Give witchcraft suspects fair hearing before ‘conviction’

One of the laws that remain on our statute books is the Witchcraft Act Cap 108 enacted about 70 years ago. On a recent visit to Locas quo in the heart of Luweero District, The LCI chairperson of Nkoko village Kikyusa Sub-county told us that his court is always busy with witchcraft-related cases particularly (amayembe) in one of our local languages.

A keen observer of our local vernacular media will have seen the rising number of men and women allegedly “witch doctors” being banished from villages by way of mob attacks, burning of housing, lynching, destruction of properties and loss of membership to that particular village or area mostly with police and LCs often looking on helpless.

The Supreme Court of Uganda in Constitutional Case No.2 of 1997, Salvatori and Another, the Petitioners brought the petition challenging their convictions under the Witchcraft Act.

They were tried separately in the Grade II Magistrate’s Court of Aduku in Lira District where Salvatori was charged in one count with practicing witchcraft on Albatina Agol, he was convicted and sentenced to 22 months in prison. In addition, he was banished from his home for 10 years after serving the sentence of imprisonment. His co-accused was convicted of being in possession of materials used for witchcraft.

With daily reports of banishment of citizens allegedly caught in the acts of witchcraft my mind returned to that the Salvatori Abuki case where both the Constitutional and Supreme courts gave exhaustive holdings, which if our law reform process was alive, would have been picked up and a new Act enacted not only for judicial use, but guide the public.

The Uganda Law Reform Commission has a mandate to prepare reforms in our laws so as to meet the values and aspirations enshrined in the Constitution, so that all the laws conform to the letter and spirit of the Constitution, that the law is among others, consistent, harmonious, just, simple, accessible, modern and cost effective.

As Prof Joe Oloka Onyango often emphasised, the aftermath of the promulgation of the 1995 Constitution was a golden period for the constitutional court of Uganda as citizens eager to shake off the shackles of the old constitutional order turned to the court to test the new Constitution and thus far-reaching pronouncements were made by that court on the law of succession, the divorce laws and the witchcraft laws.

Unfortunately, those pronouncements were never followed up with specific reforms in the enactment of new laws that reflected compliance with the new order.

With regard to the exclusion orders, both courts agreed with the petitioners that the provision of section 7 of the Act is inconsistent with Articles 24 and 44 of the Constitution in that banishment is inhuman, cruel and a degrading punishment, as it deprives the convict of food and shelter which are essential to life.

The person concerned is made homeless and destitute. It was also held that the exclusion order would mean that the petitioner would lose control of his house and other property, which would amount to an indirect deprivation of property that is continuing to happen in rural Uganda, but mostly in parts of Buganda, where an alleged witch is summarily deprived of his movable and immovable properties without compensation and takes to his heels never to return to that homestead.

Those holdings by the highest two courts in the land ring true now as they were in the Salvatori case. The sad thing being that in the current cases, the suspects are not given a judicial hearing, but the banishment/exclusion is a result of village kangaroo courts. To paraphrase the judges remarks, the impact of barring a human being from their area or gardens is to render them homeless and devastated.

It is no answer that he can set up another home elsewhere and live like any other peasant. The majority in the court of first instance held that a reading of the Witchcraft Act was incapable of producing a clear and certain meaning of the word witchcraft.

However, the Supreme Court unfortunately, disagreed holding that if one traversed the entire Act, a meaning of ‘practicing witchcraft’ was ascertainable. Thus, is the ambiguousness of the offence of practicing witchcraft and some have said it is not any different from practicing one’s religion.

Corporative jurisdictions now have enactments which have replaced the Witchcraft offences with penalties for ‘pretence of Witchcraft’. That is a person who claims to have power to call up spirits or foretell the future or cast spells.

Mr Odumu is a lawyer.
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