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Can one plead provocation as defence for murder?
2008-02-26 09:30:32
By Karegero Karegero
Whereas Criminal law provides for punitive action for offenders of the law it also generously provides enough safeguards that serve as general defence against criminal liability. One possible defence to that effect is provocation.
Under the provisions of section 202 of the Penal Code, Cap.16 Vol.1 of the Revised Laws of Tanzania, provocatiobn is defined inter alia:
‘’.....any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in conjugal, parental, filial or fraternal relation, or in relation of master or servant, to deprive him of power of self control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.``
However, the provisions of section 201 of the Penal Code underlines the requirement and essence of heat of passion caused by sudden provocation.
Under the imputs of this provision where a person kills another person in the heat of passion caused by sudden provocation such person will not be guilty of murder but manslaughter.
The foregoing are crystallised in the celebrated case of R.v.Johali Ismail(1974)L.R.T n.23. The most interesting aspect of this case is that the Court in its holding stated it all with regard to provocation as it laid down requisite ingredients for a succesful defence of provocation to a charge of murder.
These are: The requirement that the provocative act pleaded must be a wrongful act or insult,the provocative act or insult must be of such gravity as would deprive a reasonable man of his power of self control, the killing must be done in the heat of passion and that the means of retaliation adopted must be proportional to the degree of provocation exerted.
But after all is said and done, what is the test for provocation? This is a crucial question in understanding the whole concept of provocation.
The law clearly lays it bear. Under the provisions of section 202 of the Penal Code,the test for provocation is that its reaction is tested against an ordinary person or in the presence of an ordinary person of the community to which the accused belongs; in other words, the test is objective.
This is illustrated in Mpagema s/o Challo v.R(1970)HCD n.70. The material facts in that case briefly point to the fact that the accused was married to Violet with whom they lived together for quite sometime before they quarreled.
Pursuant to the quarrel, Violet went back to her parents and, at that juncture, the accused demanded that the dowry he paid be paid back.
However, while dust had not settled regarding the crucial issue of dowry,the accused met Violet somewhere in the bush, being in the company of her new boyfriend.
He made a wild-goose-chase of the man who escaped into the bush. He then turned to Violet, chased and stabbed her, killing her altogether. He was arrested and arraigned for murder.
The issue before the Court was whether there was provocation at all? The assessors in that case informed the court that the Gogo custom was to the effect that Violet could not go with any man until the demmanded dowry was repaid.
In the circumstances,the Court held that the act of Violet constituted provocation in the community to which the accused belonged. The accused was therefore found guilty of manslaughter.
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