1.3.

2 Provocation
A killing that would normally constitute murder done in the heat of passion caused by
sudden provocation and before there is time for the passion to cool amounts to
manslaughter under section 176 of the PCA. Provocation means any unlawful act or
insult of such nature as to be likely when done or offered to an ordinary person or in his
presence to the person within specified degree of relationship, as to deprive him of the
power of self-control and to cause him to commit an assault of the kind which the
person charged committed upon the person by whom the act or omission is done.
It is not for the accused to establish provocation as a defence. If there is any evidence
of provocation the court cannot convict him of murder unless satisfied that the
prosecution has proved beyond reasonable doubt either that there was no provocation
or if there was provocation that what was done in the assault could not be recognized or
what an ordinary person in the community who had lost control of himself might have
done.
The reasonable retaliation is gauged according to circumstances and community of the
accused. It must be shown that the killing was in the heat of passion and there was no
time for it to cool. The law in this area has just been restated by the Court of Appeal in
the case of Kato v. Uganda [2002]1 E.A 101.
In R vs. Hope 14 EACA 105, the appellant killed a man under the honest belief that he
was responsible for the death of a relative. It was held that provocation was not
available because the appellant had held this belief for several days before the killing.
Provocation must be sudden
R vs. Jezalani 14 EACA 70, the husband /appellant knew of his wife’s misconduct and
unfaithfulness with her former husband. When the wife told the husband that she
wanted to leave him for her former husband, he killed her. The defence of provocation
did not succeed on a charge of murder because the alleged provocative act was not sudden.
Provocation should consist of a wrongful act
A lawful act cannot amount to a legal provocation. The following acts have been held
wrongful acts which together with the other elements of defense may amount to legal
provocation; the homicide of the accused’s father , R vs. Wasonga 15 EACA , an attack
on0 an accused’s wife, Matendekyera, trespass to property, Marwa’s case and a verbal
insult of a gross nature .
In R vs. Mwanyi EACA 40, it was held that to use a panga in a negligent manner
thereby causing harm to the person struck may be wrongful act. For a wrongful act to
constitute legal provocation, it need not be more than a tortious one. As such it is
sufficient to constitute legal provocation if the person, struck honestly and reasonably
but mistakenly believes that he is the victim of the wrongful act and in that belief kills the
person who striked him.
Generally, vulgar abuse or refusal of sexual intercourse is not sufficient provocation
unless contained with other circumstances. Accordingly it is a question of fact whether a
vulgar abuse or refusal of sexual intercourse will provide a defense on the charge of
murder.
The provocation must be such as to deprive an ordinary person, of the class to which
the accused belongs of his power of self-control. Again this is a question of fact and the
test of the reasonable man is so much applicable. See King V Lesban [1914] 3 KB 116
The provocative act must be done in the presence of the accused. See Gaboyes case
16 EACA 140. The appellant’s half-brother, K, had been rendered unconscious by the
blow delivered by the deceased. The appellant asked K whose face was covered with
blood who had beaten him and K replied it was the deceased. The appellant thereupon
went to the deceased’s hut and delivered on his head a fatal blow fracturing his skull. It
was held that although the sight of his brother’s bleeding must have angered the
appellant; there was no provocation according to section 202 of the TZ Penal Code Act
as the wrongful act was not done in the presence of the appellant.
The provocative act done in the presence of the accused will be a provocative act when
it is done either towards the accused or towards a person to whom the accused stands
in specified relationship including master and servant relationship. The retaliation must
bear a reasonable relationship to the provocation. In Obielo vs. R 16 EACA 139, the
appellant killed her former mistress by inflicting four blows on her head with a panga.
The woman who was suspected by the appellant of having made of a considerable sum
of money had slapped him and spat at him. It was held that the appellant was liable for
murder as his mode of resentment was out of relation to the provocation.
It has also been held that an accused is not deprived of the defense of provocation if
when provoked by A, he mistakenly or accidentally kills B in attacking A. see Nyanya vs.
R 23 EACA 593 and R vs. Alayina [1957] R&N 536, where the accused went after dark
in search of her husband. She found him under blanket with a young girl. The accused
immediately attacked the girl and in the course of the struggle in the darkness of the hut
at night, the girl’s grandmother who was also in the hut was fatally stabbed her. It was
held that there was provocation sufficient to reduce murder to manslaughter
Where an accused is involved in a fight, the defense of both provocation and selfdefense
may be open to him or her.
Legal provocation will operate to reduce Murder to manslaughter even where there has
been an intention to kill. Provocation is only a defense to murder not to any other charge.
In the other charges, it may operate to mitigate sentence. The test in provocation is
whether an ordinary member of the accused community would have been provoked in
retaliation in the same manner as the accused did.
R vs. Maziku 8 EACA 55, a watchman was baited by a gang of young men who also
called him a term of vulgar abuse. The watch man who was an irritable old man then
threw a spear at the youth killing the deceased. The watch man was convicted of
murder. On appeal, the Court said that the test was not whether an irritable old man
would have been deprived of his self-control but rather an ordinary member of the
watchman, class would have been so deprived.
The provocative act must be done in the presence of the accused and there must not be
time for the passion to cool. In Maina Thuku vs. R [1966] E. A 496, the appellant
arrived home one night in a drunken state and found his step father (deceased beating
his mother) When the appellant tried to intervene, his step father hit him twice with a
stick and told the appellant not to interfere. The appellant entered into the house and
slept for a few hours until he was awakened by the deceased calling him. Ongoing
outside the house, the appellant found his mother dead with a severe wound on the
back of the head and the deceased standing nearby. The appellant removed his
mother’s body in the shed, fetched a panga from the house and chased the deceased
about 300 yards. The appellant and the deceased then exchanged words which
apparently made the appellant angrier. Both men started walking back to where the
body lay when the appellant attacked the deceased with the panga and killed him. The
Court of Appeal for E.A held:
1. The events were so continuous as to make the acts of killing the mother so
proximate to the appellant as constructively to have been done in his presence.
2. In considering whether there is time for passion to subside the degree of
provocation offered is a relevant factor.
3. In the instant case, the appellant killed the deceased when he was still acting in
the heat of passion without regaining his self-control. Provocation therefore reduced
murder to manslaughter.
Witchcraft as Provocation
In Galikuwa V R 18 EACA 175, Court laid down the rules inter alia relating to defence
of provocation in witchcraft cases.
i. The act causing death must be shown to be done in the heat of passion that is to
say in anger. Fear of immediate death is not sufficient.
ii. If the facts establish that the deceased was performing some acts in the
presence of the accused which he believed and an ordinary member of his
community would generally believe was an act of witchcraft against him and the
accused was so angered as to be deprived of self-control, the defense of grave
and sudden provocation is open to the accused.
iii. Belief in witchcraft per se does not constitute a circumstance of excuse of
mitigation for killing a person believed to be a witch or wizard where there is no
immediate provocative act.
iv. The provocative act must amount to an offence under criminal law.
In the Galikuwa case, a witchdoctor threatened the appellant with death unless he paid
him shs1000. Later the appellant being unable to pay the said sum killed the witch
doctor in an honest belief that he was saving his life from witchcraft. It was held that this
was murder. There was no immediate provocative act. “A mere threat to cause injury to
health or even death in the near future cannot be considered as a physical provocative
act”
An overt physical act of witchcraft may amount to provocation. In R vs. Fabiano Kinene
8 EACA 96, the appellants appealed from conviction of murder. The deceased had died
from shock resulting from the forcible insertion into his bowel through the anus of urine
bananas by the appellant immediately they had caught him. Immediately they had
caught him crawling about naked in their compound. They believed the deceased was a
wizard who had caused the death with their relatives by witchcraft and had caught him
in the act as they thought of bewitching them and therefore killed him in the way in
which the older times was considered proper for the killing of a wizard. Put the other
way, the appellant believed that the witch doctor had caused the death which many
people/ relatives by witchcraft. One night they found the witch doctor crawling naked in
the compound and believed to be in the act of bewitching themselves, they fell upon him
and killed him in a gruesome manner considered fitting for the death of the witch doctor
in olden days. The Convictions for murder substituted with manslaughter because of the
deceased’s provocative acts.
The belief that the person is presently causing the death of a relative by supernatural
means is not a reasonable one in law. In R vs. Kajuna 12 EACA 104, the appellant
killed his father in the honest belief that he was causing the death of his child by
witchcraft. He had set out on a long journey with the express intention to kill his father. It
was held that this was murder. Similarly in Rauben Bagamuhunda vs. Uganda,
Criminal Appeal No 2 of 1987, it was held that once he found as a fact that the
appellant had killed the deceased by burning he had tied him up and beaten him very
badly, the learned Ag. Judge could have convicted the accused of murder. Whereas the
appellant suspected the accused of having bewitched his brother to death, that alone
could not sustain the provocation. In any case the appellant attacked the deceased long
after the death of the appellant’s brother so that there was no provocation within the
meaning of the section of the Penal Code.
In Victory Kigora vs. Republic, E.A.C.A Crim Appeal 161-DSM-75 1977 LRT N.45, the
appellant killed the deceased, his father, by cutting the latter to death with a panga. The
deceased was reputed to be a wizard in the village. The appellant genuinely believed
that the deceased, by means of sorcery and witchcraft, had caused the deaths of the
deceased’s own father and those of his sons and daughters. Not long before the killing,
according to the appellant, the deceased had caused the deaths of the deceased’s own
father and those of his sons’ and daughters. Because of his notoriety as a wizard and
his evil deeds, the deceased was sent out of the village. After sometime however, he
managed to get permission to return to the village. Not long after his return to the village,
the deceased met the appellant in a pombe shop and the deceased abused the
appellant. The appellant tried to avoid the deceased by leaving the pombe shop, but the
deceased followed the appellant and continued to abuse him. He told the appellant that
he was going to kill the appellant and the appellant’s wife in the same way as he had
killed the others, that as he was an old man he was not afraid of death and since he had
even killed his own father, he was sure he would vanquish the appellant. The appellant
said that he was so angered by the torrent of abuse and words that he lost control of
himself and in his passion attacked and killed the deceased. It was held:
(i) A belief in witchcraft per se will not constitute circumstances of excuse or
mitigation when there is no provocative act.
(ii) A provocative act is not confined to an act of witchcraft being practiced against
the appellant at the material time.
(iii) A genuine belief by the appellant that the deceased had by witchcraft caused the
deaths of his relatives coupled by words an insults by the deceased against the
appellant in such circumstances as to cause any reasonable person of the appellant’s
community and actually causes the appellant sudden and temporary loss of self-control
amount legal provocation.
(iv)When it has been established that legal provocation exists, the fact that a number of
wounds have been inflicted does not prevent the offence from being one of
manslaughter.