Provocation As A Defence To Manslaughter

By Amaka Ezeno, MCLArb,

Generally, it is unlawful to kill another person, unless such killing is excused or justified by the law. This means that there are circumstances under which killing will be lawful. However, where it is unlawful, it could amount to either murder or manslaughter. According to Section 317 of the Criminal Code, an unlawful killing which does not amount to murder is manslaughter. Manslaughter can be voluntary or involuntary.

Voluntary manslaughter occurs where a person intentionally kills another, but the offence is reduced to manslaughter because of provocation.

Provocation, when used with reference to an offence of which an assault is an element, includes wrongful act or insult of such 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 a 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 assault the person by whom the act or insult is done or offered. Provocation cannot exculpate a person accused of killing, rather it reduces it from murder to manslaughter. Therefore, for a successful plea of provocation, certain elements must be established.

The first element is that provocation must be such as to cause a reasonable person to lose his self-control. The defence of provocation will fail if an accused machetes another for a mere insult because the provocation is not such that should make a person react that way. However, a slap could suffice. Thus, the test is the effect which the provocation would have on a reasonable person, not the effect it did have on the accused.

A reasonable person is a person in the accused person’s station in life and standard of civilization. In R v. Adekanmi, the court acquitted the accused on the fact that he is an illiterate and primitive peasant, and it is beyond doubt that the passions of such a type are far more readily aroused than those of a civilized and enlightened class.

Secondly, the act which causes death must be done in the heat of passion caused by sudden provocation and before there is time for passion to cool. If between the provocative act and the killing, enough time has elapsed for passion to cool, a plea of provocation will fail. In R v. Green, the accused’s wife having left him went to stay with her mother where she began to accept the advances of another man.

At about 9PM one evening, he visited his mother-in-law and found his wife having intercourse with the new man. He returned home. Around 1a.m, he took a machete and went back where he killed his wife and mother-in-law. He was convicted of murder. Clearly, if he had killed the couple at 9p.m when he first saw them, the plea of provocation would have sufficed, perhaps.

Similarly, provocation by one person is no excuse for killing another person who does not in fact offer any provocation to the accused. See R v. Ebok. Again, the reaction of the accused must bear a reasonable proportion to the provocation offered. In Philips v. R, the court held that the average man reacts to provocation according to its degree.

Finally, it is important to note that the killing must involve assault, and the provocation may be by words or deed. The punishment for manslaughter is life imprisonment.