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Witchcraft case a legal minefield
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THE recently concluded "witchcraft" case in the Harare Magistrates' Court attracted a great deal of public interest, but there was also legal interest in what was one of the first prosecutions under the 2006 amendment to the Witchcraft Suppression Act.

Harare provincial magistrate Mishrod Guvamombe, kept his eyes firmly on the spirit and the letter of the law, raced past the vast thickets of extraneous information that had no bearing on the case even if they kept the public benches enthralled, came to the correct verdict and tied the case up with a sentence that showed humanity.
All in all, he set some good precedents.
The first point that the magistrate saw, even if most of the public missed it, is that someone stating they are a witch, or stating that they can perform supernatural actions, commits no crime.
If you run up and down First Street proclaiming you are a witch you are safe from the law.
If you claim you can fly through the air, you break no law.
Zimbabwe does not hunt down "witches", it neither prosecutes them, nor punish them.
The law is quite indifferent to the existence or non-existence of "witches" and "wizards".
There will be no Salem witch trials in this country. Indeed the law goes further.
The original 1899 clauses of the Witchcraft Suppression Act stay in force and it remains a crime to accuse a person of being a "witch" or to indulge in any action or ceremony to decide if anyone is or is not a "witch".


And one new 2006 section made it quite clear that hiring "witch-hunters" was also a crime, strengthening the intentions of the original law.
What was also added in 2006 was a section to stop people deliberately performing any "practice commonly associated with witchcraft" with the intention of inspiring in their victim a real fear or belief that harm will befall that person or a member of their family.
This is an interesting, and limited test.
It does not matter, for example, if the person performing the "practice" actually believes in witchcraft it could even be done by someone who passionately denies the existence of "witches" so long as they are trying to frighten someone who does believe.
It does not matter if the person claims or does not claim supernatural powers, since spoken words alone cannot constitute an offence.
All that there must be is a clear, overt and observable action and that action must be capable of being observed by anybody, a highly objective test and one divorced from any belief in witchcraft.
That action needs to be one that, within the culture of the victim, is associated with witchcraft and in addition to that overt action there must be intention on the part of the person who did the action to frighten the victim.
In this case, the action was a young woman walking around a garden without her clothes.
There are many conceivable reasons for that action. But her own evidence met the test that the intention was a "practice commonly associated with witchcraft" and that harm was intended to the victim.
The claims of flying through the air in a winnowing basket and such like were not considered as criminal actions, since these failed to meet even the initial test of being observed, being mere verbal claims.
What they did give was an indication of the intention of the young woman.
Corroborating evidence was given by a senior member of Zinatha, who was able to confirm that the particular observed action would be construed by the particular people living in the house as a "practice commonly associated with witchcraft" and that they were likely to be frightened.
He was also able to corroborate that, from the evidence of the young woman, she was probably deliberately performing this action as an act of "witchcraft".
The Act demands that a court does seek a suitable expert to give such evidence, the expert obviously depending on who are the perpetrator of the action and the victim, what belief system is involved and what the action could signify within that belief system.
In view of the fact that this case was in many ways a legal precedent, it was interesting that Guvamombe then sought the opinion of the traditional leader of the community to which all involved in the case belonged, Chief Jonathan Mangwende.
The chief is a respected, modern, articulate and educated leader and it seemed that he and the magistrate had a meeting of minds: that the woman would be received back into the community without punishment and that humane practical help and what amounted to effective counselling within her cultural environment was available.
The whole attitude of all involved, from the family and prosecutor to the magistrate and chief, was on how the woman could be helped and the community healed than on any retribution.
This allowed Magistrate Guvamombe, having convicted the young woman as he was bound to do considering the evidence, to then impose a totally suspended jail term, simply to stop a recurrence of the action while help was given.
In some future similar cases, it might be necessary for a court to seek psychiatric advice as to whether there is an underlying medical condition that must be treated before any counselling can be effective.
In this case, the intense pressures within a feuding family and the woman's own beliefs seemed adequate to explain the action.
Court cases involving acts of witchcraft have always been seen as a potential minefield, considering the many public misconceptions of just what the law does ban, but this particular case sets an example of how they can be handled. (Comment from the Herald)

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