Zimbabwean law and witchcraft

Zimbabwean law and witchcraft

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By Staff Reporter

WITCHCRAFT is an emotive subject and has been very difficult to deal with legally. This difficulty has allowed a number of people, who have had others commit crimes, escape punishment.

The problem, legally, arises from the fact that there is no scientific or legal proof that performing an act of witchcraft has any physical result. It is a crime of intention, an intention to do harm, with no measurable way of discovering if there was any harm and a general attitude among the educated that there can be no harm. In this, witchcraft differs from crimes such as theft.

A thief has the intention of grabbing something that does not belong to him, and when he commits the crime he actually takes something and that something can be valued. Murderers, rapists and those who commit assault hurt another human; it is possible to see a result. Of course some acts of witchcraft are also other crimes.

Killing someone for ritual purposes is murder, for example, and many have been hanged after being found guilty of murder, rather than of witchcraft. Unfortunately, the advisor of the killer, and the person who processes body parts obtained from murder, has usually escaped punishment. Even suggesting that this person was a witch was a criminal offence.

Zimbabwe’s Witchcraft Suppression Act was one of those laws inherited from the old Cape Colony. It dates from a time when many harmless people, or mild eccentrics, were murdered because people feared they were witches.

Anyone reading about the Salem witch trials in 17th century America, where more than 20 totally innocent people were hanged on the "evidence" of a group of hysterical teenage girls, will understand the revulsion felt by the drafters of our old law — many of whom were born when "witches" were still hanged in Britain on the flimsiest of evidence — against such judicial murder.

The drafters of the amendments to the Zimbabwean law have been very careful not to make being a "witch", whatever that means, a crime. What has been criminalised are real actions, that is, doing what a "witch" would do.

Like every other crime, it is what one does, rather than what one believes or says, that constitutes a crime, especially if it can be proved, and the criteria for a legal criminal proof are strict, that there was an intention to harm someone or instill fear in someone who believes in witchcraft. In fact it does not matter whether the person committing an act of witchcraft actually believes in witchcraft. It is the act not the belief that is becoming criminal. And a person who believes they are a "witch", or even says they are a "witch", but commits no act of witchcraft commits no offence.

So, to return to our example of a bent n’anga who tells a client that processing certain body parts in a certain way will boost his business. Now, even if there is no evidence to connect this bent n’anga with a subsequent murder and mutilation, he can still be convicted of giving advice on a practice of witchcraft. The person who gains rewards by threatening those who believe in witchcraft with adverse spells and the like, can now also be fined or jailed, closing yet another loophole.

The amendment also makes it explicitly clear that no one is allowed to take the law into their own hands and kill a person they fear is a witch. Such a belief is still a mitigating factor, although the courts are correctly becoming harder to convince as higher education spreads and the fear of witchcraft diminishes. The amendment does nothing more than place in a statute the legal dictum used by the courts for decades.

It will be important to stress that the law of Zimbabwe still does not act against "witches" and still bans witch-hunting. What it does now recognise is that acts typical of witchcraft are a criminal offence. As such it closes a legal loophole without allowing a belief in witchcraft to do anyone any harm - Comment from Herald
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