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Tokoloshe is brought to court
Posted
to the web: 14/04/2009 14:54:21
A “PROPHET” fainted and had to be revived after he battled
a tokoloshe which was terrorising female members of the same family
in Hwange, Matabeleland North, a court heard last week.
The “dwarf gremlin-like creature with horns curving downwards; beads; legs and arms without palms” was paraded before a magistrate in the western town of Hwange after two members of the same family and the self-styled prophet were arrested for harassing their grandfather fingered as the owner of the tokoloshe.
A local vernacular weekly newspaper, Umthunywa, reports that the tokoloshe has been kept by police in Hwange.
The court heard how Solani Sibanda, a self-styled prophet from nearby Binga, was called in after female members of the same family reported that they always woke up “tired and wet in the nether regions”.
The court heard several testimonies from female members of the family who all suggested the creature brought to court was going to bed with them at night without their knowledge.
Tapiwa Mwembe, 27, told the court she “felt someone having sex with her”, even as her husband was away. This caused her to be “always weak, and unable to satisfy her husband”.
Mwembe is a granddaughter of White Nengwa Ngoma, the 74-year-old grandfather accused of practising witchcraft, leading to his complaint of harassment against his grandsons.
Another granddaughter, Lambiwe Ncube, gave “a moving testimony” revealing that she started sleeping “with this thing” after her husband died, Umthunywa reported.
“After my husband died, my grandfather promised to find me a man to take care of my sexual needs. Since then, I would feel someone I couldn’t see having sex with me,” she said.
A third woman, Maria Ndlovu, also reported having sex with an “invisible person”.
The women, the court heard, reported the strange happenings to their brothers Balani Nyathi and Potani Shoko who took the decision to seek Sibanda’s services.
Sibanda arrived in the Lukosi village and immediately went to work, leading the family to Ngoma’s homestead.
Taking the witness stand, Sibanda said he went into Ngoma’s bedroom and held the tokoloshe “by the throat”.
“Because it had so much power, I fainted while holding it but I never let go of it,” said Sibanda.
Family members attending the “cleansing” ceremony poured cold water on Sibanda to revive him.
“Shockingly, when Sibanda came back to life, the tokoloshe also regained consciousness,” Umthunywa reported, citing witness statements.
The paper added: “Seeing he was in danger, Sibanda lifted the tokoloshe and shoved it into fire ash and it finally died.”
Magistrate Aeline Munamati issued a restraining order against the nephews and warned them about their future conduct. They are also to desist from harassing Ngoma.
Zimbabwe repealed its witchcraft laws in 2006 and lifted a ban on the practises of many traditional healers and self-styled prophets. Those accusing an individual of witchcraft must show proof of their allegations.
The law however also says “any person who groundlessly or by the purported use of non-natural means accuses another person of witchcraft shall be guilty of indicating a witch or wizard and liable”.
James Ngwenya, prosecuting, told Umthunywa that the men had been spared jail because the court was sufficiently satisfied the accusations brought by the family were not without merit.
BELOW IS AN EXTRACT FROM THE Criminal Law (Codification and Reform) Act 2004 ON WITCHCRAFT. THE ACT REPEALED THE Witchcraft Suppression Act.
PART VI
WITCHCRAFT, WITCH-FINDING AND CRIMES RELATED THERETO
97 Interpretation in Part VI of Chapter V
In this Part?
“accuse
a person of witchcraft” means to indicate that the person?
(a) has used, is using or is likely or able to use non-natural means
to cause?
(i) death or injury to or disease or disability in any person; or
(ii) destruction or loss of or damage to property of any description;
or
(b) is possessed by a spirit which has caused, is causing or is likely
or able to cause?
(i) death or injury to or disease or disability in any person; or
(ii) destruction or loss of or damage to property of any description;
“non-natural means” includes the practice of witch-finding.
98 Engaging in practices commonly associated with witchcraft
(1)
Any person who engages in any practice knowing that it is commonly associated
with witchcraft shall be guilty of engaging in a practice commonly associated
with witchcraft if, having intended thereby to cause harm to any person,
such practice inspires in the person against whom it was directed a
real fear or belief that harm will occur to that person or any member
of his or her family, and be liable to a fine not exceeding level ten
or imprisonment for a period not exceeding five years or both.
(2) Spoken or written words shall not in themselves constitute a practice
commonly associated with witchcraft for the purpose of this section,
unless accompanied by or used in connection with other conduct commonly
associated with witchcraft.
(3) For the avoidance of doubt it is declared that any person who assists
another person to commit the crime of engaging in a practice commonly
associated with witchcraft by giving advice or providing any substance
or article to enable that person to commit the crime shall be liable
to be charged as an accomplice to the crime.
(4) A court shall not take judicial notice of any practice that is said
to be commonly associated with witchcraft, but any person who, in the
opinion of the court, is suitably qualified to do so on account of his
or her knowledge, shall be competent to give expert evidence as to whether
the practice that forms the subject of a charge under this section is
a practice that is commonly associated with witchcraft, whether generally
or in the particular area where the practice is alleged to have taken
place.
99 Indicating witches and wizards
(1)
Subject to this section, any person who groundlessly or by the purported
use of non-natural means accuses another person of witchcraft shall
be guilty of indicating a witch or wizard and liable?
(a) in a case of any purported use of any non-natural means, to a fine
not exceeding level ten or imprisonment for a period not exceeding five
years or both;
(b) in any other case, to a fine not exceeding level six or imprisonment
for a period not exceeding one year or both.
(2) For the avoidance of doubt it is declared that no crime is committed
by a person who, without the purported use of non-natural means and
having reasonable grounds for suspecting another person of committing
an offence referred to in section ninety-eight, accuses that person
of committing that offence.
(3) It shall not be a defence to a contravention of subsection (1) involving
the purported use of any non-natural means for the person charged to
prove that the person he or she accused actually engaged in any practice
commonly associated with witchcraft, but the court may regard such circumstance
as mitigatory when assessing the sentence to be imposed.
100 Employing non-natural means to resolve crimes or delicts
(1)
Any person who?
(a) by the purported use of non-natural means, intentionally indicates
another person as the perpetrator of a crime or delict; or
(b) in the purported investigation by non-natural means of any crime
or delict, requires, advises or incites another person to undergo any
test or consume any substance;
shall be guilty of employing non-natural means to resolve a crime or
delict and liable to a fine not exceeding level ten or imprisonment
for a period not exceeding five years or both.
(2) For the avoidance of doubt it is declared that any person who procures
the services of another person to do any act referred to in paragraph
(a) or (b) of subsection (1) shall be liable to be charged as an accomplice
to the crime of employing non-natural means to resolve a crime or delict.
(3) It shall not be a defence to a contravention of subparagraph (a)
of subsection (1) for the person charged to prove that the person he
or she indicated actually perpetrated a crime or delict, but the court
may regard such circumstance as mitigatory when assessing the sentence
to be imposed.
101 Belief in witchcraft to operate in mitigation and not as defence to crimes
It shall not be a defence to murder, assault or any other crime that the accused was actuated by a genuine belief that the victim was a witch or wizard, but a court convicting such person may take such belief into account when imposing sentence upon him or her for the crime.
102 Charges alternative to or concurrent with charges under Part VI of Chapter V
A
person accused of engaging in a practice commonly associated with witchcraft,
indicating a witch or wizard or employing non-natural means to resolve
a crime or delict, involving conduct that is in itself otherwise unlawful?
(a) may be charged in the alternative with the crime constituted by
that conduct if the punishment to which the person is liable for that
crime is the same or less than that provided for under section ninety-eight,
ninety-nine or one hundred, as the case may be; or
(b) shall be charged with the crime constituted by that conduct, whether
or not concurrently with the crime of engaging in a practice commonly
associated with witchcraft, indicating a witch or wizard or employing
non-natural means to resolve a crime or delict, if the punishment to
which the person is liable for that crime is greater than that provided
for under section ninety-eight, ninety-nine or one hundred, as the case
may be.
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