The presiding judge in this case, Lucy Mungwari, said she agreed that African communities generally embraced traditional healers and that there was a persistent belief in witchcraft. The ‘witches’ in such matters were seen not benign, however, but were regarded as ‘irredeemably wicked’ by their communities.
Despite the reality of such beliefs, though, the defence of ‘witchcraft-provocation’ cannot be a ‘standalone defence’, said the judge. ‘Provocation’ involved someone acting ‘suddenly as a result of an impulse’.
There would be no premeditation, no time to cool off to weigh one’s options. ‘The accused must have lost self-restraint on the spur of the moment. … Provocation cannot build gradually.’ If an accused was provoked but cooled off, letting the provocation fester, waiting for a chance to strike back at the provocateur, then ‘he waives his right to rely on this defence.’
So how did this apply in the case before Mungwari? It involved a man who brutally attacked his own 87-year-old father, and the father’s 89-year-old sister, inflicting injuries from which they both died.
The accused, Denford Nyamande, said he believed his father and his aunt had bewitched him and had brought him misfortune and illness. In his defence, however, he said that he had had ‘no intention’ of killing his two relatives.
He said a series of misfortunes that befell the family had led to a cleansing ceremony conducted by a prophet. During the course of the ceremony, the ‘prophet’ removed some ‘witchcraft apparatus’ from the father’s homestead that the father ‘confessed’ was his.
The prophet also ‘fingered’ the aunt as a ‘key participant in the black occult’. The prophet warned those at the gathering that she, too, ‘had witchcraft apparatus which required exorcism’. Since then, the accused believed his two relatives dabbled in witchcraft and had caused his own misfortunes.
He had experienced that his father’s occult abilities could be used to relieve him from pain, and so, when he became sick in March 2021, he asked his father to intervene again. This time, however, the father refused and, in the heat of the moment, the accused picked up an axe in the father’s hut and ‘struck him with it until he fell’.
Then he left for his aunt’s home, buying some beer along the way. When he confronted her about his illness, she said she knew nothing about its cause. This incensed the accused, according to his version. He picked up a hoe handle from inside her house and assaulted her with it before leaving her home.
Nyamande pleaded a defence of provocation to the double killing.
The autopsy reports showed the savage injuries inflicted on both the elderly victims. Other evidence came from the local village head where the double deaths occurred. He testified that Nyamande and his brother had a long history of suspecting their father and aunt of witchcraft. Also, both the father and the aunt had asked the village head to help as the accused was threatening them and accused them of using witchcraft.
The village head’s evidence clearly established that Nyamande had a strong belief in witchcraft, said the judge.
But pleading ‘witchcraft provocation’ simply meant an accused was pleading ‘the defence of provocation’. In law, the reason for the provocation was not material and the defence of the accused had to be assessed against the usual requirements where a defence of provocation was claimed.
By its very nature as a defence, provocation had to occur ‘suddenly, as a result of an impulse’, without premeditation and where there was no time to ‘cool off’ and weigh options. When the accused in this case says he was provoked ‘by his father and aunt’s practice of the dark art’, ought the court to accept this as a partial defence and reduce the crime to culpable homicide?
No, said the judge. By 2014, the accused knew, or at least believed, that his two relatives practised witchcraft. Earlier ‘evidence’ of their witchcraft ‘did not provoke him’ and he put it at the back of his mind, allowing the provocation to rankle and waiting for a convenient time ‘to hit back at his tormentors’.
Grisly and macabre
In neither instance when he killed his relatives, had there been ‘any provocation to speak of’. ‘What is instead apparent is the clear premeditation to take revenge … against the two whom he believed were the sources of his misfortunes and pain. Those grisly and macabre episodes come nowhere near satisfying the requirements of provocation.’ Nowhere had he acted like a ‘person who was provoked and acted impulsively’, or showing a loss of self-control.
Instead, he ‘deliberately set out to kill his father’, selected the weapon with which to kill the frail old man and, after hacking him many times with an axe, closed the door behind him, leaving his father to die.
The same happened in relation to his aunt, who lived quite a distance from his father. He even bought a can of beer along the way, ‘presumably to steady his nerves for the heinous job awaiting him ahead.’
After smashing the old woman’s head with a hoe handle, he ‘left her in a pool of blood and walked away … unbothered.’
‘His belief in witchcraft played no part in these chilling murders. [He] wanted his father and aunt out of the way.’ He wasn’t acting out of anger but, was rather, ‘determined to carry out a calculated plot to eliminate them’, said the judge. He had previously told both his relatives ‘of his intention to kill them’.
She said she was convinced that all the detail in the statements of the accused reflected ‘a criminal mind’ rather than an ‘emotionally and psychologically pressured mind’. At the time, he had the capacity to appreciate and understand the wrongfulness of his actions, said the judge, who then formally convicted him guilty of murder.
On mitigation of sentence, she accepted that Nyamande believed his two relatives were bewitching him. His community, including the village head, shared a belief in witchcraft and the court was aware ‘that African communities see and embrace this practice’.
The court was convinced from evidence during the trial, that he acted from a ‘genuine belief that the victim was a witch or wizard’. Nyamande had also asked for forgiveness from his relatives, and believed that the ‘spirits of his father and aunt will forever haunt him’, a contrition that was considered by the court in reaching its conclusion.
But the aggravating circumstances were serious: the ‘callous murders of two defenceless octogenarians’, who were also his blood relatives. ‘The savagery and barbarism of the attack was absolute,’ and they both had painful deaths, said the court.
The judge said she had to consider that this was a multiple murder. The killings were clearly premeditated and planned. Further, the deceased were both elderly. In cases of murder with aggravating circumstances, such as here, the sentence should be death or life imprisonment or a long period in prison.
This case involved three aggravating factors which increased the moral blameworthiness of the accused. In fact, said the judge ‘if it had not been for the significant witchcraft mitigating factor, the accused would have been a suitable candidate’ for the death penalty.
However, balancing the aggravating and mitigating factors led her to conclude that the appropriate sentence for Nyamande was imprisonment for 35 years.
- ‘A matter of justice’, 17 January 2023