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The Award of Blood Money in East African Manslaughter Cases

Published online by Cambridge University Press:  28 July 2009

H. F. Morris
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Extract

In a recent case, reported below,1 the East African Court of Appeal held (SPRY, V.-P. dissenting) that, provided certain conditions were satisfied, compensation in the form of blood money might be awarded under section 176 of the Tanganyika Criminal Procedure Code. SPRY, V.-P., however, was unable to agree “that the award of blood money is authorised by section 176 of the Criminal Procedure Code”.

Type
Articles
Information
Journal of African Law , Volume 18 , Issue 1 , Spring 1974 , pp. 104 - 112
Copyright
Copyright © School of Oriental and African Studies 1974

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References

1 Nyamhanga s/o Mase v. The Republic, pp. 113, [1973] E.A. 376

2 S. 174 (1). Kenya has no corresponding section. It has however another section (as have Tanganyika and Uganda) providing for the award of compensation out of a fine (see pp. 106, and 111, below).

page 105 note 1 Report of the Commission of Inquiry into the Administration of Justice in Kenya, Uganda and Tanganyika Territory in Criminal Matters, Cmd. 4623 (1934), paras. 201–203.

page 105 note 2 R. v. Alfredo Ojala s/o Omecho and R. v. Opusi s/o Ekochu (unreported).

page 105 note 3 Criminal Revisions 44 and 45 of 1935 (unreported); E.S.A., R. 105.

page 106 note 1 Now s. 176.

page 106 note 2 Unreported.

page 106 note 3 The section had been amended and the words “loss or injury” substituted for the word “injury”.

page 106 note 4 Fatal Accidents Act.

page 107 note 1 This represents the prevailing judicial view in East Africa at the time on a question which aroused much controversy: might a magistrate rely upon his personal knowledge of customary law and take judicial notice of it? See Morris, H. F. and Read, James S., Indirect Rule and the Search for Justice, 1972, at pp. 98 and 187–190.Google Scholar

page 108 note 1 N. H. Turton.

page 108 note 2 Turton's minute on R. 105 does not reveal the parties to the case or its number.

page 109 note 1 A division of opinion between the lacustrine Bantu areas and the rest of the country on questions of this sort was not uncommon at this time (cf. the controversy whether African marriage should be governed only by customary laws (subject to registration)—see Morris and Read, op. cit., pp. 246–248). But it is unusual to find Buganda in the same company as the east and north.

page 109 note 2 Letter to Chief Secretary of June 11, 1936.

page 109 note 3 Letter to C.S. of March 5, 1936.

page 110 note 1 Letter of March 30, 1936 from Provincial Commissioner, Northern Province to C.S.

page 110 note 2 Ibid.

page 110 note 3 Letter of Jan. 10, 1936 from P.C. Buganda (A. H. Cox) to C.S.

page 110 note 4 This limitation in respect of legal execution was carried further when the Uganda High Court ruled in 1952 (Okitoi v. Aisu, Revision No. 44 of 1952, unreported) that no blood money was payable in this case since the killer had himself been set upon and killed at the scene of his crime. (Quoted by J. C. D. Lawrance, The lteso, 1957.)

On occasion the Government was prepared to relax its ban on claims where the death penalty was enforced, and when in 1944 the bodies of 12 Sudanese were found in the Madi sub-district of Uganda and a Madi man had been convicted of murder, the Provincial Commissioner sought permission for blood money to be paid. The Governor accordingly gave authority for “the usual blood money established at Shs. 1,250/- in Uganda currency [to be paid] from the Madi Native Authority funds in order to prevent further probable acts of aggression and hostility in revenge along the border”. E.S.A., R. 105.

page 110 note 5 Some district councils in Uganda attempted to control the amount of compensation payable, by council resolution (see Lawrance op. cit., p. 257). In Karamoja district, a committee of the District Council considers and adjudicates upon claims for blood money, in accordance with procedure prescribed by Ministerial regulations and subject to a final appeal to the Administrator: Administration (Karamoja )Act, 1963, and the Restitution of Cattle and Payment of Blood-money (Procedure) Regulations, S.I. 1965 No. 101.

page 111 note 1 Which forms Part III of Local Government Memorandum No. 2, 1953.

page 111 note 2 Now s. 176. The corresponding section in Tanganyika Code is s. 178 and in Kenya Code s. 175.

page 112 note 1 E.g. Selemani v. Republic [1972] E.A. 269; Haining v. Republic [1972] E.A. 133.