JOHN NDUNGURU RUDOWIKI v REPUBLIC 1991 TLR 102 (CA)

 JOHN NDUNGURU RUDOWIKI v REPUBLIC 1991 TLR 102 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA and Kisanga JJA and Mapigano Ag JA

C 18th August, 1991

Flynote

D Criminal Law - Murder - Provocation - Defence of provocation by a threat to kill

by witchcraft.

-Headnote

In a trial for murder, the trial judge held that as the appellant had previously heard

confessions by the deceased of having killed his victims by witchcraft, the threat by

the deceased to cause death of the appellant by witchcraft did E not come as a shock

and never put the appellant in fear of any danger to his life or that of his brother

when he killed the deceased. On appeal, the justices of appeal found that on previous

occasions when the deceased admitted to have killed people by witchcraft he had

made no threats to the appellant and thus on the day of the incident the F deceased's

threat to kill him was sudden and must have come to him as a shock. Accordingly

they quashed the conviction for murder and substituted therefore conviction for

manslaughter.

G Held: Although mere belief in witchcraft is no defence to a charge of murder, a

threat to kill by witchcraft may in certain circumstances constitute legal defence to

that charge.

Case Information

Order accordingly.

H Cases referred to.

1. Yovan v Uganda [1970] E.A. 405.

2. Eria Galikuwa v R. [1959] 18 E.A.C.A. 175.

I E.D. Kisusi for the appellant.

1991 TLR p103

KISANGA AND MAKAME JJA AND MAPIGANO Ag JA

[zJDz]Judgment

Kisanga and Makame, JJ.A. and Mapigano, Ag. J.A.: This is an appeal against

conviction for murder and the A sentence of death passed on the appellant by the

High Court (Kazimoto, J.) sitting at Songea.

The appellant is a grandson of the deceased man. He (the appellant) has a brother

called Danstan who was mentally sick. Both of them were staying together at the

appellant's home. On a number of occasions the appellant had B consulted

witchdoctors who told him that the deceased had killed a number of people in the

family and had caused temporary sterility of his own daughter through witchcraft,

and on being asked the deceased confirmed this. C

On the day of the incident the deceased visited the appellant's home to see Danstan,

the sick grandson. There were different versions of what transpired there between

the appellant and the deceased, but the trial judge found, and rightly so in our view,

that there was an exchange of words between them in the course of which the

deceased D threatened to kill the appellant by witchcraft, following which the

appellant picked up an axe and brutally attacked the deceased with it causing his

death instantly.

The appellant's defence was one of provocation through witchcraft, but the trial

Court rejected it and convicted him for murder as charged, Mr. Kisusi, the learned

advocate, who represented the appellant in this Court, filed a total of E eight

grounds of appeal. Essentially his complaint is that the appellant's defence was

refused on insufficient grounds.

In dealing with the matter before him the learned trial judge properly directed

himself that although mere belief in F witchcraft is no defence to a charge of

murder, a threat to kill by witchcraft may in certain circumstances constitute legal

defence to that charge and for that view he relied on the decision of the court of

Appeal for Eastern Africa in Yovan v Uganda [1970] E.A. 405. He specifically

referred to the following passage in that judgment: G

In considering this case the trial judge to a large extent relied on the principles

relating to provocation as explained by this Court in the case of Eria Galikuwa v R

[1951] 18 E.A.C.A. 175 and, having held that the substantive act of provocation here

H was a threat to cause the appellant's death, said, following that decision, that "a

threat to cause death cannot be considered as a physical provocative act". With

respect we are of the view that the decision in the Galikuwa case should not be

regarded I as laying down a general rule but must be interpreted

1991 TLR p104

KISANGA AND MAKAME JJA AND MAPIGANO Ag JA

A with reference to the facts of that case. There may be cases where a threat to

kill taken with the other existing circumstances could amount to legal provocation.

B The facts in that case were that the appellant had suspected the deceased, his step

mother, of having killed his two children by witchcraft or poison. On his blaming

her, she retorted that he (the appellant) would also die before he could bury the

children. Whereupon the appellant attacked her by cutting her with a panga causing

her death C instantly. In considering the appellant's defence of provocation the

Court said:

This is a difficult case because the act of the deceased in threatening to cause

the death of the appellant, presumably by D witchcraft, must be viewed not in

isolation but in the context of the appellant's children having just died, the appellant

honestly believing the deceased to have been responsible for their deaths, and the

deceased knowing of this belief. We are unable to say that the uttering of such

threats by the deceased, in these circumstances, could never constitute a wrongful act

and thus E legal provocation.

The Court, however, found that the killing was pre-meditated because the appellant,

when he armed himself with a panga and went to the deceased's house, intended to

kill her.

F In the instant case the trial judge found that the appellant killed the deceased in

revenge for the past deaths and misfortune he had caused to member of the family.

In his view there was nothing sudden in the threat uttered by the deceased to the

appellant because prior to the day of the incident the appellant had heard the

deceased confessing G to have caused deaths and misfortune to members of the

family. His reasoning comes out rather clearly in the following passage of his

judgment:

H The accused was no stranger to the deceased. Since 1980 he had been taking

the deceased to witchdoctors who told him that the deceased had caused death by

witchcraft and the deceased was alleged to have admitted killing his victims by

witchcraft in order to pay or reduce debts. The accused had been hearing these

confessions. It was not sudden when the I accused heard the alleged threat that he

wanted to kill accused or Danstan in order to reduce debts. ... ... As the threat to

1991 TLR p105

KISANGA AND MAKAME JJA AND MAPIGANO Ag JA

cause death did not come as a shock I hold that the accused was not put in fear

of any danger to his life or that of his brother A when he killed the deceased.

With due respect the learned judge misdirected himself on some material point here.

There was no evidence that the B deceased had in the past threatened to kill the

appellant. The evidence merely shows that the appellant had heard the deceased

confessing to have caused deaths and misfortune to some family members, but there is

no suggestion that prior to the day of the incident the deceased had threatened to kill

the appellant. As far as the appellant is C concerned, therefore, the deceased's threat

to kill him on the day of the incident was sudden and must have come to him as a

shock. Such a sudden threat has to be viewed in the context of the deceased's

previous admissions, in the appellant's presence, to have caused deaths and

misfortune to some family members, and the appellant's honest belief in his having

the power to do so. Had the learned judge directed himself on these lines we are

unable to say D for certain that he would have necessarily come to the same

conclusion.

In this respect it is perhaps pertinent to point out here that in killing the deceased the

appellant did not follow the deceased; rather it was the deceased who had gone to the

appellant's home, and that would tend to incline more to E the view that the killing

was in circumstances of provocation rather than premeditation.

The learned judge went to say that even if the killing was in the circumstances of

provocation, he would have found F that there was sufficient time for the appellant's

passion to cool because the appellant went to the kitchen, some 23 feet away, where

he picked the axe with which he killed the deceased. Mr Kisusi complains that the

finding that the kitchen was 23 feet away was not supported by the evidence. This

complaint is justified. We could find nothing G in the evidence showing or

indicating the distance between the kitchen and the place where the threat was

uttered. On the other hand our impression of the evidence is that the kitchen was in

the vicinity and that the appellant simply entered there and picked the axe. Even

assuming for the sake of argument that the distance of 23 feet was H established on

the evidence, such a distance, in our view, was too short and could not provide time

for the appellant's passion to cool.

In all the circumstances of the case we are not satisfied that the charge of murder was

proved beyond reasonable I doubt. As we have made it abundantly clear, we are

increasingly of the view that

1991 TLR p106

A had the learned trial judge properly directed himself as shown above,

he might well have come to a different conclusion. The appellant is entitled to the

benefit of that doubt. In the result the appellant's conviction for murder is quashed

and the sentence of death set aside. We substitute therefore a conviction for

manslaughter contrary to section 195 of the Penal Code.

B The appellant has been in custody since 1989, but the killing which was really

brutal was rooted in the belief of witchcraft which ought to be discouraged. This was

a bad case of manslaughter which came very near murder, and C which calls for a

severe sentence. We think that a sentence of twelve (12) years' imprisonment will

meet the justice of the case. It is ordered accordingly.

Order accordingly.

1991 TLR p106

D