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PROVOCATION
Section 201 and 202 TPC for the defense of provocation to be accepted:
i)The provocative act or insult must be wrongful.
ii)The provocative act must be of such gravity as would deprive a reasonable man his power of self-control.
iii)The murder must be done in a heat of passion.
iv)The means of retaliation adopted must be proportionate to the degree of provocation committed.
The test that is used in provocation is objective test-the test is that of the community i.e. You have to judge a person according to the community he belongs.
In BERDER V. R. [1954] 2 All E.R. 801, the accused who was sexual impotent, attempted in vain to have intercourse with prostitute, who jeered at him and hit and kicked him. He lost his head. Stabbed her with a knife and killed her. On his trial he pleaded provocation.
“…Conviction for murder. The jury found out that a reasonable man wouldn’t have been provocated under the circumstances and they were probably directed not to take special regard of the fact that the defendant was sexual impotent…”
A good case, which clearly defines ‘heat of passion’, is that of YOVAN V. UGANDA [1970] E.A. 405, the appellant suspected the deceased, his stepmother of having killed his children by witch craft or poison. On his blaming her, she replied that he would die before he could bury his children. He then cut her about the head causing her death. It appeared from the statement made by him that he armed himself intending to kill her for killing his children. The trial court rejected the defense of provocation and sentenced the appellant to death.
i)A threat to cause the death of the accused may amount to provocation depending on the circumstances.
ii) Provocation must be judged by the standard of an ordinary person of the community to which the accused belongs.
iii)The heat of passion required but to any emotional state caused by provocation and which is such as to deprive ordinary person self-control.
iv)The judge’s finding that there was no evidence that there was no legal provocation was correct on the facts.
Provocative act must refer to “person” and not to ‘things”. E.g. on cannot be provoked because his dog has been beaten. In general “mere words” do not amount to provocation but they may in certain circumstances.
In the case of R.V. MOHAMUDU KIBWANA (1968) H.C.D. No. 186, the accused’s only possible defence to a murder charge was that shortly before the killing he heard deceased say to someone else that he (deceased) had signed a paper authorizing the police to beat accused.
“…As a general rule … spoken words alone cannot be the basis for provocation. Where words are accepted in customary view as constituting provocation, the words must be of so devastating a character, of such over-bearing force, as to shatter the self-control of a normal person of in the community. Accused was convicted of murder and sentenced to suffer death by hanging...”
In BENJAMIN MWANSI V. R. [1992] T.L.R 85, the appellant confessed killing his fiancee. In his defence he said he was provoked by the words of the deceased whom he found in the bed of her new lover. Upon being asked she replied: "wewe bwana achana na mimi. Sina habari na wewe" (literally translated: "Please leave me alone. I have no business with you"). The Court considered whether these seemingly innocent words could provoke a person to killing. The appellant and the deceased had agreed to marry. The deceased was also dishing out favour to one Iddi Kazimoto. The appellant had intelligence of that affair but was satisfied by the assurance of Iddi that he, Iddi that is, was not aware that he was trespassing on the appellant’s garden and promised to desist further encroachments.
“…Now, those words in themselves appear innocent. But if they are looked at with the hindsight of what had transpired they are powerful dynamite sufficient to blow off the faculty of reasoning of the appellant. Not only that the appellant’s hope of marriage with her was kindled by her deceit but also that very day she made him part with his Tshs. 20/=. As if that was not enough, and to add insults to injury, she turned him into a sentry and made him kick about his heels eagerly waiting for her when she knew just too well that she was not going to come back to him. The appellant was provoked by those words…”
Provocation and witchcraft
Attitude of courts to witchcraft is that it is unreasonable belief, unless it is proved to be reasonable.
In the case of ERIA GALIKUWA V. R. (1951) 18 E.A.C.A 175, the appellant was convicted for killing a witchdoctor. The appellant was threatened with death unless he paid 1000/= that he was unable to pay. The appellant imagined that he heard the witchdoctor’s spirit voice repeat a demand for a ransom with a threat to kill “by sucking your blood”. Terrified the accused killed the witchdoctor in order to save his life.
i) The act of causing death must be proved to be done in a heat of passion i.e. anger and not fear of immediate death.
ii) If the fact established that the deceased was performing some acts in the presence of the accused which was believed, and an ordinary person of his community would genuinely believe was an act of witch craft against and the accused was so angered as to deprived of self-control, the defence of grave and sudden provocation was ope—the accused.
iii)A belief in witchcraft parse did not constitute a circumstance of excuse or mitigation for killing person believed to be a wizard or witch where there is no immediate provocation.
Without there being time for that pas== to cool fear of witchcraft alone cannot amount to provocation unless the accused has been put in such a fear of immediate danger to his own life that the defense of grave and sudden provocation was held proved.
In the case of R.V. KUMWAKA WAKULUMBI 14 K.L.R. 137, the accused was believed to be witch. The accused genuinely believed to be a witch and to have bewitched the wife of the first accused. So as to make her ill and unable to speak. The first accused summoned the rest of the accused and brought them to the vicinity of the hut in which was his wife, the woman believed to have been bewitched.
The deceased was seized and brought the sick woman’s hut and ordered to remove the spell. The accused alleged that she removed half of the spell during the night. Early in the morning the witch was detected running away. All the accused run after and beat her with sticks. As a result of the beating the witch was killed:
“….There was aforethought and that self-defense was a tenable plea. The belief in witchcraft is of course widely spread and is deeply engraved in the nature character, for courts to adopt any other altitude to such cases would be to encourage the belief that an aggrieved may take the law into his own hands since the government doesn’t tolerate the killing of witches…”
In JOHN NDUNGURU RUDOWIKI V. REPUBLIC [1991] TLR 102, the appellant is the grandson of the deceased man. He (the appellant) has a brother called Dustan who was mentally sick. Both were staying together with the appellant’s home. On a number of occasions the appellant had consented witchdoctors who told him that the deceased had killed a number of people in the family and had caused temporary sterility to his own daughter through witchcraft and on being asked the accused confirmed this.
On the day of incident the accused visited the appellant’s home to see Dustan, the sick grandson. There was an exchange of words between them in the course of which the deceased threatened to kill the appellant by witchcraft, following which the applicant picked up an axe and brutally attacked the deceased with it causing his death instantly.
In a trial for murder, the trial judge held that as the appellant had previously heard confessions by the deceased of having killed his victims by witchcraft, the threat by the deceased to cause death of the appellant by witchcraft did not come as a shock and never put the appellant in fear of any danger to his life or that of his brother when he killed the deceased.
“…Although mere belief in witchcraft is no defence to a charge of murder, a threat to kill by witchcraft may in certain circumstances constitute legal defence to that charge…”
On appeal, the justices of appeal found that on previous occasions when the deceased admitted to have killed people by witchcraft he had made no threats to the appellant and thus on the day of the incident the deceased’s threat to kill him was sudden and must have come to him as a shock. Such a suddenly threats has to be viewed in the context of deceased’s previous admissions in the appellant’s presence to have caused death and his fortune to some family members and the appellant’s honest belief I his having power to do so . At page 105.
”…In killing the deceased the appellant did not follow the deceased, rather it was the deceased who had gone to the appellant’s home, and that we would be inclined more to the view that the killing was in circumstances of provocation rather than premeditation…”Per Kisanga, J.A at page 105
Provocation and Adultery
When talking of adultery, here it means spouses or people who are married. Killing in adultery generally is not sudden but takes a long time.
In the case of GABRIEL V. R. (1971) H.C.D. No. 299,the accused found his wife
getting out of the house of the man with whom she was having an affair and stabbed her to death. The trial judge found that there was no provocation or insanity because the accused had waited for some time for his passion to cool.
“…The appellant went to the deceased’s house with intent to kill or inflict grievous harm and the defense of provocation by sudden knowledge of the deceased’s adultery not open him…”
In another case of R. V. ALLY SAID KIUBATYO [1990] T.L.R. 137, the accused was charged with the murder of his wife. After killing the wife he dumped her body into an abandoned latrine, buried her and made a false report to his own father and mother in law about the whereabouts of the wife. The killing took place after the accused had suspected that his wife had committed adultery, failed to arrest the suspect after chase and the wife had uttered words which made the accused lose his temper and hit the deceased with a billhook which was nearby. Words uttered by the deceased were “Sijui na umemkimbiza na umeshidwa mwenyewe kumkamata sasa unamwuliza nani na mtu mwenewe umemwona? Literal translated “I do not know. You have seen the person and failed to arrest him. Whom do you ask then?”
During the trial two issues were raised by the trial court.
ü Whether suspicion of adultery can afford a defence of provocation in murder.
ü Whether or not the statement by the deceased can afford a defence of provocation in the circumstances.
i) Prior knowledge by a husband of the adultery of his wife with a paramour does not bar him from raising the plea of provocation if the killing was upon finding the wife and her paramour in the act of adultery. In the present case the accused alleges that the deceased had committed adultery in similar circumstances three times but he had never seen the deceased committing adultery; so the defence of provocation is not open to the accused.
ii) The statement alleged to have been uttered by the deceased was provocative in law and as the accused killed the deceased as a result of such provocation the killing was not intentional.
“ ..I have considered the alleged statement by the decease quoted above to see whether it could not have provoked the accused. Looking at it in a superficial manner the statement is innocent. But considered in the circumstances in which the statement was uttered could have provoked the accused. The accused had come home from hacking coconuts. He knocked at the door expecting the deceased to open the door for him. Then he pushed the door open only to find his child sleeping alone in the bed. The deceased was nowhere to be seen. The accused went out and as he was searching around he heard footsteps of a person running. He chased the person and he failed. He did not know who the person was. He turned inside and saw the wife sitting on be. The accused asked who was the person he saw running. Instead of being civil she uttered the words she was alleged to have said. The reply could have infuriated the accused, as it actually happened and took the billhook and caused the death of the decease. In my view those words uttered to an ordinary man in the circumstances which accused had would have provoked him to assault the deceased…it is true that he used a lethal weapon but it is not suggested that the accused had time to look for it.” Per Kazimoto, J at page 141.
Confession Leading to Provocation
In the case of R. V. JUMA LEGEZA (1969) H.C.D. No. 244, the accused was told his wife was having an adulterous association with another man. He questioned her after having taken drink, slapping her several times. When she confessed, he beat her with stick, told her to go and followed her to her supposed lover’s house where he took away her clothes and left her naked on the bed. The accused later returned and found her dead due to head injuries suffered during the beating. His attempts to revive her with buckets of water failed. He reported the matter, and confessed his actions to the elders subsequently the matter, and confessed his actions to the elders subsequently to the Administrative Secretary.
“…Sudden discovery of a wife’s adultery even if not by finding her in flagrant delicto may in Tanganyika in law be sufficient provocation. Circumstances of the killing influenced by drinking made him unable to make a careful choice of action…”
Provocation on Concubines
Here there must be a strong relationship even though not legal married. Accused must act in the heat of passion.
In R. V. SHILINDE MATHEW (1970) H.C.D. No 143, the accused returned home on the right of 4/9/69 at about 10 P.M and knocked at the front door of his house but there was no reply. Then he heard his wife say from inside “To-day we are down for it.” Accused then heard some sound as if the rear door was being opened. He went around and saw a man coming out of the house through the rear door. The man was running away. Accused chased the man and struck him on the head with a piece of wood which he had picked up three times on the head with a piece of wood which he had picked up. Accused was arrested and charged with grievous bodily harm. The deceased was taken to Kahama Government Hospital where he died few hours after his admission. Death was due to the wounds on deceased’s head.
“…The parties have lived together for a long time as husband and wife, though not regularly married, so provocation can be raised as a defense.
The accused didn’t meet his wife and the other man in the act of adultery but they were inside his house in circumstances with suggests that adultery may have taken place of intercourse was about to take place…”
In SUKUMA RASHIDI MWAMAKOSI V. R. [1958] E.A. 776, deceased who knew that the appellant was after his wife found after returning from a hunting trip the appellant sitting out his house. He asked him what he wanted at his and made no reply. Deceased assaulted as a result of the struggle between them the deceased died.
i) There is a very law degree of provocation, the appellant was assaulted and so by throat, which might constitute a throat to his life.
ii)There was no question of a time for passion to cool, the appellant struck only blow with a weapon from the deceased.
iii) The appellant was acting lawful under section 202 TPC.
SHABANI RASHIDI V. REPUBLIC [1995] TLR 259,Fatuma Hussein cohabited as man and woman from 1983 to 1986 when they formally ended their relationship. They even divided whatever had earned together. Fatuma then lived as a single woman with her parents from 1986 to 1988. When the deceased started courting her. On 28/1/1988 at about 10.00pm as the two were seat her bedroom, the appellant suddenly burst in and without much ado proceeded to stab the deceased. He stabbed him in a stomach.
Both the deceased and his lover ran out of the house shouting for help. Neighbours came in answer to the alarm. The appellant told them that he had stabbed the deceased because he found him committing adultery with his wife. His main ground on appeal was that the trial court did not accept that the defence of provocation was available to the appellant. The Court of Appeal considered this ground against the background of the appellant's denial of killing the deceased and that the relationship between the appellant and the women who the appellant alleged to have caught committing adultery with the deceased had terminated.
i) For the defence of provocation to avail the appellant two factors must be present:
ü That a relationship between him and Fatuma still existed,
ü He must admit to killing the deceased.
ii)There was ample evidence that the relationship between the appellant and Fatuma had effectively ended in 1986.
iii)Once the appellant denied killing the deceased the defence of provocation disappeared and the Trial Judge was right in rejecting the defence of provocation.
The Last Straw Doctrine of Provocation
If one looks an act of killing itself (say act E) it would not amount to provocative act. but acts A, B, C, D, may amount to provocation.
In the case of R. V. JOHALI ISMAIL 1974 L.R.T. No. 23, the accused found the deceased on a path talking to his wife. The deceased started to run away but he was chased by the accused and caught them, he was brought before the elders. When the elders started to ask the deceased the allegations he denied but explained that the accused had requested him to assist him in chasing a thief. at this juncture the accused got up and stabbed the deceased (put in mind the cap in the pocket of the wife’s undergarment incident.)
i) The discovery of the cap in the undergarment to the finding of the deceased with the accused’s wife and his apprehension, these are series of provocative acts. These factors are enough to reduce this offence to manslaughter.
ii) Provocation is a statutory defense created under section 201 and 202 of the Penal Code.
iii)When provocation is raised as a defense to the charge of murder.
iv) The provocative act pleaded must be a wrongful act or insult.
a) The provocative act must be of such gravity as would deprive a reasonable man of his power of self-control.
b) The murder must be done in a heat of passion.
c) The means of retaliation adopted must be proportionate to the degree of provocation committed.
v) Making an allowance for the “last straw” doctrine of cumulative provocation there was no wrongful act or insult and the accused’s passion had time to cool. Guilty of murder.
IINFANTICIDE
section 199 TPC creates the offence of infanticide. the object of introducing into the criminal law the offence of infanticide was to reduce what would otherwise be an act of murder to a lesser offence where the killing was done by a mother at a time when her responsibility for the act may have been reduced by the disturbance of mind caused by the stress of the child birth.
In the case of R. V. ESTHER IKUMBOKA (1967) H.C.D No. 447, the accused was charged with infanticide. she killed a new-born child in circumstances would normally amount to murder, but that at the time of the incident the balance of her mind was disturbed as the result of child birth. It is not disputed that the accused was pregnant and she delivered a child. There is considerable conflict as to whether or not this child was born dead or alive. The doctor who performed post-mortem examination, though adequately qualified, was not himself a pathologist and he didn’t feel able fully to discuss matters, which demanded special expertise in the field.
“…The accused not guilty of infanticide but concealing the birth of a child…”
In another case of R. V. EVELYINE MATHIAS (1969) H.C.D. No. 245, the accused was charged with infanticide c/s 199 Penal Code. She willful threw her new-born child into a latrine, while the balance of her mind was disturbed. Apparently no one knew of the birth of the child, who was only discovered in the latrine when it was heard crying. The accused’s parents, with whom she lived, denied any knowledge of her pregnancy or of any child-birth. Medical evidence however showed that the accused, when examined shortly after the discovery of the child, had recently delivered a child and the placenta and membranes were still in her body.
i)The prosecution had to prove that the accused had caused the child’s death by a willful act which, but for the balance of her mind being disturbed would have been murder.
ii)The prosecution has to prove that the accused had no simply abandoned the child but had intended to cause its death.
iii) Accused not caught at the latrine. She went there for the purpose of passing faces and involuntary gave birth to the child.-Acquitted.
CONCEALING BIRTH
According to section 218 TPC the prosecution has to prove:
ü That the accused was delivered of a child as stated in the charge.
ü That the accused endeavored to conceal its birth by secretly disposing off it.
ü That the child was dead at the time of such secret disposition.
On a charge of endeavouring to conceal the birth of a child it must appeal that child had “arrived at the stage of maturity at the time of birth” that it might have been a living child. It has been said that, in order to convict an accused of endeavouring to conceal the birth of a child, a dead body must be identified as that of the child the mother is said to have been delivered, or atleast a confession should have been made by the accused.
CHILD DESTRUCTION
Since the common law requires constituting a crime of murder that the victim be a “reasonable creature in being” it is followed that it was no murder to kill a child in the womb or while in the process of being born.
Ø Prohibits attempts to procure a miscarriage at any time between conception and the birth of the child alive.
Ø Prohibits the killing of any child capable of being born alive.
ASSAULTS
According to section 240-243 TPC, assault is an act, which intentionally possibly recklessly caused another person to apprehend immediate and unlawful violence.
It is an assault to strike at another with a stick, to draw a knife at a person or to point a gun, or to throw a stone at another even if it misses.
Battery is the actual application of unlawful force, however slight to another, whether directly or indirectly. Kissing a woman without her consent is battery.
Battery is not unlawful:
ü Where a person is being lawful chastised,
ü Where a person is being operated,
ü Where a person consents to the use of force in a game and is by law able so to consent,
ü Where a person otherwise consents to and is able to consent to the use of force-S. 231 to 232. TPC
An operation done without just cause and excuse is unlawful although a person consents.
In the case of R. V. REV. FATHER JOHN RWECHUNGURA (1979) H.C.D No. 168, it was held that the act will be said to be unlawful assault if it is done in an angry revengeful, rude, insolent, or hostile manner, that is, the accused acted so with an evil mind. Therefore an assault in any act by which D intentionally or recklessly, caused P to apprehend immediate and unlawful personal violence. A battery is any act by D intentionally or recklessly with inflicts unlawful personal violence upon P. it is neither an assault nor battery forD to pull himself free from Pwho is detaining him, even though Duses force. An assault is often described as an attempt to commit a battery or other crime of personal violence, but this is too narrow, for an assault may be committed where D has no intention to carry out a battery.
Where a constable executes duties, the nature of the force used can amount to an assault also. In WATERFIELD V. R. (1964) 1 QB 164, at page 170 it was said that, if the police officer’s conduct falls within the scope of the general “duty” to prevent crime and to bring offenders to justice, then it would seem to be within the prosecution of the state, if it was lawful. If in the course of carrying out his duty to prevent crime and to bring offenders to justice, the officer exceeds his powers, then he is no longer acting in the execution of his duty for this purpose.
ASSAULTING CAUSING ACTUAL BODILY HARM
Section 241 TPC, any person who commits an assault occasioning actual bodily harm is guilty of an offence and liable to imprisonment for five years.
The expression harm means any harm which amounts to a maim or dangerous harm or which seriously or permanently injures health or is likely to do so or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ member or sense. Maim means the destruction or permanent disabling of any external or internal organ or sense or member.
Wound is any incision or puncture with devise or pierces any exterior or membrane of the body. And any membrane is exterior for the purpose of this definition, which can be touched without dividing or piercing and other membrane. To constitute a wound within the code the continuity of the skin must be broken. Thus a kick causes internal hemorrhage that breaks no skin is not a wound and so long as the skin is broken the nature of the instrument with which the skin is broken is immaterial.
The offence created by section 241 TPC is some aspects is similar to that of unlawful wounding under section 228 TPC, thus creating difficulty in deciding whether to prefer a change of unlawful wounding or assault causing actual bodily harm. There so difficulties:
Ø In a charge of unlawful wounding, you have to prove that an exterior organ, membrane or sense of the body was incised or punctured.
Ø The offence of causing actual bodily harm is more general in the sense that the harm refers to any bodily hurt, disease or disorder whether permanent or temporary.
Ø The difference to a charge of assault causing bodily harm are similar to those of unlawful wounding, that is;
i)The essential evidence of identification of the accused be it direct or circumstantial that he sustained harm.
ii)That the accused intended to cause such harm.
iii) That harm was caused without lawful excuse.
Assault as a result of consent, accident or assault which are legally justifiable, do not amountan offence. It is also a defence to a charge of assault causing actual bodily harm that the accused did that self-defense, but such bodily harm must not be excessive. In SAIDI ABDALLAH V. R () H.C.D No. 226, where the complainant slapped the second accused who is his nice and---hard enough that she fell down. There the niece picked up a large pestle (apparently the near thing at hand which served as a weapon) and started hitting the complainant with it. the first accused immediately joined the fray on the side of the niece. The damage to the complainant superficial, mainly a few lacerations and abrasions. Accused were convicted of assault and sentenced to eight months each.
i) Even though this quarrels was initiated by the complainant accused were===in retaliating as they did.
ii) Sentence reduced-suggested that fine and compensation would met the jur--= of the case.
If the defence is that the complainant consented to the assault the defense will be rejected if the assault was of such a nature or with such a degree of violence that bodily harm was a probable consequence.
Provocation is no defence to a charge of assault or related offences, but it would be a mitigating factor. In the case FIDEL V. R (1968) H.C.D No. 34, where the accused was convicted of assault causing actual bodily harm. He alleged on appeal that he had been provoked and, under the circumstances, had been justified in committing the assault.
“…Provocation cannot justify an assault; it can only be ‘mitigation’…”
