Rex v Kinene and Others (Criminal Appeals Nos. 170, 171 and 172 of 1941) [1941] EACA 96 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), Sir HENRY WEBB, C. J. (Tanganyika) • and WILSON, J. (Tanganyika)

REX, Respondent (Original Prosecutor)

(1) FABIANO KINENE s/o MUKYE, (2) SEPERIANO KIWANUKA s/o KINTU, (3) ALBERT ISEJA s/o KINTU, Appellants (Original Accused $\cdot$ Nos. 1, 2 and 3). $\cdot$

Criminal Appeals Nos. 170, 171 and 172 of 1941

Appeals from decision of H. M. High Court of Uganda

Criminal Law—Homicide—Murder—Manslaughter—Provocation—Belief in witchcraft as a possible element of provocation—Uganda Penal Code, sections 188 and 199-Evidence-Confession-Difference in effect of a denied and a retracted confession—Necessity for care in taking confessions by police officers.

Appellants appealed from convictions of murder. The deceased had died from shock resulting from the forcible insertion into his bowel through the anus of unripe bananas by the appellants immediately after they had caught him crawling about naked in their compound. Each of the appellants had confessed to a police officer that they believed that the deceased was a wizard who had caused the death of their relatives by witchcraft and that they caught him in the act, as they thought, of bewitching themselves and that they had therefore killed him in the way which in olden time was considered proper for the killing of a wizard. The second appellant denied at the trial that he had ever made any such confession. The manner in which the confessions were taken was also attacked.

Held $(22-11-41)$ .—(1) That in taking confessions by a police officer the utmost care is necessary to ensure: $-$

- (a) That where the police officer is himself unable to understand the language used, the interpretation should not be entrusted to any but fully competent and responsible interpreters; and - (b) That the accused should not be asked leading questions or cross-examined on what he says. The statement is supposed to be one voluntarily made in his own words by the accused after he has been charged and cautioned.

(2) A denied confession differs from a retracted confession and it does not require to be corroborated. The denial simply raises for determination the question of fact whether the confession was or was not actually made.

(3) That on the evidence the appellants were entitled to be held to have acted under grave and sudden provocation.

Convictions reduced to manslaughter.

Appellants appealed from convictions under the following judgment of Whitley, $C. J.:$

"Deceased died of shock from having twenty young green bananas pushed up his anal orifice into his bowels. Whoever committed or assisted in committing that act is guilty of murder or manslaughter according to whether he intended to kill or cause grievous harm or not.

Fabiano (No. 1) and Albert (No. 3) have from the outset admitted having taken part. Seperiano (No. 2) made a full and detailed confession to Mr. Woodgate the police officer which agrees substantially with the stories related by the other two but before the magistrate he gave evidence denying that he had even said what Mr. Woodgate had recorded, and alleging that he had been misinterpreted. Examining this confession carefully I have not the least doubt that what is recorded represents substantially what was said. Mr. Woodgate does not understand Lusoga the language in which the accused was speaking but he definitely recollects hearing the accused mention the name Kintu more than once. I cannot see how the interpreter could on the spur. of the moment invent all the details given by accused. It is not as though his story were a parrot-like repetition of Fabiano's which the interpreter might have fecited by a remarkable feat of memory. The boy who interpreted seemed a simple youngster quite incapable of the skilful deception of Mr. Woodgate which is attributed to him. Mr. Patel for the defence elicited the fact that after the usual charging and cautioning this interpreter asked accused to begin his story by putting the question "Why did you kill this person?" Whilst agreeing that that may not be the most desirable way to open the proceedings I cannot see anything in it which would affect the voluntary nature of what is said in reply. It was open to the accused to reply. that he never killed him but instead of doing that he proceeded to describe what happened in full detail.

In the matter of the necessity or rather great desirability of finding corroboration the authorities seem to draw a distinction between a retracted and a denied confession. The authorities not being available here I am not clear what is the basis for the distinction but although the confession here is denied rather than retracted it still seems desirable to look for corroboration. I find ample. The bananas in the body, the marks of the struggle and the bent banana tree and the small stick all agree with what accused described. I accordingly agree with the assessors that all three took part.

The next question is whether it was murder or manslaughter which depends upon whether malice aforethought is established. It might be argued that an uneducated African native would not realize that what they did would almost certainly cause death but after careful consideration I find myself unable to take that view. Moreover Fabiano (No. 1) says "We all three decided to kill him in the only manner befitting a witch doctor": Seperiano (No. 2) says "I assisted to kill deceased because he was a witch doctor and had killed my son and father", and Albert (No. 3) says "I knew that by pushing bananas into the anus he would die". These admissions were made in their statements to the police. I find malice aforethought established against each of the accused.

There remains to be considered the defence of provocation always a difficult matter in witchcraft cases. It may be, as they say, that they killed deceased because they genuinely believed that he had caused the death of certain relatives, but such a defence is not recognized as provocation in law. To the best of my recollection there is no reported case in which fear of witchcraft by itself, with nothing such as fear of poison superadded, has been accepted as provocation but there have been some observations (*obiter*) in judgments which suggest that there might conceivably be circumstances in which such a defence might succeed to the extent of reducing the killing to manslaugher. Much uncertainty seems to exist among judges and counsel as to what type of case might properly be regarded as constituting such circumstances and an indication of some such hypothetical case would I know be welcomed. I recollect that when I first arrived in East Africa I tried a case at Arua, where there is a widespread belief in witchcraft. A woman who had lost relatives through mysterious maladies suspected a notorious local witch doctor of having bewitched them. One night she heard strange sounds and opening the door of her hut saw this man spreading spells on the ground round her hut in the manner which she associated with the bewitching process. She took an axe and killed him and explained

that she was sure that if she had not done so she would have been dead before morning. There was some corroboration of her story and the assessors and I believed her. I convicted her of manslaughter on the ground of grave and sudden provocation to a person of her class. Later when I became familiar with our local law reports I realized that I probably erred in favour of the accused. If I had to defend that decision I should do so on the following grounds. By section 2 of the Criminal Law (Witchcraft) Ordinance, Cap. 40, anyone who pretends to exercise witchcraft is guilty of an offence. By section 5 anyone who of his pretended knowledge of so-called witchcraft uses such processes as he believes or pretends to believe to be calculated to injure any person is guilty of an offence. It is I think arguable that the witch doctor in my Arua case was committing one or both of those offences. If so it was a wrongful act. The combined effect of sections 198 and 199 of the Penal Code is that legal provocation arises when the killing is done in the heat of passion caused by sudden provocation which includes any wrongful act likely when done to an ordinary person of the class of the accused to deprive him of the power of self-control and to the wrongful act is done. If there was a wrongful act done to her by the witch doctor which was likely to deprive a woman like her of her self-control and induce her to kill him on the spur of the moment might not that amount to provocation under these sections even though the witchcraft element is the main ingredient?

I have referred to that case because if one accepts in toto the statements of accused to the police in the present case the facts become not altogether dissimilar, although the method of killing here is much more deliberate. They say in effect that deceased had caused deaths of their relatives by witchcraft and that they caught him in the act, as they thought of bewitching them. It is true however that these statements or at least that of Fabiano (No. 1) also give the impression that they had previously made up their minds to rid the world of this menace.

It would of course be sufficient if the accused or any of them raised a reasonable doubt as to whether they or he acted under legal provocation but on the evidence and following the East African decisions I am unable to hold that any of them has done so. I accordingly agreeing with the assessors find each of the three accused guilty of murder."

## Appellants absent unrepresented.

## Kingsley, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The three appellants, natives of Busoga, were convicted by the High Court of Uganda of the murder of a village headman named George William Mudumba—at the trial referred to as William.

The body of the deceased, who had been absent from his home since 2 p.m. on the previous day, was found early one morning last August by his wife lying in the grass about sixteen paces from his house. Subsequent medical examination revealed that death had resulted from shock due to the forcible insertion into the bowel through the anus of about twenty raw green bananas. Some 220 paces from where the body lay there were abundant signs of a very violent struggle having taken place and the finding there of certain articles, including deceased's shorts, made it clear that the fatal assault had occurred at that spot. The alarm was raised and eventually the three accused were arrested on suspicion, as the deceased had been seen drinking beer with them at third accused's house on the previous evening. That house and those of the other two accused are within about 200 paces of deceased's house, but the evidence does not show their proximity or otherwise to the scene of the struggle and in the absence of any plan of the scene the point must remain unsettled.

Shortly after their arrest all the accused persons are stated to have made to the local European police officer statements in the nature of a confession. There was both in the committing court and at the trial a certain amount of criticism of the method of obtaining and recording those confessions. Whilst agreeing with the learned trial Judge's finding that there is no ground in the evidence for doubting the authenticity or voluntary nature of these particular confessions we would stress the desirability and indeed the necessity of the utmost care being used in taking these confessions to ensure $(a)$ that, where the police officer is himself unable to understand the language used, the interpretation should not be entrusted to any but a fully competent and responsible interpreter, and $(b)$ that the accused should not be asked leading questions or cross-examined on what he says. The statement is supposed to be one voluntarily made in his own words by the accused person after he has been charged and cautioned. If there is any suspicion that any element of coercion or persuasion or inducement has been present at its making it may render the confession inadmissible.

The learned Chief Justice found that all three accused were concerned in the death of the deceased William. There is no question of the correctness of this finding in the case of the first and third accused, both of whom at the trial admitted their complicity in the killing, as they had done in their confessions to the police officer. In these confessions they had named the second accused also as an active participant in the crime, and although they subsequently before the committing magistrate endeavoured to exculpate him by saying that he was not present at the killing at all we consider that the finding that he was is sufficiently supported by the evidence. In the confession which he is alleged to have made to the police officer he described in detail the circumstances of the killing, but he subsequently denied having made this confession at all. A denied confession differs from a retracted confession and it does not require to be corroborated (Rex v. Labasha bin Maganga, 3 E. A. C. A. 48). The denial simply raises for decision the question of fact—whether the confession was or was not actually made. The learned Chief Justice after consideration formed the opinion that the second accused had in fact made the confession which he subsequently denied making. Moreover if corroboration of the denied confession were necessary it is to be found in the circumstances in which the deceased is proved by the medical evidence to have met his death and the evidence of the doctor that it is improbable that the painful and physically difficult operation causing death could have been carried out by two persons alone. There is also, on the point of motive, the fact that the latest death attributed to the witchcraft of the deceased was that of the second accused's son, Kintu, in March, 1941.

The intention of the accused on the evidence was clearly to kill; no other inference is possible in view of the brutal and gruesome method employed. The difficult question with which we are then faced is whether the evidence supports a case of legal provocation in favour of the accused. It has to be inferred that the accused in killing the deceased determined (as they themselves sav) to put him to death in the manner considered suitable by native custom for the killing of wizards in the olden days. The point then arises whether they had not already determined to kill him, in revenge for his supposed fatal bewitchment of their relatives, before ever they discovered him crawling naked in the compound on the night of the crime. If indeed they killed the deceased in revenge for what he is said to have done in the past, there would of course be no answer to the charge of murder whatever belief they might have in his supernatural powers. By killing him they would be merely constituting themselves executioners and no defence of grave and sudden provocation could possibly be established.

As to the circumstances in which the accused discovered the deceased there is only what they have stated themselves, but we do not think that in the absence

of any other version we should be justified in disregarding their account unless we were to find it inherently improbable. It may be argued in the case of Fabiano, the first accused, that his statement to the police officer discloses that he had determined upon the death of the deceased prior to discovering him in the compound, but as against that it seems to us unlikely that he would have done so without there being some intermediate act of witchcraft directed against him or his family since the last act complained of, which was in 1938. We have consequently to examine his statement carefully with a view to finding whether the words held by the learned Chief Justice to have disclosed a prior intention are not susceptible of another interpretation. The particular words in the statement calling for interpretation are "Because of all these deaths in our families we all three decided that it was time that the deceased was killed and so we decided to kill him in the only manner befitting a witch doctor". Though on a first reading of the statement these words seem to indicate that the three accused had previously formed a deliberate intention to kill the deceased in order to avenge the past deaths, yet when the statement proceeds to relate how "whilst we were inside the hut we heard someone outside; we all went outside and saw someone crawling along on his hands and knees close to the banana plantation; we went up to him and caught hold of him; we did not know who it was as it was dark but as we caught this person crawling on his hands and knees we thought that he must be a witch doctor. I and Seperiano caught hold of the deceased and pinned him to the ground on his stomach whilst Albert went and broke off one branch of bananas and a stick. Albert broke off a number of bananas and he himself pushed all of the bananas into the anus of the deceased with the stick", we are inclined to the view that the two passages may be read as meaning that when they discovered the deceased as is described in the second passage they thereupon determined to kill him and to do it in the manner customary for the killing of witch doctors. This seems a more probable meaning than that his death had been determined on prior to the incident related, for it provides a reason (in their minds) for their killing him there and then. If they had decided upon his death earlier one would ask what was the immediate reason for killing him at this particular time and whether there had not been ample opportunity for doing so earlier. Fabiano says that they did not recognize the deceased as William until they had pushed all the bananas into his body, but that on the face if it is incredible. What we consider to be a not unreasonable view of the facts is that they saw the deceased acting in such a way as to cause them to believe that he was then and there practising witchcraft against them; that they recognized him as William, the person who was responsible for the deaths in their families in the past; and that it was then they decided to kill him. This view would seem to be borne out by the fact that the accused persons had been in the company of the deceased for several hours earlier in the night drinking and conversing with him on perfectly good terms, according to the independent witness Anderea, and that according to their own account (which we do not consider ourselves justified in disregarding) the deceased had then been allowed to go away unmolested about midnight, some considerable time before they found him back again crawling naked in the compound. These facts are hardly consistent with a premeditated determination to execute the deceased as a dangerous wizard.

The next question is whether they genuinely and reasonably believed that the deceased was actually engaged in practising witchcraft against them when they found him crawling naked in the compound. We think it is not improbable that they did. With their strong suspicions of his past history they would need very little to convince them and the sensitiveness of the African mind in this respect is shown in the evidence of the muruka chief Fenekansi that "if in the night I saw a man naked crawling in my compound I would think he was a witch doctor actually practising witchcraft". We are well aware of the large part played by witchcraft in the life of the average African native so we can well understand that what the chief says may be true.

Finding therefore that the story told by Fabiano is, in the absence of any other account, reasonably credible the anxious question as to what offence he and his companions are guilty of has to be answered. Were they acting under the influence of grave and sudden provocation? There is authority to be found in the case of Rex v. Kumwaka wa Mulumbi and others, (14 K. L. R. 137), for saying that a belief in witchcraft may support a defence of grave and sudden provocation. The principle stated in *Kumwaka's* case is to be found at p. 139 of the judgment and reads as follows: "The belief in witchcraft is, of course, widespread and is deeply ingrained in the native character. It is also widely known, and as appears from the evidence in this case the fact was present to the mind of the first accused, that Government does not tolerate the killing of witches. The plea has been frequently put forward in murder cases that the deceased had bewitched or threatened to bewitch the accused, and that plea has been consistently rejected except in cases where the accused has been put in such fear of immediate danger to his own life that the defence of grave and sudden provocation has been held proved. For Courts to adopt any other attitude to such cases, would be to encourage the belief that an aggrieved party may take the law into his own hands, and no belief could well be more mischievous or fraught with greater danger to public peace and tranquility".

That principle was approved in R. v. Kimutai arap Mursoi (6 E. A. C. A. 117) and also in R. v. Mawalwa bin Nyangweza (7 E. A. C. A. 62) the headnote of which reads: -

"That the appeal must be dismissed as the accused had not been put" in such fear of immediate danger to life that the defence of grave and sudden provocation could be held proved."

In our opinion the principle in those cases is stated somewhat too narrowly and perhaps not altogether accurately, in that the words "in the heat of passion" used in s. 198 of the Penal Code (Uganda) are more properly referable to the emotion of anger than to that of fear. We think that if the facts proved establish that the victim was performing in the actual presence of the accused some act which the accused did genuinely believe, and which an ordinary person of the community to which the accused belongs would genuinely believe, to be an act of witchcraft against him or another person under his immediate care (which act would be a criminal offence under the Criminal Law (Witchcraft) Ordinance of Uganda and similar legislation in the other East African territories) he might be angered to such an extent as to be deprived of the power of self-control and induced to assault the person doing the act of witchcraft. And if this be the case a defence of grave and sudden provocation is open to him. It must always be a question of fact as to whether he is in all the circumstances of the particular case acting in the heat of passion caused by grave and sudden provocation and of course on such an issue he must be given the benefit of any reasonable doubt. We think it not unreasonable to say that in the present case the accused persons, when they seized deceased in the compound and proceeded to kill him, may have been so acting.

With reference to what was said in the case of Rex v. Kumwaka (supra) we desire to make it clear that where the Court in that case refers to the emotion of fear as founding a defence of grave and sudden provocation, it must be implied that, concurrently with a finding of the existence of that emotion, the Court must hold that the accused did the act causing death in the heat of passion, for s. 198 of the Penal Code (Uganda) makes that an essential constituent of a defence of provocation. In the unreported Tanganyika case of Rex v. Sitakimatata s/o Kimwago (Cr. App. No. 88/41) this Court said "With regard to the reference in the judgment to the case of *Kumwaka wa Mulumbi*, the particular passage criticized (quoted above) may not be happily expressed, but it should not be taken to mean that there can be any other provocation which will have the effect of reducing a charge of murder to one of manslaughter than that defined in sections 191 and 192 of the Penal Code". (The sections are identical with ss. 198 and 199 of the Penal Code of Uganda.)

Finally we would say that in coming to the conclusion we have arrived at in this case we in no way mean to suggest that a belief in witchcraft per se will constitute a circumstance of excuse or mitigation for killing a person believed to be a witch or wizard, when there is no immediate provocative act. This case is to be distinguished from *Mawalwa's* case, in which there was no wrongful act immediately preceding the killing such as was present here in the highly suspicious actions of the deceased to which we have referred.

For the reasons given above we set aside the convictions for murder and substitute convictions for manslaughter under s. 192 of the Penal Code and sentence each of the accused persons under s. 195 of the Penal Code to imprisonment for life with hard labour. $\mathcal{F}^{\text{max}}_{\text{max}} = \mathcal{F}^{\text{max}}_{\text{max}} = \mathcal{F}^{\text{max}}_{\text{max}}$