Defence of provocation in Tanzania.

DEFENCE OF PROVOCATION

Provocation refers to the action in heat of the moment or action that is the product of desperation or intolerable circumstances . The provision of section of the penal code provides for the defense of provocation as per section 202 of the law .

The term "provocation" means any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, 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 case of Katemi Ndaki v R , the appellant, was charged with and convicted of murder contrary to section 196 of the penal code and sentenced to death. Apart from the evidence of PW 1 who asserted to have identified the appellant at the scene of crime there was a repudiated confession of the appellant saying that he killed the deceased in the heat of passion caused by sudden provocation by the accused. The trial court did not address itself on the issue of provocation raised in the confession. It was held that the omission to address the issue of provocation raises doubt as to whether an ordinary person of the community to which the appellant lives would not have been provoked by deceased’s outlandish behavior. The doubt is resolved in the favor of the appellant.

Before considering the scenario at hand it ideal first to consider the circumstances where the defense of provocation can be raised and stand, and such circumstances includes the followings:-

The alleged provocative words or conduct must be as such would cause in a reasonable man, a sudden and temporary loss of self-controls the result which he killed the deceased. For determination of this the court will normally invoke the reasonable man test, and this is affirmed in different court decisions. In the case of Katemi Ndak v R , it was held that the test for provocation is the ordinary person of the community of the accused. The said test is also reflected follow in the case of Yovan versus Uganda, wherein, among other things, the Eastern Africa Court of Appeal, held that, provocation must be judged by the standard of an ordinary person of the community to which the accused belongs. The same objective test was applied by the Court in the case of Damian Ferdinand Kiula and Charles versus Republic , In that case the Court held that, for the defense of provocation to stick, it must pass the objective test of whether an ordinary man in the community to which the accused belongs would have been provoked in the circumstances.

For a defense of provocation to stand also the accused person must establish among other things that, he acted out of heat of passion which is product of desperation or intolerable circumstances, which leads to loss of self-control and eventually there was no room for an accused person to cool down his temper . This position was affirmed in the case of Sungura s/o Ngolilo , as the court held that the question of provocation depends upon the question as to whether the act was done in the heat of passion caused by sudden provocation (as defined in section 202 of the Penal Code) and before there was time for the passion to cool.

There some authority also to the effect that for a defense of provocation to avail the appellant, must establish two factors. First, that a relationship between the accused and the deceased still existed, and secondly, he must admit to killing the deceased, this was affirmed in the case of Silva Makanyanga v R .

In case of adultery, the husband or wife must have caught the other in actual act of adultery that is Inflagrante Delicto so as for the defense to stand. This position is also affirmed in the case of Nyadundo v R , where the accused found the deceased in the act of adultery and he therefore inflicted a severe beating on the deceased which caused her death the same day.

Having considered the circumstances where the defense of provocation could be available, now let’s consider the scenario at hand in the light of the aforementioned circumstances, and the matter will be dealt by raising the following issues:-

Whether or not the accused act of killing his wife was the result of heat of passion and it amount to legal provocation, before judging this issue we must direct ourselves on the facts of the case especially on fateful day when the husband who is a watchman returning home at morning and found a man getting out of his house and on entering inside he found his wife preparing breakfast and eventually attacked her and caused her death. It’s upon our satisfaction that the accused attacked his wife and eventually caused her death because he was suspicious that his wife has committed adultery with the man he found getting out his house when he was coming home at morning.

In responding to the raised issue, let’s now consider some case laws that are much similar to the case at hand. Sungura s/o Ngolilo , The question of provocation depends upon the question as to whether the act was done in the heat of passion caused by sudden provocation (as defined in section 202 of the Penal Code) and before there was time for the passion to cool.

In Nyadundo v R  , The appellant was convicted of manslaughter and sentenced to 9 years imprisonment. The appellant was the husband of the deceases and had been aware for sometime of the deceased’s adultery with one Dominico s/o Rubenge. On 25the February, 1970 the appellant found the deceased and Dominico in an act of adultery. He inflicted a severe beating on the deceased which caused her death the same day. The trial judge held that appellant’s prior knowledge of the deceased’s adultery disabled him form pleading provocation.  

This proposition has been put more succinctly by Lutta J.A. when  he  said;  “If the  killing  was  done  when  the  husband  found  his  wife  with  her  paramour  in  the act  of  adultery,  the  husband  would  not  be  precluded  from  setting  up  provocation as  a  defense,  not  with-standing  his  prior  knowledge  of  adultery  between  them.”  

In Yolamu Arua  v R , it  was  held;  “Suspicion  is  not  knowledge,  and  to  find  his  wife  ….in  an  act  of adultery  might  well,  not  withstanding  prior  suspicion,  engender  ungovernable rage  and  constitute  grave  and  sudden  provocation  sufficient  to  reduce  the  killing to  manslaughter.

In R v Lawrence s/o Makabayi , It was is urged on behalf of the accused that he acted under provocation in this case and for that reason the offence should be reduced to manslaughter. It is accepted that finding one’s wife in the act of adultery is grave provocation which can reduce a killing done in the heat of the moment from murder to manslaughter. Similarly it has been held that a sudden confession of adultery itself might be held to be provocation of a serious nature enough to reduce a killing to manslaughter. 

In Said Hemed v Republic , the court held that “where a killing is done in a heat of passion, the defense of provocation applies and the killing is not murder, but manslaughter”. 

Having considered, different court decision, In the current case or scenario, the accused simply suspected the deceased and he did not found the deceased in the actual act of adultery that is Inflagrante Delicto, and therefore the accused didn’t act in the heat of passion to reduce the charges from murder to manslaughter, and therefore his defense cannot stand and he is actually guilty of murder. His suspicious against his wife was not enough to prove that there was a sexual relationship between the two.

Whether or not the environment he found when returning home in the morning could provoke a person to kill, In applying the reasonable man test in the present scenario, its ideal first to consider some court decisions. In the case of Matemi Ndaki , it was held that the test for provocation is the ordinary person of the community of the accused. The said test is also reflected follow in the case of Yovan versus Uganda, wherein, among other things, the Eastern Africa Court of Appeal, held that, provocation must be judged by the standard of an ordinary person of the community to which the accused belongs. The same objective test was applied by the Court in the case of Damian Ferdinand Kiula and Charles versus Republic , In that case the Court held that, for the defense of provocation to stick, it must pass the objective test of whether an ordinary man in the community to which the accused belongs would have been provoked in the circumstances.

In applying the reasonable man test in the scenario at hand, its upon our satisfaction that any reasonable person would have not acted that way, and this simply because he didn’t found his wife in the actual act of adultery, a reasonable person would have thought or consider other possibilities apart from suspicion of adultery.

Generally, the accused defense that he killed his wife out of heat of passion could not stand in the circumstances shown in the presented scenario; it could only suffice a defense only if he found the deceased in the actual act of committing adultery that normally is enough for a husband to lose control and not otherwise as its well established in afore discussed case laws.

REFERENCE

BOOKS

Card, R., (2008). Criminal Law (18th Ed). Oxford University Press: London.

Williams, G (1978). Text book of criminal law (2nd Ed). Universal law publishing co PVT LTD: India

STATUTE

Penal Code [Cap 16 R.E 2002]

LIST OF CASES REFERED 

Katemi Ndaki v R [1992] TLR 297 CA

Yovan versus Uganda [1970] E.A 405

Damian Ferdinand Kiula and Charles v Republic [1992] TLR 16.

Silva Makanyanga v R [CRIMINAL APPEAL NO. 36 OF 2002]

Nyadundo v R [1971] H.C.D.  n. 280   

Yolamu Arua  v R  [1960] E.A. n. 146

R v Lawrence s/o Makabayi [1969] H.C.D.  n 34

Said Hemed v R [1987] T.L.R 117