Republic vs Nicholaus Eleutereri Mwano vs Republic (Criminal Session Case No. 2 of 1989) [1991] TZHC 2259 (6 September 1991)

IJ IN THE HIGH OCURT OF T!NZLNLA ATIRINGA ORIGINtL JURISDIOTIO • MBY! REGISTRY) CININ!L SESSION CaSE N0.2 OF 1989 THE REPUBLIC Versus NI21LOt DEMEN CHOME, Ni dHOL2.0 1TRI tend, oargewtth Mr.er cntrro eot±on 196 of the 1'na1 od.e. Case for the. osetiànJA 't)3t an .2/07 at PTgern v -iUage in a pombe shop the accused went and isqt with a bilihook to 6eth h1 I un010 one Thiresto Mwano. The 40ensed died on the spot: When he was. m'rested accused admitted to j hnve killed the deoeaed because ecesed t he was a W. toli, To the pa ii ce thq ac ctsd OflfS se d to have killed the de ceased be cause 9° .•. Before the justice of the peaoe too the accmd confessed to have killed the deceased. .. . - In his defence - here in court $oo the accused admitted to have killed the deceased. He told the court that his father had gone witchdoctoDs when bi.s two brother. died and the doctor- told him it was the deceased who had '1PewitohQA bhem. Then on 2/6/87 f,t the pombe ahop the decease& called the ao-cuse.d and accused him of 's ;ealing the dqcor ,.sedTs sugar cane a. The accusation was fo11ovd by a thrqtt that if he continued stealing the banes the acuse& would die IV witohCDa-UJce--hts- iwo. brothers /tilio arid Fabia.. By this aocuaod believed, the deceased to be a witch and got preokednd kille8, 1iim on the spot 6 In his.0../2

2 - In his confessiona before both the prolicie officer and the justice of the peace the accused did liat mention that the deceased threatened him that he wou.ld kill him like Fabiano and 1t1lio. It could be an afterthought. But there was no eye witnes.s to what transpired immediately between the deceased and accused at the p omba shop be fore the aouse d slew the deCease d Wherefore the aeci.tsed must be given the benefi of doubt. It is r'obable therefore that the deceased uttered those threats that he would bewitch the accused like he d.i4 his two relatives.. ' Can the accused have the defence of provoation? Two of my r gentlemen assessors said i 10 0 One of them said yes 0 Belief in witchcraft pr se is not legal pvOvcation. jLni chaLJ; held in R. V. Marco 71 order to succeed..orx a V13a of legal provocation the facts proved must establieh. the victim was O performing in the actual pre9ene of the accused some act which the accused did gent*tneiy believe and which • an ordinary person of the commpity to which the accused belongs would genuinely believe to be an not of witchcraft." The deceased, was not perfoxing any act of witchcraft ; but utterred threats of witchcraft. :sre words are eiought if they could be believed by an ordinary member of the tccused's ,Oommunit that the d,ceased ws a1l to put. tnem into O.act.ons. TIG ea:ed was rçmoured to be a witch in the vi1ge, This w..eôafirmed by PWs II and til in this case0 The accused says hipfather had tola hii that the deceased was a witch responsible the death of his tio brothers. But he confirmed thi when the d.aeeased threatened him hat he would kill him by witcheroft like his wo brothers if he\ continued stealing his sugarcane, These thats to a person who lieves in witchcraft as do other viflqere are enough legal rovotiofl: As accused killed the decoased. on the spot before theas \timo / re w A l ...o.o. .) -' /0

3 - PZ for the passion to cool down. I findhim not gui.ltyof Murderbut of Manslaughter contrary to section 195 of the Penal Code, L. B. Mehome JUDGE 6/g,'1991 Mrs. MakuDug No previous convictionse Mtigation: Nil. SE NTENCE he accused is a first offender s He has stayed in remand for 4 years. But killings due to v thraft beliefs are very raitpant in this region o a deterrent sentenco, is required. I sentence accused to ten years imprisonment. L,. Mohome (/9/91 Qou: Right of appeal explained.. T.B. Mehorne UDE 6/9/91 Assessor khonkeu, and discharge.. ;i;/•. _ !.B. Mchome / 31JDE 6/9/91 LBM/ATM' lirna.