By Nadya Rashid

"You can use elders, churches or mosques to settle disputes. I have even been told that the people of Kitui, where I come from, are turning to witch doctors to solve some issues. Going to courts is foolish because you will lose your money to lawyers." ~ Willy Mutunga.[i]

Traditionally, superstitions and supernatural means were mostly the basis of dispute resolution; especially in seeking the truth in conflicts.[ii] There was extensive and persistent use of supernatural devices for dispute settlement.[iii] The belief in superstition, charms, sorcery and witchcraft formed a great part of dispute resolution and crime prevention mechanisms in African societies.[iv] Ordeals, in these societies, were frequently employed to uncover perpetrators of crimes.[v]

Two prominent examples of communities in Kenya which adopted ordeals in dispute resolution; the Akamba and the Giriama communities. The Giriama used ordeal by fire to expose persons who committed crimes in the community.[vi] Offenders would develop blisters on their bodies, distinguishing them from other innocent suspects.[vii] On the other hand, the Akamba community used the prominent Kithitu Oath[viii], in solving disputes among its people. There has been a consensus among elders in Kenya that these methods were some of the greatest and most efficient methods of resolving conflicts among people.[ix] In addition to being cost-effective and expeditious,[x] traditional dispute resolution mechanisms focused on the restoration of bonds and promotion of a harmonious society.[xi] As a result, a strong, robust and cohesive society evolved.

With the passing of the Witchcraft Act, it became clear that the law perceived those who practised traditional religion to be unreasonable. How did it do so? By criminalising witchcraft which was a dominant aspect of the African society. The reasonable man being in Europe and not Africa, someone who even questioned the existence of witchcraft.[xii] A question that this Article seeks to ask is, when utilised correctly, can witchcraft form part of the traditional dispute resolution mechanisms in Kenya?

Witchcraft is a term that spikes controversy among societies in Kenya.[xiii] What actions specifically, amount to witchcraft? With the need to answer this question, the Witchcraft Act is a dead end. The lack of its definition in the Witchcraft Act of 1925 of Kenya has led to different interpretations of this word among Kenyans. This leaves us to rely on societal definitions, which are not a single definition, but different meanings existing in the same society. But how can legislation criminalise something without defining what it is? For the purposes of this article, I choose to adopt the meaning of the Kenya Law Review Commission, which defines witchcraft as a belief and use of magic faculties, most commonly for religious, divinatory or medicinal purposes.[xiv]

The Witchcraft Act of 1925 criminalises witchcraft[xv] and stipulates punishment for any person practicing or pretending to practice witchcraft.[xvi] Owning or having charms in Kenya,[xvii] attempting to discover any form of crime by witchcraft,[xviii]or the use of witch medicine to injure another person amounts to an offence in Kenya.[xix] The criminalisation of the use of non-natural means to expose perpetrators[xx] is puzzling. What does this use of non-natural means mean? I could say it is another word for magic, but does it apply religious belief to mean what God has prohibited or is it some form of force that cannot be scientifically explained?[xxi] Unfortunately, the Witchcraft Act leaves my questions unanswered.

With the Witchcraft Act criminalising witchcraft, what is the legal ground for the posters found all over our streets, posters that advertise 'mganga'?[xxii] Are those who mount them, the so-called waganga, practising witchcraft? Can the National Police Service trace those numbers on the posters and criminalise the 'wagangas' actions? In addition to that, how do we even identify a witch doctor?[xxiii] Does the mere act of calling oneself a mganga attribute whatever you do to be termed as witchcraft?

Two individuals suspected of stealing livestock were lured to admit to their theft by Baba Nyota, a mganga in Embu County in November 2022. After the victim of the theft sought his assistance, Baba Nyota allegedly stated that he used witchcraft to apprehend the thieves. Advising the victim to first report the matter of theft to the police, Baba Nyota succeeded to catch the thieves using witchcraft and the owner of the cattle handed the thieves to the police.[xxiv] It's paradoxical that the police did not arrest Baba Nyota for practising witchcraft yet he violated Section 7 of the Witchcraft Act which prohibits attempts to discover crime by witchcraft. Whether his evidence was adduced in court, is yet to be known. Does this show witchcraft is an accepted practice in Kenya? Is this English Act relevant today?

Despite the perceived dangers of witchcraft, we have seen many reported instances where victims of offences use witchcraft to identify the perpetrators of crime. They later hand them over to the state for incarceration.[xxv] With the essence of bringing justice to all parties, isn't justice accredited to both parties on such grounds? Or is this repugnant to justice and morality, if yes, what is the test of repugnancy? And from whose lens are we answering this question? From the perspective of White man's morality or African morality?

Article 159 of the Kenyan Constitution mandates Kenyan courts to promote the use of traditional dispute resolution mechanisms.[xxvi] The courts should ensure that traditional dispute resolution mechanisms are used in a manner that is consistent with the Constitution and any written law.[xxvii] In addition to that, any application of traditional dispute resolution mechanism in Kenya should not contravene the Bill of Rights[xxviii] and should not be repugnant to justice and morality.[xxix] On these grounds, can we have circumstances when witchcraft can be used without offending justice, law and morality?[xxx] If yes, is witchcraft then in a position to form part of traditional dispute resolution mechanism?

For the court to promote the traditional dispute resolution mechanisms, they must first acknowledge the existence of the mechanism in question. The existence of witchcraft is a dilemma that even the Witchcraft Act seems to contradict itself.[xxxi] The use of the phrase 'so-called witchcraft'[xxxii] in the Witchcraft Act presupposes the non-existence of witchcraft.[xxxiii] So, how can a statute presuppose the non-existence of the very subject matter it seeks to prevent?[xxxiv] In Athuman v Republic (1967), the court appeared to deny the existence of witches.[xxxv] The standing of the court on this subject is a dilemma when we compare this with the Musikari Kombo case.[xxxvi] In the Musikari Kombo case, the court nullified election results based on witchcraft allegations. This attitude from the court makes it difficult to prove the certainty of the existence of witchcraft.

If witchcraft is not real and does not exist, as was the position of the court in Athumani v Republic, what is the essence of victimising those practising witchcraft? If it does exist, are we okay with having it maintained as a practice that is repugnant based on the principles of English law?[xxxvii] Dear reader, in a review of a series of blog posts, I seek to analyse the history behind the adaptation of the Witchcraft Act. Have there been problems experienced by traditional communities and the Kenyan community at large due to its adaptation? In addition to that, anticipate an analysis of the fundamental contradictions of both the court and the Witchcraft Act on the subject of witchcraft. Finally, I am looking forward to briefing you on the alternative uses of witchcraft and how we can use it as a traditional dispute resolution mechanism.

[i] Willy Mutunga while opening Gatundu Law Courts, Kiambu County, https://nation.africa/kenya/counties/kiambu/witchdoctors-can-resolve-your-issues-cj-willy-mutunga-says-965792. on 1 March 2023.

[ii] Francis Kariuki, 'Conflict resolution by elders in Africa: Successes, challenges and opportunities' Challenges and opportunities (2015) 10.

[iii] Anthony E. Thomas, 'Oaths, ordeals & The Kenyan Courts: A policy analysis', Society for applied Anthropology, (1974) 60.

[iv] Francis Kariuki, 'Conflict resolution by elders in Africa: Successes, challenges and opportunities', 11.

[v] Francis Kariuki, 'Conflict resolution by elders in Africa: Successes, challenges and opportunities', 10.

[vi] Francis Kariuki, Conflict resolution by elders in Africa: Successes, challenges and opportunities', 10.

[vii] Francis Kariuki, Conflict resolution by elders in Africa: Successes, challenges and opportunities', 10.

[viii] Willy Mutunga, 'In Search and defence of radical legal education: A personal footnote' Kabarak University Press,Occassional Paper Series 1(1) (2022), 10.

[ix] Constitution of Kenya Review Commission, constituency public hearings, Kilome constituency, held at ABC Enzai, 11. Mr. Mwangangi replies to a question asked by Com. Kabira, <https://constitutionnet.org/sites/default/files/KERE02-106.pdf,> on 1 March 2023.

[x] Francis Kariuki, 'Conflict resolution by elders in Africa: Successes, challenges and opportunities', 18.

[xi] Francis Kariuki, 'Conflict resolution by elders in Africa: Successes, challenges and opportunities', 17.

[xii] Richard D. Waller, 'Witchcraft and colonial law in Kenya', Oxford University Press on behalf of The Past and Present Society (2003) 250.

[xiii] SimeonMesaki, 'The evolution and essence of witchcraft in Pre-colonial African societies', Transafrican Journal of History, (1995) 162.

[xiv] The Kenya Law Review Commission, Justification for review of Witchcraft Act no. 67, 15 December 2014.

[xv] The Witchcraft Act (No.23 of 1925), Section 2.

[xvi] The Witchcraft Act (No.23 of 1925), Section 2.

[xvii] The Witchcraft Act (No. 23 of 1925), Section 5.

[xviii] The Witchcraft Act (No.23 of 1925), Section 7.

[xix] The Witchcraft Act (No. 23 of 1925), Section 4.

[xx] The Witchcraft Act no. 23 of 1925, Cap 67, Section 7.

[xxi] Alifa Chokocho, 'Tulipokutana tena' in Alifa Chokocho, Dumu Kayanda,(eds) Tumbo lisiloshiba na hadithi nyingine, Sasa sema chapa ya Longhorn Publishers, 2016, 106.

[xxii] Dancan Ouma Ojenge v P.N.Mashru Limited, Cause number 167 of 2015, Ruling of the Employment and labour relations Court at Mombasa, 31 March 2017 [eKLR].

[xxiii] The Kenya Law Review Commission in a blog article, 'Justification for review of witchcraft act', cap 67, 15 December 2014 _ < https://www.klrc.go.ke/index.php/klrc-blog/518-justification-for-review-of-witchcraft-act-cap-67> on 1 March 2023,the commission noted that there is no criteria to determine who is a witchdoctor and who is not.

[xxiv] Sakata la mganga wa kienyeji lawashika wezi Embu, Vineart, 8 November 2022, 2:36 to 2:54--< https://youtu.be/poBlgWPqdc0> Accessed on 1 March 2023.

[xxv] Sakata la mganga wa kienyeji lawashika wezi Embu, Vineart, 8 November 2022, 2:36 to 2:54--< https://youtu.be/poBlgWPqdc0> Accessed on 1 March 2023.

[xxvi] Constitution of Kenya 2010, Article 159(2)(c).

[xxvii] Constitution of Kenya 2010, Article 159(3)(c).

[xxviii] Consitution of Kenya 2010, Article 159(3)(a).

[xxix] Constitution of Kenya 2010, Article 159(3)(b).

[xxx]Dancan Ouma Ojenge v P.N.Mashru Limited, Cause number 167 of 2015, Ruling of the Employment and labour relations Court at Mombasa, 31 March 2017 eKLR.

[xxxii] The Witchcraft Act (No. 23 of 1925), Section 2.

[xxxiii] Onesmus K. Mutungi, 'Witchcraft and the Criminal Law in East Africa' (5)(3), Valparaiso University Law Review (1971) 524.

[xxxiv] The Kenya Law Review Commission, Justification for review of Witchcraft Act no. 67, 15 December 2014.

[xxxv] Onesmus K. Mutungi, 'Witchcraft and the Criminal Law in East Africa' (5)(3), Valparaiso University Law Review (1971) 526.

[xxxvi] Joseph Maloba Elima v Charles Ohare & Another, Election Petition 64 of 1993, Judgment of the High Court at Nairobi, 17 November 1994, [eKLR].

[xxxvii] Githu Muigai, 'Power, Politics & Law: Dynamics of constitutional change in Kenya, 1887-2022', Kabarak University Press (2022) 78.