CHREAA is a Malawi-based human rights NGO providing free paralegal services. Recently, one of their interns completed a study into witchcraft in Malawi. They have shared their comprehensive report with ASH. ASH intends to work together with CHREAA to eliminate the evil of witchcraft convictions in Malawi.

The full report is detailed below:

Report

Introduction

Submitting in response to proposals to reform the current law relating to witchcraft
Outline CHREAA
Report shall address public calls for the government to criminalize the practice of witchcraft and conduct a thorough review on the current law relating to witchcraft
Full-scale review of the Act launched in 2009, been a dramatic increase in criminal cases involving allegations of witchcraft
Outline argument:

Highly unadvisable to create statutory offence criminalizing witchcraft
Simply exacerbate some of the current defects in the law
The statute as it is, on an abstract level intends to protect the vulnerable being accused of witchcraft and therefore, on such an abstract level, should remain.
However, there are substantial defects in the execution of the current law which raise fundamental questions about the criminal justice system in Malawi

The Witchcraft Act

Law encoded in the Witchcraft Act enacted in 1911
Pre-independence statute originating from the colonial era
Is silent as to the validity of witchcraft
Does not formally recognise the existence of witchcraft
It is premised on the assumption that witchcraft does not exist
The law instead criminalizes a number of acts relating to the belief in witchcraft
Criminalizes holding of trials by ordeal section 2-3, accusing section 4, employing a witchfinder section 5
Pretending to be a witch section 6
Using charms section 9

97 year old legislation – outdated requires serious reconsideration
Despite being very old legislation, general problems and beliefs in witchcraft remain the same

To recognise witchcraft as a statutory offence would lead to erroneous and unjust conviction
To progress, develop and overcome poverty, hardship, Malawi must modernise and ground itself in reason and logic, not traditional beliefs and superstition
Case for not criminalizing rests on science, reason, the rule of law and logic, whilst the case for criminalisation rests on tradition, culture and superstition
Superstition is detrimental to development and progression

“It is because of this adverse effect of witchcraft that beliefs in mythical witchcraft must be eradicated before they eradicate national development efforts. This is why countries which hold strongly to beliefs in witchcraft are poor, starving and generally illiterate.”

“The perception of the belief in witchcraft among African peoples severely undermines belief in the logical and linear progression of societies from traditional to modern

Belief in witchcraft

“Malawi society continues to battle with the vice which is dehumanising people across the country.”

Belief in strong and powerful
Have some exerts from the newspapers
Ben submitted that ‘Persons living in a traditional African community have a view of the world, which is pre-scientific’
Scriptures in the bible point to the existence of witchcraft in society

Chichiri 23/11/10 – accredited/justified own belief in the fact that witchcraft was included in the Bible
Religion plays such a strong role in Malawian society
Use examples from the law reform article

CCPS – ‘overwhelming prevalence of belief in witchcraft across Malawi’
Georgetown LJ – in colonial times witchcraft was thought ot be the outstanding problem of the lawgiver in Africa

Today it remains central to statecraft

“Fear of the occult has surprisingly to many, has only intensified during the transition to democracy” NB: relates to South Africa – not that relevant
“A large majority of the citizenry believes in witchcraft”
Since conducting research, it is not an exaggeration to state that the majority believe
UNICEF report – “far from fading away these social and cultural representations have been maintained, transformed and adapted, according to contemporary realities and needs”
Gets a significant amount of public exposure
All social ills are blamed on witchcraft – seen as the main cause
“Witchcraft transcends local and national culture and is part of daily like in all social settings and in all locations” – Tanzania paper
Include the Chigaru witchcraft saga here – from the Nation newspaper
Belief is manifest throughout the world and is particularly prevalent in Africa
Include views from religious groups/the law reform article
All believe – regardless of background, family and education
Law must reconcile such strongly held beliefs with its duty to protect individuals from harm

Balance the need to protect citizens with respecting and acknowledging cultural beliefs
Fine line to tread
Such a complex equation – the government must draw on other mechanisms and techniques to aid them in this reconciliation

Mass sensitisation
Training
Education
Mental illness

“It is held in all African societies that there is power in the universe… It is a mystical power, in the sense that it is hidden and mysterious. This power is available to spirits and certain human beings… When it is used harmfully, it is regarded as evil magic, witchcraft or sorcery; and it may also be used in curses. The ordinary people do not know much about this mystical power.” – Mbiti Introduction to African Religion, Heinemann, Oxford, 1975, p.41-45

Journals - Kalilombe, P.A., “An Outline of Chewa Traditional Religion”, in Africa Theological Journal 9 (1980), no.2, pp39-51; MG Marwick, Sorcery in its social setting, (Manchester: University Press, 1965), p.72; Van Beugel, J.W.M. Chewa Traditional Religion, Blantyre: Montfort Media Press/CLAIM, (2001); Bande, L.C.P, “Social and Constitutional Dimensions of the Offences in Sections 4 and 6 of the Witchcraft Act” (2003), p.12.

Seems that in Malawi, despite relative penetration of western scientific reasoning and education, fear of witchcraft still permeates all avenues of society.

Estimated that nearly 100% of Chewa people believe in witchcraft - - Kalilombe, P.A., “An Outline of Chewa Traditional Religion
Other tribes seems on a similar scale

Common beliefs in witchcraft include:

Giving birth to a stone
Flying on a broom, a spoon or a basin
Chopping heads off
Vaginas disappearing
Going to graveyards
Eating meat
Falling out an airplane in the sky
Turning into animals
It seems that all events which people don’t understand are explained by witchcraft including illness, death, success, wealth, poverty

Stats for Malawi

According to the research undertaken by ASH
53 people currently convicted and on remand for practicing and pretending witchcraft and conduct bordering on witchcraft.
35 are female, 15 are male, and the sex of the remaining is unknown.
Majority of these are convicted, only 3 on remand

Witchcraft retarding growth – acting as a social mechanism

“Many states in the Global South are failing precisely because of the illiberal inheritance of colonialism, which has engendered oppressive, demagogic orders, riddled with corruption which deprives local people of the very means to engage in consumerism”
See “Modernity through the eyes of witchcraft” – Selina H Stenberg
It is within this context that witchcraft comes to articulate a significant critique of the internal contradictions of modernity
Traditionally, witchcraft has been seen as a leveling mechanism preventing social inequalities from developing beyond community control
Many African people believe that there is another dimension of reality – the spiritual

The belief is a form of social control as the ancestors were believed to demand social harmony in order to continue to protect, and bring good fortune on the community

Traditionally, each member of society, through witchcraft narratives accepted implicitly that departure from socially approved norms was likely to incur the displeasure and vengeance of ancestors

Offiong – “the belief in ancestor spirits, the political importance of the elders and their crucial role as the intermediaries between the ancestors and the living, and the belief in the supernatural powers of oath promote conflict resolution and social control in general.”

Case Studies

Lester Sawerengera

Lester Sawerengera is a 40 year old man who was arrested by the police on the 9^th August 2010. On the 12^th August he was charged with conducting himself in a manner that was likely to cause a breach of the peace under section 181 of the Penal Code. It was submitted that during the month of July 2010 at Jolyi village in Chiradzulu district the accused conducted himself in a manner likely to cause a breach of peace by teaching children witchcraft. Having denied the charge brought against him, the charge was altered to the offence of pretending to be a witch contrary to section 6 of the Witchcraft Act 1911. Again, Mr Sawerengera denied the charges brought against him and at no point admitted fault or accepted blame.

Having witnessed the charge sheet with which the accused was presented and signed denying all accusations the offence under which he was being charged with was “practising witchcraft”. Under Malawian law, this is not an offence. ???

Following a family dispute the convicted’s elder brother, sister and niece accused him of teaching his niece’s children witchcraft. The accusations levelled against him were that Mr Sawerengera would come through a corner and take the child and that they would then board a spoon when leaving for the graveyard where he would give the child meat to eat. Mr Sawerengera was also accused of transforming into a lion, and turning the child and his father into hyenas. It was also stated that he put things in his sisters body to make her sick as if she had diabetes and told the child to kill his own mother.

Mr Sawerengera explained that a previous family dispute was the sole reason for his eldest brother plotting against him with other members of his family. His story is as follows: Maynard, his elder brother owns a successful funeral company. Lester’s two younger sisters became sick/mad and they used to walk naked and see people who told them to go to the graveyards.

His sisters were taken to a witchdoctor who gave them medicine in a porridge and they were cured as a result of this. Maynard’s business began to do badly and therefore he believed that the reason for his success was the illness of his siblings. He wanted to take the children to the witchdoctor to make them sick again because he believed his company’s failing was the improved health of his sisters. Mr Sawerengera told his father not to let them return to the witchdoctor and therefore Maynard became increasingly angry and went to his other siblings to plot against him.

Mr Sawerengera was taken to trail on the 20^th September 2010 in Chirazu magistrates court before the judge Nelson Maleka.

The defendants elder brother (PW1), his elder sister (PW2), his 10 year old niece (PW3) and the police officer who initially dealt with the complaints (PW4) were all used as witnesses by the prosecution. PW1 testified and stated that in 2005 he was told by his nephew that the accused was teaching him witchcraft. He stated that “my complaint is that the accused should not teach my nephew witchcraft because they are disturbing him at school.” He also argued that a child never lies. The mother testified that the child had accused Mr Sawerengera of teaching him witchcraft. She also stated that her son was under performing at school, was often tired and had restarted wetting the bed, all of which she believed indicated that Mr. Sawerengera had indeed been teaching her witchcraft. She also said that she had begun to feel as though she had diabetes and that he had been the cause of this, despite the fact she went for a test and it had come back negative.

A voire dire was executed on the child and his statement contained the following: “He teached me witchcraft. The accused used to come at night to take me to a graveyard where he could give me meat so I could eat. We were boarding a spoon. Nobody has forced me to tell lies. He turned into a lion while me and my father turned into a hyena. He told me to kill my mother.”

Mr Sawerengera brought his younger brother as a witness who testified that PW1 had approached him and the other family members to fabricate that Mr Sawerengera had been teaching the boy witchcraft.

Sentencing

“It was the view of the framers of this Act that this offence is a felony hence the imposition of such a high penalty. It is the duty of the sentencing courts to impose meaningful sentence which should act as a warning to other would be offender.”

It is appreciated within the judgment that Mr Sawerengera denied the allegations at the police stations at which stage he implicated that the child was simply being used in relation to the family issue in Luchenza. He also argued that PW1 could not disagree with PW2 because he is paying school fees for her child.

DW3 – Chimwemwe stated that PW2 told him that for PW1’s family to be peace, there was a way he wanted to do by telling the child to claim that his father was teaching him witchcraft and that given an egg which he should put in the mothers stomach so she might die. Stated that it was not the first time for the child to accuse someone to be a wizard.

On DW3 – DW3 stated that this happened in 2009 and the question that is exercising my mind is “What made this witness to wait for such a long time before he revealed what the PW2 had done.” I know that DW3 has decided to say this because he is not in good terms with PW2 and it is my opinion that his evidence lacks credibility because he knew what he has claimed that PW2 did was an offence and keeping quiet all this time it means that he had also committed an offence by omission.

Dismissed DW3’s evidence

His failure to alert the police that PW2 was giving them false information when he implicated PW1’s husband has compelled me not to believe his evidence.

For section 6 to be successful it must be established that, as per Republic v Lydia Nyamanda Tchuwa criminal case no 90 of 2004

“First there must be some statements made by the offender, or there must be some actions demonstrated by the offender, and in these statements or actions the offender must represent himself to be a witch or a wizard. If this is done the person is liable for the offence.

Secondly, another scenario is where the suspect represents himself as having the power of witchcraft. Here the person is also liable. Thirdly the suspect must claim to have the power of exercising witchcraft that person may also be liable.”

According to evidence adduced by the prosecution, it has been stated that the accused was teaching PW3 witchcraft and he was actually taking him to a graveyard where they were eating meat. In defence the accused and witnesses failed to rebut the prosecutions allegations by giving irrelevant evidence.

The accused also stated that the prosecutions evidence is based on hearsay. I would like to make myself clear here that for a piece of evidence to be described as hearsay it must be the testimony of a witness other than the person who saw or heard a fact which could be seen or heard. In the present case, the evidence of PW1, PW2, PW3 and PW4 can not be described as hearsay evidence.

I therefore make a finding that the accused acted by representing himself to be a wizard when he taught PW3 witchcraft. I also find that the prosecution has proved the case against the accused beyond reasonable doubt, therefore find him guilty as charged and convict him for 24 months.

Points to be made about this case:

Hearsay
Uncertainty
The wrong charge
Lack of evidence
Dismissing evidence in parts but not in others
Using a childs word as true
Wrong use of the section
Despite being able to state what is required for a conviction under this section, complete inability to implement this

Lester Sawerengera who is a widow with 4 children the youngest of which is 2 who have no carer other than the church since he has been taken to prison. When asked to comment on his situation he stated “there was no justice on my conviction.”

Michael Kamwemdo – confirmation case no 451/2010

On the 13^th March 2010 it was alleged that Michael Kamwemdo sexually assaulted Effie Sitolo whilst aboard a minibus. It was alleged that the accused raped the respondent through magic. The allegations levelled against him were based upon Ms Sitolo stating that she had feelings as though she was having sex, that she was wet as a result and that the accused put his penis on her lap and was seen to be releasing semen.

Having voluntarily gone to the police station, both Mr Kamwemdo and Ms Sitolo were sent to Queen Elizabeth Hospital where they were examined. The accused was examined and it was found that there was semen at the end of his penis. Ms Sitolo also underwent an examination which showed that there was nothing which indicated that she had been involved in any recent sexual activity.

The Judgment:

“Having gone through the evidences the court has seen that this offence was committed by the suspect he indeed did have sexual intercourse with the girl through magic even at the hospital after the suspect was examines semen was seen on the front of his penis.

The girl strongly stated also from the suspects penis on her thigh and even saw him putting his penis in the trouser and the zip was open. Therefore the court can not so anything other than to find him guilty of the offence and I convict him accordingly.”

Later he was brought to police where the girl was told to explain and they all given medical report to hospital where it was confirmed that she was raped through magic.

However, the conclusion on the medical report which I have witnesses stated that “according to my examination there is no evidence of recent sexual activity.”

Following the trial in which Ms Sitolo, her husband and a police officer were used as witnesses, Mr. Kamwemdo was convicted of sexual assault under the Malawian penal code and received a custodial sentence of 5 years.

During an interview Mr. Kamwemdo stated that he never put his penis on her thigh and no one else saw it – it was simply her word against his with a lack of corroborating evidence. He stated that he was convicted simply of a belief in magic and that there was no evidence used against him in court.

Prosecuting for offences using witchcraft
Lack of evidence

Henderson Chiosela, Pirirani Mangochi and Junior

Isaac the younger brother of the third accused in this case fell sick. Despite being taken to hospital and being treated for malaria his condition did not improve. The state of his health was then blamed on his brother who allegedly hit his brother on the head with a hammer using magic. There was no evidence of a hammer or evidence of any harm caused to Isaac. Despite this, the 11 year old boy Junior admitted to using a magic hammer to inflict illness on his younger brother. In the magistrates judgment it is stated that ‘admission makes him find that he represents himself to be a wizard.’

He also accused Pirirani of giving him the hammer. It was stated that using the hammer Isaac’s voice was removed and that Henderson was keeping it.

Junior stated that he had obtained the ‘magic’ hammer from Pirirani the second accused in this case who had told him to use it against Isaac, who in turn had received the hammer from Henderson McFerson, the first accused who then hid the hammer after Junior had used it against Isaac. Despite there being no evidence of the use or existence of a hammer all 3 of the accused were convicted under section 6 of the Witchcraft Act for 12 months. Junior was ordered to Mpemba young reformatory centre for 12 months.

The magistrate in his judgment stated that due to the length of imprisonment sanctioned by the statute against the offence of pretending to be a witch this ‘shows that the court regard it as serious.’ He stated that such an offence causes public alarm and therefore justifies a harsh sentencing. ‘It would be an affront to justice to pass a sentence that is not custodial.’

Judgment – at the magistrates

Because Henderson asked PW2 how it could have been possible for a child not to die after being hit by a hammer. I find this type of questioning and explanation by Henderson to be a representation of himself to be a wizard. The first accused wondered how he could kill someone who was not his relative. In other words he could only kill someone who was his relative. The first accused thus represents himself to be a wizard. I find him guilty.

A lot of emphasis was placed on the testimony from Junior.

Appeal in the High Court

Clear that accused were charged with the wrong offence, one which is not under section 6. Also it is trite law that the offence of practising witchcraft as particularised on the charge sheet does not exist in the Witchcraft Act.
Conviction was therefore defective as convicts were called upon to defend whose particulars do not confer an offence.
Was not charged with representing oneself, was charged with practising.
Charge sheet stated “H, P and J exercised power of witchcraft leading to the serious illness of Isaac Kadulina.”
Representing yourself to be a witch and practising are 2 different offences.
The charge sheet did not represent an offence, therefore conviction and plea subsequent upon this are wrong.
Therefore the decision was quashed.
Intensive training required

Roseline Bema

On the 3^rd November 2009, Roseline Bema from Nkwate village T/A Kapeni Blantyre District was arrested at Nkolokoti Township in Blantyre District. She is a 40 year old lady and was granted bail the same day as her arrest. On the 19^th January 2010, she was formally charged at Limbe Magistrates Court where she was charged with practising witchcraft. Having not witnessed the charge sheet it is unclear whether the charge was that of “pretending” or “practising.” However, when pushed on this issue, the alleged was adamant that she entered a plea of “practising witchcraft”. She alleged that the complainant reported to the police that she was teaching their children to practice witchcraft. Following her trial, she was given a 2 year custodial sentence and has been in Chichiri prison since the 19^th January 2010.

In the first week of November Ms Bema’s neighbour alleged that she had been teaching a 12 year old girl to practise witchcraft. The girl’s parents told her that the girl has revealed that she was taking her out at night and teaching her how to practise witchcraft. The complainant took the matter to Limbe police station where she initially denied the offence which was solely based on the young girls evidence. However, following questioning, she subsequently admitted the charges and signed her statement accordingly. Similarly, at court after reading the charge sheet she denied the charge but the magistrate started asking her leading questions which forced her to admit the charge. She stated that she was frightened by the questions which were based on the childs evidence. Having never been in the hands of the police or the courts before and not having any information about the process and having not had access to a lawyer she was scared and thus admitted the charges as a result. She is however, adamant that she never taught this child witchcraft and has never been involved in any witchcraft practices. She also thinks the law as it currently stands leans on confessions without proper evidence and therefore believes that she has been unfairly tried and unfairly kept in prison.

James and Emily Kunje – confirmation case 1/2010

James and Emily Kunje, both aged 80 were arrested on the 19^th October 2009 in Nchalo, Chikwawa district. He was tried the same month under section 6 of the Witchcraft Act 1911. A nearby child became ill and people within the village began accusing him and his wife of being a witch and causing such illness.

During an interview with James Kunje he stated that him and his wife had never been involved in witchcraft and that they were accused because they were old and still of good health and thus targeted.

He stated that he was forced to confess and that they were saying that you were practising witchcraft and have all the information and evidence against them.

He stated “I feel so sorry unto my life, the whole situation was too big to me.”

The judgment

“Emily and James Kunje were arrested on the 19^th October 2009 in Sekeni village in the district of Chikwawa exercising powers of witchcraft by witching Sojiya as a result of this act Sojiya died.”

The charge entered on the plea sheet of both Emily and James Kunje is ‘practising witchcraft’ contrary to section 6 of the Witchcraft Act 1911. This is not an offence under Malawian law.

Caution statement of James Kunje:

He became lame when he was young. The only issue he knows is that there was disagreemet about a land issue at a scheme where the child was saying that we should not sell the land and he said that he will buy maize at K2,000 but of her disease which she suffered from a child (since young) to extent that husband ran away from her. Surprised to hear that it is me and my wife have been bewitching her. I understand the charge but I deny it.

Despite denying the charge at the police station, James Kunje, when pressed by the magistrate, confessed to the charge.

Therefore the trial was relatively simple – no witnesses were brought and it was simply for the judge to make her sentencing.

Caution statement of Emily Kunje

She admitted the charge. She used/put some soil in the stomach of the deceased. Her husband used two wires to tie around the deceased neck using magic.

“These offences are very common nowadays. The 2 accused persons in addition to pretending witchcraft have caused the death of the deceased. They have only breached section 6 of the Witchcraft Act 1911 but also they have breached section 16 of the Constitution which provides for the right to life.

Life is very precious so that no one has the right to deprive anyone of that right. They are a threat to society such that they are to be kept away from society.

The sentence should reflect the lost life. Everyone says the big problem is that it is done in secrecy. No sentence will restore the lost life.

Now have the duty to protect the society if be seen to rise to accusation of be seen to be encouraged with the plight of ordinary citizens for safety.

Both were sentenced to 60 months in prison.

Issues:

Sentencing – being sentenced for a crime other than that convicted for
Lack of evidence
Conviction based on a confession

Wyson Kanjiwa

On the 6^th of January 2009 Wyson Kanjiwa, a 51 year old man was arrested following an accusation from his wife that he was a witch. On the 9^th January he was taken to Nchalo magistrates court where he was charged with pretending to be a witch contrary to section 6 of the Witchcraft Act 1911. He was arrested while drunk and was advised to plead guilty. Since he has never been in the hands of the police before he pleaded guilty. When he first appeared at the magistrates court he pleaded guilty. The trail was postponed until the 12^th when he was again asked to enter a plea and he chose to remain silent, therefore the magistrate used his previous plea in conducting the trial. He was never made aware of what was happening and was unaware of the importance and impact of his plea. The prosecution told him that since he had already pled guilty he would be convicted. He was unable to make himself clear and was unaware that he could change his plea. He was consequently sentenced to 5 years in prison.

Mr. Kanjiwa travelled to Mozambique in order to visit a witchdoctor to get rich. He was given medicine and a piece of clot sewn like a pillow with oil inside. He was instructed to oil himself every morning in order to get rich.

He took the medicine for around 5 months – his wife has aware of his visit to the witchdoctor and the medicine that he was taking. She later claimed at the police station that whilst her and her husband were having sex the wife felt as though a heavy stone was on top of her believing this was witchcraft. She made a complain on this basis.

He believes he is guilty of the charge against him because he did visit a witchdoctor. He did not know that this was breaking the law, he was simply trying to get more money.

Although he has admitted he has not queried circumstances under which the confession was made. He himself never experienced any heaviness during intercourse, although his previous contact with a witchdoctor means he thinks he deserves punishment although he is adamant that he has not harmed anyone.

Egleni Ganet – interviewed, was awaiting a hearing in Limbe court – did not take place whilst I was there. She was definitely released from prison after a trial – not entirely sure what the hearing was for etc

Egleni Ganet was arrested in March 2010 and was granted bail on the 24^th April 2010 but returned to prison after villagers went to the police alleging threatening behaviour by the accused.

Ms. Ganet was accused by her neighbour of beheading her son. The neighbour alleged that Ms Ganet had taken the child to her house, had beheaded him and had then kept his head under her bed. It was alleged that in the spiritual reality the head had been removed.

She believes that a previous quarrel between her late uncle and her neighbour is the reason for such an accusation.

Isaac Boys

A 12 year old boy was arrested and has been sentenced to Mpemba under section 6 of the Witchcraft Act. Tried at Soche Child Justice Court

Tricky situation – he had no family, and the villagers didn’t want him to return. Was deemed unsafe for him to return back home. The police were unsure of how to deal with him – the reformatory centre was used as there was no where else for the child to go.

Will instruct the paralegals to find out what has happened to him since

Recognising the existence of witchcraft

QUOTE: “Witchcraft presents a problem of justice”

Definitional difficulties

A formal offence of witchcraft would require a formal definition
Very difficult concept to define
Without any evidence of its existence, the practice of witchcraft remains an entirely subjective entity
Incapable of adequately defining within the confines of a statute
Constitutional case in Uganda

Demonstrates difficulty in defining concept
Criticised concept as being vague and ambiguous
Constitutional duty to provide all citizens with the right to a fair trial – could infringe upon this if uncertain/vague

Beliefs and practices surrounding the occult vary considerably, not only within Africa but also within nations. Even beliefs within single communities are not organised into a coherent system
In reality such a term could be deemed unconstitutional (?)
On basic conceptual and abstract level, the term “witchcraft” is too subjective/misunderstood/all-encompassing a term to ever achieve a workable and transparent definition

NB: the importance of secrecy within an understanding of witchcraft. When one challenges belief in witchcraft, the answer is often because it is secret; this doesn’t waiver their belief simply justifies a lack of evidence

Impossible for the law to prosecute on the basis of a secret practice; by its very nature it is impossible to prove

“A witch is someone who secretly uses supernatural power for the purpose of harming others”
NB – Geschiere – “by definition witchcraft is practised in secret” – Peter Geschiere “The modernity of Witchcraft: Politics and the occult in Postcolonial Africa” 22, 1997
Ralushai et al – “The most vexing problem surrounding witchcraft is that the activities of a witch cannot be witnessed by naked eyes.” – Report of the Commission of Inquiry into Witchcraft violence and ritual murders in the Northern Province of the Republic of SA, 1996

EVIDENCE/CAUSATION

The primary and strongest argument opposing the formal recognition of witchcraft as a crime is that the court will inevitably encounter insurmountable evidential difficulties when establishing causation
It is trite law that you cannot prosecute on accusations alone
Law states that you must prove beyond reasonable doubt in order to convict someone

Find section
Find quote from Malawian case law

Kamwambe J in Binzi Ninku and Loza Ninku v R Criminal Appeal No. 28 of 2007

The fact that the Witchcraft Act would not recognise the existence of witchcraft “is in keeping with the need to maintain social order since evidence of witchcraft would not lie in the ordinary world but in the unnatural world to which we do not belong despite the fact that we may be victims of the same at one time if not actual practitioners ourselves.”

Law Commission itself admits that there would be a “taxing issue of evidence”
Justice Chikopa in The Republic v Cuthbert Hara

In the constitutional dispensation section 42 (2) (f) (ii) obliges those charging accused persons to inform them of the charges against them with sufficient particularity.
“It will also be a sad day for our criminal justice system when we start throwing persons into jail merely because they have an exaggerated view of their physical prowess…”
“Long gone are the days, we are sure, when accused persons had to prove themselves not guilty.”

Put this in response to magistrate response to Lester Sawerengera

Hearsay/circumstantial evidence
Cannot prove something that doesn’t exist
Must mention that fundamental tenet of any criminal justice system is the necessity to provide enough evidence to justify a subsequent custodial sentence
Mention that it is crucial to provide medical report, psychological reports, expert opinions to back up the accusations against these so called witches

Expand lots here
If someone says they flew on a spoon then an aviation expert should be summoned to give his opinion as to whether this is real or not
Essential to question all accusations/allegations

Justice Twea – very difficult to prove

Cant define it and cant prove it

Law Reform article

Evidence is always a problem and can be easily cooked up fact, they claimed that evidence on witchcraft can only be provided by those who also practice it

Traditional Justice?

Some groups have advocated for the restoration of traditional courts to handle matters relating to witchcraft

Interview with Chief Kantimbanya
Justice Group – check name here

It has been argued that the dissolution of the traditional courts has left a lacuna in the legal process with many matters involving customary law or traditional beliefs in conflict with the high court system – witchcraft arguably falls into this category
Shows the difficulty in reconciling traditional beliefs with a western formal legal system – especially apparent in the significant number of cases of homicide which involve some element of witchcraft belief
Having witnessed the strength of belief in witchcraft within the villages, it is the authors view that this would not aid the problem of witchcraft within the criminal justice system
Require more formal rules, not a relaxation
Village chiefs, although significant members of the local community do not have the expertise to conduct criminal trials with the aim of producing fair, certain and just outcomes
Constitution provides that “Parliament may make provision for traditional or local courts presided over by chiefs” – check section

Legislation like this has not been enacted
Even if such courts were reintroduced, their jurisdiction in criminal matters is limited by the constitution to “exclusively to civil cases at customary law and such minor common law and statutory offences as prescribed by an Act of Parliament.”
Thus, to give villages the power to try accused witches would be unconstitutional

NB: chiefs play an important role in this discussion

Often those with witchcraft problems will consult the chiefs first
Also witchcraft belief is most prevalent in the rural villages where the chief remains a highly regarded and important figure in the community.
The training of chiefs

Clinic – both chiefs and their assistants came to find out more information as to what the law actually says in relation to witchcraft – demonstrated an acute lack of understanding in the laws position
Kantimbanya receives 10 accusations of witchcraft a month
He issues a lot of advice which from the clinic it seems to carry lots of weight
Therefore there is a strong case for training the chiefs about the laws position
Sensitisation – how to deal with each situation

ASH REFERENCE DOCUMENTS

Saturday, February 12, 2011

CHREAA WITCHCRAFT REPORT