As women’s month comes to a close, take a look at these two decisions illustrating how very differently courts deal with matters of domestic violence. In both cases a woman killed her husband; in both cases the husband had a history of domestic violence towards the wife. One woman was given a year’s probation and ordered to have counselling and therapy during that time. The other woman was sent to jail for 18 years. Obviously, the facts were very different – but so was the attitude of the presiding judges.


“She will undergo counselling and therapy”

R v Mary Muasya

Kenya High Court, Machakos

Judge George Odunga

Judge Odunga commented that the husband in this case was mentally unstable, and that this made the case out of the ordinary. In his judgment on conviction, he said:

Here there was a lethal weapon in the hands of a violent mentally unstable person who had threatened to kill the accused and her children. This taken together with the past conduct of the deceased towards the accused and the children in my view was sufficient to constitute provocation.

The judge considered a number of factors. Despite the husband’s mental instability, the parents of the husband sought the services of a “witch doctor” believing that his behaviour indicated he was destined to become a “witch doctor” himself. He also considered the probation officer’s report and quoted from it:

“According to the report, at the time of the incident, the accused was four months pregnant a condition which could have contributed to her reaction due to hormonal imbalance. She however was remorseful and pleaded for leniency.”

The judge’s conclusion on sentence:

I direct that the accused will be under probation for a period of one year during which period she will undergo counselling and therapy

Read the judgment

Compare this judgment and sentence (above) with that below

“Women suffer extreme levels of violence in our society”

S v Lakela Sweswe

High Court, Bulawayo, Zimbabwe

Judge Martin Makonese

In this case, the wife stabbed the husband and later set his body alight. A police officer, testifying for the state, said he knew the accused because she had previously made reports of domestic violence against her husband.

Judge Makonese said the court could not close its eyes to this background: This murder arises from domestic violence. The (conduct of the accused) must be measured on the basis that she was a victim in the first instance.”

Convicting her of “murder with constructive intent”, Judge Makonese had this to say:

(The) accused was aged 23 years at the time of the offence … an immature young woman … married for less than 3 years. In sentencing the accused person the court shall have particular regard to ‘the battered abused woman syndrome,’ that has been raised by the defence.

In general, women suffer extreme levels of violence and emotional and physical abuse in our society. In this matter, the accused was known by police officers at Hillside police station, for having made previous complaints related to domestic violence against the deceased. For the sake of her children and because her husband was the sole breadwinner she had withdrawn such complaints. 

On the fateful day accused states that she was abused physically and threatened with death by the deceased. She, unfortunately, decided to take matters into her own hands. It is regrettable that a life was needlessly lost. The court does not condone the use of violence in any shape or form. However, the circumstances of this case bring into sharp focus the scourge of domestic violence. In this regard I will refer to the remarks of TSANGA J in the recent case of State v Robert Tevedzai HH-206-18. It is my view, however, that a lengthy prison term is called for. In the result the accused is sentenced to 18 years imprisonment.

Read the judgment

  • Newsletter, Judicial Institute for Africa (Jifa), 28 March 2019