Judge says law on witchcraft reflects ‘western’ norms, not those of Eswatini. Supreme court disagrees

14 October 2022 · Carmel Rickard

A potentially divisive judicial dispute over witchcraft in Eswatini has been nipped in the bud by that country’s supreme court. The debate emerged when a high court judge, presiding in a witchcraft-related murder trial, questioned whether the present legally accepted position that witchcraft is unreasonable and irrational, reflected ‘western’ views rather than the norms of the people of Eswatini. The judge then referred a question to the country’s highest court asking if the time hadn’t come to change the way the matter is handled. Instead of belief in witchcraft being a possible extenuating circumstance after conviction, should it not provide a ‘complete defence’ to a witchcraft-related murder? (Exactly what he meant by this was not spelled out, but it seems he was suggesting that the accused would then be acquitted.) Now three supreme court judges have given their answer: there is no legal basis to change the current precedent, they said. The three judges said that though many in Eswatini practised and believed in witchcraft, murder remained a very serious crime.

Read judgment

The dispute over what legal approach should be adopted by courts in Eswatini arose during the murder trial of Ndumiso Shongwe. He was charged with the murder of a relative whom he believed was a witch. He held her responsible for the death of his parents, and thought she had put a fatal spell on him. As so often in such cases, the victim, gruesomely murdered because she was thought to be a witch, was an elderly woman.

The presiding judge in Shongwe’s high court trial, Mbutfo Mamba, convicted him of culpable homicide and gave him a 10-year sentence. But Mamba also said that the legal position in Eswatini, namely that a belief in witchcraft is unreasonable and irrational, reflected ‘the views of western civilisation and does not reflect the norms and ethos of the people of the Kingdom of Eswatini’.

Upraised knife

He said that the law reports were full of stories related to witchcraft and associated beliefs and that witchcraft practices ‘are part of the daily lives of a significant section of our people.’

Courts should ‘take a realistic and practical approach to the belief in witchcraft’ to do justice to accused persons, said Mamba, adding that in his view, ‘the threat of being killed by witchcraft was no different from the upraised knife, and that the accused in such circumstances has no way of defending himself against the threat.’

The judge went on to ask that the supreme court give its view on the question of whether a belief in witchcraft should not constitute a ‘complete defence’ to a charge of witchcraft. Now three members of the supreme court, including the chief justice, Bheki Maphalala, have responded.

Honestly

They said it was well settled in Eswatini that a belief in witchcraft could amount to extenuating circumstances in cases where there was ‘overwhelming evidence that the accused genuinely and honestly believed in witchcraft.’ However, there would have to be enough evidence that the deceased person had threatened to kill the accused using witchcraft and that the accused honestly believed that the deceased was capable of carrying out these threats.

The three supreme court judges trawled previous cases on witchcraft and pointed out that in earlier murder trials, where the belief in witchcraft was found to amount to extenuating circumstances, the range of sentence was between five and 12 years.

They said that they were not sitting as an appeal court and had to focus on the legal question referred by Mamba. If that had not been so, said the judges, they would have considered whether the prosecution in Shongwe’s case had proved the offence beyond reasonable doubt, and whether the sentence imposed by the court had been appropriate and within the range of sentences in case like this.

The accused had already been released from prison, and the supreme court said it therefore had to decide whether its judges should even consider the legal question referred by Mambo, since it could be argued that it was now moot, with no practical effect. However, though courts did not generally deal with abstract controversies, they had a discretionary power to ‘entertain moot issues’.

Scathing attack

They said that in his judgment in the Shongwe case, Mamba had ‘delivered a scathing attack’ on currently binding legal precedent that ‘a belief in witchcraft is not a complete defence to a charge of murder but could constitute an extenuating circumstance’.

Mamba had further said that ‘the suggestion that to regard a belief in witchcraft as reasonable would plunge the law backward into the Dark Ages is … false and unreasonable in the context of the prevailing circumstances in this country’.

According to Mamba, taking a ‘realistic and practical approach to the question of witchcraft’ and people’s beliefs about the subject, would not be encouraging the practice or belief, ‘but rather doing justice by addressing real and concrete issues rather than acting like an ostrich by burying its head in the sand as if such phenomenon does not exist.’

Eradicate

He said that the law and the courts would not eradicate witchcraft by simply wishing it away and saying that a belief in witchcraft was ‘unreasonable’.

In response, the three supreme court judges said it was true that ‘a section’ of people believed in witchcraft and that others practiced it. It was also true that witchcraft cases came to the courts regularly. But the fact that belief in witchcraft was prevalent did not justify making this a complete defence to a charge of murder. It was enough that such a belief could, in suitable cases, constitute extenuating circumstances to the charge of murder or a mitigating factor when it came to sentencing.

Gruesome

‘It is common cause that many innocent and defenceless people have become victims of brutal and gruesome killings in this country and other African countries because of the belief in witchcraft.’ All kinds of weapons had been used to inflict fatal injuries on defenceless victims because it was claimed they were practising witchcraft.

‘Sight should not be lost of the reality that murder remains a very serious crime not only in this country, but to the international community. … It should be borne in mind that whenever a belief in witchcraft is pleaded as a defence to the charge of murder an innocent and defenceless victim is lost.

‘Courts have an obligation to impose deterrent appropriate sentences to curb the killing of innocent and defenceless people who are believed to be practising witchcraft against others.’

In such cases, however, courts had to satisfy themselves that the accused held a genuine belief in witchcraft.

Therefore, in response to the question referred by the high court, the supreme court said it was ‘not satisfied that the time has come for the belief in witchcraft to be a complete defence to criminal liability on a charge of murder in view of the brutal and gruesome killing committed by accused persons on the pretext of a belief in witchcraft.’

Plagues

The problem of witchcraft-related murders is one that plagues a number of African jurisdictions. But most judges who deal with cases like this appear to be in favour of an approach similar to that long adopted in Eswatini’s law. And if they do express frustration, it tends to be about the continuation of witchcraft beliefs among members of the public, rather than about the approach of the law to the subject. Just how common the views of Mamba might be among other judges in the region, therefore, remains unclear.

‘A matter of justice’, Legalbrief, 11 October 2022

Carmel Rickard

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