The
witchcraft provocation defence
The
Criminal Law (Codification Reform) Act [Chapter
9:23]
(“the Criminal Law Code”) has codified the Zimbabwean common law
position regarding provocation as a defence.
Section
239 of the Criminal
Law (Codification Reform) Act [Chapter
9:23]
sets out the circumstances under which provocation can successfully
be raised as a partial defence to a charge of ...
The
witchcraft provocation defence
The
Criminal Law (Codification & Reform) Act [Chapter
9:23]
(“the Criminal Law Code”) has codified the Zimbabwean common law
position regarding provocation as a defence.
Section
239 of the Criminal
Law (Codification & Reform) Act [Chapter
9:23]
sets out the circumstances under which provocation can successfully
be raised as a partial defence to a charge of murder.
Section
238 of the Criminal Law Code provides that provocation shall not be a
defence to crimes other than murder. Section 239 then elaborates when
it may be a partial defence to the crime of murder. It is a partial
defence, if, after being provoked, and as a result of provocation,
the accused does not have the intention or realisation referred to in
section 47 or; although the accused has the intention or realisation
referred to in section 47 but has completely lost his self-control in
circumstances where the provocation was sufficient to make a
reasonable person lose his or her self-control. Then, in those
circumstances, the charge of murder will be reduced to culpable
homicide.
Put
differently, if a court finds that a person charged with murder was
provoked but what he did here the intention on realisation referred
to in section 47 or the provocation was not sufficient to make a
reasonable person in the accused's position lose his self-control
the accused shall not be entitled to a partial defence in terms of
section 239(1) but the court may regard the provocation as mitigatory
only.
The
question then arises whether, when the accused says he was provoked
by his mother's practice of this dark art, the court ought, in the
peculiar circumstances of this case, to accept that as a partial
defence in terms of the Criminal Law Code.
Witchcraft
and the law are different arts; the former residing in the realms of
cultural norms and the latter in legal norms. When legal norms and
cultural norms conflict, the law must resolve the conflict.
Many
cultures across Africa embrace traditional healers and a persistent
belief in witchcraft. The African concept of a witch does not
encompass the potentially benign Wiccan or Pagan which, in some
western countries, enjoy the status of an alternative religion. To
the contrary, there is little redeeming about African witches who,
through sheer malice, either consciously or sub-consciously employ
magical means to inflict all manner of evil on their fellow human
beings. Someone is either born a witch or can learn witchcraft from a
traditional healer.
The
attempts of the common law courts to address witchcraft-inspired
violence differed markedly from the suppression tactics of the
various legislative initiatives. Whereas legislation recognises the
widespread violence and seeks to curtail it, the criminal law has
often recognised the belief that gave rise to the violence and carved
out a witchcraft provocation defence that could be offered as a
mitigating factor in cases of witchcraft-related violence.
Under
this theory, accused persons could reduce their crimes or punishments
upon proof that they believed they, or persons under their immediate
care, were being bewitched and that this belief caused them to
temporarily lose self-control. In some ways, this theory provides
tacit recognition that in certain communities killing a “witch”
is not merely explainable, or excusable, but praise worthy.
In
our jurisdiction, in 2006, the Witchcraft Suppression Act was amended
to legalise accusations of witchcraft and to allow the State to
convict a person and punish her when it deems witchcraft harmful. See
CHANDRA
KUMAR
“Witches,
Witch Doctors and Men of Reason” Mail & Guardian Online
September 11 2006 on http://www.mg.co.za).
There
is a thread of cases, both in our jurisdiction as well as in South
Africa, which show a vacillation between the recognition of
witchcraft and a willingness to aid the suppression of the belief in
witchcraft. This takes the form of treating the belief as only
mitigatory but only as affecting the element constitution a defence
to a charge.
In
my respectful view, at least the basic elements required for a
successful defence of witchcraft-provocation should be;
1.
The act causing death must be proved to have been done in the heat of
the passion, that is in anger; fear alone, even fear of immediate
death, is not enough.
2.
The victim must have been performing, in the actual presence of the
accused, some act which the accused genuinely believed, and which an
ordinary person of the community to which the accused belongs would
generally believe, to be an act of witchcraft against him or another
person under his immediate care.
3.
A belief in witchcraft per
se
does
not constitute a circumstance of excuse or mitigation for killing a
person believe to be a witch or wizard when there is no immediate
provocation act.
4.
The provocation act must amount to a criminal offence under criminal
law.
5.
The provocation must be not only grave but sudden and the killing
must have been done in the heat of passion.
See
Eria
Galikuwa v Rex
1951 (1) E. Afri Court of App 175…,; an appeal case from Uganda.
Where
this criteria is met, the court in other jurisdictions have
considered and accepted the witchcraft provocation defence as long as
it can be shown that the accused killed in the heat of passion. See
John
N Rudowiili v Redubliz
1991 TLR 102 (CA).
In
that case, the Tanzania Appeal Court reduced the accused's capital
murder conviction to manslaughter with a 12 year prison sentence
after considering the accused's mitigation plea based in the
defendant's belief in witchcraft. The accused had axed his
grandfather to death after the latter had allegedly threatened to
kill the accused through witchcraft. These cases also
in a way introduce the concept of anger as being intertwined with
provocation. In my respectful view provocation and anger are
different concepts just as cause and effect are.
In
criminal law, the term provocation seems to be used to include both
concepts thereby throwing light on the accused's conduct. Thus,
when considering the phrase “in the heat of passion” a court is
assessing the subjective frame of mind which has triggered the act.
The
concept of provocation indicates a situation in which the provoker
elicits anger or wrath of the provoked by means of a challenging or
defiant behaviour, and the latter, in reaction to the provocative
behaviour, commits a criminal act. See S
v Mokonto
1971 (2) SA 319 A.
Legally,
the emotional response of the victim to the assaulting or provocative
words or conduct is relevant. When a person has been provoked, anger
and rage are the predominant emotions that are experienced.
We
have considered the accused's defence throughout this grim and
macabre episode. We have scrutinized his own description of the
events leading up to the killing of the deceased. We were unable to
find that she had in any way provoked him in the plain and ordinary
meaning of this word. He did not act in the “heat of passion”
which would have resulted in loss of self-control as would prevent
him from formulating the requisite intention or to realise the risk
involved in the act constituting the crime charged. On his word, the
accused planned the timing of the execution of his mother. He chose
the method of killing her. He knew that there would be relatives who
would visit her to check upon her as she had recently been discharged
from hospital. He planned on how to deal with that too. He did not
want his wife to know what he was determined to achieve and
effectively deflected her by various ploys. He casually announced his
decision to kill her causing his victim to pass out, probably in
shock. He then proceeded to strangle her in a most crude fashion
instantly and mercilessly killing her as he had intended.
His
belief in witchcraft played no part in this chilling murder….,.
Put
in another way, we find that the accused did not react to an act of
provocation; plain or witchcraft provocation. He carefully planned
this murder and executed it with cold-blooded precision feigning
suicide at the end of it all to deflect attention from himself….,.
The
defence of witchcraft-provocation appears to be a carefully
engineered ploy to raise a red herring to deflect this court from
making a finding regarding his true state of mind….,. So carefully
rehearsed in his mind was this defence that counsel for the State
failed to pursue this aspect during cross-examination.
Even
if it were to be assumed, in his favour, that his belief in
witchcraft played a part in prompting him to kill his mother, the act
causing death was not done in the heat of passion. His victim was not
performing an act which the accused genuinely believed, and which an
ordinary person of the community to which he belongs would generally
believe to be an act of witchcraft against him or another person
under his immediate care. She was going about her normal domestic
chores when the accused announced to her that her time on earth was
up since he had resolved to end their wars by killing her.
