[1943] EACA 85

## ORIGINAL CRIMINAL

#### BEFORE SIR JOSEPH SHERIDAN, C. J.

# REX. Prosecutor $\mathbf{v}$

### NZAU WA MUKWATA, Accused

### Criminal Case No. 200 of 1942

Criminal Law—Homicide—Murder—Manslaughter—Provocation—Circumstances in which a belief in witchcraft may provide provocation—Witchcraft Ordinance, 1925—Penal Code Section 197.

The accused, a member of the Mkamba tribe, was charged with the murder of K., his mother-in-law, who was reputed to be a witch and whom the accused believed had caused the deaths of several of his relatives and recently of his son by witchcraft. Accused met K. and besought her to cease from practising witchcraft. K. answered: "You are always accusing me of practising witchcraft, you also will die by witchcraft". Whereupon the accused became infuriated and attacked and killed K. The assessors considered that K. by her reply acknowledged that she was a witch and that she intended to cause the accused's death by wichcraft.

Held $(11-3-43)$ .—(1) That mere belief in witchcraft *per se* held by a person who kills another whom he believes to be a witch or wizard will not suffice to reduce the killing to manslaughter.

$\phi \rightarrow \phi$ (2) But where the deceased immediately before the killing performed in the presence of the accused some wrongful act of such a nature that the accused genuinely believed<br>and an ordinary person of his community would reasonably have believed to be an act of witchcraft, punishable under the laws against the practice of witchcraft directed against the accused or person under his immediate care, then if such act angered the accused to such an extent as to deprive him of his self-control and to induce him to assault the deceased thereby causing death the killing is manslaughter. ( $Rex v$ , Fabiano and others) $f.$ 8 E. A. C. A. 96.)

(3) That such a wrongful act on the part of the deceased might consist in words spoken by the deceased to the accused immediately before the assault whereby the deceased acknowledged that she was a witch and stated that she intended to cause the death of the accused by witchcraft.

(4) If the words so spoken by the deceased were susceptible of such a meaning and were so understood by the accused the accused must be given the benefit of any doubt.

(5) Every such case must be carefully considered on its own facts.

Accused was convicted of manslaughter *contra* section 197 of the Penal Code and sentenced to 10 years imprisonment with hard labour.

Brown, Solicitor General for the Crown.

Kapila for the accused.

JUDGMENT.—The accused admits having killed his stepmother, Kasaya, who had the reputation of being a witch. The fact that she had this reputation is confirmed by the chief, Charles Ilele, an intelligent and apparently an educated man. I need scarcely say that a mere belief in witchcraft and a killing of a supposed witch in consequence can afford no defence in law, however it may be regarded as a mitigating circumstance before the Governor in Council when the question of the exercise of the prerogative arises. Cases on the subject of homicide

committed for reasons based on a belief in witchcraft have been reviewed by the Court of Appeal for Eastern Africa in Rex v. Fabiano and others 8 E. A. C. A. 96 and the following passage at p. 101 of the report is in point:-

"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."

Another passage at page 102 I would also refer to for it clearly sets out that a mere belief in witchcraft will not mitigate a killing. It reads: -

$\mathcal{L} =$

"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 believed to be a witch or wizard, when there is no immediate provocative act. This case is to be distinguished from Mawalwa's case, in which there was no wrongful act immediately preceding the killing such as was present here in the highly suspicious actions of the deceased to which we have referred."

In the present case the only record of the circumstances in which Kasaya met her death is contained in the accused's evidence before the magistrate which now forms part of the proceedings in the trial. In that evidence the accused states that after imploring the deceased to desist from practising witchcraft she replied: "You are always accusing me of practising witchcraft, you also will die by witchcraft". If these words can reasonably be taken to mean that the deceased was acknowledging that she was a witch and intended to cause the accused's death by witchcraft, it might be contended that she was committing an offence contrary to section 2 of the Witchcraft Ordinance, 1925. That section provides: -

"Any person who holds himself out as a witch-doctor able to cause fear, annoyance, or injury to another in mind, person, or property, or who pretends to exercise any kind of supernatural power, witchcraft, sorcery or enchantment calculated to cause such fear, annoyance or injury shall be guilty of an offence and shall be liable to imprisonment of either description for a term not exceeding five years."

The matter is not free from doubt. The assessors think that this is what the words mean. I find that the words, which we must assume were used, may possibly be susceptible of such a meaning. This being so the deceased may be said to have committed a wrongful act in the presence of the accused as in Fabiano's case, though of a different kind, and that in consequence thereof the accused was or may have been deprived of his self-control, judging him by the standard of the class to which he belongs at the time he assaulted Kasaya and caused her death. Every case has of course to be determined on its own facts, and in this particular case the facts are confined to what the accused himself says. Giving him the benefit of the doubt in the matter I find the accused guilty of manslaughter and call on him to show cause why he should not be sentenced according to law. The accused has nothing to say. I sentence the accused to 10 years' hard labour.