LAW COMMISSION

REVIEW OF THE WITCHCRAFT ACT

ISSUES FOR CONSIDERATION

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Law Commissioner

Malawi Law Commission

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Lilongwe 3

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PAPER I: WITCHCRAFT

  1. 1.INTRODUCTION

In Malawi, there are two main divergent views on the existence of witchcraft. The first is that witchcraft exists while the second is that witchcraft is merely a myth.The law on witchcraft is governed by the Witchcraft Act Cap. 7:02 of the Laws of Malawi (“the Act”). However, this Act has a number of gaps which can be attributed to the fact that it is an alien law and to changes in both local and international law since the enactment of the said Act.[1]The Act is intended to protect Malawians from harmful practices by providing for legal mechanisms through which the dangerous practice would disappear.[2]This has been difficult to achieve due to the ambiguity of the Act. Further, those who subscribe to the view that witchcraft exists contend that the Act does not address the realities in their communities.[3]

The Law Commission received a number of submissions between 23rd October 2006 and 1st November 2008 for the review of the Witchcraft Act form individuals and organizations. In response to this call, a special Law Commission was appointed to assist in the review process.[4]

  1. 2.CURRENT POSITION OF THE LAW

The Act, among other issues, prohibits trials by ordeal, the act of accusing a person of practicing witchcraft and the act of pretending (to practise) witchcraft.[5] The Act does not give guidance on how to prove or disprove supernatural claims since it works on the premise that witchcraft does not exist.[6]The offences under the Act are of absolute or strict liability whereby ill intention is not required to be proved in order to register a conviction; however, the courts have shown leniency in cases where the criminalised act is approved by the culture of an accused person with an exception to the danger which the said act is likely to cause the society.[7]

In the case of Medson Gibson Kachilika vs. Attorney General[8] the plaintiff sought an order that section 6 of the Act be declared unconstitutional and therefore invalid to the extent of its inconsistency with the Constitution.[9] The said provision provides that it is an offence for any person, by his statements or actions, to represent himself to be a wizard or a witch or as having powers to exercise the power of witchcraft. The court held that section 6 is not unconstitutional because the law does not in any way recognize the existence of witchcraft. Justice Kamwambe responded to the above position in the case of BinziNunku and LozaNinku vs. The Republic[10] as follows:

“The short of it all is that the law does not reconsider existence of witchcraft. Therefore it cannot provide for a law against it, it only provides against proclaiming by word or actions its existence. It does not matter how strongly we believe in its existence, the law does not provide for it. This 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. Certainly not in our generation but many to come shall incorporate, may be witchcraft practising into law.”

Internationally, it is observed that the freedom of belief is not an absolute freedom.[11]The Constitution recognizes this right under section 33 which provides that everyone has the right to freedom of conscience, religion, belief and thought, and to academic freedom. This right may be limited in terms of section 44 of the Constitution provided that such limitation is reasonable, recognized by international human rights standards, and necessary in an open and democratic society.[12]Culturally, this practice may be condoned in a specific community. However, allowing it should neither infringe on other people’s rights nor amount to their prosecution.[13]

  1. 3.ISSUES FOR CONSIDERATION
    1. What do you know about witchcraft?
  1. Do you believe in the existence of witchcraft? What are your reasons?
  1. Is witchcraft merely a myth or is it real?
  1. How do you define witchcraft in your community?
  1. How do you identify a witch or a wizard?
  1. What sort of scientific or tangible is required to identify a witch or wizard?
  1. Have there been any cases associated with witchcraft in your area? If yes, what were the cases about?
  1. Have there been any acts associated with witchcraft in your area? If yes, explain?
  1. In your community, do you distinguish between good and bad witchcraft? If yes, what constitutes good and bad witchcraft?
  1. How do you distinguish witchcraft from natural occurrences?
  1. What are the instruments of witchcraft?
  1. What are the benefits of witchcraft? Who benefits from witchcraft?

 

PAPER II: IS SATANISM A FORM OF WITCHCRAFT?

  1. 1.INTRODUCTION

Satanism, among others, involves the symbolic worship of the devil using signs.

There is a belief that witchcraft and Satanism are one and the same. This belief is based on the fact that these practices have similarities such as the use of common symbols, for example, the symbol of a pentagram or five-pointed star.[14] In addition, they both place heavy emphasis on magical rituals.[15] Despite these similarities, witchcraft and Satanism have their own sets of beliefs and practices which are distinct from one another. Witches worship mother earth whilst Satanists worship Satan.[16] Further, witches or wizards offer sacrifices to their deities whilst Satanists offer sacrifices to gain, transfer power or strengthen themselves.[17]

The majority of Malawians view witchcraft and Satanism as beliefs against God. Therefore, they perceive them as a bad practice, belief or religion.

  1. 2.CURRENT POSITION OF THE LAW

Currently, the law provides only for witchcraft offences under the Witchcraft Act, Cap. 7:02 of the Laws of Malawi (“the Act”). However, the law does not make mention of Satanism.

The Constitution of the Republic of Malawi provides for freedom of conscience as follows:

Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.”[18]

The right may be broadly interpreted to mean that a person has a right under the present constitutional order to hold such beliefs and thoughts as he may see fit. This provision may, therefore, impliedly extend such beliefs and thoughts to include Satanism and witchcraft. The fact that the Act predates the Constitution has led to an argument being laid before the High Court in Medson Gibson Kachilika v Attorney General[19]that insists that the provisions that outlaw the belief in the existence of witchcraft and its practice are unconstitutional.[20]In its judgment, however, the Court ruled that the Act is constitutional.

  1. 3.ISSUES
  2. What is Satanism?
  1. Is Satanism a religion? If yes or no, why?
  1. Are witchcraft and Satanism the same? Explain?
  1. What is the relationship between the practice of witchcraft and Satanism?

 

  1. What is the relationship between the practice of witchcraft and religion?
  1. What is the relationship between the practice of Satanism and religion?

 

  1. What are some examples of situations that are considered to be influenced by Satanism and witchcraft in your community?

PAPER III: WITCHCRAFT AND THE CRIMINAL JUSTICE SYSTEM

  1. 1.INTRODUCTION

The criminal justice system is the network of courts and tribunals which deal with criminal law and its enforcement.[21] It is directly involved in apprehending, prosecuting, defending, sentencing and punishing those who are suspected or convicted of criminal offenses. The Witchcraft Act Cap 7:02 of the Laws of Malawi (“the Act”) criminalizes a number of acts that are considered to be acts of witchcraft. Therefore, the criminal justice system has a role to play in making sure that the criminalization is as provided by the law. This is crucial in promoting peace and security in society.

There are, however, questions on whether the law on witchcraft is achieving the aims of the criminal justice system because there are reports of instances in which members of the public took justice into their own hands to handle witchcraft cases. An example is the case that occurred on 26th January 2016 in Chimbalanga Village, Traditional Authority Dambe in Neno, Malawi where four elderly members of a certain family were brutally murdered by members of their community who suspected them of causing the sudden death of a 17 year old girl. The deceased were accused of killing the girl with lightening through witchery and were burnt to death by the public as a way of showing their anger.[22]

The law, further, does not provide clear direction regarding which authorities are better placed or have jurisdiction to handle witchcraft matters and the manner in which they should admit evidence (before the court) in such gatherings. The law does not provide for the specific protection of vulnerable groups (women, children and the elderly) who are usually victimized in matters pertaining to witchcraft.[23] This state of affairs has led to the questioning of the effectiveness of the witchcraft law in Malawi and the justice system as whole, including the Malawian court system.

The law on witchcraft is not being enforced effectively due to factors such as a weak judicial system, lack of legal training of those involved in law enforcement and fear of reprisals either from the community or for protecting an alleged witch.[24]

  1. 2.CURRENT POSITION OF THE LAW

The Act prohibits trials by ordeal[25] and the acts of making accusations against anyone of being a witch or of practicing witchcraft.[26] The Act further prohibits the employment a witch finder to identify the perpetrator of an alleged crime or other act complained of[27] and criminalises pretending to practise witchcraft.[28]

There are serious concerns about witchcraft related legislation not adhering to established principles of criminal law such as a getting a fair trial,[29] unfair denial of liberty,[30] unlawful imprisonment and unsafe convictions. This is contrary to both local and international accepted human rights principles.

The right to a fair trial is an essential component of the rule of law in a democratic nation. The Human Rights Committee stated that:

The right to equality before courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law.[31]

The Criminal Procedure and Evidence Code[32] provides for the procedures to be followed when handling criminal cases and these should be adhered to minimize instances of abuse of process during witchcraft trials.

One of the groups that is greatly affected by witchcraft cases are children. The African Union on Rights of the Child 1999 requires State Parties to guarantee the rights in the Charter to all children without discrimination and to ensure that the best interests of the child are a primary consideration in all matters affecting children.[33]

  1. 3.ISSUES
  1. What should be criminalized between the practice of witchcraft and the pretence of witchcraft? Should both be criminalized?
  1. How does your community deal with witchcraft suspects? What are the Alternative Dispute Resolution mechanisms adopted by your community to deal with witchcraft cases? For non-judicial remedies, what is the competent forum?
  1. Which authorities should have jurisdiction over witchcraft cases?
  1. Which courts should handle matters relating to witchcraft?
  1. How should children who have been charged with the practice of witchcraft be dealt with? Should such child suspects be dealt with in the same manner as other child suspects or should special measures be put in place?
  1. What rules of evidence should be applicable in witchcraft cases? How should evidence be generated and verified?
  1. What offences would occur in the process of cleansing a person of witchcraft?

              

PAPER IV: THE ROLE OF TRADITIONAL LEADERS, TRADITIONAL HEARERS AND RELIGIOUS LEADERS IN MATTERS RELATING TO WITCHCRAFT

 

  1. 1.Introduction

This paper addresses issues in relation to the institutions in which persons who are accused of witchcraft should be placed. It also considers the role of various persons such as traditional healers, traditional leaders and religious leaders in cases of witchcraft.

As the Witchcraft Act (“the Act”) provides, it is an offence to pretend witchcraft and it is an offence to accuse a person of practising witchcraft.[34] These offences are punishable by way of a fine and imprisonment as are most offences created in the Act.[35]Persons convicted of offences under this Act are sentenced to imprisonment for various periods and serve their sentences in prisons such as Dedza Prison and Chikwawa Prison.

There are different groups of people that are involved in instances of witchcraft. In several parts of Malawi, a “witchfinder” (sometimes referred to as a witch-hunter) is employed to identify a witch. Such a witchfinder may be invited to the community by concerned members of a family with the permission of the village headman or by the village headman himself.[36] These witchfinders charge fees for their services and, in some instances, take property belonging to those accused of practising witchcraft. Once a witchfinder identifies persons as witches, such persons may be detained and their property may be taken, damaged or destroyed.

Another aspect to take note of is the role of various leaders in the community. Firstly, traditional leaders, as stated above, play a role in witch-hunting as they invite such persons to their communities.[37]However, it is not all traditional leaders that permit witch-hunting as it is reported that some traditional leaders do not invite nor do they permit witch-hunters to be invited to their communities.[38]

Secondly, religious leaders also play a role in witchcraft cases. There are religious leaders who particularly allege that they do not identify witches. However, some religious leaders have indicated that they do provide counselling to persons who are accused of practicing witchcraft or who accuse others of same. In addition, some religious leaders conduct exorcisms through prayer, especially in instances where the accused is a child.[39]Such religious leaders or institutions also gain financially from providing these services because they charge a fee for each performance.

  1. 2.Current position of the law

Currently, the Act does not make provision for the manner and place in which people convicted under it should be placed. In addition, there is no other piece of legislation that has made any provision on this matter. Therefore, persons who are accused and convicted of witchcraft offences are placed in ordinary prisons as regulated under the Prisons Act.[40]Such prisoners are detained together with other offenders, without any separation.

However, the position with respect to children is different. The Constitution of the Republic of Malawi provides that children should be imprisoned only as a last resort and should be separated from adults when imprisoned unless it is considered to be in his or her best interest not to do so.[41]Further, the Child Care, Protection and Justice Act[42] (“the CCPJ”) provides that children shall be detained in reformatory centres. The CCPJ therefore excludes the option of placing children in prisons and thus children are provided for.

As regards witchfinders, the Act prohibits the employment of a witchfinder and makes it an offence to employ one. Section 5 reads as follows:

“Any person who employs or solicits any other person to name or indicate by the use of any non-natural means any person as the perpetrator of any alleged crime or other act complained of shall be liable to a fine of £25 and to imprisonment for five years.”

Witchfinders are, therefore, considered the same as other offenders and are placed in ordinary prisons upon conviction.

Further, although in practice there are a number of persons involved in handling witchcraft cases there is currently no regulation of such persons.

  1. 3.Issues
    1. What is the role of traditional leaders, traditional healers and religious leaders in instances of witchcraft?
  1. Should an association be established to regulate the conduct and activities of traditional healers?
  1. Should the law regulate religious leaders or institutions? If yes, how?
  1. How should the law regulate the actions of witch finders?

PAPER V: VULNERABLE GROUPS AND VICTIM MANAGEMENT

  1. 1.INTRODUCTION

This paper considers the issue of persons who are vulnerable to be accused of being witches or practising witchcraft and of persons who fall victim to the practise of witchcraft. It is important to understand that it is not only persons who have fallen victim to witchcraft practices that are considered victims but also persons that have been accused of practising witchcraft that may also fall victim to things such as mob justice.

In Malawi, the majority of witchcraft cases or instances are a result of persons being accused by members of their communities. Reported cases indicate that largely elderly women are accused by children of teaching them the practise of witchcraft. This has resulted in a large number of elderly women being victimized by their communities and experience witchcraft based violence. Violence against such persons may take the form of physical violence, usually beatings; economic violence such as their property being burnt; social violence usually in the form of isolation from the rest of the community; or psychological violence such as threats and insults.

One vulnerable group that falls victim to witchcraft practices in Malawi are albinos, especially albino children. Albinos have over the years been targeted by practitioners of witchcraft for their body parts because they are believed to possess magical powers that bring good luck. In order to protect themselves, some albinos have been forced to move from home to home to evade victimization in their communities.

Children who are accused of practising witchcraft may also be subjected to violence but it appears that they are treated more leniently than adults. For example, it is reported that children suspected of practising witchcraft are sent for exorcisms but do not necessarily experience other forms of physical violence.[43]However, children who are suspected of being taught witchcraft are at risk of being abandoned by their families as their families fear that the children may practice witchcraft against them. Such children may end up being homeless.

As it stands, there are Victim Support Units (VSUs) set up in police offices. These VSUs are tasked with sensitising communities on witchcraft issues so that persons can be aware of the law on witchcraft.[44] Further, the VSUs are supposed to provide protection to suspects when their lives and/or property are under threat of violence from the community.[45] However, it is reported that these Units are unable to provide these services due to lack of resources.[46]

Further, it is reported that District Commissioners and Social Welfare Officers do not provide protection to such persons on the basis that the provision of protection falls under the mandate of the Malawi Police Service.[47] The District Commissioners and the Social Welfare Officers act as arbitrators and offer counselling services.[48] Victims of witchcraft related offences, especially persons accused of practising witchcraft, are therefore left to protect themselves, usually having to leave their homes and villages for this reason.

The impact of the lack of protection afforded to persons in instances of witchcraft can be evidenced by the number of physical assaults and even murders of the accused practitioners. The alarming murder of four elderly people in Neno district as a result of mob justice serves as an example of this.[49]

  1. CURRENT POSITION OF THE LAW

The Constitution of the Republic of Malawi is the first point of reference as it is the supreme law of the country. Firstly, the Constitution provides that no person shall be subject to torture of any kind or to cruel, inhuman or degrading treatment or punishment.[50] Secondly, section 42 makes provision for the right to fair trial which includes, among others, the right to a public trial before an independent and impartial court and to be presumed innocent.[51]

The second point of reference is the Witchcraft Act Cap 7:02 of the Laws of Malawi (“the Act”), section 2 of which prohibits trial by ordeal. It reads as follows:

“Trial by the ordeal of muabvi or other poison, fire, boiling water, or by any ordeal which is likely directly or indirectly to result in the death of or bodily injury to any person shall be and is hereby prohibited.”

The Act, further, makes it an offence for any person to direct, control, preside, instigate, conspire, be present or take part in any trial by ordeal.[52] These offences are punishable by imprisonment, with the maximum period of sentence that can be imposed being life imprisonment.

In addition, the Act stipulates that a person who accuses any person of being a witch or practising witchcraft must do so before a court, a police officer, a Chief or other proper authority, failing which such accuser will be liable to a fine or imprisonment.[53]

The abovementioned provisions provide protection to persons who may fall victim to accusations of witchcraft. These provisions, however, are not being effectively enforced as there is still evidence of instances of persons experiencing trials by ordeal or some other form of punishment on the basis of accusations of witchcraft made by others. Further, there is no provision for the reformation and re-integration into society of victims of witchcraft.

With respect to children, the Child Care, Protection and Justice Act[54] (“the CCPJ”) is the principal piece of legislation dealing with protection of children. Section 23 of the CCPJ provides that:

“A child is in need of care and protection if-

a) the child has been or there is substantial risk that the child will be physically, psychologically or emotionally injured or sexually abused by the parent or guardian or a member of the family or any other person;

b) the child has been or there is substantial risk that the child will be physically injured or emotionally injured or sexually abused and the parent or guardian or any other person, knowing of such injury, risk or abuse, has not protected or is unlikely to protect the child from such injury, risk or abuse…”

In the instance that a child is in need of care and protection, this child may be removed from the home by an official and be placed in a place of safety. Thus children are protected.

At an international level, the right to not be subjected to torture or cruel, inhuman or degrading treatment or punishment is recognized in the Universal Declaration on Human Rights.[55]

Comparatively, other jurisdictions have established witch-camps that provide shelter to persons who have fled or been banished from their homes as a result of witchcraft accusations.[56]

ISSUES

  1. Who should be recognized as vulnerable persons? What measures are taken to protect such persons, if any?
  1. Should elderly women be considered as a special group of victims? If yes, should they be afforded special protection?
  1. How are victims of witchcraft treated in the community?
  1. How are persons who try to assist previous practitioners protected from experiencing victimization in their community? How else should they be protected?
  1. Who should be involved in the management of victims of witchcraft?
  1. What measures should be put in place to ensure effective victim management?
  1. What measures should be put in place to regulate the reformation and re-integration of victims and previous practitioners in their communities/society?
  1. What constitutes cleansing in your community and what is the proof required to show that a person has been cleansed?
  1. Is there a stereotype attached to poverty and instances of witchcraft? If yes, how should the law protect such people?

 


[1] The witchcraft Act came into force on 12 May 1911.

[2]Nyuzi vs. Republic 4 MLR pg. 249.

[3] Submissions from some traditional doctors in Malawi.

[4] Section 133 (b) of the Constitution of Malawi.

[5] Sections 2, 3 (3), 4 and 6 of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[6] Bridget Sleap “using the law to tackle accusations of witchcraft: Help Age International’s Position”, 2011 at pg. 6.

[7]Nyuzi vs. Republic 4 MLR pg. 249.

[8]Constitutional Case No. 5 of 2007 (Lilongwe District Registry).

[9]It states as follows: Every person has the right to freedom of conscience, religion, belief and thought, and to academic freedom.”

[10] Criminal Appeal No. 28 of 2007 (HR) (PR) (Unrep).

[11] General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18). 30/07/93. CCPR/C/21/Rev.1/Add.4, General Comment No. 22. (General Comments) http://www.equalrightstrust.org/ertdocumentbank/general%20comment%2022.pdf accessed on 7th February 2017.

[12] Section 44 (1) of the Constitution.

[13] UNHCR, Guidelines on Region-Based Refugee Claims (HCR\GIP/04/06), para 24.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Section 33 of the Constitution of the Republic of Malawi.

[19]Constitutional Case no. 5 of 2007 High Court Principal Registry.

[20]Medson Gibson Kachilika v Attorney General

[21]Black’s Law Dictionary 6th Ed. Pg.374.

[22] Nyasa time, January 2016.

[23] Dr. C. Chilimampunga and G. Thindwa, The Extent and Nature of Witchcraft-based Violence towards Children, Women and the Elderly in Malawi, 2012.

[24] Bridget Sleap “using the law to tackle accusations of witchcraft: HelpAge International’s Position”, 2011 at pg. 6.

[25] Section 2 and section 3 (3) of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[26] Section 4 of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[27] Section 5 of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[28] Section 6 of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[29] Section 42 of the Constitution of the Republic of Malawi.

[30] Section 18 of the Constitution of the Republic of Malawi.

[31] General Comment NO. 32, at 1.2.

[32] Cap. 8:01, Laws of Malawi.

[33] Articles 3 & 4 of the African Union Charter in the Rights and Welfare of the Child 1999, ratified on 17 November 1999 by Malawi.

[34]Section 4and 6 of the Witchcraft Act.

[35]Cap. 7:02, Laws of Malawi.

[36]Dr Charles Chilimampunga& Mr George Thindwa, “The Extent and Nature of Witchcraft-Based Violence towards Children, Women and the Elderly in Malawi”, 2012.

[37]Ibid.

[38]Ibid.

[39]Ibid.

[40]Cap. 9:02, Laws of Malawi.

[41] Section 42(g)(ii) & (iii) of the Constitution of Malawi.

[42]No. 22 of 2010.

[43]Dr Charles Chilimampunga& Mr George Thindwa, “The Extent and Nature of Witchcraft-Based Violence towards Children, Women and the Elderly in Malawi”, 2012.

[44]Ibid.

[45] Ibid.

[46]Ibid.

[47]Ibid.

[48]Ibid.

[49]See http://www.nyasatimes.com/2016/01/26/four-men-killed-in-neno-mob-justice-attack/ [Accessed 29 January 2016].

[50]Section 19(3) of the Constitution of the Republic of Malawi.

[51]Section 42(2)(f)(i) & (iii) of the Constitution of the Republic of Malawi.

[52]Section 3 of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[53]Section 4 of the Witchcraft Act Cap. 7:02, Laws of Malawi.

[54]No. 22 of 2010.

[55]Article 5 of the Universal Declaration on Human Rights.

[56] Condemned without trial: Women and witchcraft in Ghana, available at https://www.actionaid.org.uk/sites/default/files/doc_lib/ghana_report_single_pages.pdf [Accessed 20 January 2016].