Provocation is an action or speech that makes someone deliberately angry.
Also refers to actions
or words that incite someone to commit a certain act, often used as a partial defense in case like
manslaughter. Also according to section 202(1) of the penal code chapter 16 revised edition
2022. Defines the term provocation as except as hereinafter stated, any wrongful act or insult of
such a nature as to be likely, when done to ordinary person or in presence of ordinary person to
another person who is under immediate care, or to whom he stand in conjugal, parental, filial or
fraternal relation, or in the relation of master or servant, to deprive him of the 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
Element of provocation
(a) The alleged provocative act, words or conduct must actually be caused by deceased; or
the alleged provocative words or conduct must be such as would cause in reasonable man
a sudden and temporary loss of self-control and the result of which he killed the
deceased.
(b) The accused himself must have been provoked and that the alleged provocative words or
conduct caused a sudden loss of self-control on the part of the accused, during which he
committed the fatal act. This element is proved in the case of Said Hemed V Republic
1987 Tanzania law report (TLR) p117 from this case Said Hemedi, was convicted
murdering his wife, Esta Rajabu. He admitted to attacking her with panga (machete) but
claimed he acted under provocation, alleging he had caught her committing with a former
husband, Zahoro Buge. . The trial court rejected this defense and convicted him of
murder.
Upon appeal, the Court of Appeal of Tanzania considered several key points:
Provocation as a Defense: The court reiterated that if a killing occurs in the heat
of passion caused by sudden provocation, the charge may be reduced from murder
to manslaughter.
Accidental Harm to a Third Party: The court noted that if an individual intends to
assault one person under provocation but accidentally kills another, they may still
be guilty of manslaughter.
Evidence from a Child Witness: The court emphasized that testimony from a child
of tender years should be corroborated to be reliable.
Standard of Proof: In criminal cases, the prosecution must prove the case beyond
reasonable doubt. When the burden shifts to the accused, it is on a balance of
probabilities.
In this case, the appellate court found that the trial judge had not adequately considered the
defense of provocation. Consequently, the conviction was altered from murder to manslaughter.
(c) The defense is not open to a person where there is an element of deliberation or
premeditation, or where cooling time elapsed between the provocation and fatal act, the
alleged provocative words or conduct must have be such as might have provoked a
reasonable man to lose his self-control and do as accused did. In the case of Saidi
Abdallah v. Republic1994 p(204), the appellant, Saidi Abdallah, was convicted of
murdering his fellow worker, Saidi Hassan Mnanila, at Pungutini Village in Kilwa
District. The incident occurred after the appellant persuaded the deceased to accompany
him to a shamba (farm) to collect building poles. Shortly after their departure, witnesses
heard the deceased screaming that Saidi was killing him. A witness observed the
appellant running away, wielding a bill-hook, while the deceased lay dead on the ground.
In his cautioned statement, the appellant confessed to killing the deceased by cutting his
neck with a bill-hook, claiming he suspected the deceased and others had plotted to kill
him. At trial, the appellant denied the confession and claimed he had been attacked by the
deceased but managed to escape. The trial court rejected his defense and convicted him
of murder.
On appeal, the Court of Appeal of Tanzania considered the defense of provocation. The appellant
argued that he should have been convicted of manslaughter, asserting that he acted under
provocation due to his suspicion that the deceased and colleagues planned to kill him. The court
held that the defense of provocation was not applicable, noting that the appellant had lured the
unsuspecting deceased into the forest and killed him, indicating a vengeful intent rather than a
reaction to immediate provocation. The court also stated that people "talking in riddles" was not
provocative enough to lead the appellant to commit the act. Consequently, the appeal was
dismissed, and the conviction for murder was upheld.
Test of provocation
The test of provocation help the court to determine whether the accused person acted in the heat
of passion due to the provocation, and whether this can mitigate their criminal liability. For the
defense of provocation must be tested by the following circumstances;
I. Subjective / Actual test; test examines the mental and emotional state, it requires
evaluating the accused mental state and whether the provocation was sufficient to
trigger an emotional or impulsive reaction. The court must observe if did the accused
loss self-control as result of provocation. As from the case of Republic vs. Samson
David Mwakisoma, court of appeal
II. Objective test; here the nature of provocation is more considered, the gravity of the
insult or wrongful act, the cultural and context in which the provocation occurred.as
in case of Julius Kawela vs. Republic
III. Time factor; provocation must be sudden and immediate, if there is a delay between
the provocation and the killing, it may be seen as the revenge making provocation
inapplicable.
According to our opinion we go against the above assertion provide that “ there is a need of
abolishing the defence of provocation in Tanzania so as to enable people who kill under the so
called heat of passion to be convicted of murder rather than manslaughter”. Because
