[1940] EACA 19
The court held that, even accepting the appellant's belief that the deceased had caused the deaths of his family members by witchcraft, the facts did not amount to grave and sudden provocation in law. The appellant was not put in such fear of immediate danger to his own life as to justify the defence of provocation....
Source-derived case information.
- Citation
- [1940] EACA 19
- Parties
- Respondent: Rex; Appellant: Mawalwa bin Nyangweza
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 81 of 1940
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence for Murder
- Outcome
- appeal dismissed; conviction for murder upheld
- Judges
- Cluer J, Whitley CJ, Wilson J
- Legal Topics
- Murder, Provocation, Witchcraft Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rex
Respondent
Mawalwa bin Nyangweza
Appellant
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence for Murder
Legal Issues
- 1 Whether the belief in witchcraft and the deaths of family members constituted grave and sudden provocation sufficient to reduce murder to manslaughter.
- 2 Whether the appellant was put in such fear of immediate danger to life as to justify the defence of provocation.
Ratio Decidendi
The court held that, even accepting the appellant's belief that the deceased had caused the deaths of his family members by witchcraft, the facts did not amount to grave and sudden provocation in law. The appellant was not put in such fear of immediate danger to his own life as to justify the defence of provocation. The established legal principle in East Africa is that belief in witchcraft is not sufficient for the defence of provocation unless there is immediate fear for one's life. As such, the conviction for murder was upheld and the appeal dismissed.
Court Disposition
appeal dismissed; conviction for murder upheld
Orders
- The appeal is dismissed.
- Attention is drawn to the extenuating features for possible executive consideration.
Full Case Text
Judgment text and source record
14 paragraphs
# COURT OF APPEAL FOR EASTERN AFRICA
Before WHITLEY, C. J. (Uangda), WILSON, J., and CLUER, J. (Tanganyika)
# REX, Respondent (Original Prosecutor)
$\overline{v}$ .
### MAWALWA BIN NYANGWEZA, Appellant (Original Accused) Criminal Appeal No. 81 of 1940
# (Appeal from the decision of H. M. High Court of Tanganyika)
#### Murder—Provocation—Witchcraft.
Appellant appealed from a conviction of murder. He had deliberately killed a woman because he believed she had caused the deaths of all his family by witchcraft.
#### Held (26-7-40).—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.
R. v. Kimutai (6 E. A. C. A. 117) and R. v. Kumwaka (14 K. L. R. 137) followed.
Appellant absent, unrepresented.
#### Smith for the Crown.
JUDGMENT (delivered by WHITLEY, C. J.).—The only defence raised in this case is that of provocation. The appellant has never disputed that he deliberately caused the death of the deceased and furthermore there is ample evidence from eye-witnesses that he set forth with the intention to kill and did in fact kill her.
He gave evidence at the trial to the effect that in recent years his elder brother, his uncle (husband of deceased), his nephew and his mother had all died mysteriously; that the symptoms (swellings, etc.) were similar in each case; that he consulted witch doctors and was told that the deceased had caused the deaths by witchcraft. Then, some two weeks before the killing of the deceased, his brother Bunyika became sick with swellings and in spite of treatment by medicine men became worse. Witch doctors told appellant that deceased had bewitched his brother. When his brother died appellant decided to kill deceased for having bewitched all his family and about an hour later he killed her at a place not far away. There is some evidence tending to support his story but even assuming it to be true the decided cases in East Africa establish that it does not amount to such legal provocation as would justify us in reducing the offence to manslaughter. The most recent decision is the case of R. v. Kimutai (1939, 6 E. A. C. A. 117) following R. v. Kumwaka (14 K. L. R. 137) from which it appears that the plea of witchcraft however genuine has always been rejected except in cases where the accused has been put in such fear of immediate danger to life that the defence of grave and sudden provocation has been held proved. Accordingly we have no option but to dismiss the appeal. In so doing however we would draw the attention of the Governor in Council to the extenuating features in the case in that it would appear that the appellant genuinely, from the point of view of an African of his class, had reason to believe that the members of his family had died as the result of being bewitched by the deceased and took action immediately after the latest death.