Court. There is no doubt whatever that he deliberately killed his father, having set out on a long journey for the purpose of doing so. The conviction in our opinion was correct. In favour of the accused the learned trial Judge stated: "In my opinion in this case the accused had an honest, though no doubt mistaken, belief at the time he killed his father that the latter was at that moment killing his child by supernatural means as surely as if he had seen him in the act of using a lethal weapon. The East African Court of Appeal has never, so far as I know, decided this point, though it arises in one form or another in many cases in this Territory, the inhabitants of which over large areas are soaked in witchcraft and imbued with a firm belief in evil spirits. No doubt if the point is put up on appeal it will be decided. It would seem to turn on whether the accused's belief in his father's malevolent invocation of evil spirits in order to injure the child was not only honest but reasonable, taking into account the fact that he is a primitive African. That is a difficult question bordering on metaphysics, which I do not propose to discuss here. I shall merely make a finding that such a belief is not reasonable and leave it to the Court of Appeal to upset my decision if I am wrong. I would add on the general question of provocation that, apart from any provocation which might be found to be constituted by the father's course of conduct to which I have referred, the accused received no immediate provocation of any kind from his father before he stabbed him to death on the night in question".

In the case of Rex v. Fabiano and others, 8 E. A. C. A. 96, the question of a belief in witchcraft as a defence was fully discussed. At page 101^th we expressed the following view: "We think that 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 Criminal Law (Witchcraft) Ordinance of Uganda and similar legislation in the other East African territories) he might be 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. And if this be the case a defence of grave and sudden provocation is open to him. It must always be a question of fact as to whether he is in all the circumstances of the particular case acting in the heat of passion caused by grave and sudden provocation and of course on such an issue he must be given the benefit of any reasonable doubt". And again at page 102 the following passage occurs: "Finally we would say that in coming to the conclusion we have arrived at in this case we in no way mean to suggest that a belief in witchcraft *per se* will constitute a circumstance of excuse or mitigation for killing a person when there is no immediate provocative act. This case is to be distinguished from *Mawalwa's case* in which there was no wrongful act preceding the killing such as was present here in the highly suspicious actions of the deceased to which we have referred".

Our view is that in order to reduce an act of killing from murder to manslaughter because of a belief in witchcraft the case must come within the principle laid down in Fabiano's case. 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 may be has not so far as we are aware been regarded by this Court as a mitigating circumstance in law though it is a matter which we believe is always considered by the Executive.

In short we should not be justified in accepting it as a reasonable belief.

The appeal is dismissed.