Criminal Law - Witchcraft
INTRODUCTION
One dictionary defines the practice of witchcraft as the exercise or invocation of alleged supernatural powers to control people, events and practices typically involving sorcery or magic.[1] Another dictionary defines the practice as the practice of magic, especially for evil purposes, using spells.[2] Zambia’s Witchcraft Act[3] provides a definition for witchcraft albeit a very timid definition, Section 2 defines witchcraft as to
“include the throwing of bones, the use of charms and any other means, process or device adopted in the practice of witchcraft or sorcery.”
While
some may not believe that witchcraft is an actual practice, it is with certainty that the African culture, Zambia’s inclusive, entertains the belief in
the existence and practice of witchcraft, especially in the rural areas. On
that wavelength, the question that this writing shall answer is whether one’s
belief in witchcraft serves as a valid defence against criminal liability? the
author shall discuss this question by analysing four (4) Zambian cases of
witchcraft in order to discuss the current position of the law pertaining to
the subject in issue.
1. MBOMENA
MOOLA v THE PEOPLE [2000] ZMSC 47
The
brief facts were that the appellant, Mbomena Moola, was convicted of murder
and sentenced to death. The appellant held the belief that the deceased
practised witchcraft and that the deceased allegedly murdered his children by
witchcraft. The appellant argued that in an instance that the court found the
conviction justified, the sentence must be reduced in that there were extenuating
circumstances in the case, which then would render the death sentence
inappropriate, the extenuating circumstance being the appellant’s belief that
the deceased was a witch who had killed his children.
The Supreme Court held that the belief in witchcraft though unreasonable is a
prevalent issue in Zambian communities therefore, it must be considered as an
extenuating circumstance in cases of murder. The court cited with approval the
case of Chishimba v The People[4]
where it was stated that;
“This Court has said in many cases that a
belief in witchcraft by many communities in Zambia is very prevalent and must
be held to be an extenuating circumstance.”
Conclusively, the Supreme Court stated as follows
As the killing here was done because of the belief in witchcraft, the learned trial Judge should have taken into account this factor and accepted as an extenuating factor. In this regard therefore, we set aside the death sentence and in its place we impose a sentence of 15 years imprisonment with hard labour…
Essentially, the Supreme Court held that witchcraft is a prevalent and well-known contentious practice in today and past’ society in Zambia, to that end, where the accused’s belief in witchcraft was the motivating factor in causing death to another, such belief must act as an extenuating circumstance that mitigates or reduces the accused’ sentence upon conviction. It can be noticed from the case; that the accused sentence was mitigated from a sentence of death to a sentence of 15 years. Suffice it to mention that an extenuating circumstance is any fact that mitigates one’ criminal liability, capable of reducing one’ sentence upon conviction. Section 200 (2) (a) of the Penal Code (Chapter 87 of the Law of Zambia) defines an extenuating circumstance as any fact associated to the offence which would diminish morally the degree of the convicted person’s guilt.
2. JULIUS
SIBANDA MASOJA V THE PEOPLE [2006] ZMSC 5
The
brief facts were that the appellant was convicted for manslaughter and
sentenced to 35 years imprisonment. The evidence tendered and accepted by the
court below was that the appellant caused the death of the deceased because the
deceased was responsible of the murder of one Sam by witchcraft, the appellant
did not object to the conviction but the sentence only, arguing that the belief
in the deceased practice of witchcraft was justified and constituted an
extenuating circumstance thereby capable of reducing the sentence imposed
against him.
The
question that the Supreme Court was invited to answer was whether the belief in
witchcraft is considered as an extenuating circumstance in cases of
manslaughter. The Supreme Court held that
“We do not agree that in
a case of manslaughter, like this one, belief in witchcraft can amount to
extenuating circumstances. We know of no authority to support this preposition.
We, therefore, agree with the submission by the learned, Director of Public
Prosecution that belief in witchcraft is not an extenuating circumstance.”
Essentially,
the Supreme Court provided legal clarity by holding that the defence of a
belief in witchcraft as an extenuating circumstance only applies to cases of
murder. In Casu, the appellant was charged
with manslaughter therefore, even though the appellant might have held a
genuine belief in witchcraft, it could not constitute an extenuating
circumstance. However, the appellant’s sentence was reduced to 20 years
imprisonment on account only that he was a first offender.
3. NELSON
BWALYA v THE PEOPLE [2010] ZMSC 13
the
appellant was convicted of murder and given a 40-year sentence of imprisonment.
The evidence tendered before the court by one of the prosecution witnesses that
the appellant murdered the deceased because he believed the deceased had
bewitched his wife owing to the fact that the appellant expressly told the witness
that the deceased bewitched his wife after he and his wife sought assistance
from the deceased to help the wife bear children. However, the appellant denied
killing the deceased and also denied holding the belief that the deceased
practised witchcraft and was indeed a wizard.
The
High Court rejected the appellant’s evidence and brunt denials convicted the
appellant of murder and imposed the death sentence. The court stated that
because the appellant denied holding the belief of witchcraft, the court could
not consider whether witchcraft could amount to an extenuating circumstance to
thus reduce their sentence. On appeal, the Supreme Court altered the decision of
the High Court, stated on page [16] as follows:
“There was ample evidence in the instant case that the killing of the deceased was done because the Appellant believed that the deceased killed his wife through witchcraft. Thus^ the trial Judge, having dismissed the evidence of the Appellant in defence, remained only with the evidence of the prosecution, which evidence clearly established extenuating circumstances. This factor should have been taken into account in sentencing the Appellant.”
It
further held:
“For the foregoing reason, we set aside the death sentence; and in its place we impose a sentence of 15 years Imprisonment with Hard Labour…”
Essentially,
the Supreme Court held that the High Court having rejected the appellant's
evidence that he did not hold the belief that the deceased practised witchcraft
as the prosecution alleged, was only left to rely on the evidence by the
prosecution which alleged that the appellants killed the deceased because of
the belief that the deceased bewitched his wife. Basically, the Supreme Court
mentioned that the only evidence that was accepted and which remained
uncontested by the High Court was that of the prosecution which alleged that the
appellant believed in the deceased' practice of witchcraft. Therefore, the court
should have considered the appellant’s belief in the deceased’s wizardry as an
extenuating circumstance in sentencing the appellant. The
High Court did not consider the appellant’s belief in witchcraft as seen by the
fact that the appellant was given the ultimate sentence, the death penalty.
It
is for the foregoing reason that the Supreme Court replaced the death sentence
with 15 years imprisonment, the court found that the appellant’ belief in the
deceased' wizardly instigated his killing of the deceased therefore, that
amounted to an extenuating circumstance thus reducing his sentence.
However,
there is much to critique about all of the three (3) cases discussed thus far,
more especially Mbomena Moola v The People
(supra) and Nelson Bwalya v The People (supra). The Supreme Court in both
cases seemed to have entertained mere suspicion of witchcraft or put otherwise,
it seems to suffice where an accused simply says they murdered the deceased
because they believed the deceased was a witch/wizard. The court did not make
reference to any specific facts in the specific case that supported the
accused’ assertion of a belief in witchcraft.
The question that the author asks is; will it be adequate for anyone who
stands as an accused in a murder charge to simply say ‘I murdered the deceased
because I believe in witchcraft and the deceased practised witchcraft,’ will
that than amount to an extenuating circumstance? Will murderers have their sentences reduced
substantially for simply electing to raise the defence of a belief in
witchcraft?
To
oust these concerns raised by the author, the Supreme Court in 2017 delivered a landmark judgment that tightens the law to this regard. The case is
discussed below.
4. ABEDINEGAL
KAPESHA AND BEST KANYAKULA v THE PEOPLE [2017] ZMSC 94
The
genesis of the case lies in the death of one Winne Kabinga who, as the evidence
showed, died after consuming a sizeable quantity of kachasu and there was evidence that Kabinga complained of stomach
pains prior to his demise. However, despite this fact, the death of Kabinga
invited suspicion of witchcraft. On the day of the burial, some of the villagers prepared
some concoction or African charm, called in Kikaonde
as mumone. It is believed that if
mumone is properly smeared on the
coffin in which the dead body is laid, it will cause the coffin to assume
supernatural powers such that it will fly and lead the people to the person who
killed the deceased by witchcraft. Both
the appellants and the prosecution’s witnesses testified that it was the exact
same thing that had happened on the day of the burial of Kabinga. The coffin
led the villagers to the houses of Pardon Munanga and Edson Masonde (herein the
deceased) who were then assaulted and burnt to death. The appellants were charged
with the deceased’s murder.
The
High Court convicted the appellants of murder and sentenced them to life
imprisonment. The High Court Judge found that the appellants’ belief in the
deceased’s witchcraft was an extenuating circumstance which mitigated their
sentences from the death penalty to a life sentence. On appeal, the Supreme
Court delivered a beautiful judgement as per J.S Mumba Malila SC (as he was
then).
The
Supreme Court took cognisance of the fact that a belief in witchcraft is
something that cannot be divorced from in our societies. Almost everyone
believes that witchcraft exists and it would be unintelligent to pretend that
it does not. The consequences that befall people who are believed to be
witches/wizards are severe and mostly lead to their deaths. It was stated on
page [31] as follows:
“It is undeniable that a belief in witchcraft has been deeply entrenched in the Zambian psyche. Perceived witches have in many of our communities been treated with untold mob violence and rough justice.”
However,
the problem with entertaining the belief in witchcraft is that a mere accusation
of witchcraft is tantamount to being declared a witch/wizard and thus “declared
liable to be killed - with impunity.”
Therefore, the Supreme Court stated that the maximum caution must be
taken by the courts when considering cases to do with witchcraft where the
accused raises it as a defence in mitigation. The Supreme Court guided at page
[39]:
“For a person convicted of murder to state in mitigation that he or she was driven to commit the murder by his or her belief in witchcraft - and particularly that he or she believed that the person killed was involved in witchcraft - is a claim that is hardly open to proof.”
Essentially,
the Supreme Court guided that if the courts allow as an extenuating
circumstance, an accused merely electing to say ‘I believed the deceased who I killed
was a witch/wizard’ it will serve as an easy escape route for most persons facing
murder charges. It is hard to prove a belief held by someone in the absence of
any specific facts to refer to, it is thus difficult to be satisfied that the
accused belief in the deceased's witchcraft was justified and reasonable without
anything logically to support such a belief that the deceased was indeed a
witch/wizard. To curb these trepidations,
the Supreme Court provided a profound threshold that must be met in order for
the belief in witchcraft to suffice as an extenuating circumstance. At page
[42]:
“In our estimation, the plea in murder cases that the deceased had bewitched or threatened to bewitch the accused person, should be rejected unless it is shown on the evidence that the accused person had been put in such fear of immediate danger to his own life that the defence of grave and sudden provocation could easily be available on the facts. In other words, extenuation based on a belief in witchcraft should, as a general rule, be unavailing though it could in exceptional circumstances be considered”
Essentially,
the Supreme Court guided that mere belief in witchcraft will not suffice as an
extenuating circumstance, but rather it must be proved that the accused was
actually under immediate danger threatened by the witchcraft practice of the
deceased resulting in the accused killing the deceased in self-defence, alternatively,
such belief in witchcraft must have reached the threshold of provocation.
This
judgment tightens the law in this regard. It protects innocent people from
being subjected to violent treatment and to the very least death for simply
being accused of witchcraft, it seems to be an injustice to allow a mere
suspicion of someone being a witch/wizard to amount to an extenuating
circumstance thus mitigating an accused sentence.
However,
does this take the law to an extent such that it becomes impossible to prove
beyond a balance of probability that one had reasonable and justified belief in
the deceased’s witchcraft? Does this then tighten the law so much so that it
becomes impossible for the accused to have their sentence mitigated for holding
a belief in witchcraft- which generally speaking, is a belief that almost
everyone in Zambia holds? Well, the author submits that it seems that all the
accused has to do is prove that the deceased whom he killed, acted in a manner
reasonably comparable to acts of witchcraft under circumstances that the
defence of self-defence and/or provocation is justified.
CONCLUSION
Witchcraft
is a practice that is prevalent in today’s society and thus is held as an
extenuating circumstance to the effect that an accused charged with murder will
not serve the ultimate sentence but rather have it mitigated. It moreover, must
be mentioned that Zambia abolished the death penalty as a form of punishment
leaving a lifelong sentence as the ultimate penalty for a murder conviction. On
the same basis, in order to ensure that murderers do not get an easy escape
from the penalty of life sentence by raising the defence of a belief in
witchcraft as an extenuating circumstance, the position of the law now is that
the accused must prove that they had been put in such fear of immediate danger
to their own life that the defence of grave and sudden provocation could easily
be available on the facts, thus killing the deceased in self-defence and/or due
to provocation.
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