Provocation in murder cases

187 have recognised the legislature’s intention that the defence of provocation is available to a person charged only with murder in order to reduce the charge to manslaughter contrary to Section 182 of the Ugandan Penal Code. This common law rule was enunciated in the case of R.v. Cunningham. The courts have adhered to the statutory definition by narrowing the application of provocation by not extending it to wrongful acts done to property. In this regard they have followed the principle laid down in Yusuf s/o Lesso v. R. a 1952 E.A.C.A, case. Initially, this principle was over ruled in the case of Marwa v. R a 1959 E.A.C.A., case, but later in Uganda v. Ssenabulaya, a 1978 High Court case, the principle enunciated in Yusuf’s case was resurrected and it was held that provocation was confined to wrongful acts done to the person does not extend to the property. It was argued that to extend the ambit of provocation would lead to wide scale legal licensing of killing. Since Ugandan cases have binding and not persuasive authority, this principle must now be followed. The wrongful act under Section 188 (1) of the Penal Code need not be done in the presecence of the accused. According to Uganda v. Kwirimo Bua & Others it was held that as to the defence of provocation, it was sufficient if the wrongful act was done immediately before the arrival on the scene of the accused’ death, so that it was not necessary for the wrongful act to be done only in his presence In the judicial context, the interpretation of the phrase “act or insult” under Section 188 of the Uganda Penal code, has been held to include mere words. Briggs J.A. in Chacha s/o Wamburu v. R stated that “there is no rule of law that “mere words” cannot be sufficient provocation to reduce an intentional killing to manslaughter.” This decision was upheld in the homicidal Ugandan case of Uganda v. Acia were it was held that the insulting words used by the deceased provided legal provocation to the accused.In reference to the phrase “heat of passion” used in Section 188 of the Ugandan Penal code, judicial interpretation has widened the ambit of emotions. This was brought out in the East African Court of Appeal in the case of Yovan v. Uganda held that the heat of passion required by Section 188  refers not only to a state of anger but to any emotional state caused by the provocation and which is such as to deprive an ordinary person of self control.That provocation must be sudden is one of the conditions stated in Ndosire v. Uganda as a condition to be satisfied in order to reduce a charge of murder to manslaughter. But what amounts to “sudden” provocation is largely a question of judicial interpretation. The East African Court of Appeal in R. v. Musomi held that it can be a question of “moments or seconds.” This was expounded in the case of R. v. Yafesi & Others were it was held that when an accused is charged with the murder of his wife and it is established that he had prior knowledge of their adulterous association and was privy to a plot to catch them together, the defence of provocation by sudden knowledge does not apply to them.The effect of this rule is that the history of abuse does not matter to the courts. This was applied in the case of R v. Ahluwalia: The Court of appeal confirmed the rule that provocation must be sudden, but stressed that “sudden” is not the same as “immediate.” The rule does not mean as a matter of law that the response must invariably flow immediately upon provocation, said Lord Taylor CJ, but the longer the delay and the stronger the evidence of deliberation the more likely it will be that the prosecution will be able to show that there was no “sudden and temporary loss of self-control.However, the above common law rule has been criticized on the grounds of being unfair to women whose tempers tend to burn slower and over a period compared to those for men. In light of this, Ugandan courts recently have taken a more liberal view. In the homicidal case of Sofia Auma, which related to a history of abuse, although the facts revealed that her actions were premeditated and not immediate she successfully pleaded provocation and was given a light sentence. It has also been recognised by courts that “there is no rule of law that intentional killing precludes a finding of manslaughter only. Malice aforethought, if not ‘precedent’ but caused by provocation, will not necessary lead to a finding of murder”—per Briggs J.A. in Chacha s/o Wamburu v R. In effect, “the prosecution should prove the intent to kill. No question of reduction of murder to manslaughter can arise unless and until the provocation caused that intent”—A. Samuel’s: Provocation. In the case of  Uganda v. Ali Muganda, Manyindo J. brought this principle out differently by stating that “the accused killed the deceased but without malice aforethought because he killed in the heat of passion.”The judicial interpretation of the number of people who can provoke the accused under section 188 (1) has been held to even include more than one person. In Salimu Majala v. Republic it was held that provocation can successfully be pleaded by an accused person who shot arrows at a crowd marching towards his house with the intention of committing a wrongful act if there was reasonable possibility that the accused, when he sot the arrows, was acting in the heat of passion caused by sudden provocation arising out of that wrongful act. The judicial interpretation of Section 188 (1) (b) has been confined to its direct meaning. The “other person” mentioned in this subsection should be under the ordinary person’s immediate care or stands in the relations specified in section 188 (1) (b) (ii). A case in point is Rex v. Anton s/o Aloise. In this case the deceased sang a song in which the virtue of the appellant’s niece was assailed. In dismissing his plea for provocation, Edwards C.J. stated “…it is not stated that the appellant is not an “ordinary person” nor was his niece either under his immediate care nor was the appellant her master or her servant. Can it therefore be said that this niece stood to him in “conjugal, parental or fraternal relation? ... Had the legislature intended to include such a relation as that of uncle and nephew or niece, it would have been easy for them to have added such words as “avuncular” after the word fraternal.””Witch craft is a belief deeply embedded in Ugandan society as noted by the 1957 Witch Craft Act Cap.108. Sometimes it is because of this belief that homicides occur. Ugandan courts have taken judicial notice of this belief and under certain circumstances, accused persons who kill persons they believe to be practising witch craft have been availed the defence of provocation. In Kenjeru w/o Karindori the High court held that it is not a belief in witchcraft per se that constitutes a circumstance of mitigation for killing a person believed to be a witch, or a wizard. The belief must be accompanied by an immediate act by the witch or wizard. Earlier on in the case of Eria Galikuwa v. R it was held that the wrongful act has to be an overt act and the accused has to retaliate fearing immediate death. An example of such an act is evident in the case of Rex v. Fabiano & Others, were the deceased a renowned wizard was found crawling naked in the compound of the accused.   The rule regarding the effect of witchcraft on provocation, in view of the decision in Eria Galikuwa v. R, should not be regarded as laying down a general rule but must be interpreted with reference to the facts of that case—per Duffus in Yovan v. Uganda. For example, in Uganda v. Ntusi it was held that although it is no defence for one to kill another on suspicion that the other has bewitched him, there are circumstances, were a threat to kill can amount to legal provocation.The courts recognition of witchcraft as possible provocative behaviour is also in line the definition of Section 188 (3) which requires an act to be unlawful before it can be regarded as legally provocative.Section 188 (5) of the Penal Code provides that an arrest which is unlawful is not necessary provocation for an assault, but it may be evidence of provocation to a person who knows of its illegality. This statutory provision was recognised in the case of Rashidi v. Republic.  The appellant, in resisting his arrest assaulted a constable. The arrest was being effected with no warrant and with no reasons given to the appellant. Onyiuke J in awarding judgement in favour of the appellant recognised such actions by the officer as constituting provocation.Section 188 (4) denies the defence of provocation to a person incited to assault another person. Under common law, the judicial interpretation which supports the statutory interpretation is found in Lord Diplock’s judgement in D.P.P. v. Camplin. Having recognised that the defence was created to cater for human infirmity he states that it should be “…confined to narrow limits.”Further still, at common law, provocation which is self-induced does not cease to be provocation for the purposes of Section 188 (1). In Edwards v. R, Lord Pearson supporting this view, held that “…but if the hostile reaction by the person sought to be blackmailed goes to extreme lengths it might constitute sufficient provocation for the blackmailer…”The courts in East Africa have also recognised that in considering what may amount to grave and sudden provocation, the local laws differ from English common law. In this respect the expression “the retaliation must not be disproportionate to the provocation” (Mancini v. D.P.P.) how ever appropriate it may be in England, is misleading in the workings of the Uganda Penal Code. So “…once legal provocation as defined in the Penal Code has been established and death is cause in the heat of passion whilst the accused is deprived of self-control by that provocation, the offence is manslaughter and not murder irrespective of whether a lethal weapon is used or whether it is used several times or whether the retaliation is disproportionate to the provocation…”—per Sir Joseph Sheridan C.J. in Rex v. Hussein s/o MohammedIn the Ugandan context Saied J followed this decision in 1971 in Uganda v. Likasi Omondi, were it was held:a). The chase of the accused on a mere suspicion that he was a thief was unlawful. The unlawful chase quite clearly gave rise to provocation and the right to preserve one’s freedom which was being threatened;b). As the deceased was how ever an old man, the accused could quite easily have brushed him aside instead of hacking him to death. The accused used excessive force in the circumstances. But where elements of both provocation and self-defence existed in a case, and the inference of malice aforethought was rebutted by the circumstances, as was in this case, it mattered little whether the acts be regarded as done in excess of self-defence or under stress of provocation. The accused was found guilty of manslaughter. Provocation is not only a partial defence to a charge of murder but it is also a mitigating factor in the sense that it can lessen the severity of punishment. The presence of disproportion between retaliation and provocation, and use of a lethal weapon several times on the victim, is a matter to be taken most carefully into account when considering the question of sentence but would not itself rule out the defence of provocation—per Sir Joseph Sheridan C.J. in Rex v. Hussein s/o Mohammed.In regard to a history of abuse on women, Justice Odoki whose view is supported by Wolfgang pointed out that “a person who commits a crime when he has lost his self-control deserves leniency because of the reduced moral blame worthiness.” This was applied in Ugandan case of Terezina Karawali homicidal case were the accused pled provocation and on conviction she was given a probation order.  Having decided that the accused was provoked into losing his self-control the courts consider the common law objective test, that is to say, whether the provocation was enough to make a reasonable man do as the accused did. Although the Section 188 (1) (a) & (b) of the Uganda Penal Code refers to an ‘ordinary person’ the interpretation the courts have attached to the phrase is identical to that attached to reasonableness in self-defence. In Didasi Kebengi v. Uganda the High court held that “…in almost all cases, the element of self-defence may and does often merge into the element of provocation….”In this respect, courts consider the accused’s community. In Uganda v. Aniceto Acia, it was held that provocation must be considered from the standard of an ordinary person, and the ordinary person, means an ordinary person of the community to which the accused belongs to.Courts are willing to recognise attributes like age of the offender in determining the reasonableness of an act. In D.P.P. v. Camplin a 15 year old boy killed a man. His only defence was provocation. On appeal, it was held that the jury ought to have been directed to consider whether the provocation was enough to have made a reasonable person of the same age as the appellant in the same circumstances do as he did.Under common law, courts also consider permanent characteristics of the offender such race, colour, creed, deformity and infirmity. North J says in a passage in McGregor cited with approval in R v. Newell that the characteristics must have a ‘sufficient degree of permanence’ and he excludes a transitory mood of depression. He also excludes transitory states of mind induced as by the taking of drink or drugs which make the offender more pugnacious and more likely to react violently to provocation. Finally, the existence of provocation will not bar a conviction of attempted murder contrary to Section 197 (b) of the Uganda Penal Code if death does not ensue. Sir John Gray C.J. in R v. Leseru Wandera s/o Wandera said the guilt of the accused arises out of his ‘intent to kill’ combined with his more than merely preparatory actions.In conclusion, as noted in the Wallace Johnson case, the judicial interpretation supplements the statutory interpretation so as to fit the colonial criminal code in to the local circumstances.LAW APPLICABLE:1).1995 Constitution of Uganda 2) Judicature Statute No.13 of 1996.3). Case Law4). Penal Code Act of Uganda Cap.1065).Witch Craft Act of 1957 Cap 108 of the Laws Of Uganda.REFERENCES1).Criminal Law Text Books Homicide: Collingwood, Smith & Hogan, CITATIONS OF CASES STATED1).Uganda v. Bosco Okello alias Anyanya (1992-1993) HCB 682).Uganda v. Ssenabulaya [1978] HCB 273).Uganda v. Sempija Samuel H.C.C.S.C No. 243/934)Uganda v. Kwirimo Bua & Others [1971] PART 1 ULR 265).Uganda v. Aniceto Acia [1976] H.C.B. 1576).Yovan v. Uganda [1970] E.A.4057).Ndosire v. Uganda [1992-1993] HCB 278).Uganda v. Likasi Omondi [1971] 2 ULR 279).Terezina Karawali H.C.C.S.C. No. 373/7110).Didasi Kebengi v. Uganda [1978] HCB 21611).Sofia Auma H.C.C.S.C. No. 77/9112.)Uganda v. Ali Muganda [1976] HCB 613).Kenjeru w/o Karindori H.C.C.S.C. No.215/91.14).Eria Galikuwa v. R 18 E.A.CA.15).Uganda v. Ntusi & Anor [1977] HCB 64  16).R.v. Newell (1980) 71 Cr App Rep 331, Court of Appeal Criminal Division17).Rex v. Hussein s/o Mohammed [1942] E.A. 52 18).Festo Shirabu s/o Musungu v. R [1955] 22 E.A.C.A 45419).Chacha s/o Wamburu v. R 20 E.A.CA 339 20).R.v. Cunningham (1959) 1Q13 288 21).Yusuf s/o Lesso v. R 19 E.A.C.A 24922).Marwa v. R [1959] E.A. (C.A.) 23).R. v. Musomi 2 E.A 9124).R. v. Yafesi & Others [1948] E.A. 7125).R v. Ahluwalia [1992] 4 ALL ER 889, CA26).Salimu Majala v. Republic E.A.C.A CRIMINAL APPEAL 5 DSM 75 1977 LRT N.5327).Rex v. Anton s/o Aloise 16 E.A.C.A. 156 28).Rex v. Fabiano & Others [1941] E.A.C.A 9629).Rashidi v. Republic.[1971] E.A.11230).Mancini v. D.P.P [1941] 3 KB ALL ER 272, HL 31).D.P.P. v. Camplin [1978] 2 ALL ER 168, HL32) R v. Newell (1980) 71 Cr App Rep 331’ Court of Appeal, Criminal Division33)McGregor [1962] NZLR 1069.34).R v. Leseru Wandera s/o Wandera [1948] 15 E.A.C.A 10535).Edwards v. R [1973] A.C. 648 which decision was upheld in R V. Johnson (1989) 89 Cr.      App. Rep 148, Court of Criminal Appeal, Criminal Division36) A. Samuel’s Provocation [1978] 94. L.Q.R. 1937). Wallace Johnson v. The King (1940) 1 A.E.R.