Wakilii

Rex v Kinene and Others (Criminal Appeals Nos. 170, 171 and 172 of 1941)

East African Court of Appeal · [1941] EACA 96 · 1941 Appeal Partly Allowed — Conviction Reduced to Manslaughter AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions for murder by the High Court of Uganda
Decision
Appellants' murder convictions reduced to manslaughter; each sentenced to life imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the appellants were entitled to have their murder convictions reduced to manslaughter on grounds of grave and sudden provocation. Where an accused discovers a person performing an act which the accused genuinely believes, and which an ordinary person of that community would believe, to be an act of witchcraft against him, and the accused kills in the heat of passion caused by that immediate provocative act, a defence of grave and sudden provocation is established. A denied confession differs from a retracted confession and does not require corroboration; the denial raises only the factual question of whether the confession was made.

Outcome

Appellants' murder convictions reduced to manslaughter; each sentenced to life imprisonment with hard labour

Facts

The deceased, a village headman, was found dead with approximately twenty raw green bananas forcibly inserted into his bowel through the anus, causing death by shock. The three appellants were arrested after the deceased had been seen drinking with them the previous evening. All three made confessions to a police officer stating they believed the deceased was a wizard who had caused deaths in their families by witchcraft. They stated that while in a hut they heard someone outside, went out and found a person crawling naked on hands and knees near a banana plantation. Believing this person to be practising witchcraft, they seized him and killed him in the manner they considered proper for killing wizards in olden times. The second appellant later denied making any confession. Medical evidence established that the painful operation causing death was improbable to have been carried out by two persons alone.

Issues

  1. Whether the appellants' confessions were properly obtained and admissible in evidence.
  2. Whether a denied confession requires corroboration.
  3. Whether the appellants acted under grave and sudden provocation sufficient to reduce murder to manslaughter.
  4. Whether belief in witchcraft can constitute an element of legal provocation where the accused discovers the victim performing an act believed to be witchcraft.

Orders

  • Convictions for murder set aside.
  • Convictions for manslaughter under s.192 of the Penal Code substituted.
  • Each appellant sentenced to imprisonment for life with hard labour under s.195 of the Penal Code.

Rules and key headnotes

Evidence — Confessions — Taking of confessions by police officers — Requirements for admissibility
In taking confessions by a police officer, the utmost care is necessary to ensure that where the police officer is unable to understand the language used, interpretation should be entrusted only to fully competent and responsible interpreters, and that the accused should not be asked leading questions or cross-examined after being charged and cautioned.
Evidence — Confessions — Denied confession distinguished from retracted confession — Corroboration
A denied confession differs from a retracted confession and does not require corroboration. The denial simply raises for determination the question of fact whether the confession was or was not actually made.
Criminal Law — Homicide — Provocation — Belief in witchcraft as element of provocation
Where an accused discovers a person performing in his actual presence an act which the accused genuinely believes, and which an ordinary person of the community to which the accused belongs would genuinely believe, to be an act of witchcraft against him or another under his immediate care, and the accused kills that person in the heat of passion caused by that immediate provocative act, a defence of grave and sudden provocation may be established sufficient to reduce murder to manslaughter.
Criminal Law — Provocation — Heat of passion — Emotion of anger versus fear
The words 'in the heat of passion' used in the provocation provisions of the Penal Code are more properly referable to the emotion of anger than to that of fear, though where fear is relied upon, the court must concurrently find that the accused did the act causing death in the heat of passion.
Criminal Law — Witchcraft — Belief in witchcraft per se not a defence
A belief in witchcraft per se does not constitute a circumstance of excuse or mitigation for killing a person believed to be a witch or wizard where there is no immediate provocative act. The case must be distinguished from situations where there is a wrongful act immediately preceding the killing.

Legislation cited (7)

  • Uganda Penal Code s.188
  • Uganda Penal Code s.198
  • Uganda Penal Code s.199
  • Uganda Penal Code s.192
  • Uganda Penal Code s.195
  • Criminal Law (Witchcraft) Ordinance Cap. 40 s.2
  • Criminal Law (Witchcraft) Ordinance Cap. 40 s.5

Cases cited (5)

  • Rex v Lahacha bin Ma'anga (3 E.A.C.A. 48)
  • Rex v Kumwaka wa Mulumbi and Others (14 K.L.R. 137)
  • R v Kimiutai arap Mursoi (6 E.A.C.A. 117)
  • R v Mawaiwa bin Nyangweza (7 E.A.C.A. 62)
  • Rex v Sitakimatata s/o Kimwago (Criminal Appeal No. 88 of 1941)

Full judgment

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Rex v Kinene and Others (Criminal Appeals Nos. 170, 171 and 172 of 1941) [1941] EACA 96 (1 January 1941)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.