Rex v Mawalwa (Criminal Appeal No. 81 of 1940) [1940] EACA 19 (1 January 1940)

# COURT OF APPEAL FOR EASTERN AFRICA

Before WHITLEY, C. J. (Uangda), WILSON, J., and CLUER, J. (Tanganyika)

# REX, Respondent (Original Prosecutor)

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### MAWALWA BIN NYANGWEZA, Appellant (Original Accused) Criminal Appeal No. 81 of 1940

# (Appeal from the decision of H. M. High Court of Tanganyika)

#### Murder—Provocation—Witchcraft.

Appellant appealed from a conviction of murder. He had deliberately killed a woman because he believed she had caused the deaths of all his family by witchcraft.

#### Held (26-7-40).—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.

R. v. Kimutai (6 E. A. C. A. 117) and R. v. Kumwaka (14 K. L. R. 137) followed.

Appellant absent, unrepresented.

#### Smith for the Crown.

JUDGMENT (delivered by WHITLEY, C. J.).—The only defence raised in this case is that of provocation. The appellant has never disputed that he deliberately caused the death of the deceased and furthermore there is ample evidence from eye-witnesses that he set forth with the intention to kill and did in fact kill her.

He gave evidence at the trial to the effect that in recent years his elder brother, his uncle (husband of deceased), his nephew and his mother had all died mysteriously; that the symptoms (swellings, etc.) were similar in each case; that he consulted witch doctors and was told that the deceased had caused the deaths by witchcraft. Then, some two weeks before the killing of the deceased, his brother Bunyika became sick with swellings and in spite of treatment by medicine men became worse. Witch doctors told appellant that deceased had bewitched his brother. When his brother died appellant decided to kill deceased for having bewitched all his family and about an hour later he killed her at a place not far away. There is some evidence tending to support his story but even assuming it to be true the decided cases in East Africa establish that it does not amount to such legal provocation as would justify us in reducing the offence to manslaughter. The most recent decision is the case of R. v. Kimutai (1939, 6 E. A. C. A. 117) following R. v. Kumwaka (14 K. L. R. 137) from which it appears that the plea of witchcraft however genuine has always been rejected except in cases where the accused has been put in such fear of immediate danger to life that the defence of grave and sudden provocation has been held proved. Accordingly we have no option but to dismiss the appeal. In so doing however we would draw the attention of the Governor in Council to the extenuating features in the case in that it would appear that the appellant genuinely, from the point of view of an African of his class, had reason to believe that the members of his family had died as the result of being bewitched by the deceased and took action immediately after the latest death.