[1947] EACA 35

# COURT OF APPEAL FOR EASTERN AFRICA

### Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

#### REX, Respondent (Original Prosecutor)

## (1) PALAMBA s/o FUNDIKILA, (2) KAMUMBI s/o SIKULO, Appellanis (Original Accused Nos. 1 and 2)

#### Criminal Appeals Nos. 138 and 139 of 1947

#### (Appeals from decision of H. M. High Court of Tanganyika)

Criminal law—Murder—Duress—Administration of noxious substance in trial by ordeal.

In order to carry out a test to ascertain whether four women were guilty of witchcraft the two accused administered a drink known as "Mwavi" to them. As a result two of the women died and the other two became ill but recovered. Both accused were found guilty of murder. They appealed.

**Held** $(30-7-47)$ .—(1) That the second appellant acted under duress and must be acquitted by virtue of section 17 of the Penal Code.

(2) That as there was no evidence that "Mwavi" is a poison endangering life the conviction for murder could not stand.

(3) That there was evidence, namely the evidence of what happened to all four women. to show that "Mwavi" is a noxious thing and that it was administered with at least the intention to injure or annoy. Conviction under section 228 (2) Penal Code substituted.

Appellants absent, unrepresented.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The two appellants, jointly charged in the High Court of Tanganyika at Kigoma, were found guilty of the murder of a woman Wamlunda d/o Kulyungumba and sentenced to death. From their convictions they appeal to this Court.

As to the main facts of the case there is no material controversy—the only important question of fact about which there is specific controversy being the question whether in his material activities the second appellant was acting under duress to an extent which would free him from criminal liability under section 17 of the Penal Code.

Indeed, the whole case for the prosecution as against the first appellant is quite accurately and succinctly stated in the voluntary statement made by the first appellant himself to a Magistrate before the Preliminary Inquiry. At the Preliminary Inquiry and at the trial the first appellant simply adhered to the statement he made to the Magistrate and neither gave nor called any evidence.

The statement by the first appellant is quite short and may be quoted verbatim. It is as follows: $\rightarrow$

"The prisoner is asked: $-$

$Q$ .—Do you wish to make a statement?

A.—Yes, I wish to say that I personally saw my eleven children dead. After that, through sorrow, I made my two wives, my mother and my daughter take Mwavi to see that they had not killed my children, and as a result my wife and my mother were dead.

$O$ .—What is Mwavi?

$A$ —Mwayi is a medicine (dawa) used by witchcraft. If a person takes this medicine and he has done wrong he dies, whereas if a person takes this medicine and he or she has not done wrong, he (or she) does not die but only vomits. I have nothing more to say, but I agree to this charge of killing people."

The woman Wamlunda d/o Kulyungumba in respect of whose death the appellants were convicted of murder was the senior wife of the first appellant.

Apart from the succinct voluntary statement of the first appellant there was evidence in some detail of what was undoubtedly a trial by ordeal organized and directed by the first appellant. The gist of that evidence was that the two appellants went to a particular medicine man—a six hours' journey—to get<br>certain "medicine" called by the witnesses "Mwavi". The medicine man has since died. Four women of the family were compelled to take this "medicine" and to swallow large quantities of water—a certain amount of formality being observed, with the first appellant presiding with a gun and intimating that anyone refusing to take the "medicine" would be shot. Of the four women who took the medicine two vomited and survived; the two older women did not vomit and they died. All four women were in good health before the administration of the Mwavi. The whole business was admittedly a trial by ordeal to discover who had by witchcraft caused the death of eleven children.

The body of Wamlunda to whom the murder charge relates was apparently burnt after her death so no post-mortem examination could be made to ascertain scientifically whether she had died as a result of taking Mwavi or not. Except that Mwavi was administered to each woman by mouth in powder form on the end of a knife there is no evidence available as to the amount of Mwavi which was administered to the deceased. There is no evidence at all as to what would constitute a fatal dose of Mwavi.

It is true that all the witnesses—and the first appellant himself—as well as the assessors were satisfied that the deceased died as a result of taking Mwavi. It is clear on the evidence that Mwavi was known in the locality to be the drug used for trial by ordeal and it was apparently assumed by all concerned, including the appellants and the victims, that either vomiting or death would result. That was just a matter of common local knowledge based on the traditional use of Mwavi and in this case the results were tragically in accordance with the tradition. Crown Counsel and the learned trial Judge, too, seem to have accepted without question the local lore about this drug, for no expert evidence whatever was tendered or received to show that Mwavi was a poison at all, what its properties, were, what was a fatal dose or what symptoms it produced when taken.

It is true that in addition to the generally accepted local lore there was the fact that the four ordinarily healthy women to whom the drug was administered at this ceremonial parade did suffer in accordance with the local tradition about this drug. Two of them vomited and survived; the two elder women did not vomit and died.

Upon that state of the evidence two questions arise under the Penal Code and the Law of Evidence.

The first question, of course, is whether it was proved beyond any reasonable. doubt that the cause of the death of the woman Wamlunda was the dose of Mwavi forcibly administered to her. In our opinion the evidence was not sufficient for this purpose. The local lore after all is no more than hearsay evidence. No witness gave evidence that of his or her own knowledge or experience Mwavi was, or might be, a fatal poison, or what symptoms it produced, or how much was a fatal dose. It would have been possible to get samples of this Mwavi and to have it analysed and its properties discovered, and evidence given accordingly. Nothing of the kind was done. There was no legally admissible evidence that Mwavi was a deadly poison. In our view that is fatal to the convictions of murder which must be quashed.

Furthermore, even if there had been proper proof that the woman Wamlunda did die as the result of the dose of Mwavi given to her there would still remain the very difficult question of malice aforethought on the part of the first appellant. Even on the hearsay evidence of the local lore Mwavi of itself is not a fatal poison. It requires, in order to be fatal, an additional element, namely the guilt of the person taking it, that is to say, guilt of witchcraft. This Court cannot possibly proceed on any other basis than that Wamlunda was innocent of witchcraft, which so far as this Court is concerned does not exist. On the basis that Wamlunda was innocent of witchcraft where is the malice aforethought in the first appellant who, ex hypothesi, believed that the administration of Mwavi to a person innocent of witchcraft would not cause death? To bring him within the Penal Code as a murderer there must be under section 200 of the Penal Code (omitting those parts of the section inapplicable to this case) one or more of the following circumstances: -

- "(a) an intention to cause the death of, or to do grievous harm to any person, whether such person is the person actually killed or not; - $(b)$ knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

On the necessary hypothesis that Wamlunda was innocent of witchcraft none of these essential circumstances was present in the case as regards the first appellant.

Taking that view of the case we have no alternative but to allow the appeals and quash the convictions and sentences.

We have considered whether we would be justified in substituting a conviction under section 227 of the Penal Code, which is in the following terms:-

"Any person who unlawfully, and with intent to injure or annoy another, causes any poison or *noxious* thing to be administered to, or taken by, any person, and thereby endangers his life, or does him some grievous harm, is guilty of a felony and is liable to imprisonment for fourteen years."

We have come to the conclusion that we cannot substitute a conviction under that section for the reason that there is no proper evidence that Mwavi is a poison or noxious thing *endangering life*.

We do consider, however, that there was admissible evidence, namely the evidence of what happened to all four women, that Mwavi is a noxious thing and that in this case it was forcibly administered to Wamlunda by the first appellant with at least the intention to injure or annoy Wamlunda. In the case of the first appellant we therefore substitute a conviction under section 228 (2) of the Penal Code and sentence him to three years' imprisonment with hard labour to run from the date of the conviction in the Court below.

As regards the second appellant we are satisfied on the evidence that he acted throughout under such duress as to free him entirely from criminal liability - under section 17 of the Penal Code and in his case we substitute for his conviction of murder a verdict of acquittal and direct that he be released forthwith.