THE KADUME’S CASE

The Kadume dispute concerned land. It was a dispute between Kadume –

Makara’s son and Soine – Makara’s half brother. Both Kadume and Soine took
advantage of the inner lineage of Mesuji. They therefore aimed at restoring the
agnatic cooperation established by Mesuji.

Kadume’s mother had separated from Makara ten year before the dispute arose.
She took her son Kadume and went to live in her brother’s home – Kadume’s
uncle. Makara’s life depended on his half-brother – Soine and Soine’s wife. On the
death of Makara, Soine took Makara’s land. Kadume got married and was given
two heads of cattle and three goats from the estate of Makara. Kadume agreed
with Soine that Kadume’s herds would graze at Makara’s paddock. Kadume was
therefore accepted as one of the members of the inner lineage.

One year after the grazing agreement, Kadume claimed possession of all of his
father’s land. Soine refused and a quarrel ensued between them. Soine barred
Kadume altogether from grazing his herds in Soine’s paddock. Kadume went to
the lineage counselor to present his case.

The lineage counselor convened the inner conclave of the inner lineage. Further
quarrels ensued and the inner conclave failed to reconcile the disputants. Some
argued that Kadume has no right over the land because he had not cultivated it.
Some further argued that since the time Kadume’s mother disserted her husband
Makara, Soine had been looking after Kadume and that Kadume had already
acquired land in his uncle’s farm, while Soine had got only a small plot of land.
The lineage counselor decided in favor of Soine. Kadume was aggrieved with the
decision and insisted that the lineage counselor should convene the internal
moot.

At the internal moot Kadume was represented by Kirevi. Kirevi argued that
Kadume was the only son of Makara and because he was now a big man –
olokitok, and had inherited Makara’s animals, he should also inherit the land.
Soine reiterated his former position and advanced the same arguments he had
presented at the conclave of the inner lineage and emphasized that he had
shortage of land, so he should take the disputed land. Kadume cautioned that in
principle “Brothers do not inherit, sons do. That is a custom long ago”. Soine
answered back that “Not always”.

Kirevi then stood up and advanced three principles:

(1) That Soine in refusing to give the land to Kadume was going against
established customs of the ancestors;
(2) That Soine must honour the young generation for they will not honour him
when he is dead, and
(3) That Kadume having came of age should be given full responsibility to look
after his own life.

The arguments met with approval from among the members with a word by the
lineage counselor that sons should honour their elders irrespective of what wrong
the elders do to them. This was further reinforced by Olmal, Kadume’s paternal
cousin, that Kadume should be given responsibilities as a full and grown up
member of the family and that norms should be honoured.

The internal moot finally reached a conclusion after examining all the evidence
and relevant facts and divided the land into two in which both Kadume and Soine
got a share. The internal moot retired for beer in a cordial way and members
congratulated each other for the final settlement of both Makara’s inheritance
matters and the land dispute.

QUESTIONS

i. What procedure led up to the settlement of the dispute in Kadume’s

case?
ii. What things were taken into account in reaching to result or decision?
iii. On what ground did Soine claim the land? On What ground did
Kadume?
iv. What was the end result of the dispute? Did the “litigants” in Kadume’s
Case accept the final result of the dispute because they both were
persuaded that it was a reasonable one, or were they in any way
“forced” to accept it?
DRUMMING THE SCANDAL

The dispute ensued in 1950 between Torgindi of MbaYar and Mtswen of

MbaGishi. Both were of the lineage contained within MbaDuku. Mtswen who was
the secondary marriage guardian of the wife of Torgindi’s son, was accused of
highhanded tactics that caused the marriage to fall through. Mtswen refused to
act as an intermediary to get Torgindi’s bride wealth refunded. Torgindi and
Mtswen therefore exchanged harsh words.

Tongindi went home and sung a song in which he said that Mtswen was a skunk.
During the night, Tongindi drummed and sung a song as loud as he could for the
whole countryside to hear. Mtswen who lived only a quarter a mile away, and did
the same the next night and all the members of the compound and other
compounds of his lineage joined in the chorus.

Mtswen had not made up a song of his own against Torgindi, but was not a good
song maker. He hired the best song maker in Sangev Ya to stay at his place and
compose scurrilous songs about Torgindi and all his kinsmen and wives. Torgindi
inventiveness was also exhausted so he hired a song maker. The two men held
dances and song contests every night. Each brew beer and made food in order to
attract dancers to come to dance and sing songs directed at the other.

There was a specified rule for these songs that:

If an act attributed in such a song was possible of human performance, it

should be true, or the slandered person could call a jir (a kind of
supernatural powers). However, if the act was humanly possible anything
could be said.

For example, in one of Mtswen’s songs he accused one of Torgindi’s wives of

stealing yams. The particular wife mentioned in the song was of the Udem a tribe
of reputed thieves so by local consensus, this was probably true. If not true,
Torgindi and his wife could call a jir against Mtswen and the song maker.
In another song Mtswen told how Orgindi changed himself into a pig at night and
made it unsafe for every sow in the countryside. Torgindi could not actually do
that hence song could not be the basis for a jir.

The Sangev song maker had actually thought of some much worse things to
suggest that it was in Torgindi’s nature to do but Mtswen had stopped him
because what he wanted was to win the contest not to spoil Torgindi’s heart
permanently as they were after all neighbors.

The drumming contest continued every night for more than three weeks before
the Mbatarev (Village leader), one Change took notice. Change decided that if the
contest was allowed to continue as such it will end up into fight for which he
himself would be answerable to the District Officer. Change sent a note to both
Mtswen and Torgindi that they and their people were to come to his compound
the following afternoon, and would sing and drum and he, Change as a Mbatarev
would decide the case.

Both sides came fully prepared. Torgindi group dragged a large ilyu drum for two
and half miles in order to accompany their songs and dances. Mtswen song maker
and one of his sons hurried across to Udam and brought two small wooden
figurines of the sort Udam people use in divination: a small black male and a large
red painted female. The black represented Torgindi who was small and a very
black man and the red was his wife who was tall, fat and light-colored. These
figurines were tired together at the top of a long pole in a somewhat
compromising position and were waved frantically in accompaniment to all the
songs.

Mbatarev walked back and forth between the two performing groups, noting the
performers and the songs. After two hours he called for attention and said that
they would now hear the jir. Torgindi began his story. The man carrying the two
figurines put them up in the air and waived them. A roar of laughter followed.
Change took the figurines from the offender and put them under his chair until
the hearing was over.
Both parties concurred in the judgment. Mbaterev announced the winner of the
song contest. Torgindi won the case and Mtswen had the better songs. He then
advised both song makers to go home immediately and not to turn to MbaDuku
for a couple of months until the feelings which had been aroused had died down.

QUESTION

What considerations made the two disputants quite keen to arrive at a

compromise?
REX V. PALAMBA S/O FUNDIKIRA 14 E.A.C.A, 96, (Tanganyika, 1947)

This was a trial by ordeal to discover who by witchcraft caused the death of the
eleven children of the first appellant in this case. The two appellants were jointly
charged in the High court of Tanganyika at Kigoma and were found guilty of the
murder of a woman, one Wamulunda d/o Kulyungumba, the senior wife of the
first appellant.

The two appellants went to a traditional medicine man (jujuman), a six hour
journey, to get certain traditional medicine called by the witness “MWAVI”. The
traditional medicine man had since died. The MWAVI is a medicine (mitishamba)
used by witches. If a person takes it and he has done something wrong, he will
die, whereas if a person takes it and he or she has not done anything wrong, he or
she does not die, but only vomits.

Four women of the family of the appellant were compelled to take this
“medicine” and to swallow large quantities of water. A certain amount of
formality was being observed during the swallowing, with the first appellant
presiding with a gun and intimating that anyone refusing to take the “medicine”
would be shot. Of the four women who took the “medicine”, two vomited and
survived, the two older women did not vomit and they died. All four women were
in good health before the administration of the “MWAVI”.

The body of Wamulanda to whom the murder charge relates was apparently
burnt after death so no post-mortem examination could be made to ascertain
significantly whether she had died as a result of taking MWAVI or not. Except that
MWAVI was administered to each woman by mouth in powder form on thknife;
there were no evidence al all as what would constitute a fital dose of MWAVI, so
no proper proof that the woman died as a result of the dose of MWAVI given to
her. Even on hearsay evidence MWAVI according to local lore of itself is not a
fetal poison – it requires, in order to be fetal, an additional element, namely the
guilt of the person taking it, that is, guilt of witchcraft.

So far as the court was concerned, Wamlunda was innocent of witchcraft for it
{witchcraft) does not exist. On the basis, the first appellant ex-hypothesis,
believed that the administration of MWAVI to a person innocent of witchcraft
would not cause death hence this negativated his malice aforethought as per
section 200 of the Penal Code, for the intent to cause death or the knowledge
that the act will probably cause death were absent. The appeal was allowed and
conviction and sentences were quashed.