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WHY BELIEF IN WITCHCRAFT NOT A DEFENCE?

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MBABANE - “The holding or idea by our courts that a belief in witchcraft is unreasonable and, therefore, not a defence, is with respect, most unfortunate and irrational.”


These comments were made by Judge Mbutfo Mamba when he convicted a dagga grower, who killed a woman, who had threatened to bewitch him.  This was after he (accused) had questioned her (woman) on why she was walking over his dagga plants. 


Pursuant to Section 17 of the Court of Appeal Act 74 of 1954 (as amended), Judge Mamba has since referred the question of whether one’s belief in witchcraft should not; in an appropriate case, constitute a complete defence, to the Supreme Court for its wisdom of decision.
In the present case, the woman, whom the accused also suspected to have been behind the death of his parents, is said to have asked him: “Do you want to die and leave the dagga behind? (ufuna kufa ushiye lensangu).”   

 
Testified


According to one of the witnesses who testified during the accused, Ndumiso Lawrence Shongwe’s trial,  he (witness) was aware that the woman was said to be a witch of some repute in the area. The witnesses, however, stated that he could not vouch for the veracity or truthfulness of these claims.


Meanwhile, the offender, Shongwe of Luvinjelweni in  northern Hhohho, informed the court that he believed that the woman was capable of carrying out such threats as she had allegedly done to his parents. He is reported to have picked up a stick from his garden and assaulted the woman on the head and all over the body several times. The woman reportedly fell to the ground and collapsed. She later died.


Shongwe was found guilty of culpable homicide.  
He submitted that he assaulted the woman because he genuinely and honestly believed that she would kill him through the use of muti or witchcraft.
The court found that the killing of the deceased by Ndumiso was unlawful.


“However, the accused caused such death by acting in a spur of the moment or in the heat of passion due to the provocation by the deceased and before there was time for his passion to cool. He had lost his self-control. For that reason, he is guilty of culpable homicide,” said Judge Mamba.
In his judgment, Judge Mamba highlighted that the idea of the courts that a belief in witchcraft was unreasonable and, therefore, not a defence was most unfortunate and irrational.


“As Justice Holmes stated, it is based on or reflects the thinking of Western civilisation. Although the remarks were made 50 years ago, it is true even today.  It is euro-centric and certainly not representative of or consonant with objective current societal norms and ethos of the people of Eswatini,” said the judge.
He also pointed out that stories of witchcraft and belief therein come before court on a daily basis. The judge also pointed out that law reports were replete with such cases and were the daily media reports.  


“They (witchcraft practices) are part and parcel of the daily lives of significant section of our people – both urban and rural. The suggestion that to regard a belief in witchcraft as reasonable would plunge the law into the Dark Ages is, with due respect, false and unreasonable in the context of the prevailing circumstances in Eswatini,” added Judge Mamba.


Founded


The judge went on to state that: “I guess though it is founded on a want or lack of knowledge or information on the matter. Some people have labelled it as intellectually dishonest. I do not share this view. It is a view that is honestly and genuinely mistaken, I think (or is it a question of unconscious bias)?”
Judge Mamba further pointed out that the available literature on witchcraft was not entirely conclusive on what constituted it (witchcraft). According to the judge, the terminology used in the law books and various statutes was itself inaccurate, inappropriate and unhelpful.


He said for example, the Crime Act 6 of 1969 (as amended) referred to the use of ‘non-natural means in causing any disease in any person or property or in causing injury to any person or property’.  Section 77(4) of the Act states that a ‘witchdoctor’ or ‘witch finder’ includes persons described in siSwati by words of umongoma or isangoma or inyanga yekuphengula. These people are said to exercise pretended powers of divination or other pretended supernatural power.


“While witchcraft is seen as something inartistic to the person, to his soul or his personality, sorcery is intrinsic to these entities, being merely a technique or a tool employed by an individual under certain circumstances,” stated  the judge. He said recourse to sorcery was always a deliberate, conscious and voluntary basis.


Judge Mamba highlighted that a sorcerer might cause illness or kill his fellows by blowing medicine towards them; by putting poison in his victim’s food, drink or tobacco; by concealing the poison or poisonous objects on a path where the victim would pass. He noted that the Shona or Ndebele term for a witch had also led to misunderstandings in the practice of law. The court noted that muroyi or umthakathi means a witch, a sorcerer, a person who fails to carry out the necessary rituals for his dead relatives, a person who commits an anti-social act or even just a troublemaker.


“Thus when a Shona or Ndebele person accuses another person of witchcraft, he may well be right, because in society there are troublemakers, there are people who commit anti-social acts such as incest, there are people who burn or attempt to burn other people’s property secretly at night, there are people who fail to carry out the necessary ritual for their dead relatives and so on,” observed the court.


It was further the court’s view that, for the believer or adherent in the practise of witchcraft, there was absolutely nothing magical, supernatural or pretended in such practice. “For him or her, witchcraft is merely the use of non-conventional means of causing death of harm or evil to another person or property. It is non-conventional and explicable to the non-believer of course,” said the court.


Explanation


In the judgment, Judge Mamba also mentioned that the lack or want of conventional knowledge or explanation about it did not, in his view, make it supernatural or to belong to an occult science.  “It is simply a different discipline, whose operations are unknown to its adherents; consequently, it is illogical, condescending, arrogant and unreasonable to label it as unreasonable,” said Judge Mamba.


He also stated that the law or the court dealt with concrete and real issues rather than hypothetical ones.
Judge Mamba stated that: “For those who take witchcraft as a fact rather than a mere belief, it is even inappropriate or a misnomer to say that they hold a belief in witchcraft. For them witchcraft is a fact. They know rather than believe it.”


Ndumiso was sentenced to 10 years imprisonment and the court ordered that his sentence should take into account the period he spent in custody, which is from January 6, 2013.


Appearing for the accused in the matter was Machawe Dlamini while Sibusiso Gama from the chamber of the director of public prosecutions represented the Crown.

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