Witches get Stitches: Analyzing the Legal Framework of the Witchcraft Act, Cap 90 of the Laws of Zambia

Introduction

Kondwani Kaira, a Zambian musician popularly known as ‘Chef 187’, once said that: ‘In Zambia, material success is often seen as a sign of witchcraft. Hence, work hard until they call you a Satanist.’ The practice of witchcraft in modern day Zambia is time and again looked at with disdain and protest. But there lies mischief in the question: what exactly is witchcraft? It is no surprise that the courts of law have had to fight tooth and nail with criminals who often clothe themselves under the guise of witch hunts. Therefore and that being the case, this writing attempts to critique the legal framework that governs alleged witchcraft practices in Zambia and also advocates for reformation of the Act to make it more fitting of the legal needs of modern Zambian society. ?

Origins

Understanding the legal ramifications of witchcraft practices has to begin firstly with an analysis of its origins. According to section 2 of the Witchcraft Act[1], the term ‘witchcraft’ is defined as including ‘the throwing of bones, the use of charms and any other means, process or device adopted in the practice of witchcraft or sorcery.’ Clearly this definition is not helpful as it does not disclose what exactly ‘the practice of witchcraft or sorcery’ entails. Hence, reference has to be made to other literature. Black’s Dictionary of Law[2] defines the term as ‘the practices of a witch, especially in black magic; sorcery’. The definition then goes on to give a brief history of the origins by saying that, ‘Under the Witchcraft Act of 1541 and the Witchcraft Act of 1603, witchcraft was a felony punishable by death without the benefit of clergy. These acts were repealed in 1736, and the last execution in England for witchcraft occurred in 1716.’[3] In the United Kingdom, the Witchcraft Act was repealed in 1951 by the Fraudulent Mediums Act, which in turn was also repealed in 2008. Having been colonized by the British, Zambia appears to have adopted the same archaic approach of its colonial master. Although the laws are somewhat more relaxed (i.e. no one convicted of practicing witchcraft can be sentenced to death), the same problems that adjudicators faced nearly three centuries ago are still ripe up till this day. One of these problems which will now be considered is applying the laws of evidence in proving the practice of witchcraft, let alone its existence.

The Law of Evidence and the Witchcraft Act

The preamble of the Witchcraft Act gives the intents and purposes of its enactment. It stipulates that, ‘an Act to provide for penalties for the practice of witchcraft; and to provide for matters incidental to or connected therewith.’ Section 6 of the Witchcraft Act provides for acts that constitute practice of witchcraft. These come into three categories: The first includes the exercise of witchcraft through supernatural means to attempt to discover where and in what manner property alleged to have been stolen may be found or to name or indicate another person as the thief. The second includes an attempt to discover whether or not a person has committed any crime or any other act complained of. Then after that, causing to be administered to that person with or without his consent any emetic or purgative or apply or cause to be applied to any person with or without his consent the boiling water test. Under section 2 of the Act, the boiling water test is defined as ‘the dipping into boiling water of the limbs or any portion of the body of a person.’ The last category prohibits the instigating, directing, controlling or presiding at the doing of any of the aforementioned acts.

Under Article 18(2) (a) of the Constitution of Zambia[4], all persons charged with a criminal offence are presumed to be innocent until proved or pleaded guilty.?It therefore follows that from the holding of Mwewa Murono v The People[5] that the burden of proof in criminal matters lies, from the beginning to the end (unless under the exceptions prescribed by statute or in a case dealing with insanity of the defendant), on the prosecution. The aforementioned case also went on to state that the standard of proof is high: it has to be beyond reasonable doubt. Furthermore, the High Court of Zambia under Article 134 of the Constitution is said to have unlimited and original jurisdiction to hear any civil or criminal matter. In the case of Zambia National Holdings Ltd and UNIP v the Attorney General[6], the court interpreted this provision as meaning that although the High Court has unlimited jurisdiction, such jurisdiction is not limitless. Essentially, it is bound by other rules and procedures stipulated by law. Coming to the Witchcraft Act, there is no law in place which suggests that matters arising from an abrogation of this Act are to be only dealt with exclusively in the Local Courts administering African Customary Law. Therefore, the High Court of Zambia has original jurisdiction to hear a matter arising from abrogation of the Witchcraft Act. Given the descriptions of what the Act regards as the practices of witchcraft, it therefore follows that the prosecutor must prove his case that there was such practice in attempt to discover stolen property (for example) and this must be done beyond all reasonable doubt. Doing so however, becomes difficult because of lack of definition of what exactly amounts to sorcery or the practice of witchcraft. The situation is made even more complicated by Section 4 of the Witchcraft Act which expressly states that ‘whoever shall be proved to be by profession a witchdoctor shall be liable upon conviction to a fine of not more than one thousand five hundred penalty units or to imprisonment with or without hard labor for any term not exceeding two years, or to both.’ So the question that must be posed is: How does the court (e.g. the High Court) know through proof of evidence that a person is by profession a witch doctor?

Criminal Law and the Witchcraft Act

Most of the cases in criminal law that the courts have dealt with Witchcraft arose from a belief of its existence and allegations of it. To give a balanced view, it is cardinal to note that the Witchcraft Act does provide some form of protection for persons accused of being witches. For example, it makes it an offence for someone to claim that they are a witch finder. That is why the court warned in the case of Patrick Mumba and Others v The People[7] that, ‘it is with this in mind that the sentences have to be passed and in doing so, we agree with Mr. Mchanga that a message must be sent to witch-finders that when they conduct their business of pointing at people as responsible for death or other calamities, they are committing an offence under the Witchcraft Act and when the offence is followed by an assault, by a gang for that matter, a deterrent sentence must be imposed.’ The case of Abednegal Kapesh and Others v The People[8] is a landmark decision in this regard. In that case, the Supreme Court of Zambia held for the first time that a belief in the existence of witchcraft should not, on its face, be taken as an extenuating circumstance to murder. It has to reach a threshold that goes beyond a defendant’s subjective thought processes. Notwithstanding the court’s ruling to raise the bar of the belief in witchcraft as an extenuating circumstance, it is argued that the ruling is not enough to curb the inefficiencies under the Witchcraft Act. The court in the Kapesh case should have advocated, at least in passing, the reformation of the Act as well as point out its inefficiency to deliver justice in witch accusations. Indeed, the Supreme Court recognized at J37 that the Act criminalized the practice of witchcraft. It should have mentioned further the scraping off of section 6 of the Act which criminalizes witchcraft practice.

To reiterate, section 6 criminalizes the exercise of witchcraft through supernatural means to attempt to discover where and in what manner property alleged to have been stolen may be found. By this definition, could it be said that men who claim to ‘prophesy’ in present day Zambian Pentecostal churches should be found wanting under the Act when they attempt to discover who has stolen some particular piece of property or where it could be located? Since there is no definition as to what exactly amounts to witchcraft nor procedure in proving its practice, this question would undoubtedly pose a huge challenge to a court of law. Indeed, some traditional leaders have already shown discontent with the Act because of its vague provisions and have advocated for a complete repeal or at the very least reform.[9] This Article favors the latter approach over the former.

Conclusion

In closing, it is vital to mention that a belief, no matter how strong it may be, is not evidence that an individual is guilty of an offence. Therefore, wisdom cautions that the Witchcraft Act is not only misplaced but it is also unfitting in a democratic society governed by the rule of law. Families may be broken by a simple unsubstantiated accusation by unscrupulous individuals who have no regard for human rights. To echo the words of Lord Chief Justice Hewart: ‘Justice should not only be done but should manifestly and undoubtedly be seen to be done’. A reform of the Witchcraft Act to strike out all acts that are alleged to be witchcraft practices and leave only provisions that criminalize the belief in witchcraft, is one such step towards justice; A step which would undoubtedly lead to a better society for mother Zambia.

[1] Chapter 90 of the Laws of Zambia

[2] B. Garner, Black’s Law Dictionary(8thedn, West Publishing Co 2004)1631

[3] ibid

[4] (amendment) Act No.2 of 2016

[5] (2004) ZR 207

[6] 1994 S.J. 22 (SC)

[7] (2004) Z.R. 202

[8] SCZ Selected Judgment No.35 of 2017

[9] Lusaka Times, Revise Witchcraft Act, Local Courts are Abusing it-Headman available athttps://www.lusakatimes.com/2015/03/26/revise-witchcraft-act-local-courts-are-abusing-it-headman/ accessed at 12th August 2022 at 14hrs.?