The Centre for Human Rights and Rehabilitation (CHRR) and the Centre for the Development of People (CEDEP) have expressed concerns on some of the recommendations the Special Law Commission has made in relation to the Review of the Witchcraft Act of 1911.
In a joint statement on Friday, CHRR and CEDEP say they are particularly worried with the recommendation to penalise witchcraft practices, arguing that this is highly problematic.
“As organisations, we are jointly working on tackling and reducing violence based on witchcraft accusations in 10 districts across the country, and we have seen first-hand how witchcraft accusations are resulting in serious human rights violations as people, wary of the current legal framework, which does not recognise the existence of witchcraft, are resorting to taking the law into their own hands to punish those that are suspected to be practicing witchcraft.
“In the last two years alone, our organisations have documented over 60 cases of killings based on witchcraft accusations across the country. In most cases, the victims are older persons, especially women.
“It is in this context that we fully supported the law review process by the Special Law Commission. However, we are disappointed with the outcomes of this review. We feel some of their recommendations will do more harm than good in dealing with the current problems,” says the statement, which CHRR Executive Director Michael Kaiyatsa and his CEDEP counterpart Gift Trapence have signed on behalf of their respective organizations.
Kaiyatsa and Trapence observe that the recommendations from the Commission do not address the challenge of proving supernatural practices in a court of law.
The two activists define a witch or wizard as someone who secretly uses supernatural powers for nefarious purposes.
“Assuming that the law is amended to criminalize the practice of witchcraft, there would be the difficult issue of evidence. Under the new law, persons suspected of practicing witchcraft would face criminal charges.
“It is good law practice that for one to be convicted of a criminal offence the prosecution must have proven its case beyond reasonable doubt. However, witchcraft, as noted earlier, involves the use of supernatural powers. Therefore, proving the allegations would be very difficult in a court of law.
“The Commission has further recommended that cases of witchcraft should be handled by someone from the level of resident magistrate and above. We urge the Commission to provide clear guidance on how the issue of evidence would be handled if the practice of witchcraft is to be criminalised.
“Under established legal principles, circumstantial evidence, hearsay or speculation are not enough to secure a conviction. Evidence given to prove the practice of witchcraft has to prove that harm has been caused by supernatural means. In other words, the evidence has to prove a causal link between the supernatural act and the harm caused.
“In our view, this is impossible to do through material evidence and, therefore, prosecutions to prove that someone has practised witchcraft will have to rely on hearsay, circumstantial or confession evidence, which might compromise the accused’s right to access to justice and legal remedies as provided in section 41 of the Constitution,” says the statement.
In view of the aforesaid, CHRR and CEDEP have recommended that the prohibition of witchcraft accusations be maintained since accusations often act as a catalyst to acts of violence and that the law should be revised to introduce a separate criminal offence relating to an accusation of witchcraft where this accusation incites or encourages acts of violence.
“We further recommend that simple accusations that should not incite or encourage acts of violence against the accused would not be prosecuted under this provision; that proper guidance be provided to presiding magistrates on the issue of evidence in court when witchcraft practices are criminalised; that the law be revised to prioritise restorative justice models that bring the victim and the alleged perpetrator together to resolve their differences at the community level. We believe this can be a more effective alternative to retributive justice systems,” emphasize CHRR and CEDEP.
They have further stressed that law enforcement agencies should strictly enforce the law to deal with witchdoctors and “prophets” who claim to exorcise people of witchcraft. Such practices violate the law and perpetuate violence against the accused persons.
“Law enforcement agents should deal with such witchdoctors and prophets as they act as catalysts for violence,” they say.Follow and Subscribe Nyasa TV :