Mpagama s/o Chalo v. R., Crim. Sass. 50-Dodoma-69, 14/10/69, Hamlyn J.

Mpagama s/o Chalo v. R., Crim. Sass. 50-Dodoma-69, 14/10/69, Hamlyn J.

The accused is charged with the offence of murder, contrary to Section 196 of the Penal Code. the accused at the material time, was married to one Violet and had been her husband for some time. In about July, 1968 there had been a quarrel between the accused and the deceased and as a result the woman had returned to her father. The accused visited the father of the girl and asked him to re-pay the dowry of a number of cattle and goats which the accused had paid to him at the time of the marriage. The old man (who was alleged as a witness for the prosecution) informed the accused that he had not the cattle to pay to the accused. He told the court that he privately thought that perhaps his daughter would re-marry and that from the bride-price which he obtained from the next husband he would be able to repay the accused the debt which he owed to him. The deceased daughter obtained a divorce from the local Primary Court and continued to live with her parents. On the day of the homicide, the accused met Violet some place in the bush, and she was with her new “boy-friend”. He chased the man, who escaped, and thereafter chased Violent and stabbed her, killing her. The main question before the court is whether there was provocation such as to reduce the offence from murder to manslaughter.

            Held: “Almost all the facts not being in dispute, a decision in this matter falls directly within the scope of Gogo law-all the parties (the accused, the deceased wife and the assessors) being of that tribe. The matter for decision is a very simple one and this I put directly to the assessors in my summing up. Where a divorce has been established by an act of a competent court and the woman returns to her parents, but the parents do not re-pay the bride-price, does any matrimonial relationship still obtain between the former spouses pending re-payment of the dowry? If such relationship still exists, to what extent will it enable the husband to control the acts of his former wife? The assessors asked for time to consider this problem and this was accorded to them. When the court re-convened, they gave their opinions and these are on the record. In brief, the local opinion of the questions put to them is this. Until re-payment of the dowry, the woman still owes duties to the former husband, though she may be living with her parents, she cannot form association with  other men, and it seems, is still in some way bound to the husband, despite the divorce decrees having been promulgated by the court. The assessors went further and advised that, if the husband finds the woman to be I association with another man, this would be a cause of provocation and would suffice to reduce the act which would otherwise be murder to mere manslaughter. It appears from the opinions of the two Gogo assessors that it would not be necessary for the husband to catch the former wife in sexual intercourse with another man, but he mere fact of her being in his company during the period prior to re-payment of the dowry, would suffice to reduce the offence to the lesser form of homicide …. I find …., in conformity with the opinion of the two assessors, that the sudden finding of the woman Violet in company with this man (and for the purposes of this Judgment it is unnecessary for me to find that they were having sexual intercourse when they were discovered) sufficed to provoke the accused that in his fury, he knifed the woman. Such act in the community to which the accused belongs constitutes manslaughter and not murder with which he is charged and find him guilty of manslaughter.”