Has the Witchcraft Act of 1957 outlived its usefulness?

Uganda - Recently, there has been a marked increase of reports on issues connected with witchcraft in the media. These stories range from exhuming dead bodies for body parts, human sacrifice where victims are killed, genitals cut off and blood drained from the body and people banished from home areas after being accused of bewitching others.

One wonders whether witchcraft practices are on the increase or whether their prominence is because they are linked to criminal acts such as murder. Many reasons are advanced for practising witchcraft—search for wealth, jobs, power, love, peace and stability in relationships.

Research reveals that witchcraft in historical, anthropological, religious, and mythological contexts, is the alleged use of supernatural or magical powers. A witch is a practitioner of witchcraft. Historically, it was widely believed that witches were in league with the devil and used their powers to harm people and property. Particularly, since the mid-20th century, 'bad' and 'good' witchcraft are sometimes distinguished. The 'good witchcraft' often involves healing. The concept of witchcraft as harmful is normally treated as a cultural ideology, a means of explaining human misfortune by blaming it either on a supernatural entity or a known person in the community.

Uganda has a specific law on witchcraft —the Witchcraft Act of 1957. This law provides for the prevention of witchcraft and the punishment of persons practising it.

The practice of witchcraft is not confined to Africa. Communities worldwide practise it. For example, the United Kingdom has the Fraudulent Mediums Act of 1951 which repealed their Witchcraft Act of 1735. This English law punishes persons who fraudulently purport to act as spiritualist mediums or to exercise powers of telepathy, clairvoyance or other similar powers.

In Uganda, one significant case on witchcraft is Constitutional Case No. 2 of 1997 between Salvatori Abuki, Richard Abuga and the Attorney General. Abuki and Abuga challenged their convictions under the Witchcraft Act. They had been tried in the Grade II Magistrates Court of Aduku in Lira District, their appeals to the Chief Magistrates’ Court failed. Abuki was charged with practising witchcraft, pleaded guilty, was convicted and sentenced to 22 months' imprisonment. Abuki on the other hand, was convicted of being in possession of articles used in witchcraft and practising witchcraft. He was sentenced to 36 months' imprisonment for possession of articles used in witchcraft and 24 months for practising witchcraft. The sentences ran concurrently. In addition, both Abuki and Abuga were served with exclusion orders that banished them from their homes for 10 years after serving the sentence of imprisonment.

The main issues in their constitutional petition were:

lWhether the banishment order of the Witchcraft Act infringed on constitutional rights—in particular, the right to freedom from inhuman, cruel and degrading treatment or punishment;

lWhether one could be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed by law;

lWhether the petitioner was afforded fair trial or hearing as provided for under the Constitution;

lWhether the Witchcraft Act infringed on the right to equality and freedom from discrimination;

The petition was successful, Constitutional court declared that:

lThe sections interpreting ‘witchcraft’ were void for being vague and ambiguous and did not meet the requirements of he Constitution. And that as a result the petitioner was not afforded a fair trial as the offence was unknown.

lThe exclusion order was unconstitutional because it threatened the petitioner’s life by depriving him of the means of subsistence and deprived him of access to his property. Hence it was considered inhuman, since it was a threat to life, and contravened the Constitution. And that by depriving the petitioner access to his property, the exclusion order contravened the Constitution.

lThe petitioner was granted immediate release from custody and the respondent ordered to pay him costs.

Following the Constitutional declaration, the exclusion order or banishment as a form of punishment was deleted from the law. And the need for an explicit definition of the offence of witchcraft was underscored. Currently, 14 years later, the Witchcraft Act still provides for punishment for practising witchcraft ranging from imprisonment for a period not exceeding five years to life imprisonment. For example, Section 2 of the Witchcraft Act partly states: “Any person who directly or indirectly threatens another with death by witchcraft or by any other supernatural means commits an offence and is liable on conviction to imprisonment for life.”

The question is, what mechanisms can one use to discern or ascertain bona fide spirit worship or bona fide manufacture, supply or sale of native medicines? Further more “Evidence of reputation” under the law presumes that the aggrieved person knows what the practice of witchcraft involves. It is all shrouded in mystery!

It should be noted that most crimes linked to witchcraft such as child sacrifice are punishable under other specific laws such as the Prevention of Trafficking in Persons Act and Penal Code Act. In light of all this, has Witchcraft Act outlived its usefulness?