We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 07 October 2011
Does the belief in witchcraft avail to an accused person the defence of provocation, and if so, under what circumstances? There is a long line of authorities … to illustrate the vexing nature of the issue both pre- and post the colonial era.
Witchcraft and (Postcolonial) Provocation
On a summer night in Malindi District, Patrick Tuva Mwanengu crept into the home of his kinsmen and hacked to death his uncle, Gona Mwanengu Gona, as Gona slept among members of the family. In the murder trial that followed, the question of witchcraft initially arose on cross-examination as prosecution witnesses testified that they were familiar with allegations that the deceased had practiced witchcraft. The defense counsel subsequently argued that accused’s belief in the witchcraft of the deceased constituted legally mitigating provocation.
In taking up witchcraft and provocation, the trial judge’s directions to the assessors offered startlingly contradictory advice. The judge first offered a straightforward explanation of provocation, emphasizing the elements of proximity and immediacy necessary to establish the legally mitigating condition. In contrast, his directions concerning witchcraft broke with convention. The judge wrote,
Belief in witchcraft is widespread among many communities in Africa. The belief can be deeply entrenched in the believer, who, convinced that the woes in his family are caused by the wizard or witch, will strike the latter without reflection. So that in considering the defence of provocation you must see the wide picture surrounding the claim. The cumulative effect of events culminating with the final blow.
This direction proffered an avenue to treat the (alleged) witchcraft of the deceased as legally mitigating provocation without the necessary conditions of immediacy and proximity being attached.
To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Find out more about the Kindle Personal Document Service.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.
