Belief in witchcraft has never been a defence in any criminal trial, in particular murder cases.
Such belief could be considered as a provocation, but subject to proof of some bewitching acts.
According to the Longman Dictionary of Contemporary English, New Edition for Advanced Learners, the term witchcraft is defined as “The use of magic powers, especially evil ones, to make things happen.”
In our laws, witchcraft has been interpreted under section 2 of the Witchcraft Act, as follows: “witchcraft includes sorcery, enchantment, bewitching, the use of instrument of witchcraft, the purported exercise of any occult power and the purported possession of any occult knowledge.”
On the other hand, the term provocation is defined under section 202 of the Penal Code, as “any wrongful act or insult of such a nature as to be like, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care… “… or to whom he stands in a conjugal, parental, filial or fraternal relation or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.”
When Mathias Tangawizi, alias Lushinge was arrested and subsequently charged with murder of his mother-in-law, he presented a defence, basing on witchcraft believes.
However, such defence was rejected both at the High Court and Court of Appeal level. This is what happened: On May 24, 2008 at about 3:00 am, Mathias Tangawizi visited at the home of his brother- in- law complaining to be sick.
The brother promised to take him to hospital later. Meanwhile, upon request Tangawizi was given a paper and pen to write something.
Moments later, Tangawizi wanted to use the toilet as he said he had stomach problem. He went there and returned.
When Tangawizi went for the second time to the toilet, he did not show up. The brother tried to trace him without success.
In the meantime, at 7:30am of the same day, Tangawizi’s farther-in-law, while on his way to his farm, as he was about 70 paces away from the homestead, he heard his wife, Sophia Kamuli, crying for help.
When he responded the father saw Tangawizi stabbing his mother-in-law in the back and ribs with a spear.
The father picked a stick and advanced towards the scene to rescue his wife but Tangawizi pulled the spear from the deceased’s body and threatened to assault him as well. He later fled.
A granddaughter of the couple who was living with them heard her mother cries and rushed out to find out.
She witnessed Tangawizi, his stepfather assaulting her mother before he ran away when his father-in-law appeared.
The two raised alarms where people responded to the scene but Sophia had already died. Tangawizi was pursued and arrested before his arraignment for murder.
In his defence, like it was in his extra judicial statement and when he was called upon to plead to the charge, Tangawizi, the accused, admitted killing his mother-in-law but that he had no intention to do so.
He gave an account that he suspected her to be a witch who had caused the death of his child. This is so because, he said, the child had come from visit of its grandparents bearing incisions (chale) all over its body which his wife said had been inflicted by traditional doctors as protective rituals (mazindiko).
However, the appellant narrated, in the following days the child suffered from mysterious disease which included unusual sleep patterns characterized by sleep during the day and purging yellow substances.
His sister advised him to take the child to hospital which he complied. Unfortunately, according to the appellant, the child died on July 17, 2007 while receiving treatment at the hospital.
He notified his in-laws of the burial on July 18, 2007 but they did not attend. The accused explained that it was not until September 4, 2007 when his in-laws, including Sofia came to their home to offer their condolence.
The following day when he returned from an errand, his wife served him food and later he saw the in-laws off.
Thereafter, Tangawizi went on, he started feeling stomach ache and his suspicion was attributed to the food he had eaten, which his wife said it had been prepared by the deceased.
He accounted further that his condition worsened and consulted a traditional healer who administered some medicine. He purged rotten meat and yellow substances similar to his child’s. It was at that stage that he decided to divorce his wife.
From that point, he moved from one traditional healer to the other to be cured but in vain. On the material date, when the murder incident occurred, while he was at the traditional healer, he experienced nose bleed and decided to go to his brother-in-law’s home to ask them to look after his family as he had lost hope to live.
He asked the brother for a paper to write his Will. Thereafter, he went to the toilet and slept in the potato ridges.
When he woke up, he decided to go to the deceased to seek pardon so that he could get cured of his illness.
At the scene he found the deceased preparing firewood but upon seeing him she started running away and she fell down.
This act confirmed to the appellant that, the deceased was indeed a witch hence he picked an iron instrument used for digging soil and stabbed her.
When he saw his father-in-law coming, he took to his heels after he realized what he did was wrong.
He directly went to consult another traditional healer at Misungwi area where he got better.
When he was cross-examined during the trial, the accused said, no any traditional healer had told him that the deceased had bewitched him and that many times before he used to eat food prepared by her.
He believed that he could die if he did not kill the deceased hence he killed to protect his life. He regretted after the act.
Although the accused intended to call one witness on his behalf, he later abandoned the idea.
At the end of the trial, the High Court found that the prosecution evidence had sufficiently proved that, Tangawizi killed his mother-in-law with malice aforethought.
He was found guilty, convicted of murder and sentenced to death by hanging. Aggrieved by the verdict, he decided to go to the Court of Appeal.
Before the appeals court, the highest temple of justice in the country, Justices Mbarouk Mbarouk, Jacobs Mwambegele and Mwanaisha Kwariko were assigned to determine the appeal by Tangawizi, who shall now be referred as appellant.
In determining the appeal, the justices noted that, because the appellant is the one who alleged witchcraft on the part of the deceased, he was the one to prove that the deceased was practicing witchcraft to cause illness to him and killed his child as such.
“It is our considered view that, apart from mere suspicion the appellant did not show during the trial that the deceased exhibited any witchcraft. No witness came to evidence that the deceased was a witch or suspected in her community to be a witch,” they said.
In the case of Fabiano Mukye and two others , where the appellants in that case caught the deceased crawling about naked in their compound claimed that they killed him as they believed that he was a wizard, who had caused the death of their relatives by witchcraft and they caught him in the act.
The court held in that case that, “That on the evidence the appellants were entitled to be held to have acted under grave and sudden provocation.”
On that holding the court reduced the appellants’ convictions of murder to manslaughter. Also, in the case of John Rudowiki, the Court of Appeal held that, "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 the charge.”
In Tangawizi case, the justices observed that the appellant did not say he ever found the deceased in any unusual acts or she ever uttered any witchcraft threats to him to suspect her to be a wizard, which would have made him lose control and kill her.
“Even if the deceased was a proven witch and caused the death of the appellant’s child, could it be said that the appellant was provoked by that act? Our answer to that question is in the negative,” the justices said.
They pointed out that the death occurred on July 17, 2007, while the appellant killed the deceased on May 24, 2008.
If anything, the justices further noted, the appellant had sufficient time to cool down and that on the material day there was no any acts by the deceased which might have provoked him.
“The appellant found the deceased doing her normal chores outside her home when he attacked her. The act of the deceased running after seeing the appellant, if at all she did that, is explainable,” the justices said.
According to them, the deceased might have found the appellant’s visit in the early hours of the morning armed with a spear was unusual, hence was entitled to seek refuge.
Therefore, they concluded, there was no provocation on the part of the appellant. The justices also noted that the appellant had also said in his defence evidence that not even any of his traditional healers told him that the deceased was a witch to have poisoned his mind so much that he killed her.
They further observed as regards the suspected poisoned food that the appellant said in evidence that it was not the first time that the deceased had prepared food for him when she visited his home in September, 2007.
“The foregoing analysis shows that the appellant’s belief of witchcraft on the part of the deceased was unfounded. The evidence proved that the appellant had formed intention to kill the deceased and he executed that intention on May 24, 2008,” the justice declared.
They concluded by holding, “The trial court rightly convicted the appellant with murder and legally sentenced him. In fine, we find no reason to fault the trial court’s decision and hold that the appeal has no merit and we hereby dismiss it in its entirety.”