Saidi Mwamwindi v. R, Cr. Sass 37-Iringa- 72,(1972)

SAIDI MWAMWINDI v. R (1972) HCD 212

Crim. Sass. 37-Iringa-72, 2/10/72.

            ONYIUKE, J. – The information filed against the accused, SAIDI ABDALLAH MWAMWINDI, was that he murdered WILBERT KLERUU on a Christmas day, the 25^th December, 1971, in Mkungugu Ujamaa village in Ismani Division in Iringa District of Iringa Region. The deceased was at the time of this death the Regional Commissioner of Iringa Region and was residing at Iringa Township. The accused was at the time of the incident, the subject matter of these proceedings, a member of the Mkungugu Ujamaa Village and was residing there …..

            The background of this case was that the accused pursued the calling of a motor driver and resided in Iringa township up to 1954. In that year he gave up driving as a career and turned to farming. He moved with his famil to Mkungugu village, some 23 miles away from Iringa township, to establish a shamba ….. the land on which the shamba was established was obtained in the customary way from the head of the village. The sizes of the shambas varied enormously – 15,20,50,60 to 100 and over. The evidence was that the smallest shamba was one acre and the largest 250 acres …. The accused stated that he started with 3 acres and at the initial stage was virtually living in the bush with his family. Later he was able to put up a hut and by dint of hard work, as he put it, he was able to clear and establish a 160-acre shamba.

            According to D.W. 10 (Abubakar Hassan), the Regional Police Commander of Iringa Region at the time of the incident, the Ujamaa scheme was introduced in Iringa Region in early 1970 before the deceased came to Iringa as the Region Commissioner. I assumed that the assessors were conversant with the concept of ujamaa and how the scheme was operated but ‘ex abundanti cautela’ I quoted relevant excerpts from a pamphlet entitled SOCIALISM AND RURAL DEVELOPMENT written by the greatest living authority on the subject, Mwalimu Julius Nyerere, to illustrate the concept of ujamaa. Briefly, it is a major policy for the agricultural development of the rural areas on socialist principles and involves co-operative living and working for the good of all. Since agriculture is the mainstay of Tanzanian economy most of the farming would be done by groups of people who live in a community and work as a community – they would farm together, market together and undertake the provisions of local services and small local requirements as a community ……..

            Although the ujamaa scheme was introduced in Iringa Region in early 1970 it did not affect Mkungugu village till October, 1971. The ujamaa scheme in Mkungugu village was officially inaugurated on the 1^st November, 1971. By then the deceased had become the Regional Commissioner of Iringa Region. According to the evidence he was posted to Iringa as the Regional Commissioner in early 1971. It is only proper to point out that the account of how the scheme was introduced to Mkungugu village varied. [The court reviewed the various accounts and then continued]. As I told the assessors the picture that emerged from the evidence was that, as in all novel schemes, the inhabitants of Mkungugu village did not particular fancy the idea of an ujamaa village. Later quite a number agreed to try the scheme of their own volition. The number of those willing to try it was fast increasing. It appeared they thought of trying out the scheme by opening up virgin lands and using them as communal shambas. It turned out that individual holdings were later required to be included in the scheme and that the scheme was projected to cover every inhabitant of the village. Some left but others including those who had much more to lose by quitting remained. The accused was one of them. He felt his shamba had been ’grabbed’ as he put it, but he appeared to have reconciled himself to the new dispensation and decided to remain as a member or Mkungugu village and actually registered as a member. It is in evidence that 3 of his wives together with his other relatives registered as members. The foregoing is a synopsis of the history of the establishment of Mkungugu ujamaa village as disclosed by the evidence.

            The next point is to consider how the Mkungugu ujamaa village dealt with the vast area of land that had now become ujamaa land. The witnesses on this point were P.W.1 and P.W. 2 – the Chairman and Vice-Chairman of what one may call the management committee of the Mkungugu ujamaa village. The ujamaa scheme did not forbid individual shambas as such. I may here mention that the Iringa – Dodoma road runs through Mkungugu village. The villagers decided to reserve the area on the left side of that Road facingDodoma  for their collective farming or shambas. The rule was that each member, male or female, of the ujamaa was to be allotted 3 acres for his or her individual farming. Thus the accused and members of his family including his brother and sister who were also members of the ujamaa had something like 18 acres for individual farming.

            As I have stated earlier on the Mkungugu ujamaa village was officially opened on the 1^stNovember, 1971. The deceased gave his ruling that all former individual holdings should become part of ujamaa at the end of November, 1971. The main and presumably the sole crop that was planted in that area was maize. P.W.6 SALUM AHMED SAMILANI the Supervising Field Officer for Ismani Division, part of whose duties was to tender advice to peasant farmers on proper farming methods, testified that the best season to planting maize was between November and January and that  maize planted outside this period was unlikely to yield a good harvest. P.W.2 testified that they intended to cultivate the whole area reserved for the communal shamba. They soon realized they just could not do it and they therefore decided as a temporary measure to parcel but portions of the communal shamba to individuals who could cultivate them on their own. The portion to be allotted to each individual in this area (communal area that is) was 3 acres under this arrangement. It was possible then for a member to own two individual shambas –

one on each side of the road. The accused was one of those that had his individual shambas on both sides of the road.

            How did the accused’s former holding stand in relation to Ujamaa scheme as a whole and in relation to his new holdings? The accused’s former individual holding of 160 acres fell on both sides of the road. His residential premises which consisted of 2 main houses and some outhouses including his family grave-yard were on the left side of the road facing Dodoma. The fresh allocations of individual shambas made in the area reserved for individual farming were carved out of his former holding in that area. The rest was allotted to other members. The temporary individual shamba allotted to him in the area reserved for communal farming was again carved out of his former holding in that area. This shamba was about 350 feet from his own dwelling house and about 180 feet from his family grave-yard. There were no physical features separating this shamba from the accused residential premises or homestead. It was this shamba that the accused was ploughing with his tractor when the deceased met him in the afternoon of December 25, 1971. The deceased must have been there after 5 p.m. that day. Between 6 p.m. and 7 p.m. that day the accused drove into the Police Station Iringa township in the Regional Commissioner’s official car carrying the dead body of Dr. Klerruu. He entered the police office and met P.W. 13 (Police Corporal Mbeta Kosonda), the officer on duty at the time. He said something to him, surrendered his double-barrel gun (Exhibit P.3) and gave himself up. The accused stated that he also surrendered the ignition key of the Regional Commissioner’s car. A live shot gun cartridge was also recovered. There was some dispute as to whether the accused surrendered it also as he stated or whether it was removed by P.W.13 from one of the chambers of the double – barrel gun which the accused surrendered to him as P.W. 13 stated. As a result of what the accused told Corporal Kosonda he arrested him on a charge of murder and put him in custody.  Kosonda also observed the jacket (Exhibit P.5) the accused was wearing was blood- stained and he took possession of it also……..

            To appreciate what had happened it will be necessary to consider the events of the previous day, the 24^th December, 1971. This was told by P.W 6, the District Agricultural Field Officer in charge of Ismani Division of Iringa District. There were a number of ujamaa villages in Ismani Division or Iringa District. They included NDOLELA, TARAFANI, IGULU and the latest addition, MKUNGUGU ujamaa village. The planting season was on. The deceased was most desirous to help the ujamaa villagers plough their communal shambas and plant their maize seeds before the end of the planting season. He spared no efforts but went from one ujamaa village to another encouraging the villagers and personally helping them to cultivate their communal shambas. P.W. 6 was associated with the deceased in this task. He stated that when he arrived at TARAFANI ujamaa village in the morning of the 24^th December the deceased was already there supervising the tractors ploughing the communal shamba. From there both of them left for Igulu ujamaa village to watch the progress in the cultivation of the communal shamba. From Igulu they went to Ndolela ujamaa village arriving there at about 5 p.m.  Work on the communal shamba was interrupted by rain and there was not much progress made on the communal shamba that day. The deceased then summoned a meeting of the villagers and asked them whether they were prepared to work the following day which was a Christmas day. The villagers agreed to work and the deceased promised to return to help them in their work. The following day, that is the 25^th December, the deceased turned up as he promised. There were only 2 tractors available for work on the shamba. The deceased sent for more tractors and 5 more were brought. With a team of 90 villagers the got down to work - ploughing and planting maize seeds. They had no lunch. By 5.30 p. m according to P.W. 6, the villagers became tired and withdrew. By then 60 acres of shamba had been ploughed and planted with maize seeds. P.W. 6 left the shamba and proceeded to Ndolela village while the deceased drove alone in his official car towards Iringa township. D.W. 10, Abubakar, the Regional Police Commander stated that he was not informed as he should have been informed that the deceased was to go on Safari on the 25^th December, 1971. The result was that the deceased was not provided a police escort.  

            To travel from Ndolela to Iringa township on the Iringa Dodoma road one has to pass Mkungugu village. The distance from Ndolela to Mkungugu was between 3 to 5 miles and according to P.W. 6 it was a matter of 3 to 5 minutes’ drive by car. P.W.6 stated that he left Ndolela village finally that day about 30 minutes after the deceased drove from the communal shamba to return to Iringa township. P.W. 6. was traveling in a Government Land-Rover. He stated that when he got to Mkungugu he saw the accused’s car parked near the road in a certain premises which were later identified as the accused’s premises. He stated that he stopped and inquired about the deceased and as a result of what he was told he was apparently satisfied that every thing was in order and continued his journey ……

            It is clear on the evidence that the deceased did not leave the accused’s premises alive. The relevant witnesses to the events that took place in the accused’s premises were P.W.7 (Yadi chaula) P.W. 9 (Charles Mwamalata), P.W. 10 (Joseph Kisava), D.W 6 (Mohamed Saudi Mwamwindi) and the accused himself. Yadi Chacula and Charles Mwamalata (P.W.7 and P.W.9) were employed by the accused to work on his shamba before the establishment of the ujamaa and thereafter registered as members thereof but continued to work for the accused at their spare time. Joseph Kisava was the accused’s father-in-law as his daughter was one of the accused’s wives. D.W.6 was one of the accused’s sons. P.W. 9 had become a controversial witness as the court allowed the prosecution to treat him as a hostile witness and to cross-examine him. He was duly cross-examined and he admitted the truth of the statements he made to the police as opposed to what he had stated earlier on in court. There was some argument by counsel as to the value of his evidence. The learned director of Public Prosecutions argued that the purpose of treating a witness as hostile is to get the truth from him. The fact that the witness was treated as a hostile witness did not ipso facto make his evidence unreliable. He quoted SAKAR 9^th Edition Page 1184 2^nd Paragraph and the decision of the Court of Appeal for East Africa in CRIMINAL APPEL NO. 175 of 1971 ALOWO ALIO RANAO V. REPUBLIC in support of his submission. I took the view that by treating the witness as hostile witness the prosecution was putting his credibility in issue and was impliedly indicating that it had not much confidence in him as a witness of truth. The evidence of such witness was negligible if not entirely worthless.

            As the stated by SPRY V. P. in the case quoted above; “The basis of leave to treat a witness as hostile is the conflict between the evidence which the witness is giving and some earlier statement which shows him or her to be unreliable and this makes his or her evidence negligible.” I directed the assessors not to countenance P.W. 9’s evidence on any important issue unless it was amply corroborated by other credible evidence. I told them I would continue to guide them on how to treat his evidence on each point. In the end nothing turned on this witness’s evidence.

            P.W. 7 (Yadi Chaula) testified that in the afternoon of that fateful Christmas day he was working in the shamba with the accused, P.W.9 and D.W.6. The accused was driving the tractor and they were planting the maize seed. P.W. 9 later left to draw water from the water tap which was on the other side of the Iringa-Dodoma road while he & D.W.6 continued to plant maize seed. While the work was in progress he saw the deceased when he was already in the shamba. His estimates of distance varied …. The important thing however was that he stated that he did not hear what they said because he was for a away from them. He also stated that he did not see the deceased carrying a stick but then admitted on cross examination that he did not observe the deceased closely because of the distance between them. He stated that the accused and the deceased talked for ‘a little long time’ and then left the shamba – the accused moving in front and the deceased following him behind at a distance of about 16 feet. He continued his work and then heard two gun shots in quick succession from the direction of the accused’s house. He left his work and proceeded towards the accused’s house. He left his work and proceeded towards the accused’s house. When he arrived at his house he saw a car and the deceased lying at the back seat of the car already dead. He saw the accused standing close by the side of the car which was about 16 feet from the house. The accused stood for a while and drove off in the car. P.W. 10 Joseph Kisava stated that he called at the accused’s at about 4 p. m that day. Here again his idea of time may not be accurate. It was clear however that this was sometime in the afternoon. He stated that the accused was not in the house and so he stopped to play with his grandsons. Then he heard two gun shots and he came out of the house. He saw a male adult lying dead in a pool of fresh blood on the ground and the accused standing near the dead body holding a double-barrel gun in his hands. On seeing this he ran back into the house. When he came out again he saw the accused driver away in the car. D.W.6, stated that he was working in the shamba with his father (the accused) P.W.7 &P.W.9. At about 5 p.m. stranger whom he later learnt was the Regional Commissioner came to the shamba. He saw him talking to the accused and heard some of what was said. He also saw the deceased poking his father with a walking stick several times. The next thing he saw was that the accused and the deceased had moved away From the shamba. He continued with his work until he heard two gun shots and proceeded towards the accused’s house. When he got near the house the accused called out to him ‘Come here’. He went and the accused told him to help him put the ‘stranger’ who was then lying on the ground ‘wounded’ as he put it, into the car. He did so and the accused drove off in the car. The accused in his testimony, in respect of which I shall go into great detail later when I come to deal with the issue of provocation, stated that he was in his shamba when the deceased came t him and, in effect, harassed and abused him and assaulted him with his walking stick and as a result he ‘lost his head’, went to his house, took his double-barrel (Exhibit P.3) and shot him and he fell down and died. He carried the dead body to the police station where he surrendered the gun and gave himself up.

            [The court reviewed the evidence as to the cause of death and the weapon used and then continued]. I am satisfied beyond a reasonable doubt that the accused killed the deceased with his shot-gun (Exhibit P.3) and I so find. The accused admitted he leveled his gun at the deceased pulled his triggers and the deceased fell down and died. He admitted that before and after the shooting he did not hear any other gun shot. The suggestion that this imagined enemy might have been using a rifle with a silencer is the merest speculation and I reject it.

            The defence then contended that if it was the accused who killed the deceased he was insane when he did it and therefore could not be criminally liable under Section 13 of the Penal Code. I have gone into this matter in depth in my swimming up to the assessors and the evidence I reviewed and the various aspects of the matter I touched upon in my summing up are still fresh in my mind and I do not intend to reproduce them here. Section 13 of the Penal Code provides that “a person is not criminally responsible for an act or omission if at the time of doing the act or making he omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission.” But that same section made it clear that a person can still be criminally liable for his act although his mind is affected by disease if such disease does not in fact produce upon his mind one or other of the effects specified in the section. I directed the assessors that the insanity must relate to the act complained of. It was not enough to show that the accused and a history of mental disease. It must be shown that that mental disease affected his act in the way specified in the section. Insanity is a matter for the defence but I explained to the assessors the burden of proof cast on the defence to establish insanity and contrasted that burden with the burden cast on the prosecution. All the defence need do was to show it was more probably or likely that the accused was of unsound mind when he killed the deceased to succeed in his defence. I directed the assessors that the issue of insanity was a question of fact and in deciding that issue they had to take into consideration the following factors: - (i) The accused’s family history. (ii) His own personal history. (iii) The circumstances surrounding the act itself. (iv) Opinions of medical experts.

            I pointed out to them however that while they could give the greatest respect to the opinion of a medical expert they were not bound by it. I then explained to the assessors how the factors listed above were relevant in determining the main issue:- the state of mind of the accused at the time he did the act. Here again the assessors by their opinions indicated that they believed the accused was of sound mind when he killed the deceased.

            I will now consider the issue of insanity. I believe the evidence of the accused’s mother (D.W. 7- ZULA binti FERUZI) which was amply corroborated by D.W.2 and D.W.5. that the accused had two major mental breakdowns in 1958. Dr. Pendaeli, the specialist psychiatrist, who examined the accused in the Isanga Mental Institution from July to September 1972 stated that from the accounts given by D.W.7, D.W.2 & D.W.5 the accused suffered a recognised mental disease CATATONIC SCHIZOPHRENLA. This mental disease has two forms – catatonic excitement which is characterised by violence, aggressiveness, restlessness, delusions and hallucinations. The evidence of the accused’s first major breakdown in 1958 fitted into this description. The other form of catatonic schizophrenia is catatonic excitement. When a person suffers from this condition he just dumps himself in a place – moping and gazing for days, not moving, not talking and not eating. The account of the accused’s second major breakdown in the latter part of 1958 or thereabout fitted into the latter description. Schizophrenia is a diseased of the mind because it causes a dissociation of thought and behaviour. In catatonic excitement the faculty of perception and thinking is disturbed and distorted and the same goes for behaviour.

            There was some dispute whether the accused had completely recovered so that the chances of recurrence of his malady were remote. Dr. Pendaeli gave it as his opinion that from the accounts given him by D.W.7, D.W.2 and D.W. 5 amongst others the accused had fully recovered and the chances of a relapse were remote and unlikely. This opinion was based on the fact that since 1958 the accused had not shown any symptoms of his former malady …… Nothing daunted, D.W. 7 in her evidence in court stated that the accused did show some signs about 1961 the accused complained of ‘seeing double’ and giddiness. She stated that they gave him the type of traditional medicine given by the traditional doctors who treated him in 1958 and he recovered. Again in 1970, the accused complained of giddiness. She frankly admitted that she forgot to mention these two incidents to the specialist Psychiatrist….. it appears to me that D.W.7 whom I regarded as a very truthful witness might have not mentioned the incidents to the psychiatrist because the incidents did not amount to a serious breakdown compare able to the 1958 incidents. I told the assessors that one could never be sure that once a person had had a mental disease it might not recur however normal he might have appeared to be. I told them not to rule out the possibility of a relapse in the accused’s condition and to hold that relapse was likely. The position, then was that the accused had had two major mental breakdowns in 1958 and the chances of a relapse were likely. The main question however was whether the accused was insane at the time he killed Dr. Klerruu. Dr. Pendaeli was of the view that he was not. I am  myself of the same view. The circumstances before ant after the event and the lucid account given by the accused of the events showed clearly that he had a full understanding of what he did and that it was wrong. Dr. Pendaeli stated that a person who was insane at the time of the act usually had amnesia of the events afterwards. The account given by the accused of the events was very vivid and showed the working of a sound mind. In Exhibit P. 27 which was the extra-judicial statement made by the accused on the 26^th December he explained what happened and why he did what he did I have gone into this matter at length in my summing up to the assessors. I will reproduce Exhibit P.27: - “I am staying in Ismani area, Mkungugu village, from 1954 up to now I have been living in Mkungugu village I established my shamba there about 160 acres. According to the new plans reached us, the said shamba was taken away and made as ujamaa village. The said ujamaa village was not adjoining my shamba but my shamba was allocated to other people personally to cultivate and myself was given a piece at the same area at another side. We have not started to cultivate the shamba except one person only. Near to my house there is a small shamba near the plot. Had I cultivated it, it could be about 3 acres. So, only yesterday I started to cultivate it. At about 4 o’clock in the afternoon the Regional Commissioner came there. He parked his car “close to my house and I was in the shamba cultivating by a tractor. He asked, ‘What are you doing?’ ‘Sir’ I told him that, ‘I am cultivating this place which has been given to me by my fellow villager!’ I do not know what annoyed him, he started to abuse me. Then I got out of the tractor and asked him, ‘Sir, why and what did I do?’ he replied me, ‘Be quiet, shut your mouth, what hii, hii, hii?’ And he was also abusing in English. He held a stick in his hand with which he was pushing me and I was moving further away so that he could not hurt me with the stick. I thought to snatch the stick from his, but I thought that he might have a pistol. Therefore I was so enraged; I was going towards my house. When I reached in my house I collected a gun and got out. I looked at him he was beside the house and I was beside the house. I aimed at and shot him. He fell down. When he fell down a thought came to my mind and asked myself what to do. I went to his car to look for switches but I did not see them. I returned and searched his pockets and I found them I drive the car to the place where e fell down. Then I called one boy to help me to put him in the car. Then I started to leave with him. When I arrived here I thought to inform my son at Mlandege about the matter. I drove to Mlandege but I did not find him. I therefore went direct to Police station. I stopped the car and collected the gun and the switches and entered into the Police Station. I told the constables that I had something to inform them. A constable told me to wait, to finish what they were doing. I told them that I had most important matter that I have killed by the gun I handed over the gun with one round of ammunition and the switches of the car to them. So the constables were busy calling senior Police Officer. The police took me to the scene. I went to show them. When we returned they sent me to hospital and from hospital they kept me in the lock-up. That is all.” This could not be an illusory account by a mad man! He stated in  that statement that the deceased came to his shamba. The deceased in fact went there. He stated that the deceased used abusive words to him. D.W.6 in fact over-heard some of these words. He stated the deceased used his walking stick on him. D.W.6 saw the deceased poking the accused with it. He stated that he called a boy to help him put the dead body in the car and D.W. 6, his son, testified that he was the one he called upon. I am satisfied the accused was of sound mind when he killed the deceased and his disease of mind did not affect his understanding of the nature and quality of his act or his knowledge that he ought not to do it. I dismiss the defence of insanity.

            I now turn to consider the defence of provocation. It was on this issue that the assessors disagreed sharply. The first assessor referred to the testimony of the 3 witnesses from the Hehe tribe as to how an ordinary Mhehe would be infuriated if an abuse was used against him and his reactions to it. He believed that the state of the accused from the time he was abused, went to his house, collected his gun and shot the deceased was such that he acted in anger and by inference there was o time for his temper to cool. It was his view that this mood of anger persisted when he put the deceased’s dead body in the car as was shown by the peremptory manner he addressed his son ‘You come here and help me!’ and up to the time he was taken to the district Magistrate (P.W. 23) to make his statement(Exhibit P. 27). It was at this stage that he came to himself and was sorry for what he did as can be demonstrated by that portion of the statement where he said “I killed my companion”. He was of the view that the accused killed because he was provoked. One has the impression that the assessor was saying that he killing was not referable to enmity or wicked malice in the moral sense but o anger which was roused at the shamba. The second assessor took what seems to be an opposite view. He disputed the bald assertions by the 3 witnesses from the Hehe tribe that the abusive words used by the deceased at the shamba were enough to provoke an ordinary Mhehe and induce him to kill another person. He said there are two types of abusive language that can be used against a Mhehe and produce different reactions. Giving an example he said that if one tells a Mhehe that he had sexual intercourse with his mother or daughter this type of allegation may cause an ordinary Mhehe to kill and after that he may kill himself. From this point of view the deceased had done ‘nothing wrong’ at the shamba to induce the accused to kill. In his view the accused killed deliberately. The 3^rd assessor agreed with the 2^nd assessor. In his view he did not see anything serious that took place at the shamba to induce the accused to kill the deceased. Continuing, he said if at all the accused was provoked at the shamba the distance from the to his house was enough for the accused “to change what he intended to do.” In the view of this assessor the killing was deliberate. I have to mention that these three assessors rejected what has compendiously been called the ‘grave-yard incident.’ The significance of this rejection will become clearer later in this judgment. The 4^th assessor was of the view that he killing was due to provocation and although she said that the ‘grave-yard incident’ might or

Might not be true it was obvious she  based her opinion on what happened at the shamba. To he ‘an insult is an insult’ and from her personal experience of the Wahehe the distance from the shamba to the accused’s house was not enough to make an ordinary Mhehe cool his temper. In her view the killing was not deliberate but was due to provocation. Bearing these divergent views in mind and the reasons therefore I will now proceed to deal with the defence of provocation.

            Leaving aside the statements by the accused to P.W. 18 (who was also D.W. 4) Khan LODHI, the Regional C.I.D. Officer for Iringa Region and to D.W. 10, Abubakar Hassan, the Regional Police Commander, the accused made an extra-judicial statement (Exhibit P. 27) to the District Magistrate Iringa (P.W. 23) on the 26^th December 1971, a day after the incident. At the trial he gave evidence on oath and gave an account of what transpired between him and the deceased which provoked him into killing him. In my summing-up to the assessors I called them (Exhibit P.27 and his oral testimony in Court) two versions of a story because as I said, though they had a lot in common, the orientation was different. I will deal first with the version of the story as told by accused to this Court. Briefly stated, the accused testified that in the afternoon of the 25^th December, 1971 he was ploughing with his tractor a piece of shamba that had been allocated to him by the fellow members of the Ujamaa village. P.W. 7 and P.W.9 and his son D.W. 6 were also working with him at he shamba. While he was working at the shamba the deceased came to the shamba. The deceased told him to stop ploughing and asked him why he was cultivating the there. The accused replied that he was cultivating he shamba that had been allocated to him by his fellow villagers. The deceased then said SHUKA (Get down) and the accused climbed down from the tractor. The deceased then said ‘UWONGO SHENZI’ (you are lying you uncivilized men). The accused then asked him ‘KWA NINI BWANA UNANITUKANA, NIMEFANYA NINI’ (Why, Sir, are you abusing me, what have I done?) The deceased retorted ‘FUNGA MDOMO WAKO’ (Shut up your mouth.). The deceased further stated ‘NG’E – NG’E or HI HI HI NINI’ (What is this babbling). The deceased continued and said ”TAZAMA NINAWAAMBIA LAKINI HAMSIKII” (look, I tell you but you would not listen). The accused retorted “UMENAMBEA NINI” (What did you tell me?) The deceased then started abusing him in English but he was only able to catch the word “Bloody fool.” At this stage the deceased who had all along a walking stick in his hand poked it into this stomach but he accused stepped back but he stick touched his thighs. The deceased poked him with his stick three times and at the 4^th time the accused turned. He was asked why he turned and he said he decided to leave because he thought it better to avoid what was ‘confronting’ him by moving away. I may mention that there were other things sad at the shamba but they are no material at this stage in view of the orientation of the story told in court. The accused proceeded towards his house taking the foot-path near the grave-yard. The deceased followed him behind. When he was near the grave-yard. The deceased followed him behind. When he was near the grave-yard (about 6 peaces towards it) the deceased who was following him behind at a distance of about 25 paces said:’ ‘TAZAMA UNAENDELEA KUJENGA NYUMBA ZA KUDUMU’ (Looking you are continuing to build permanent houses). The accused then turned to him and replied “HII SIO NYUMBA NI MAHALA NINAPOZIKA NDUGU ZANGU” (This is not a house. It is a grave-yard in which I bury my relatives). I may mention at this stage that the accused said that he grave-yard contained the graves of his father, his son, his aunt, his niece, his grandson and the son of one of his neighbours. Continuing, the accused said that when he told the deceased that it was not a house but the grave-yard where he buried his relations the deceased retorted ‘NI MAHALI UNAPOZIKIA MIRIJA WENZIO MBWA WEE’ (It is the place you bury your fellow exploiters, you dog). At this utterance the accused was stung beyond endurance and lost his temper completely. He went straight to his house which was about  170 feet away, fetched his double-barrel gun (Exhibit P.3), loaded the two barrels on his way out and when he saw the deceased he leveled the gun at him and pulled the two triggers at once with his middle and 3^rd fingers (his index finger was deformed). The shots fired in quick succession and the deceased fell down and died on the sp about 8 feet from the accused’s house. In my summing-up to the assessors the incidents at the shamba were collectively called the shamba incident and the incidents at the grave-yard were called the grave-yard incident. Although the accused stated that he was angered by the shamba incident it was the grave-yard incident that had infuriated him most and made him lose his temper completely. He stated that he had always regarded the insult at the grave-yard as more offensive and deadly than that at the shamba. The substance of his evidence in court was to the effect that but for the grave-yard incident this tragedy would not have happened because when he left the shamba he intended to avoid further provocation or harassment from the deceased and his intention was to go to his house and stay there, but that this sudden and deadly insult to the dead at the grave-yard in his presence was the limit and, as he put it, his head was ‘spoilt’.

            Evidence was led on the customs and habits of the Wahehe, the community to which the accused belonged. P.W. 18 (also D.W. 4) Khani LODHI, the Regional C.I.D. Officer Iringa, testified that he had been in the police force for many years and in the course of his duties he had been concerned in the investigation of cases involving personal violence. He stated that he had served in different places and among different communities. He had served in Moshi, the land of the Wachaga; in Arusha, the land of the Waarusha; in Tanga, the land of the Wabondei and Wadigo and in Iringa, the land of the Wahehe. He gave it as his opinion borne out of experience acquired in working in these communities that an ordinary Mhehe is more excitable than his counterpart in the other communities and is more sensitive to personal insult than his counterpart in the other communities. He also said that he was aware that the Wahehe had great reverence for their deceased relatives and that they would be provoked very much indeed if their dead relatives were insulted in their presence. D.W. 10, the then Regional Police Commander for Iringa Abubakar Hassan, who had been in the police force for 22 years and who had served among various communities in Tanzania confirmed Khan Lodhi’s assessment of the ordinary Mhehe. The defence also called 3 witnesses from the Hehe community ……[The court reviewed the evidence of these witnesses and then continued]. The purpose of this exercise by the defence was to enable the Court to have an understanding of the mentality of an ordinary Mhehe person by considering their customs and habits. Section 201 of the Penal Code provides that ‘when a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as herein after defined and before there is time for his passion to cool, he is guilty of manslaughter only!’ Section 202 of the Penal Code defines provocation to mean ‘any wrongful act or insult of such a nature as to be likely, when done to an ordinary person … to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered’. The section defines ‘an ordinary person’ to mean an ordinary person of the community to which the accused belongs. As I told the assessors you have all manner of communities – Tanzanian African community, Asian community, European community etc. Within the general context of an African community one can talk of tribal communities. There may be certain customs, habits and traditions that go to shape ones outlook on life and mould his mentality. Call it tribal or national trait but one may have to consider it if there is any credible evidence of it if he ever hopes to reach the proverbial ‘ordinary person.’ Duffus P. in delivering the judgment of the Court of Appeal forEast Africa in YOVAN v. UGANDA (1970) E.A. 405 at Page 406 after referring the definition of ‘an ordinary person’ in Section 203 of the Tanganyika Penal code stated as follows:-“The definition applies with equal force to Uganda where there is no statutory definition of an ‘ordinary person’. Thus what might be a deadly insult to a member of another community. In this respect the opinion of the assessors with their local knowledge of the customs of the people of the community can be of he greatest assistance to the trial Judge although, of course, evidence can, and should (if necessary) be led as to the nature and meaning of a particular ac or insult and as to any relevant customs.”

            What then does one make out of the evidence of the Wahehe witnesses ….In contrast to other communities I think an ordinary Mhehe is more sensitive to personal insult and is more excitable. A personal insult may annoy him more than a physical assault. The explanation for this was offered by D.W. 8 (SAMBILI-NGUNGA MGATA).  “If you strike, me, we fight and exchanged blows. It is a trial of strength. But if you abuse a person the reaction is different. If you call a person ‘PUMBAVU’ (useless man) and he knows he is not useless he can only conclude that you are treating him with contempt and can react violently to such personal abuse.” Having found that an ordinary Mhehe is very sensitive to personal insult and can become very excited the question whether  a particular word is to be  regarded as a personal abuse and his reaction to it will of course depend on the circumstances of each individual case. All one can say is that what one may dismiss as a mere vulgar abuse – or ‘jocular quib’ may to an ordinary Mhehe be taken as a Personal insult especially if it tends to demean his person or tends to suggest he is being treated with contempt. I do not accept however that any word that smacks of a personal insult will drive an Mhehe to violence, much less to extreme violence. I share and accept the opinion of the second assessor who, unlike the 1^st assessor, was not prepared to accept the extreme position taken by the 3 Wahehe witnesses. This assessor stated that among the Wahehe there are types of abusive language which will produce different reactions from an ordinary Mhehe. He gave an instance of what may drive an Mhehe to extreme violence – an imputation of incest. One thing is clear however from the evidence. I am satisfied on the evidence before me that the Wahehe hold their dead in great reverence and hold their grave-yard as holy ground and that an insult or offensive remark against their dead in their presence would be taken as a deadly insult. What struck me when I visited the locus in quo was the marked contrast between the condition of the accused’s family grave-yard and the condition of the accused’s family grave-yard and the condition of his dwelling house. The walls of his dwelling house were of mud and the roof of reddish tin sheets. The grave-yard measured 50 feet by 39 feet and was enclosed by short walls made of cement blocks. It contained various graves of earth mound but his central grave was specially constructed and plastered with cement. I noted in my inspection notes that the grave-yard was swept and well kept. The condition of the accused’s dwelling house was indifferent in marked contrast to the condition of the grave-yard. If then the story as told by the accused in court was believed I was quite prepared to hold on the evidence before me that the shamba incident coupled with the grave-yard incident took place in fact. Did the deceased utter these words ‘it is where you bury your fellow exploiters you dog’ or words to that effect ? I directed the assessors especially on the burden of proof in respect of the grave-yard incident. I told then that if they were satisfied beyond reasonable doubt that the grave-yard incident did not take place, that is to say, that the deceased did not utter these words attributed to him or words to that effect, then they should reject that part of the accused’s story – the grave –yard incident. I told them it was not for the accused to establish the truth of the story of the grave-yard incident beyond reasonable doubt to succeed because even if they might not be entirely satisfied that the grave-yard incident took place but entertained some reasonable doubt whether it happened or not then they must give the accused that benefit of their doubt and must accept the story of the grave-yard incident as true. 3 of the assessors stated that they did not accept the story of the grave-yard incident. The 4^th assessor stated that it might or might not have taken place. On the evidence I am satisfied beyond reasonable doubt that the grave-yard incident did not take place. I reviewed the evidence in depth in my summing-up to the assessors and marshaled the arguments in support of and against the acceptance of the story of the grave-yard incident.  I can only give a summary here. The accused had opportunity on three different occasions with three different persons to tell his story and on each occasion he gave some account of what transpired between him and the deceased and what the deceased said to him. The accused was interviewed briefly by the Regional C.I.D Officer, Khan Ladhi whom he called as his witness (D.W. 4). This interview took place on the very night of the fateful Christmas day, the 25^th December, 1971. I warned the assessors to bear in mind that according to this witness the purpose of this interview was to enable the witness to get an idea of what happened before he setout on hid investigation and that the witness stated that the accused was not under the impression that he was called upon to make a full statement. The accused however mentioned some words of abuse the deceased uttered. He mentioned such words of abuse the deceased uttered. He mentioned such words of abuse as MPUMBAVU (stupid), SHENZI (uncivilized) ‘FUNGA MDOMO WAKO’ (Shut up your mouth) NG’E – NG’E – NG’E NINI’ (What is all this babbling). He did not however mention this stinging and deadly insult at the grave-yard which according to his story in Court infuriated him beyond endurance and made him lose his temper completely. The accused was interviewed by the Regional Police Commander, Abubakar Hassan, whom he again called as his witness (D.W. 10). He interviewed the accused twice on that same fatefully day. The first interview was before the witness visited the accused’s premises where the incident took place. The second interview was after the visit. Here again I warned the assessors to bear in mind that according to this witness the purpose of these interviews was for the witness to find out what actually had taken place in Mkungugu village with a view to finding out whether the accused was alone in this matter or whether there were others involved in it. The accused told him his story. The accused told him how the deceased came to him in his shamba where he was ploughing there and that he told him that the shamba had been allocated to him by his fellow villagers; that he deceased told him to stop ploughing as the place belonged to ujamaa village and to get down from the tractor; that he was slow in getting down from the tractor as the ignition key was out of order; that the deceased abused him – using such words as SHENZI, NG’E, NG’E NG’E; that the deceased poked him with the walking stick he was carrying and that he got angry and left there and proceeded to his house and took his gun and shot him. At the second interview the accused mentioned more words which he said the deceased used: - words such as ‘it is useless; it will be taken over. It will be included in the village farm’; that he accused then asked him thus “Are you going to include this area which has been given to us by yourself” and that the deceased retorted ‘LAZIMA’ (of course). Accused then asked the deceased HAYA SASA MAMBO GANI NDUGU YANGU (what is all this my brother). The accused however did not mention that grave-yard insult that rankles and stung him most. In the night  of the 26^th December, 1971 the accused was taken to the District Magistrate, Mr. Ngitami, (P.W. 23) to make a statement. Mr. Ngitami stated that, recalling his experience the previous night when the accused was brought to him to make a statement and he declined to make one, he spent some time discussing with the accused to re-assure himself that he accused rally wished to make a statement. It was only when he was so satisfied that he recorded his statement which was tendered as Exhibit. P. 27. This statement was in substance what the accused told D.W. 10. In Exhibit p. 27 the accused omitted that telling and stinging deadly insult at the grave- yard. It has been suggested that the accused did not really.

wish to make a statement but was urged to do so by the police. That may be so. But the point was that when the accused told his story to the District Magistrate he omitted that most vital bit about the grave-yard. After giving careful consideration to this matter I am satisfied beyond reasonable doubt and agree with the three assessors that he grave-yard incident did not take place and that the deceased did not utter the words attributed to him or words to that effect. I therefore reject this aspect of the accused’s story.

            This however is not the end of the matter. The shamba incident has to be considered. Although the accused stated in Court that after the deceased poked him the 4^th time with his walking stick, he turned and left and proceeded towards his house with the intention of staying indoors to avoid the deceased and that, but for the grave-yard incident, this tragedy would not have happened yet Exhibit P. 27 told a different story and indicated that it was the shamba incident that provoked the accused. I asked the assessors to go into the shamba incident in depth and to give it as serious a consideration as if they had never been told of the grave yard incident.

            The prosecution has raised the question of the credibility of the accused’s story of the shamba incident and has urged the court to reject his story and to hold that the deceased did not insult or assault the accused as alleged or at all; that if It happened there was time for the accused’s temper to cool. I went into this matter in detail in my summing up to the assessors and I will only deal with the matter briefly here.

            What was the background of or the setting to the shamba incident. The accused was ploughing the shamba allocated to him for his individual farming by this fellow villagers. As far as the accused was concerned he had no doubt he was keeping to ujamaa rules by cultivating there. Although this shamba was part of his original holding he was ploughing it now, not by virtue of his original holding, but rather as the area allowed him by his fellow villagers to cultivate as his individual shamba. The deceased, unfortunately, may not have been aware of the local arrangements made for the 1971/72 farming season – by the villagers themselves in regard to what appeared to be a communal shamba. It was equally unfortunate that he deceased did not give any notice that he would visit Mkungugu ujamaa village on the 25^th December, 1971 and did not come to any arrangement as he did with the Ndolela ujamaa villagers about working on the communal shamba on the Christmas day.  The result was that neither the Chairman no the Vice-Chairman (P.W. 1 & P.W.2) who could have explained the position to the deceased was around when the deceased drove into the accused’s premises. The police were not informed as D.W.10, Abubakar Hassan, the then Regional Police Commander, testified that the deceased would go on safari on Christmas day. The result was that he deceased drove into the accused’s premises unannounced and without police escort. The deceased approached the accused on the basis that he was breaking the ujamaa rules by cultivating that shamba. It have also dealt in some detail in my summing –up to the assessors on the relevant part of the Account of what transpired between the accused and the deceased as told to D.W.10 by the accused. Briefly, it was that the deceased when he came upon the accused at that shamba told him to stop ploughing and to dismount from his tractor and remove his things from there as it was communal shamba. The accused in giving his account to D.W. 10 of what took place told him that he did not dismount promptly but took some time to dismount. When D.W.10 asked him why he was so slow in getting down from the tractor the accused told him that he had some trouble stopping the tractor because the ignition key was out of order. The deceased might have thought otherwise and might have though the delay was deliberate and again this might have account for his alleged abusive language.  Given these two factors as outlined above there was some plausibility In the account of the shamba incident as told by the accused. The accused had been consistent in his story about what took place at the shamba. His story in this court up to the time the deceased poked him with his walking stick and he left the shamba was substantially the same as in Exhibit P. 27 and substantially the same as the account he gave to D.W.10. The story started with the deceased meeting the accused at his shamba, and ended with the deceased poking him with his walking stick. He made various statements as to what the deceased said as he remembered them on the various occasions. I am prepared to put the most favourable construction on the accused’s evidence and the story at the shamba may be reproduced in this manner. The deceased met the accused at his shamba and addressed him ‘SIMAMA’ (Stop). ‘Why are you cultivating here’. The accused replied that he was ploughing the shamba that had been allotted him by his fellow villagers as his individual shamba. The deceased retorted ‘It is a lie, Shenzi. Stop ploughing; this land belongs to Ujamaa village. Step down. Remove your tractor and don’t cultivate here again. ‘The accused felt reluctant to step down from his tractor but finally stepped down. The accused asked you going to include this are which has been given to us by yourself’ the deceased retorted ‘LAZIMA’ (of course). The accused asked “What is all this my brother.” The deceased retorted ‘Shut up your mouth; NG’E – NG’E – NG’E NINI (What is all this babbling). – ‘FUNGA MDOMO WAKO’ (Shut up your mouth) ‘I have told you and you would not listen.’ The accused retorted ‘what did you tell me.’ Then the deceased used some words of abuse in English. The accused caught only the words ‘Bloody fool.’ The deceased might have used MPUMBAVU and then the deceased poked the accused with his walking stick. It might not have hurt the accused in the sense of causing him any physical pain but it was all part of the insulting behaviour. What then did the accused do? This question will be considered shortly.

            I have now to consider the issue of provocation in the light of what was said and done at the shamba as a whole. I will use the term shamba incident to embrace all that was said and done as outlined above. In directing the assessors as to whether the shamba incident was likely to amount to legal provocation as defined in Section 202 of the Penal Code 

I did not single out any particular act or any set of words but asked them to consider the effect the shamba incident as a whole would have on the ordinary Mhehe. I also avoided putting to them, in terms, the famous formula of whether the mode of resentment bore a reasonable proportion to the provocation. That formula may be more appropriate to a legal system that conceives provocation in terms of acts – physical acts – and which does not recognize that words unaccompanied by acts can amount to provocation terms of acts – physical acts – and which does not recognize that words unaccompanied by acts can amount to provocation. I note also that with the passing of the Homicide Act 1957 in England, which requires under Section 3 thereof that he jury should take into account ‘things done or things said or both’ the hallowed formula that ‘the mode of resentment must bear a reasonable relationship to the provocation’ has been brought down from the high pinnacle of a rule f law to the level of a mere guide which may or not commend itself to the jury. Per Lord Diplock in PHLLIPS v. THE QUEEN (1959) 2 A.C. 130 at Page 138. I have no doubt that without specifically referring to this formula assessor as reasonable persons would take the provocation and resentment into consideration in arriving at their opinions. Following the approach suggested in Reg. v. BROWN (1972) 3W.L. R. 11 – a decision which not being a decision of the Court of Appeal for East Africa is strictly not binding on me but which is entitled to great respect because of the inherent common sense in the approach it suggested – I have asked the assessors to consider whether the shamba incident in fact provoked the accused to act as he did and secondly whether it was likely to provoke an ordinary Mhehe to do what the accused did.

            In considering the question whether the accused was in fact provoked to kill the deceased if there is evidence of his first reaction to the incident which constitutes the alleged provocation, or if there is evidence as to the state of mind of the accused or of the reason for his subsequent retaliatory act then it is the duty of the Court to consider it. I think there is such evidence in this case. To start with, I watched the accused’s demeanour in the witness box in the examination-in-chief and under cross-examination and I shared the view which the specialist Psychiatrist expressed in his report, Exhibit X, that the accused was normally quite ‘well composed looking person, who talked only when asked questions.’ When on studied Exhibit P. 27 and followed the account of the shamba incident one had the impression that he deceased was more excited than the accused himself. The accused admitted making the extra-judicial statement Exhibit P. 27 the correctness of which, as far as it went, had never been challenged in this Court. The poking the accused with a walking stick was the deceased’s first reaction or impulse. I will reproduce the relevant portion of the Statement (Exhibit P 27). “I do not know what annoyed him, he started to abuse. Then I got out of the tractor and asked him, ‘Sir why and what did I do.’ He replied me ‘Be quite, shut your mouth, what HII, HII, HII! And he was also abusing me in English. He held a stick in his hand with which

he was pushing me and I was moving further away so that he could not hurt me with the stick. I thought to snatch the stick from him, but I thought that he might have a pistol. Therefore I was enraged, and stared moving towards my house. When I reached in my house I took my gun and got out. I looked at him, he was beside the house and I was beside the house. I aimed at and shot him. He fell down. When he fell down a thought came to my mind and I asked myself what to do. I went to his car to look for switches but I did not see them. I returned and searched his pockets and I found them I drove the car where he fell down. I called one boy to help me to put him in the car. Then I started to leave with him…..”

            It will be noted that he accused’s first reaction was to snatch the walking stick from the deceased. He desisted from that course of action Why? He thought the deceased was armed. There was no evidence whatsoever nor has it ever been suggested that the deceased was armed or had anything on him other than his walking stick. Did the accused go for his gun because of what he thought the deceased would probably do to him if he snatched that walking stick from him. Was the accused worked up into a homicidal frenzy because of what the deceased said or did to him or because he thought he was powerless to deal with the deceased be because he might be armed with a revolver? He may have acted in the heat of passion but it is my view that the heat of passion was not caused by sudden provocation as envisaged by Section 201 of the Penal Code. it is my view that when the accused shot the deceased he was not reacting to a sudden provocation offered him by the deceased. He felt he was then in a position to avenge the insult at the shamba. This, in my view, was an act of revenge. Can it be said that he accused was not master of himself when he did the act? I think not. Furthermore I think he had enough time to reflect on his action in the circumstances. For these reasons I find that the accused’s conduct cannot be brought within Section 201 of the Penal Code to extenuate the murder to manslaughter.

            In view of my findings it is not necessary to consider what effect the shamba incident would have on an ordinary Mhehe. I have of course noted that an ordinary Mhehe is excitable and very sensitive to personal insult. This must be regarded as a human weakness in an ordinary Mhehe. It is not a mark of valour or a human virtue. The law of course sympathises with human weakness but it does not, I think, indulge or pander to human ferocity. I am inclined to accept the opinions of the two assessors who were of the view that the shamba incident was not enough to induce an ordinary Mhehe to behave as the accused did.

            In the final result I find that the accused killed the deceased by shooting him with his double-barrel gun, was of sound mind when he did the act and killed without legal provocation. I have no alternative but to hold that the charge has been proved beyond reasonable doubt. I accordingly charge has been proved beyond reasonable doubt. I accordingly find the accused guilty of the murder of Wilbert Kleruu.