Zimbabwe's Legal Grimoire

Decoding the Witchcraft Legislation

Accusations of witchcraft carry more than simple insinuations of the occult. More often than not these words result in the murder or maiming of the accused. To avoid this community-justice, measures must be put in place. Unfortunately, as will be seen below, regulating this area poses distinct problems.

INTRODUCTION

In 1711, at the Carrickfergus Assize in Ireland, eight women were tried and convicted under the Irish Witchcraft Act 1586, for grievously and violently possessing Mary Dunbar. The Act provided the death penalty for killing through witchcraft, with one year's imprisonment and time in the pillory for causing injury. Known as the 'Islandmagee Witches' eight women were sentenced to a year in prison and four sessions in the public stockades. This macabre episode is believed to have been the last witch-hunt to have taken place on the Island of Ireland.

The term witchcraft is laden with cultural nuances and holds varied meanings across different societies. Similarly, the perception of witches ranges from benevolent healers to malevolent sorcerers. And although the Carrickfergus Assize may be the last witch-hunt recorded on Irish shores, it is clear that many countries are still contending with such gruesome happenings.?

ZIMBABWE

In early 2022, the Zimbabwean High Court grappled with the legal complexities surrounding a witchcraft-related murder. In S v S v Denford Nyamande [2022] 871 ZWHHC, the accused brutally murdered his 87-year-old father and his 89-year-old aunt, claiming they had bewitched him. The Court highlighted that Nyamande's actions demonstrated clear premeditation and a deliberate plot to eliminate his relatives. However, the Court still went on to acknowledge the reality of such beliefs in local communities and sentenced Nyamande to 35 years in prison, rather than impose the death penalty. The Court held that:

“If it had not been for the significant witchcraft mitigating factor, the accused would have been a suitable candidate for the capital punishment. However, the aggravating circumstances considered with the mitigating factors leave us to arrive at a finding that the … sentence is appropriate in the circumstances.”

These events, and their legal response, raise a myriad of concerns. On the one hand the legal terrain of witchcraft demands a meticulous examination of cultural sensitivities. Such beliefs are truly held by many in local communities. To outlaw them would be tantamount to criminalising the culture itself. On the other hand, research suggests that the rate of witchcraft driven murders and attacks has grown significantly[1]. Priscilla Gavi, Executive Director of HelpAge Zimbabwe, indicated that 70% of the murders in the Buhera district[2] were the result of witchcraft related accusations.[3] Clearly, legislative steps must be taken in the interests of public safety.

LEGISLATIVE MEASURES

One school of thought advocates to outlaw the belief entirely. This would involve criminalising witchcraft in all its forms and exclude its consideration in legal proceedings. Here, in cases like Denford Nyamande, the accused’s belief, or witchcraft motivations, would be irrelevant.

The second school of thought is more nuanced; this is the legalisation of witchcraft but within defined boundaries. This would necessitate ensuring that such cultural beliefs are only accepted under law where they do not directly or indirectly cause harm to individuals. Drawing a proverbial line in the dirt between harmless magic and the nefarious kind. This is the approach that the Zimbabwean government has sought to take.

A NEW CHAPTER IN THE GRIMOIRE

On the 1st of July 2006, the Suppression of Witchcraft Act 1899 was abolished and replaced by Part VI of the Criminal Law Code as the governing mechanism for the occult. The previous legislation deemed traditional Zimbabwean spiritual practices associated with witchcraft as superstitious and pagan.

The newly enacted Zimbabwean legislation attempts to provide a more nuanced approach. The section in question, “Witchcraft, Witch-Finding And Crimes Related Thereto”, was welcomed by many traditionalists as a return and acknowledgement of Zimbabwe’s traditional ways[4]. While the original Act criminalised attributing the use of the occult for harm and associated practices, the amended legislation acknowledges aspects of traditional magic. Specifically, it permits traditional healers to engage in activities such as divination, spell-craft and communication with ancestors.

This reflects a recognition of indigenous beliefs and practices. However, the new legislation retains punitive measures for harmful witchcraft, addressing the potential risks associated with its practice. In essence, the amendments strive to balance preserving cultural traditions and ensuring the safety and well-being of Zimbabwean society.

However, as indicated by Ms Priscilla Gavi above, the legislation has by no means obstructed the ongoing witch-hunts and witchcraft related murders in Zimbabwe.

INSIDE THE STATUTE BOOK: WITCHCRAFT, WITCH-FINDING AND CRIMES RELATED THERETO

Section 97 of the Criminal Law Code in Zimbabwe defines the key terms for witchcraft offences. “Accuse a person of witchcraft” means indicating that said person has used or is likely to use non-natural means to cause harm or is possessed by a spirit causing harm. “Non-natural means” includes the practice of witch-finding.

Section 98 addresses engaging in practices commonly associated with witchcraft. Subsection (1) criminalises engaging in such practices with the intent to cause harm, inspiring fear in the targeted person, punishable by a fine or, imprisonment for up to five years, or both. Subsection (2) clarifies that spoken or written words alone do not constitute a practice associated with witchcraft. Subsection (3) holds anyone assisting another in committing this offence liable as an accomplice.

Section 99 concerns groundless accusations of witchcraft. Subsection (1) penalises such accusations, with varying fines or imprisonment based on the purported use of non-natural means. Subsection (2) clarifies that accusations without the use of non-natural means and with reasonable grounds are not crimes. Subsection (3) specifies that proving the accused engaged in witchcraft does not excuse the offence.

Section 100 addresses employing non-natural means to resolve crimes. Subsection (1) deems intentionally indicating another as a perpetrator or purportedly investigating crimes with non-natural means an offence punishable by a fine or imprisonment for up to five years, or both. Subsection (2) holds those procuring such services liable as accomplices.

Section 101 states that belief in witchcraft does not defend against crimes but may operate in mitigation during sentencing. Section 102 provides for alternative or concurrent charges for offences under Part VI, allowing charges based on otherwise unlawful conduct to be pursued alongside witchcraft-related charges, depending on the severity of the punishment.

BEYOND THE BROOMSTICK: ISSUES IN THE LAW

Several issues arise when looking at the legislation. Firstly, there are a number of unhelpful subjective aspects to the legislation. ?The definition of "witchcraft" and "non-natural means" involves subjective elements, such as practices “commonly associated” with witchcraft. This raises some pertinent questions: Would matters not commonly associated with witchcraft but nonetheless still non-natural be included? Would this be a matter for judicial interpretation, or rather, would this require expert testimony? Furthermore, this subjectivity could lead to difficulties or differences in interpretation and enforcement, especially when distinguishing between traditional practices and criminal conduct.

Secondly, the reliance on expert testimony, particularly from n’angas[5] or spirit mediums, introduces complications in credibility and consistency. What criteria determines whether a particular individual is an expert in witchcraft? Is there objective criteria available to the Court to determine whether one n’anaga is more reasonable than another? Moreover, it is unclear how such evidence would be tendered to the Court. A court relying solely on the testimony of a spirit medium to determine the presence of witchcraft may face scepticism. Furthermore, much of Zimbabwean witchcraft and divination involves a connection with a spirit medium or ancestors[6]. Thus, it is difficult to see how the prosecution could discharge its evidential burden without compromising the basic requirements of fairness and justice when the evidence is likely to be insubstantial and invisible. It could be argued that giving credence to witchcraft by using such experts in legal proceedings, is just further endorsing the occult. Likely to validate said beliefs and result in further witch-hunts and or murders.

Finally, the use of witchcraft as a defence has been commonly employed in Zimbabwe.[7] Although the success of such a defence has varied, the general application is on the basis that the accused committed the violent act so as to prevent their own death, or the death of another, by magic.

Thus, section 101 is a progressive step in the right direction in terms of nullifying its use. That said, the Zimbabwean Courts appear to still allow the defence of witchcraft-provocation. Which although not a full-defence, if successful, does reduce the crime of murder to manslaughter. The accused will thus receive a lesser sentence as a result of their beliefs.

In the case of State v Shingirai Hamunakwadi [2015] Criminal Trial, ZWHH 323-15, which concerned a man who, under the belief that she had ?caused his erectile dysfunction shortly after getting married, strangled his mother, the accused was still able to raise the defence of witchcraft-provocation. Judge Hungwe went on to state the following at page 6 of its judgement:

“In my respectful view at least the basic elements required for a successful defence of witchcraft provocation should be;

1. The act causing death must be proved to have been done in the heat of the passion, that is in anger; fear alone, even fear of immediate death is not enough.

2. The victim must have been performing in the actual presence of the accused some act which the accused genuinely believed and which an ordinary person of the community to which the accused belongs would generally believe, to be an act of witchcraft against him or another person under his immediate care.

3. A belief in witchcraft per se does not constitute a circumstance of excuse or mitigation for killing a person believe to be a witch or wizard when there is no immediate provocation act.

4. The provocation act must amount to a criminal offence under criminal law.

5. The provocation must be not only grave but sudden and the killing must have been done in the heat of passion.

It begs the question, if a superstition is generally prevalent in a community, should it be considered reasonable to hold such a belief, and consequently, reasonable enough to commit murder on foot of it? Is a belief reasonable only because many hold it? One could contend that role of the law and government is to provide educative value, setting societal standards of behaviour and requiring members to conform to these standards. Ergo, allowing a conviction of murder to be replaced by one of manslaughter on account of a reasonable belief in witchcraft is clearly sanctioning said actions. Allowing such a defence is a step backwards. It is a legal endorsement of witchcraft in an unlawful killing. ?

Section 101 also allows the accused’s belief to be considered by the Court as a mitigating factor. As discussed in Denford Nyamande, this could mean an accused avoids the death penalty, or receives a reduced custodial sentence. On the same basis as above, one could ?contend that this is a further legal endorsement of witchcraft, and a far cry from simply acknowledging the role that traditional witchcraft plays in Zimbabwean culture.

IN THE CAULDRONS WAKE

Zimbabwe's legislation on witchcraft, born from an intention to acknowledge and respect traditional beliefs, has ventured into complex territory. While striving to preserve cultural practices and provide a nuanced framework that protects its communities, the legislation has come unstuck.

Subjective definitions leave ambiguity where there should be clarity. The use of expert testimony from spirit mediums creates credibility issues. Partial defences in law, and witchcraft as a mitigating factor, serve to run the risk of endorse killings and not deter them.

While the Act has indeed preserved Zimbabwean cultural practices – at what cost?

[1] Hamisi Mathias Machangu, ‘Vulnerability of Elderly Women to Witchcraft Accusations among the Fipa of Sumbawanga, 1961-2010’ (2015) 16(2) Journal of International Women’s Studies 274; Singh and Msuya (n 4);

[2] A region located in located in the Eastern Highlands of Zimbabwe;

[3] Raphael Mweninguwe, ‘African Media Is Complicit In Deadly Witchcraft Violence’ 25th October 2022 < https://www.media-diversity.org/african-media-is-complicit-in-deadly-witchcraft-violence/> accessed 30th January 2023;

[4] The Chronicle, ‘Witchcraft Supression Act Undermines Culture’ <https://www.chronicle.co.zw/witchcraft-suppression-act-undermines-culture-tradition/> accessed 30th January 2023;

[5] "N’anga" a traditional witchdoctor in the Shona culture. Shona culture recognises different types of "n’angas" or witchdoctors: herbalists, feared practitioners with harmful magic, those offering protective spells, and those using bones to identify alleged witches in suspicious deaths. <https://zimfieldguide.com/masvingo/types-witchdoctors-n%E2%80%99angas>

[6] Arkovitz, M. S., & Manley, M. (1990). Specialisation and referral among the n'anga (traditional healers) of Zimbabwe.?Tropical doctor,?20(3), 109–110. https://doi.org/10.1177/004947559002000306 accessed 31st January 2024;

[7] Emmanuel Sarpong Owusu, The Provocation by Witchcraft Defence in Anglophone Africa: Origins and Historical Development, Oxford Journal of Law and Religion, Volume 11, Issue 2-3, June-October 2022