Witching hour has no legal time

IS THE conventional justice system capable of confronting the issue of witchcraft? This is a question jurists, sociologists and governments have haggled over for decades, and no answer is in sight.

Information provided by the Chief Magistrate’s Office for January-June 2017 from courts across Zimbabwe indicates few reported witchcraft cases as defined in Chapter 9:23 of the Criminal Law (Codification and Reform Act).

Harare province recorded the highest number of reported witchcraft cases (10), followed by Masvingo (nine) Mashonaland Central (five), Manicaland (four), Midlands (three), and Matebeleland South, Mashonaland East and Mashonaland West (one each).

In that period, Matebeleland North did not deal with a single case of witchcraft.

Observers say the low numbers do not point to declining cases of witchcraft, but rather to people not reporting such allegations and instead dealing with them in other ways, including use of traditional courts.

Chairperson in the Department of Sociology at the University of Zimbabwe, Professor Claude Mararike, said dealing with witchcraft in conventional courts was a non-starter as these institutions relied on Eurocentric value systems when interpreting justice.

“The explanation of huroyi (witchcraft) to the whites and theirs of witchcraft to Africans is different. It’s about concepts, language...

“Our (traditional) healers and (traditional) courts have the mechanisms to prove that if you are not the perpetrator we can go to the village square and prove you didn’t bewitch anyone.

“In Africa we have methods of proving that you are innocent but in Zimbabwe we are trying to mix the European way and ours,” Prof Mararike said.

Chapter 9:23 of the Criminal Law (Codification and Reform) Act states that to “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; (ii) or destruction or loss of or damage to property of any description;

“(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”. So how do you prove witchcraft? “You can’t put such matters in laboratories for tests, for proof. The concept of witchcraft/huroyi is a broad term and to say prove it is difficult. Huroyi that can be proven is when one drinks poisoned beer which can be tested.

“But there are certain types of huroyi which cannot be proved. You cannot say I have bewitched you when I pointed a finger at you at the same time you collapsed. You cannot prove it but maybe I would have done it. You just never know. What if you had heart attack at that time?

“For those who roam at night how do you prove that they sneak in your house at night, make you eat meat, you fall sick and die. So the witchcraft act is meaningless and not applicable. It’s just as bad as it was in 1897,” said Prof Mararike.

Referring to his presentation titled (“Witchcraft Accusations in Colonial and Contemporary Africa”) at a conference on Law, Religion and Security in Morocco last May, Mr Benard Humbe - lecturer of Cultural Anthropology at Great Zimbabwe University - said witchcraft was complex to define.

“When Westerners come, they bring their own definitions. Hence there is no clear cut definition of witchcraft. The colonisers’ definition of witchcraft seems to portray that witchcraft doesn’t exist.

“For instance, from research I discard the misconception of kuromba as negative. It’s positive; for example, when one looks for charms to protect their home. However hurombwa is negative. This is when you acquire magical powers with bad intentions to kill or harm,” Mr Humba said.

Chairperson of UZ’s Religious Studies, Classics and Philosophy Department Prof Nisbert Taringa said conventional courts could administer justice in witchcraft cases — but could not provide peace.

“When an African believes their neighbour has bewitched them, they want the perpetrator to acknowledge his or her crime and pay a compensatory fine through the traditional leader.

“In that way you see people who were not conversing before due to anger, the moment the issue is resolved they can shake hands and return to their homes in peace.

Late president of the Zimbabwe National Traditional Healers Association Prof Gordon Chavhunduka once posited that: “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.”

Chief Donald Kamba of Makoni said current legal provisions made witchcraft almost impossible to prove.

“The colonial view that witchcraft, avenging spirits (ngozi/botso) and other matters of the paranormal did not exist persists to this day thus creating an artificial society that is behaving artificially and leaving many stranded for lack of solutions to their plight.

“Laws to do with the culture and tradition should be a matter for traditional leaders to deliberate on, define and pass judgement independent of the alien world view that is contemptuous of our cultures and traditions,” he said.

Chief Kamba said laws should be socially and culturally embedded.

“The flooding of courts and the bursting at the seams of our prisons is ample testimony to the effect that our laws are dysfunctional for lack of touch with reality as defined by history, culture and native philosophy.

“This explains why the Domestic Violence Act, Maintenance Act, Inheritance Act to mention laws that immediately come to mind, are being abused and creating havoc in the social fabric.

“These laws are producing the opposite of what was intended because they lack societal approval that resides in traditional leadership,” he said.