Judges draw the line in witchcraft case

29 November 2018 · Carmel Rickard

WITCHCRAFT is a hot topic in Zambia where the courts seem to deal with such matters more often than in many other countries. In this case the two accused were convicted of murdering an elderly woman, but pleaded their belief in witchcraft as an extenuating circumstance. Though found guilty of murder, their alleged beliefs helped reduce their punishment to a life sentence instead of the death penalty that would otherwise have been mandatory. The two then appealed against sentence only, on the basis that it was “manifestly excessive” to imprison them to life since they were first offenders. Hearing this case, Zambia’s supreme court took the opportunity to restate its views on when a belief in witchcraft would amount to extenuating circumstances. Given the number of such cases, this is a timely reminder – though the results of their deliberation would have come as a shock to the two accused.

Read the judgment here

AS so often in witchcraft-related killings, the victim in this case was an elderly woman. Her name was Monica Kabondo, and on the morning of 18 April 2012, she was at home with several grandchildren when a funeral procession veered off its course and made for her house.

Carried in the procession was a coffin with the body of a two year old child who had died of a fever the day before.

When they reached her house, the people in the procession brutally attacked Kabondo and she died soon afterwards on her way to hospital. One of her granddaughters would later tell the court that she heard her grandmother crying for help. When she squeezed her way through the crowd she found her, lying on the floor and covered in blood.

As the mob left the house, they took with them the grandmother’s blanket, some clothing and a goat.

The two key witnesses both identified the accused, Donald Taulo and Watson Mboko, as part of the crowd that attacked Kabondo.

When he gave evidence Taulo said that it had been his son who was to be buried. As the mourners carried the coffin, it (the coffin) “turned and headed in the direction of the bush and later followed the road towards (Kabondo’s) house.” Both accused claimed they had tried to stop the crowd beating the old woman but failed.

Taulo’s evidence that the coffin “turned” was an obvious reference to “kikondo”, when a casket containing a deceased person is believed to take on a mind of its own. During a funeral procession the coffin heads to the home of the person said to have been responsible for causing the death of the one in the coffin and points out him or her.

At the trial, the court found the two guilty of murder, but held there were extenuating circumstances in that they believed in “kikondo”. They were therefore both given a life sentence, rather than the death penalty that would usually follow a murder conviction. But the two decided to appeal on the grounds that the sentence was too severe since they were both first offenders.

The supreme court was skeptical. From the prosecutor they heard that there was no evidence to suggest any belief in witchcraft on the part of the two accused. Nor had the old woman been accused of being a witch or of being linked to the child’s death. The father of the dead child was specifically asked during the trial whether he had instructed anyone to put medicine on the coffin to initiate the “kikondo” procession – and he categorically denied having done any such thing.

In the view of the prosecution, the trial court should not have found any extenuating circumstances based on a belief on witchcraft, and the appeal should be dismissed, along with the previous sentence, and the mandatory death penalty imposed.

The supreme court commented that, in “a plethora of cases” already, it had acknowledged that “belief in witchcraft by many communities in Zambia is very prevalent” and could be held to be an extenuating circumstance. But in each case where a belief in witchcraft was pleaded, the truth of whether the accused really had such a belief had first to be established.

The court said it had made clear in many earlier cases that whenever the issue was raised of an alleged belief in witchcraft, that belief had to “reach the threshold of provocation” in order to lead to a life sentence rather than the death penalty. But in this case neither accused indicated a belief in witchcraft in their evidence and there was nothing in the record to show such a belief.

In order for a claim of belief in witchcraft to stand in court and to qualify as valid extenuating circumstances, some evidence was first needed that an accused in fact believed in a witchcraft practice. This might include “a visit to a witchdoctor, a visit to a witch finder or advice from either of the two; a visit or advice from a traditional healer or consultation about witchcraft or some other reasonably suspicious event or admission believed to have been authored by the deceased in the murder case; or indeed, a demonstration of strong belief in a local ritual ordinarily associated with witchcraft.”

According to the court no such evidence had emerged in this case, though the accused clearly knew the accused. The two used to do part time work cultivating the field that she owned and were well known to the family. There was no evidence of anything linking the child’s death to the old woman before her fatal assault by the mob. Neither of the appellants visited any witchdoctor or witch finder about the sick child before it died. Add to this the fact that the accused in fact claimed they had tried to stop the mob from carrying out the kikondo ritual.

The two would not have worked for the old woman if they really believed she was a witch, said the judges, and they concluded: “We do not find any evidence-based belief in witchcraft (by the two accused) to justify their assault” and thus their claim that they believed in witchcraft and that this amounted to extenuating circumstances, had to be rejected.

The matter was originally been heard by seven judges, but two had since retired while another had been an acting judge and no longer on the bench. The remaining four said they were unanimous in finding the trial court made a “perverse finding of fact” on the question of extenuating circumstances due to a belief in witchcraft, and the supreme court felt “duty bound” to intervene and reverse it. “The net result is that we quash the life sentence and we impose the mandatory death sentence in its place,” the judges said.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.