This was a trial by ordeal to discover who by witchcraft caused the death of the eleven children of the first appellant in this case. The two appellants were jointly charged in the High court of Tanganyika at Kigoma and were found guilty of the murder of a woman, one Wamulunda d/o Kulyungumba, the senior wife of the first appellant.
The two appellants went to a traditional medicine man (jujuman), a six hour journey, to get certain traditional medicine called by the witness “MWAVI”. The traditional medicine man had since died. The MWAVI is a medicine (mitishamba) used by witches. If a person takes it and he has done something wrong, he will die, whereas if a person takes it and he or she has not done anything wrong, he or she does not die, but only vomits.
Four women of the family of the appellant were compelled to take this “medicine” and to swallow large quantities of water. A certain amount of formality was being observed during the swallowing, with the first appellant presiding with a gun and intimating that anyone refusing to take the “medicine” would be shot. Of the four women who took the “medicine”, two vomited and survived, the two older women did not vomit and they died. All four women were in good health before the administration of the “MWAVI”.
The body of Wamulanda to whom the murder charge relates was apparently burnt after death so no post-mortem examination could be made to ascertain significantly whether she had died as a result of taking MWAVI or not. Except that MWAVI was administered to each woman by mouth in powder form on thknife; there were no evidence al all as what would constitute a fital dose of MWAVI, so no proper proof that the woman died as a result of the dose of MWAVI given to her. Even on hearsay evidence MWAVI according to local lore of itself is not a fetal poison – it requires, in order to be fetal, an additional element, namely the guilt of the person taking it, that is, guilt of witchcraft.
So far as the court was concerned, Wamlunda was innocent of witchcraft for it {witchcraft) does not exist. On the basis, the first appellant ex-hypothesis, believed that the administration of MWAVI to a person innocent of witchcraft would not cause death hence this negativated his malice aforethought as per section 200 of the Penal Code, for the intent to cause death or the knowledge that the act will probably cause death were absent. The appeal was allowed and conviction and sentences were quashed.
