“Sincere belief” in witchcraft no bar to death penalty

Belief in witchcraft will no longer automatically keep the death penalty at bay in Zambian murder cases, according to a landmark new judgment of that country’s Supreme Court.

Five judges of Zambia’s highest court, including the Chief Justice and the deputy Chief Justice, have agreed that the days of referring to one’s ‘sincere belief’ in witchcraft to get around the death penalty are over. They also slammed believers in witchcraft for targeting women and the elderly.

The court was considering the appeal of two men convicted of murders directly related to witchcraft, and given life sentences.

In October 2011 – a ‘dark month’ for the Mukunashi area of Zamibia’s north-western province – three tragic deaths occurred in quick succession. The first was Winne Kabinga who died after drinking a great deal of kachasu – the potent local alcohol, often laced with fertiliser or battery acid, that causes a number of deaths each year. He complained of stomach pains before he died, adding to the court’s view that kachasu could have caused his death. But the community decided witchcraft was to blame, and resorted to kikondo, a bizarre practice involving a ‘moving coffin charged with some supernatural force’.

Believers say that a coffin containing a body, smeared with special paste, will, when given commands by relatives of the dead person, take on supernatural abilities, overpower the pall-bearers and lead them to the person who killed the one in the coffin by witchcraft. The coffin itself is believed able to identify the witch concerned, and a mob will attack, and may even kill, the ones ‘pointed out’ by the coffin.

On the day of Kabinga’s funeral villagers, wanting some explanation for his death, hit his coffin with a stick and directed Kabinga or his spirit to point out his killers.

Pall-bearers ran with the coffin to the house of a villager. A mob of mourners descended on the man, and beat and burnt him to death. The ‘sniffing out’ party then identified a second person and beat him to death as well.

During the trial, the two accused were convicted of both murders. After claiming they acted out of a sincere belief in witchcraft they were both given a life sentence. They raised several issues on appeal, including a challenge to the life sentence imposed on them.

In their decision, the judges examined the way that courts had dealt with witchcraft in the past. Over many years judges had accepted that if an accused was motivated by a belief in witchcraft, this would amount to extenuating circumstances. Witchcraft, ‘deeply entrenched in the Zambian psyche’, caused perceived witches to be treated with terrible violence. Suspected witches were ostracised, their property was destroyed and in some cases, they were brutally murdered.

‘Harassment, persecution, starvation, abandonment and death’ was the fate of people thought to be witches. They could be killed with impunity. The elderly were often targets of witchcraft accusations and the judges said it seemed as though ‘old age is synonymous with being a witch in many communities in Zambia’. ‘Trials’ and persecution of older citizens on ‘preposterous charges’ were based on a widespread belief in witchcraft.

The Supreme Court had long held that a belief in witchcraft amounted to extenuating circumstances, to be weighed up against the aggravating circumstances of a case. But could the court change its mind? Was it appropriate to ‘depart altogether’ from the principle set by the court that a belief in witchcraft was an extenuating circumstance, particularly since the constitution made it clear that sometimes ‘strict adherence’ to previous decisions could create injustice?

Clearly there was a widespread belief in the reality of witchcraft among educated and uneducated, wealthy and poor, young and old in Zambia. Yet actions taken as a result of this belief violated constitutionally-guaranteed human rights, as well as international law which for example categorised witch-hunts as a form of violence against women, while Zambian law also prohibited witchcraft practice, or accusing someone of being a witch.

A belief in witchcraft was difficult to ascertain, unlike drunkenness or other factors regarded as extenuating of sentence. If someone claimed to have killed because of a belief in witchcraft, it was hardly open to proof and could be easily used as an escape route from the normal consequences of murder.

Since criminal conduct based on a belief in witchcraft offended both international law and domestic law, why should the courts soften a sentence because of that belief? ‘It is, to us, resoundingly preposterous that a clear illegality under one piece of legislation can be used to excuse … a breach of another piece of legislation.’

Courts could no longer continue to do so. A plea to find extenuation in murder cases on the grounds that the person killed had ‘bewitched or threatened to bewitch’ the accused should be rejected except in exceptional circumstances where the evidence showed that the accused person feared immediate danger to his own life. ‘No unlawful belief, no matter how deeply entrenched … , should serve to license the blatant disregard of the law in a way that poses a danger to personal peace and tranquility and respect for individual human rights.’

In this appeal there were clearly aggravating factors: the ‘most brutal’ murders, carried out by a mob whose ‘frenzied hostility’ was generated by nothing more than a belief that those they killed had ‘magical faculties’. Their victims were not found with ‘any witchcraft paraphernalia’, nor had they done anything ‘suggestive of wizardry’ at the time ‘they were lynched’.

The sentence passed on the accused was indeed shocking, said the judges, not because it was too light but because it ‘whittled down the deterrent effect of sentences for murder, considering the brutal and savage attacks’ by the mob.

Considering the ‘ghastly consequences’ of the ‘deep rooted and widely held belief in witchcraft’, it was inappropriate to continue treating that belief as an extenuating circumstance since it both encouraged and perpetuated criminality and injustice. ‘We are convinced that it is now right to depart from those precedents’: victims of witchcraft accusations had to be protected from allegations that invariably led to the violation of their rights and even to their death.

Although a belief in witchcraft may ‘in rare and appropriate circumstances’ still be regarded as an extenuating circumstance, it should not generally offer an escape to perpetrators of violence.

The five judges thus set aside the sentence of life imprisonment and instead imposed the sentence of death on both the accused.
· There are at the moment more than 170 men and women on death row in Zambia, where capital punishment has proved a tricky political issue. No one has been hanged in the country since 1997, and successive Presidents have promised not to sign any death warrants. Yet the office of ‘public executor’ still exists and the death penalty is still passed for certain crimes. In mid-2015 the death row cells were emptied by grant of presidential clemency. But as the law itself has not changed, and the courts have continued to pass the death sentence, so the numbers in the country’s death row cells continues to rise.

– by Carmel Rickard (first published by Legalbriefs)

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