Whither 1911 witchcraft law?

On January 21 2012, The Nation carried a story about Nkhunga Police in Dwangwa, Nkhotakota which released on bail four people suspected to have killed a man through witchcraft.

The then station’s publicist, Labani Makalani, told The Nation that the accused four-Shaibu Katutu, Tamimu Mdutu, Yazidu Mdutu and Mwanyameni Kowelani,  aged between 50 and 80-were arrested following the death of Sefu Kachulu who died of constipation.

Makalani added that the four ‘will answer a charge of practising witchcraft when police finish investigating the matter’.

Generally, if you were to ask Makalani and the accused four if practising witchcraft is a crime or not, they would hardly take a second to respond in the affirmative.

But here is another story The Nation carried on November 10 2012. The story, by Jonas Nyasulu, said Mzimba First Grade Magistrate’s Court ordered 28-year-old Penjani Mazie of Kwalamba Village, Traditional Authority (T/A) Mtwalo in the district to pay a fine of K20 000 ($27) or in default serve a two-year-jail term for calling a person a witch.

Again, if you were to ask Nyasulu, if calling a person a witch is a crime or not, he would, immediately, look into your eyes and say it is a crime.

However, in 2013, there was a presidential prisoner parole which saw the freeing from prison of every person who was jailed on suspicion of practising witchcraft. The development came at a time the 1911 Witchcraft Act, which does not recognise witchcraft, was going under review.

Now the question is: If the law does not recognise witchcraft, why then were some people being arrested for witchcraft accusation? Which law were the arrests based on?

Mtamandeni Liabunya, spokesperson for the Law Commission, says Malawi has a 1911 Witchcraft Act which was enacted on May 12 1911 and premised on the belief that witchcraft does not exist in the country.

“The law was developed with an aim of dealing with trials by ordeal, witchcraft and the use of charms,” he says.

The Witchcraft Act forbids any trial by ordeal that involves ‘poison, fire, boiling water, or . . . any ordeal which is likely directly or indirectly to result in the death of or bodily injury to any person’.

The Act also forbids accusing anyone of being a witch or practising witchcraft, employing a ‘witch finder’ to identify ‘the perpetrator of any alleged crime or other act complained of,’ and representing oneself as ‘a wizard or witch or as having or exercising the power of witchcraft’.

Researchers Chi Adanna Mgbako and Katherine Glenn, in an article Witchcraft Accusations and Human Rights: Case Studies from Malawi, found that the Act, however, does not explicitly criminalise the practice of witchcraft, but effectively does so by its prohibition on ‘pretending witchcraft’ and outlawing the occupation of ‘witch finder or witchdoctor’.

However, despite its clarity, the implementation of the Act-judging by contradictions on arrests, trials and also increased cases of witchcraft-related violence-seems to be problematic.

Andrew Kavala, chairperson of the Malawi Network for Older Persons Organisation (Manepo), says for a long time, the elderly people have not been accorded the respect that they deserve.

“We are coming from a background where the elderly in Malawi and even in the entire African continent have suffered different forms of abuse and victimisation in silence as they have not been given the dignity appropriate to their age.

“This explains why there has been an escalation of cases of abuse targeting older persons despite the whole Witchcraft Act in place,” he says.

Kavala also says Manepo has not been comfortable with way the police have been enforcing this law over the years.

“There has been laxity when it comes to enforcing this law. This could also be explained as perhaps because of lack of enough sensitisation to the public about the Act,” he says.

However, deputy national police publicist Nicholas Gondwa dismisses that police has been lax in enforcing the law.

He says what is key is the need for concerted effort between the police and the communities.

“In fighting any crime, people should give us the tips and we will come in with our expertise. Crime happens where people are,” he says.

Gondwa, however, agrees Kavala that sensitisation of this law has been very minimal.

“It is not, necessarily, our core duty as police to sensitise people about the law. Our core duty is to enforce the law. Of course, these days we come in with sensitisation programmes through the Community Police,” he says.

The problem of lack of the sensitisation of the Act, as raised by Gondwa and Kavala, is also a key feature in the 2011 study by Charles Chilimampunga and George Thindwa titled ‘The Extent and Nature of Witchcraft-Based Violence against Children, Women and the Elderly in Malawi’.

In their report, the two, in the study, conclude that knowledge of the Act among Malawians is low despite the fact that it was enacted in 1911 and inherited by government since 1964.

“People‘s ignorance of what the Witchcraft Act states explains in part, why violence against suspects is accepted by many people. This ignorance is an indication that the general public has not been adequately sensitised,” they write.

Additionally, the study also underlines that 85 percent of traditional and religious leaders who participated in the study, even though they handle many witchcraft cases, most of them are not conversant with the Act-eventually, they do not handle cases according to the law.

“The two most frequently mentioned reasons were that, from their point of view, there is no law addressing witchcraft in Malawi, and that most people do not know anything about the law,” reads the study.

This, arguably, could be problematic because, as noted by Mgbako and Glenn, customary law recognises the existence of witchcraft where the Witchcraft Act does not.

“Local chiefs and religious leaders had dealt with many disputes involving witchcraft; including cases in which someone accused of witchcraft sought their help,” reads their study.

However, there appears a window of hope.

Secretary for Malawi Law Society (MLS) Khumbo Soko says, with funding from Open Society Institute for Southern Africa (Osisa), they have a project on sensitising people to various laws and Witchcraft Act is one of them.

“We hope to reach out to many Malawians so that they know what the law provides on this subject,” he says.

Association of Secular Humanists (ASH) also has been running a project on sensitising Malawians to the Act. However, more need to be done.