Kotutu v Rex (Criminal Appeal No. 43 of 1951) [1951] EACA 158 (1 January 1951)

# 158

# COURT OF APPEAL FOR EASTERN AFRICA

# Before Sir Barclay Nihill, President, Lockhart-Smith, Ag. Vice-President, and THACKER, Ag. C. J.

#### SARAIGY s/o KOTUTU, Appellant (Original Accused)

# REX, Respondent

### Criminal Appeal No. 43 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Knight, J.)

Witchcraft—What constitutes the act—Section 5 (1) Tanganyika Witchcraft Ordinance.

The appellant was convicted by the High Court of Tanganyika of an offence against section 5 (1) of the Witchcraft Ordinance by using a white stick in such a way as to reveal that it was his intention to cause the death of his brother.

Held (25-4-51).—If there is evidence from which it can be safely inferred that a person using a certain instrument in a certain way does so because he believes that the effect of that<br>usage will be to cause the death of another or disease, injury or misfortune, then an offence against the section has been made out.

Appeal dismissed.

Appellant absent, unrepresented.

Southworth, Crown Counsel of Tanganyika, for Crown.

JUDGMENT.—The appellant was charged and convicted by the High Court of Tanganyika of an offence against section 5 (1) of the Witchcraft Ordinance (Cap. 18 of the Laws of Tanganyika, 1947). Under this section, read with section 3 of the same Ordinance, a person who performs an act of witchcraft with intent to cause death, disease, injury or misfortune to any person or class of persons commits an offence.

In this case the affirmation in the information was that the appellant had used a white stick in such a way as to reveal that it was his intention to cause the death of his brother, who was the complainant in these proceedings. The learned trial Judge came to the conclusion that there was ample evidence to sustain the conviction, and we are not prepared to say that he was wrong. Cases brought under this Ordinance must always present difficulties because the evidence will necessarily be based on the metaphysical beliefs of witnesses who themselves believe in witchcraft. If, however, there is evidence from which it can be safely inferred that a person using a certain instrument in a certain way does so because he believes that the effect of that usage will be to cause the death of another or disease, injury or misfortune, then an offence against the section we are now considering has been made out. In the present case whilst the evidence as to witchcraft custom is not as full as we should have liked to see, it is, as we have already stated, in our opinion, sufficient. The complainant gave evidence that he saw his brother outside his house at night trying to bury some object in a hole and at the time he had a white stick in his hand. Furthermore, the appellant said to the complainant: "Even if you bind me I will still bewitch you"; and another witness, who was an elder of the Masai tribe to which both the appellant and the complainant belong, gave evidence to the effect that the term "bewitch" means to kill

by medicine or magic. The appellant's defence was a complete denial that he was engaged on any witchcraft outside his brother's hut, but in view of the complainant's evidence, which the learned Judge accepted and which was corroborated in material particulars by the second prosecution witness, we consider that the learned trial Judge quite rightly rejected this defence.

The appellant also appeals against the sentence imposed on him, which was one of three years' imprisonment with hard labour. For a first offence this was undoubtedly a heavy sentence, but it represents less than half the term of imprisonment which might have been imposed. We are therefore not prepared to interfere with the discretion of the learned trial Judge in this matter. It can be presumed that he is in a better position to take into account local circumstances than we are.

The appellant's appeal against both conviction and sentence is dismissed.

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