The case for Uganda to annul witchcraft law 

In a paper ‘Criminalising Indigenous Belief: The Constitutional Deficits of Uganda’s Witchcraft Act’ published by the Oxford Journal of Law and Religion, Dr Kabumba argues that the law, which morphed from the 1912 Criminal Law (Witchcraft) Ordinance to the existing 1957 Witchcraft Act of Uganda, stands irredeemably at odds with the principles enshrined in the 1995 Constitution. 

As Dr Kabumba unravels the historical threads, it becomes apparent that this legislation, conceived to safeguard colonial authority, evolved into a tool of oppression, flouting fundamental tenets of justice to-date.

“In the case of the Witchcraft Act, its letter and spirit make it distinctly irredeemable under the 1995 Constitution. As its history demonstrates, the statute was enacted primarily to protect the colonial state from some of the most potent resistance to its authority.

Subsequent amendments to it only served to make the law better suited for this purpose, even at the expense of the most basic rules of natural justice and due process,” he writes.

He adds: “The African inhabitants of the Uganda Protectorate suffered it, as they did similarly draconian laws which subjected them to, among other things, arbitrary arrest and detention, collective punishment, deportation, and even death.

The Ugandan citizens who hold rights under the 1995 Constitution, however, no longer have to bear its indignities. The law is a direct affront to the freedom of religion; the right to non-discrimination; the principle of legality; the freedoms of expression and association; and the rights to culture and health, among others.”

The Witchcraft Act, he argues, stands as just one instance among numerous historical affronts to the dignity of the people of Uganda.

Its repeal, Dr Kabumba concludes, holds significance not only for addressing a long-standing injustice with ongoing repercussions but also serves as a symbolic acknowledgment of the broader imperative of robustly pursuing legal decolonisation in Uganda and the wider post-colonial sphere. 

“It is time the taint of criminality which has long besmirched indigenous belief systems in Uganda was decisively dissipated, as a further step in the long journey towards recognising and restoring the full dignity, and constitutional citizenship, of our people,” he argues. 

In the article, Dr Kabumba says the Witchcraft Act survives as the legal face of the colonial state’s hostility to traditional belief.

Considering the acknowledgment within the 1995 Constitution of the challenges posed by Uganda’s colonial and post-colonial past, along with its commitments to fostering a more progressive societal structure, it becomes apparent that the Constitution safeguards a range of fundamental human rights. 

Dr Kabumba contends that the Witchcraft Act stands in direct contradiction to numerous constitutional guarantees. These include the rights to freedom of religion and non-discrimination, the principle of legality, the freedoms of expression and association, and the rights to culture and health. The assertion is that the Witchcraft Act is incongruent with the constitutional framework that aspires to establish a more equitable and rights-respecting order in Uganda.

“In sum, the current design of the Witchcraft Act of Uganda can only be fully appreciated within the historical context of the introduction of the law in 1912, and the subsequent amendments to it during the colonial period which were aimed at making it more effective as a mechanism for controlling dissent. Far from being neutral, the language of the statute is heavily tainted with the political considerations of the colonial state,” he says.

Background
During Uganda’s colonial period, a hierarchical religious structure emerged, relegating indigenous belief systems to a marginalised position, Dr Kabumba writes. 

The British colonial rule, initially tolerant of these beliefs, later sought to diminish their status. In 1912, the Criminal Law (Witchcraft) Ordinance was enacted, marking a pivotal moment. Despite lacking a clear definition of ‘witchcraft,’ the law criminalised those who pretended to possess supernatural powers, using such pretension to harm others or property.

This legal move was part of a broader strategy to criminalise political dissent, evident in prior laws like the Removal of Undesirable Natives Ordinance (1907) and others. The Witchcraft Ordinance became a tool to suppress anti-colonial activities, notably targeting the Nyabingi Movement in 1917. 

However, the law faced challenges, including a lack of willing witnesses and a maximum one-year detention period.

To enhance efficacy, amendments were made in 1921, broadening offenses to include ‘possession of witchcraft articles’ and increasing the maximum penalty to five years’ imprisonment. The law primarily targeted indigenous spirituality challenging British rule, exemplified by a 1928 distinction between ‘emandwa’ and ‘Nyabingi.’ 

As political tensions eased after the 1920s, the law remained unchanged until 1955, when amendments followed the activities of a possession cult in north-eastern Uganda, likely referring to the Sor community.

However, the claim that Sor’s activities prompted legislative changes seems implausible, as they lacked the political dimension of Nyabingi. Instead, the activism of Kigaanira Ssewanyanna Kibuuka in Buganda in the 1950s appears a more likely catalyst. 

Kigaanira, claiming possession by the spirit of Kibuuka, challenged colonial authority, leading to the 1957 Witchcraft Ordinance. This revised law increased penalties, including life imprisonment for witchcraft threats, introduced exclusion orders, and allowed reputation evidence against the accused. 

In the realm of religion, Dr Kabumba asserts that the State lacks the authority to dictate individuals’ beliefs. People have the freedom to embrace irrational or unconventional beliefs, and the State is prohibited from showing preference for one religion over another or unfairly disparaging any particular belief system. 

Dr Kabumba concludes that the Witchcraft Act violates both of these fundamental principles. First, the statute, outlined in Section 1, attempts to differentiate between ‘witchcraft’ and ‘bona fide spirit worship,’ placing the State and its institutions in the awkward and unfeasible position of arbitrating between ‘negative’ and ‘positive’ forms of belief.

Furthermore, he contends that, uniquely among Uganda’s belief systems, only the one derogatorily labelled as ‘witchcraft’ faces restrictions on practice. This, he argues, demonstrates a profound hostility towards a specific religious belief, contradicting the constitutional mandate of state neutrality.

“Incidentally, tables in this regard were briefly turned when Idi Amin Dada—a Muslim—was president of Uganda from 1971 to 1979. In that period, Islam was privileged, with other religions being maligned and even banned.

A semblance of religious tolerance was established with the overthrow of Amin in 1979, arguably culminating in the adoption of the 1995 Constitution with its robust protection of religious freedom.

However, both the historical realities of the formation of the State highlighted earlier, as well as current demographics, mean that Christianity remains in many ways the dominant religion in contemporary Uganda,” he writes.

Despite the constitutional protections affirming the secular character of the Ugandan State, there have been instances where this dominance has been evident in judicial opinions. 

“It is clear that the constitutional guarantees of the freedom of religion notwithstanding, there continues to be religious discrimination in Uganda, in fact, and in law. Perhaps the most glaring example of the latter is represented by the Witchcraft Act. As long as it remains on our statute books—moreover placed within a broader legal framework which protects other religions from even merely irreverent speech—it serves as a stark symbol of religious discrimination in Uganda. The Constitution [1995] mandates its repeal even on this ground alone,” he says. 

The Witchcraft Act contradicts the rights to freedom of expression and association, as well as the rights to culture and health. It not only criminalises the actual practice of ‘witchcraft’ but extends to making it an offense to ‘consult or consort with another who practices witchcraft.’ Dr. Kabumba points out that under these sweeping terms, individuals such as family, friends, and associates of those labelled as ‘witches’ could face arrest and prosecution. 

During the 47th session of the Human Rights Council in 2021, member states took a significant step by adopting a resolution on the elimination of harmful practices related to accusations of witchcraft and ritual attacks. This ground-breaking resolution, the first of its kind, calls for a holistic approach in addressing the harm resulting from accusations of witchcraft and ritual attacks.

The United Nations Office of the High Commissioner for Human Rights (OHCHR) has reported that in numerous countries worldwide, beliefs and practices related to witchcraft have led to severe violations of human rights. 

These violations include beatings, banishment, cutting of body parts, amputation of limbs, torture, and murder. Vulnerable populations, such as women, children, the elderly, and persons with disabilities, especially those with albinism, are particularly at risk. Despite the gravity of these human rights abuses, there is often a lack of a robust State-led response.