[1949] EACA 34

### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor) v.

# PETERO WABWIRE s/o MALEMO, Appellant (Original Accused) Criminal Appeal No. 82 of 1949

### (Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Provocation—Belief in witchcraft as possible element of provocation—Uganda Penal Code, sections 11, 198 and 199.

The appellant was convicted of the murder of his wife. The defence was that the appellant genuinely and reasonably believed that the deceased was practising witchcraft against him with the intention of killing him and that when he found her actually in possession of "medicine" and she declined to say from where she had obtained it his belief was confirmed and he killed her.

The facts appear from the judgment below.

**Held** $(26-4-49)$ .—(1) That the evidence could not justify a finding that the deceased woman's conduct led the appellant to believe that she was presently and instantly intending to kill bim.

(2) That a belief in witchcraft per se will not constitute a circumstance of excuse or mitigation when there is no provocative act, and that in order to succeed on a plea of legal provocation the facts proved must 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 person belongs would genuinely believe to be an act of witchcraft.

R. v. Fabiano Kinene and others, 8 E. A. C. A. 96 cited with approval.

R. v. Dominiko Omenyi and others, 10 E. A. C. A. 81 referred to.

(3) (a) That the definition of legal provocation in section 199 of the Penal Code as being a wrongful act or insult done by the person killed clearly means that the act or insult must be something of a physical nature which is visible or audible to the person to whom it is done.

R. v. Kajuna $s/o$ Mbake, 12 E. A. C. A. 104 cited.

R. v. Akope s/o Karuon and another, 14 E. A. C. A. 105 referred to.

(b) Semble: That there might upon occasion be a wrongful act 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 as set out in section 199 of the Penal Code.

Appeal dismissed.

Appellant present, unrepresented.

### Dreschfield, Acting Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—The appellant has been convicted of the murder of his wife. He does not attempt to deny that he killed her but has given a reason for doing so. That reason may be collected from the statement which he made to a police superintendent after being properly charged and cautioned and his unsworn statements at the preliminary inquiry and the trial. To the superintendent he said "I left my hut to go for a walk. When I returned I found my wife had some poison (Bujule). I asked her where she got it. She replied that she did not want me to ask questions. Then I killed her. I did this because I thought she intended to kill me". At his trial he said: "I found Kumalis (a word meaning either doctor's medicine or witchcraft medicine). I asked my wife 'Where did you get it from?' She did not reply. I said 'Why'

do you not reply?' As she made no reply I killed her. The medicine was the cause of my killing my wife. I mean that I was angry at her bringing medicine. I said 'Men may bring medicine—not women'".

Shortly after his arrest a small banana fibre bundle was found in the thatch of the hut in which the appellant and his wife resided. It contained a small quantity of copper sulphate, which according to the Government chemist could be used as an emetic and might cause poisoning if taken in any large amounts. A small boy, who lived with the appellant, said he had seen the deceased woman with some "blue medicine" which she had given to her baby to drink.

"Bujule" appears to be a type of witchcraft "medicine" recently imported from Kenya into the Uganda Protectorate. It is believed to be capable of killing a person either if placed in his food or else if placed in such a position that the victim steps over it or passes near it.

The learned trial Judge held that it was not improbable that it was the discovery of this packet of copper sulphate in the possession of his wife and her refusal to offer an explanation as to where and for what purpose she had got it which led to the appellant killing the woman.

After carefully reviewing the facts and previous decisions of this Court in regard to the killing of persons, whom the slayer believes to be practising witchcraft either against himself or his relations, the learned trial Judge said:

"I am not prepared to believe in the possibility that the accused believed that his wife was actually and presently bewitching him when he killed her.

And, if I am wrong on this point and a reasonable doubt may be said to exist on the whole evidence, I am firmly of the opinion that such belief was unreasonable and therefore cannot avail the accused.

I believe that there is a reasonable possibility that the accused believed that his wife intended to poison or bewitch him with the substance in the future and that one or other belief caused the killing.

I hold, however, that such beliefs were unreasonable and for that reason cannot avail the accused.

But I further hold as a matter of law that even if such beliefs were reasonable they could not afford the defence of provocation, being beliefs relative to something to be done but not yet done."

It is also not out of place to refer to another passage in the judgment in which the learned trial Judge deals with the question of reasonableness of the appellant's belief.

"The accused's assumption that his wife was going to poison or bewitch him with the stuff simply because she failed to answer questions and because her medicine was something which he did not understand was not, I think, an assumption that an ordinary villager would have made without much further inquiry and evidence."

In this connexion it should be mentioned that both the assessors were of the opinion that the appellant's belief as to the malignant powers of the medicine was in the circumstances unreasonable. One assessor said "Just finding it in the roof would not make a man suppose that it was witchcraft. If he had found the woman with it near his food, that would be different".

The appellant has appeared at the hearing of this appeal. We are prepared to believe that his intelligence is below that of the ordinary person of his race and that a person of his mentality might in the circumstances, which he alleges, hastily, but honestly, believe that his wife intended either to be ither to be be to poison him.

To take the possible findings of fact as set out in the judgment of the learned trial Judge, the law regarding the criminal liability of the person who kills

another in the belief that other person is actually and presently bewitching him has been set out by this Court in R. v. Fabiano Kinene (1941) 8 E. A. C. A. 96 at p. 101 in the following words:

"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 himself 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 other East African territories) he might be angered to such an extent as to be deprived of his 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."

But as said in the latter passage of the same judgment (at p. 102), "a belief in witchcraft per se will not constitute a circumstance of excuse or mitigation when there is no immediate provocative act". In the words of section 198 of the Penal Code the act of witchcraft, which is alleged to constitute legal provocation. must have been sudden and the killing must have been done in the heat of passion caused by that sudden act and before there was time for the passion to cool. Again, the belief in witchcraft must be founded upon some physical act done by the person killed. As said in R. v. Kajuna (1945) 12 E. A. C. A. 104 "a mere belief, founded on something metaphysical as opposed to something physical, that a person 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". Section 199 of the Penal Code defines legal provocation as being a wrongful act or insult done by the person killed. Very clearly such act or insult must be something of a physical nature, which is visible or audible to the person to whom it is done. (See also R. v. Akope (1947) 14 E. A. C. A. 105.)

We respectfully agree with the learned trial Judge that the evidence in the present case cannot justify a finding that the deceased woman's conduct led the appellant to believe that she was presently and instantly intending to kill him. Setting aside therefore for the moment any question as to the reasonableness of any such belief, there is nothing which would justify a finding that the appellant killed his wife whilst labouring under such a belief.

Coming to the second possibility referred to by the learned trial Judge, we respectfully agree that the evidence does disclose a reasonable possibility that the appellant believed that his wife intended to poison or bewitch him with the packet of "medicine" and that one or other belief lead to the killing. The learned trial Judge has held as a matter of law such belief could not afford the defence of provocation, being belief relative to something to be done and not yet done, by which, as the context shows, the learned Judge means something to be done not in the immediate present but at some relatively more remote point of time.

Now, as already said, provocation is defined as being an unlawful act or insult done to or in the presence of an ordinary person. Section 199 of the Penal Code does not say that such an act must be one entailing immediate consequences of a wrongful nature and it would appear to us that there might upon occasion be 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 as set out in section 199. We would therefore hesitate before going quite so far as the learned trial Judge in his statement of the law, but we do not feel that in the circumstances disclosed by the evidence in this case we are called upon to express an opinion on the subject until we are required to do so.

The learned trial Judge has found as a fact that the appellant's belief that his wife intended to bewitch or poison him was unreasonable, judging him by the standard of "the ordinary villager" and the assessors share that opinion.

As section 11 of the Penal Code says, a person who does an act "under an honest and reasonable, but mistaken, belief in the existence of any state of things" is not criminally responsible for that act to any greater extent than if the real state of things had been such as he believed to exist.

It is possible that in the present case the appellant's belief was honest, but in order to obtain the benefit of that section the belief must also have been reasonable. Its reasonableness must, moreover, be judged according to the standard of intelligence of the community to which the accused person belongs, and not the standard of the intelligence of the individual concerned. In this connexion we would refer to the already cited passage from R. v. Fabiano Kinene (1941) 8 E. A. C. A. 96 at p. 106, wherein this Court held that, in order to succeed on the plea of legal provocation, the facts proved must "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 person belongs, would genuinely believe to be an act of witchcraft". A ruling to the same effect is also to be found in the concluding paragraph of this Court's judgment in R. v. Dominiko Omenyi (1943) 10 E. A. C. A. 81 at p. 87. Here, the learned trial Judge and the assessors were clearly justified in finding that the accused's belief that his wife intended to bewitch him or poison him was in the circumstances disclosed quite unreasonable. In the circumstances the plea of provocation must clearly fail.

At the hearing of this appeal the appellant alleged that he had been sick after taking food which had presumably been prepared by his wife. He never made any such allegation either in his statement to the police or in his statements in the two Courts below. We feel that, if this statement had in fact been true, it would have been the matter uppermost in his mind at the time of making those previous statements and that he could not have failed to have mentioned it. Even, therefore, assuming in the circumstances that his statement at the hearing of the appeal is a matter which can be taken into consideration in determining this appeal, we are of opinion that the statement is not one which we can believe.

The appeal is accordingly dismissed.