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WITCH-KILLINGS AND THE LAW IN UGANDA

  • Rukundo Solomon (a1)

Abstract

People believed to be witches have been killed in many parts of Africa since precolonial times. Belief in witchcraft persists today among many people, occasionally resulting in the killing of the suspected witch. The killer views witchcraft as an attack similar in nature to the use of physical force and therefore kills the witch in an attempt to end the perceived attack. As it stands today, the law in Uganda fails to strike a balance between the rights of the deceased victim violated through murder and those of the accused who honestly believes that he or she or a loved one was a victim of witchcraft. This article argues that the defenses that are currently available—mistake of fact, self-defense, insanity, and provocation by witchcraft—are insufficient, as they fail to strike that delicate balance. A more pragmatic approach to the issue of witch-killing, one that deals with the elimination of belief in witchcraft, is necessary.

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References

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1 Patrick Murangira, Relatives Torch 86-yr-old Man over Witchcraft, New Vision, June 5, 2015, https://www.newvision.co.ug/new_vision/news/1327665/relatives-torch-86-yr-witchcraft.

2 Scovin Iceta, Mob Burns Suspected Witchdoctor to Death, Daily Monitor, October 10, 2016, http://www.monitor.co.ug/News/National/Mob-burns-suspected-witchdoctor-death/688334-3411438-v4yavxz/index.html.

3 Yahudu Kitunzi, Man Kills Mother over Family Land, Witchcraft, Daily Monitor, March 16, 2017, http://www.monitor.co.ug/News/National/Man-kills-mother-over-family-land--witchcraft/688334-3852288-148l134z/index.html.

4 Longino Muhindo, Son Kills Mother over Witchcraft, Daily Monitor, June 26, 2018, http://www.monitor.co.ug/News/National/Son-kills-mother-witchcraft/688334-4631338-q031hm/index.html.

5 Isaac Otwii, UPDF Soldier Pleads Guilty to Murdering Four Family Members, Daily Monitor, February 6, 2019, https://www.monitor.co.ug/News/National/UPDF-soldier-pleads-guilty-murdering-four-family-members/688334-4968968-bim397/index.html.

6 Kefa M. Otiso, Culture and Customs of Uganda 24 (2006).

7 Middleton, John & Winter, E. H., Introduction to Witchcraft and Sorcery in East Africa 1, 3 (1963).

8 Dominic Kwikiriz, Witchcraft Today: An Investigation into the Factors that Influence Catholics to Get Involved in Witchcraft in Yerya Parish, Fort-Portal Diocese (2014).

9 There have been several calls from citizens and legislators for more stringent laws against witchcraft. John Tugume, “Law on Witchcraft Should Be Changed,” Daily Monitor, April 14, 2013, https://www.monitor.co.ug/Magazines/PeoplePower/-Law-on-witchcraft-should-be-changed-/689844-1747488-buaawhz/index.html; Malik Fahad Jjingo, Rakai Residents Demand Review of Witchcraft Act, Uganda Radio Network (February 19, 2013), https://ugandaradionetwork.com/story/rakai-residents-demand-review-of-witchcraft-act; Parliament Bolsters Crackdown on Witchcraft, Chimpreports (April 2, 2014), https://chimpreports.com/18850-parliament-bolsters-crackdown-on-witchcraft/; Nobert Atukunda, Legislator Drafts Bill to Ban Witchdoctors, Daily Monitor, December 13, 2018, https://www.monitor.co.ug/News/National/Legislator-drafts-Bill-ban-witchdoctors/688334-4892952-10t7lloz/index.html.

10 Joseph Elunya, Twenty Suspected Witches Lynched in Mbale, Uganda Radio Network, March 15, 2007, https://ugandaradionetwork.com/story/twenty-suspected-witches-lynched-in-mbale.

11 Uganda Police, Annual Crime Report 2008, at 28 (2009).

12 Uganda Police, Annual Crime and Traffic/Road Safety Report 2013, appendix X (2014).

13 Uganda Police, Annual Crime Report 2014, at 20 (2018). Uganda Police, Annual Crime Report 2019, at 26 (2019).

14 Julius Ocungi, Residents Burn Down Church over Cult Worship, Daily Monitor, January 30, 2019, https://www.monitor.co.ug/News/National/Residents-burn-down-church-over-cult-worship-/688334-4957334-5xoqw8z/index.html; Joseph Kato, Mob Kills 42 in 7 Weeks—Police, Daily Monitor, March 6, 2019, https://www.monitor.co.ug/News/National/Mob-kills-42-in-7-weeks-police/688334-5010694-yaiqd7/index.html; Fred Muzaale, Residents Flee Village as Police Hunt Killers of 75-Year-Old Man in Kayunga, Daily Monitor, February 16, 2019, https://www.monitor.co.ug/News/National/Residents-flee-Police-hunt-killers-75-year-old-man-Kayunga/688334-4984948-kdmnoqz/index.html.

15 Uganda v. Ujiga & 8 Others (Criminal Sessions Case No. 0014 of 2018) [2018] UGHCCRD 72. Unless otherwise indicated, cases are from Uganda. Ugandan case law can be located using the Uganda Legal Information Institute (ULII): https://ulii.org. Cases are cited following ULII's format, with the exception of cases cited to the official High Court Bulletin (H.C.B.), the Uganda Law Reports (U.L.R), the Kampala Law Reports (Ka.L.R.), East Africa Reports (E.A.) or East Africa Court of Appeal Reports (E.A.C.A). Where a paginated version of the opinion is available, the page number referenced is provided with an asterisk.

16 Id. at *1.

17 The State v. Shingirai Hamunakwad (2015) (HH 323-15 CRB No. 58/15) [2015] ZWHHC 323, at *5 (High Court of Zimbabwe) (accessed through the Zimbabwe Legal Information Institute, https://zimlii.org).

18 Tebbe, Nelson, Witchcraft and Statecraft: Liberal Democracy in Africa, 97 Georgetown Law Journal 183 (2007), at 190–92.

19 By definition, witchcraft is practiced in secret.” Peter Geschiere, The Modernity of Witchcraft: Politics and the Occult in Postcolonial Africa 22 (1997).

20 Edwards Evans-Pritchard, Witchcraft, Oracles, and Magic among the Azande 58–59 (1976).

21 Id.

22 Adam Ashforth, Witchcraft, Violence, and Democracy in South Africa 70 (2015).

23 Evans-Pritchard, supra note 20, at 45.

24 Pew Forum on Religion and Public Life, Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa 34 (2010).

25 Esther Oluka, Witchcraft: Myth or Reality?, Daily Monitor, January 15, 2016, http://www.monitor.co.ug/artsculture/Reviews/Witchcraft--Myth-or-reality-/691232-3033772-ryq5i2z/index.html.

26 Francis Kagolo, Ugandans Turn to Witchcraft to Keep Jobs, New Vision, May 5, 2012, https://www.newvision.co.ug/new_vision/news/1301412/ugandans-witchcraft-jobs.

27 John Semakula & Faustine Odeke, Witchcraft Creeps into Public Offices, New Vision, July 21, 2014, https://www.newvision.co.ug/new_vision/news/1303216/witchcraft-creeps-public-offices.

28 Tabu Butagira, Witchcraft Scare, Internal Fights Hit Uganda's Embassies Abroad, Daily Monitor, January 10, 2016, http://www.monitor.co.ug/News/National/Witchcraft-scare--internal-fights-hit-Uganda-s-embassies/688334-3027068-oy2bi9z/index.html.

29 Harriet Nakitendde, A Thin Line between Witchcraft and African Politics, Sunrise, November 7, 2015, http://www.sunrise.ug/opinions/201511/a-thin-line-between-witchcraft-and-african-politics.html.

31 James Onen, How to Eradicate Witchcraft in Uganda, Freethought Kampala, March 3, 2010, https://freethoughtkampala.wordpress.com/2010/03/03/how-to-eradicate-witchcraft-in-uganda/.

32 Ashforth, Adam, Witchcraft, Justice, and Human Rights in Africa: Cases from Malawi, 58 African Studies Review 5, 7 (2015).

33 Seidman, R. B., Witch Murder and Mens Rea: A Problem of Society under Radical Social Change, 28 Modern Law Review 46, 47 (1965).

34 Just 0.1 percent of the Ugandan population identifies with traditional spirit worship. Uganda Bureau of Statistics, The National Population and Housing Census 2014—Main Report 19 (2016).

35 See, for example, The Local Governments (Kampala City Council) (Traditional Healers and Herbalists) Ordinance, XCVIX Uganda Gazette no. 74, supplement (2006).

36 Robert Mugagga, Church in Morning, Witchcraft at Night, Observer, February 8, 2012, https://www.observer.ug/component/content/article?id=17050:church-in-morning-witchcraft-at-night.

37 Davis Buyondo, Rakai District Approves 300 Witch Doctors and Shrines, New Vision, June 12, 2016, https://www.newvision.co.ug/new_vision/news/1426753/rakai-district-approves-300-witch-doctors-shrines.

38 Evans-Pritchard, supra note 20, at 51, 53.

39 Allen, Tim, Vigilantes, Witches, and Vampires: How Moral Populism Shapes Social Accountability in Northern Uganda, 22 International Journal on Minority and Group Rights 360, 361 n.3 (2015).

40 In Regina v. Magata (1957) 1 E.A. 330, 331 (High Court for Uganda at Kampala), the accused believed that the deceased had caused the death of his livestock.

41 Banda v. Chikalamba (MSCA Civil Appeal No. 2 of 2001) [2001] MWSC 4, at *5 (Supreme Court of Malawi) (accessed through the Malawi Legal Information Institute, https://malawilii.org; filed under a misspelling of the respondent's name: Chakalamba).

42 K. Hassani v. Kithuku & Chali (1985) T.L.R. 212 (High Court of Tanzania) (accessed through the Tanzania Legal Information Institute, https://tanzlii.org/tz/judgment/high-court-tanzania/1983/34).

43 In R. v. Kelementi Maganga, (1943) 10 E.A.CA 49, 53 (Court of Appeal for Eastern Africa), the suspected witch was found dancing naked at night and killed.

44 Hope Mafaranga & Rogers Sunday, Scary Cannibal Stories Exposed in Many Districts, New Vision, September 23, 2013, https://www.newvision.co.ug/new_vision/news/1332290/scary-cannibal-stories-exposed-districts.

45 Witchcraft Act (1957), Cap. 124 § 2 (Uganda).

46 Witchcraft Act (1925), Cap. 67 § 3 (Kenya) (referring to “so-called witchcraft”); Witchcraft Suppression Act of 1957 § 1(b) (South Africa) (referring to acts in which the accused “professes or pretends” to use witchcraft); and Witchcraft Act (1911), Cap 7:02 §§ 4, 6 (Malawi).

47 Witchcraft Act (157), Cap. 124 § 2(3) (Uganda).

48 Id. § 7 (providing exclusionary orders used for banishment). For cases holding this provision unconstitutional, see Salvatori Abuki & Another v. Attorney General (Constitutional Case No. 2 of 1997) [1997] UGCC 10, and Attorney General v. Salvatori Abuki (Constitutional Appeal No. 1 of 1998) [1999] UGSC 7.

49 Witchcraft Act (1957), Cap. 124 § 1 (Uganda).

50 Id. § 3.

51 See, e.g., Murama v. Abigaba (Civil Appeal No. 104 of 2014) [2017] UGHCCD 140. In Maisha v. Madraa (Civil Appeal No. 0031 of 2012) [2016] UGHCCD 66, at *5, where the appellant had accused the respondent of being a wizard, the judge stated, “There was no need to prove loss of reputation since the words complained of imputed that the respondent practiced witchcraft, which is a criminal offence and is therefore actionable per se.”

52 Has the Witchcraft Act of 1957 Outlived Its Usefulness?, New Vision, September 7, 2011, https://www.newvision.co.ug/new_vision/news/1005708/witchcraft-act-1957-outlived-usefulness.

53 “And each subsequent law was ineffective in diminishing witchcraft because as elements of an evidentiary-based legal system, the ordinances required tangible evidence to prove the perpetration of a “crime” which was inherently invisible.” Katherine Angela Luongo, Motive Rather than Means: Legal Genealogies of Witch-Killing Cases in Kenya, 189–90 Cahiers d’Études Africaines para. 20 (2008), https://journals.openedition.org/etudesafricaines/9622.

54 Salvatori Abuki, Constitutional Appeal No. 1 of 1998.

55 See id. at *2, for the facts of the case.

56 Salvatori Abuki, Constitutional Case No. 2 of 1997, at *45.

57 Salvatori Abuki, Constitutional Appeal No. 1 of 1998, at *18.

58 Penal Code Act (1950), Cap. 120 § 188 (Uganda).

59 Uganda v. Bosco Okello [1992–93] H.C.B. 68, 71 (High Court of Uganda at Jinja).

60 Cohan, John Alan, The Problem of Witchcraft Violence in Africa, 44 Suffolk University Law Reiew 803, 804 (2011).

61 Mutungi, Onesimus K., Witchcraft and the Criminal Law in East Africa, 5 Valparaiso University Law Review 524, 537 (1971).

62 In Uganda v. Osherura & Another (HCT-05-CR-CSC-0114-2010) [2012] UGHC 79, at *2, a woman believed to be the witch responsible for the illness of the accused's wife was brutally murdered.

63 See Obedling & 3 Others v. Uganda (Criminal Appeal No. 167 of 2012) [2016] UGCA 17, at *2.

64 John Roscoe, in his 1911 study of the customs of the Baganda, the largest tribe in Uganda, noted their practice of burning condemned witches on wastelands. John Roscoe, The Baganda: An Account of Their Native Customs and Beliefs 289 (1911).

65 Mutungi, supra note 61, at 531.

66 See Uganda v. Seruga Yonasani & Ors (HCT-00-CR-SC-0198 of 2003) [2004] UGHC 44, *6; R. v. Kabateleine (1946) 13 E.A.C.A 164, 165 (Court of Appeal for Eastern Africa).

67 See Uganda v. Nyote (HCT-04-CR-SC-0043-2012) [2014] UGHCCRD 18, at *3.

68 In Regina v. Magata (1957) 1 E.A. 330 (High Court for Uganda at Kampala), a son beheaded his father, whom he suspected of witchcraft.

69 See Obedling & 3 Others v. Uganda (Criminal Appeal No. 167 of 2012) [2016] UGCA 17, at *2.

70 In Uganda v. Munyirwa Laliyo & 6 Others (HCT-00-CR-SC-0103 of 2004) [2005] UGHC 40, at *1, the victim was thrown into fire, and when he jumped out he was stoned to death.

71 Allen, Tim & Reid, Kyla, Justice at the Margins: Witches, Poisoners, and Social Accountability in Northern Uganda, 34 Medical Anthropology: Cross-Cultural Studies in Health and Illness 106–23, 114 (2015).

72 Golooba-Mutebi, Fredrick, Witchcraft, Social Cohesion and Participation in a South African Village, 36 Development and Change 937, 940 (2005); Quarmyne, Maakor, Witchcraft: A Human Rights Conflict between Customary/Traditional Laws and the Legal Protection of Women in Contemporary Sub-Saharan Africa, 17 William and Mary Journal of Women and the Law 475, 476 (2011).

73 Uganda Police, supra note 12, appendix X.

74 Ashforth, supra note 32, at 12.

75 Id. at 10–11.

76 Id. at 11.

77 Alan Tacca, Is Pastor Kayanja Better than a Witchdoctor?, Daily Monitor February 26, 2017, http://www.monitor.co.ug/OpEd/Commentary/Is-Pastor-Kayanja-better-than-a-witchdoctor-/689364-3827936-41mtgaz/index.html.

78 Ashforth, supra note 32, at 11.

79 See Norman Miller's account of how a village elder in rural Tanzania prevented a mob from attacking a woman suspected of witchcraft in Norman Miller, Encounters with Witchcraft: Field Notes from Africa 61–62 (2012).

80 See, e.g., Sebankirya v. The Lukiko (1958) 1 E.A. 130 (High Court for Uganda at Kampala).

81 Watete v. Uganda (2000) 2 E.A. 559, 562 (Supreme Court of Uganda).

82 Sebankirya v. The Lukiko (1958) 1 E.A. 130, 133 (High Court for Uganda at Kampala).

83 Okae Terensio & 3 Others v. Uganda (Civil App. No. 7 of 2007) [2008] UGHC 107, at *2.

84 Watete v. Uganda (2000) 2 E.A. 559, 562 (Supreme Court of Uganda).

85 Stephen Wanzama & 4 Others v. Uganda (Criminal Appeal No. 69 of 1999) [1999] UGCA 14, at *3.

86 Penal Code Act (1950), Cap. 120 § 9 (Uganda).

87 Uganda v. Akuku (1994) I Ka.L.R. 14, 23 (High Court of Uganda at Kampala).

88 Mutungi, supra note 61, at 531.

89 Id. at 535.

90 In the Tanzanian case of Kasongi Yabisa v. The Republic (1995) T.L.R. 28 (Tanzania Court of Appeal) (accessed from Tanzania Legal Information Institute, https://tanzlii.org/tz/judgment/court-appeal-tanzania/1994/22), the court noted that “There can be no doubt in this case that the appellant killed his sister, the deceased, in the honest belief that she was responsible, by reason of witchcraft, for the death of his daughter,” but the court still convicted him of murder as the other ingredients of the defense of provocation, such as sudden shock, were absent. In the Kenyan case Athuman v. Republic (1967) E.A. 401, 402 (High Court of Kenya at Mombasa), the court entertained the existence of “strangely deluded witch-doctors . . . men who undertake the cure of ailments for reward and have an honest belief in the efficacy of rituals, incantations and the like.”

91 It is noteworthy that in the United Kingdom, the requirement of reasonableness of the belief has been abandoned in at least some areas of the law. See DPP v. Morgan [1975] UKHL 3, [1976] 1 AC 182, 202–03 (appeal from England) (overruled by the Sexual Offences Act 2003, chapter 42); R. v. Williams [1987] 3 All ER 411, 413.

92 Rex v. Dominiko (1943) 10 E.A.C.A. 81 (Court of Appeal for Eastern Africa).

93 Id. at 87.

94 Stephen P. Garvey, Racism, Unreasonable Belief, and Bernhard Goetz (Cornell Law Faculty Working Papers, Working Paper No. 24, 2007).

95 Yovan v. Uganda (1970) 1 E.A. 405, 406 (Court of Appeal at Kampala).

96 Id.

97 Garvey, supra note 94, at 8.

98 In Uganda v. Munguriek & Anor (Criminal Sessions Case No. 0008 of 2017) [2018] UGHCCRD 92, at *7, there was evidence that the accused in a case of aggravated robbery targeted the victim because of his tribe although this was not proffered as exculpatory or mitigating evidence.

99 People v. Goetz, 497 N.E.2d 41, 43–44, 47–53 (N.Y. 1986).

100 Ikuenobe, Polycarp, Cognitive Relativism, African Philosophy, and the Phenomenon of Witchcraft, 26 Journal of Social Philosophy 143, 145 (1995).

101 Id. This is demonstrated by a district police commander who, in his farewell address, declared that he “had fought drug abuse, theft and burglary but he was on the verge of admitting defeat with regard to witchcraft,” because it was too effective. Bernard Bakalu, Can Witchcraft Fail Service Delivery?, Observer, February 18, 2014, https://www.observer.ug/component/content/article?id=30234:can-witchcraft-fail-service-delivery.

102 Saari, Heikki, On Believing in Witches, 30 Philosophical Papers 307, 315–16 (2001).

103 Gadam v. Queen [1954] 14 SJWACA 442, 443 (West African Court of Appeal), https://lawnigeria.com/2018/01/muhammedu-gadam-v-the-queen/.

104 Id.

105 Penal Code Act (1950), Cap. 120 § 15 (Uganda).

106 R. v. Williams (1987) 3 All ER 411, 415.

107 Obote v. Uganda (Criminal Appeal No. 12 of 2014) [2017] UGSC 2, at *10.

108 Wandera Fred & 2 Others v. Uganda (Civil Appeal No. 113 of 1999) [2002] UGCA 3, at *4.

109 Catherine Elliot & Frances Quinn, Criminal Law 349 (8th ed., 2010). The more verifiable harms likely to be caused by people purporting to practice witchcraft, such as creating a climate of fear thereby damaging social relations, cannot be covered here. However, I do note one peculiar case, in Luweero district, in the central region, in which a practicing witch confessed to the police that he had been hired by the district chief finance officer, who had paid him UGX 20 million (USD 5700) to cause the death of two district councilors by bewitching them. In return for the money, the witch gave the official some fetishes, which, however, failed to fulfil their purposes. The official then demanded that the witch refund the money and had him arrested for fraud. The police arrested both men and informed the would-be victims. The victims and the entire district administration staff declared that they were now all living in fear and distrusted each other. Bakalu, supra note 101.

110 John Middleton, Witchcraft and Sorcery in Lugbara, in Middleton & Winter, supra note 7, at 267.

111 Uganda v. Adima & 5 Others (Criminal Case No. 0226 of 2014) [2017] UGHCCRD 19, at *2.

112 Id. at 10.

113 Witchcraft Act (1957), Cap 124, § 3 (Uganda).

114 Ciekawy, Diane, Witchcraft in Statecraft: Five Technologies of Power in Colonial and Post-Colonial Coastal Kenya, in 6 New Perspectives on Witchcraft, Magic, and Demonology: Witchcraft in the Modern World 377, 383 (Levack, Brian P. ed., 2001).

115 Wandera Fred & 2 Others v. Uganda (Civil Appeal No. 113 of 1999) [2002] UGCA 3, at *4.

116 Bahemuka William & Another v. Uganda (Criminal Appeal No. 4 of 2003) [2010] UGCA 51, at *5.

117 Elliot & Quinn, supra note 109, at 353.

118 Id.

119 A 2012 study of violence against suspected witches in Malawi found that most people who believe themselves or love ones to be victims of witchcraft seek help from traditional healers and pastors in evangelical and Pentecostal churches. Charles Chilimampunga & George Thindwa, The Extent and Nature of Witchcraft-Based Violence against Children, Women and the Elderly in Malawi (2012).

120 Mutungi, supra note 61, at 538.

121 Stroeken, Koen, Witchcraft Simplex: Experiences of Globalised Pentecostalism in Central and Northwestern Tanzania, in Pentecostalism and Witchcraft: Spiritual Warfare in Africa and Melanesia 257, 260 (Rio, Knut, et al. eds., 2017).

122 Kagolo, supra note 26.

123 Witchcraft Act (1957) Cap. 124 § 1 (Uganda).

124 Id. § 2(3).

125 Wandera Fred & 2 Others v. Uganda (Civil Appeal No. 113 of 1999) [2002] UGCA 3, at *4.

126 Ashforth, supra note 32, at 10.

127 Galikuwa v. Rex (1951) 18 E.A.C.A. 175 (Court of Appeal for Eastern Africa).

128 Id. at 175 (reciting the facts of the case).

129 Id. at 78.

130 Perlin, Michael L., The Insanity Defense in English-Speaking African Countries, 2 Journal of Legal Pluralism & Unofficial Law 73–92 (1969); Daniel M'naghten's Case [1843] UKHL J16, 8 Eng. Rep. 718, 719 (England), where the House of Lords stated as follows:

every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

131 Penal Code Act (1950), Cap. 120 § 11 (Uganda) states, “A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he or she is through any disease affecting his or her mind incapable of understanding what he or she is doing or of knowing that he or she ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his or her mind is affected by disease, if that disease does not in fact produce upon his or her mind one or other of the effects mentioned in this section in reference to that act or omission.”

132 Gabriel Hallevy, The Matrix of Insanity in Modern Criminal Law 11 (2015).

133 R. v. Windle [1952] 2 QB 826, 833 (England).

134 Uganda v. Afeku (Criminal Case No. 0098 of 2014) [2017] UGHCCRD 30, at *9.

135 Regina v. Magata (1957) E.A. 330, 330 (High Court for Uganda at Kampala).

136 Id. at 331.

137 Id.

138 In the U.S. case of People v. Kimura, No. A-091133 (Los Angeles Superior Court 1985), six psychiatrists testified that Kimura, a Japanese immigrant to the United States, was suffering from temporary insanity after she attempted suicide by drowning herself together with her children upon discovery of her husband's infidelity. Parent-child suicide was acceptable under these circumstances in Japanese culture. Through a plea bargain, her homicide charge was reduced to voluntary manslaughter. She was subsequently reunited with her husband. See discussion in Alison Dundes Renteln, The Cultural Defense 44–45 (2004).

139 Penal Code Act (1950), Cap. 120 § 194(1) (Uganda).

140 Bagatenda Peter v. Uganda (Criminal Appeal No. 10 of 2006) [2007] UGSC 15, at *9.

141 Uganda v. Owor Phillip (Criminal Case No. 67 of 2004) [2005] UGHC 76, at *5.

142 Explained in Lawrie Reznek, Evil or Ill? Justifying the Insanity Defense 24 (2005), considering a similar provision in the United Kingdom Homicide Act 1957, 5 & 6 Eliz. 2 c. 11.

143 See, e.g., Nsabimana v. Uganda (Criminal Appeal No. 189 of 2013) [2016] UGCA 74; Kibirige Habibu v. Uganda (Criminal Appeal No. 130 of 2009) [2014] UGCA59.

144 Owor, Criminal Case No. 67 of 2004, at *8.

145 Id.

146 Regina v. Magata (1957) E.A. 330, 331 (High Court for Uganda at Kampala).

147 Id.

148 See, e.g., Uganda v. Munyirwa Laliyo & 6 Others (HCT-00-CR-SC-0103 of 2004) [2005] UGHC 40.

149 Hotema v. United States, 186 U.S. 413, 420–21 (1902).

150 The State v. Shingirai Hamunakwadi [2015] ZWHHC 323, at *2 (High Court of Zimbabwe) (accessed through the Zimbabwe Legal Information Institute, https://zimlii.org).

151 R. v. Muswi (1956) 23 E.A.C.A 622 (Court of Appeal for Eastern Africa).

152 Id. at 622 (reciting the facts of the case).

153 Id. at 625.

154 Constitution of the Republic of Uganda 1995, article 121.

155 Seidman, supra note 33.

156 R. v. Mawala (1940) 7 E.A.CA 62, 64 (Court of Appeal for Eastern Africa).

157 R. v. Kumwaka (1932) 14 L.R.K. 137 (Kenya).

158 Id. at 138 (reciting the facts of the case).

159 Id. at 139.

160 Andrew B. Whitford & Holonna L. Ochs, The Political Roots of Executive Clemency, 34 American Politics Research 825 (2006).

161 Seidman, supra note 33.

162 Penal Code Act (1950), Cap. 120 § 192 (Uganda).

163 Penal Code Act (1950), Cap. 120 § 193(1) (Uganda).

164 See, e.g., Yovan v. Uganda (1970) 1 E.A. 405 (Court of Appeal at Kampala). In Uganda v. Nabwegere (1972) U.L.R. 15, 23, Fuad, J., stated, “Judging the accused by the standard of a reasonable member of the unsophisticated community to which he belonged, legal provocation had been made out sufficient to reduce the terrible killing to manslaughter.”

165 R. v. Ibrams & Gregory [1981] EWCA Crim 3, (1982) 74 Cr App R 154 (England) (accessed through the British and Irish Legal Information Institute, https://www.bailii.org/ew/cases/EWCA/Crim/1981/3.html).

166 R. v. Fabiano (1941) 8 E.A.C.A. 96 (Court of Appeal for East Africa).

167 Id. at 98–99 (reciting the facts of the case).

168 Id. at 101.

169 Galikuwa v. Rex (1951) 18 E.A.C.A. 175 (Court of Appeal for Eastern Africa) 181.

170 Mutungi, supra note 61.

171 Law Advocacy for Women in Uganda v. Attorney General (Constitutional Petitions Nos. 13/05 & 05/06) [2007] UGCC 1, found section 154 of the Penal Code, which created the offense of adultery, to be unconstitutional.

172 Magala Ramathan v. Uganda (Criminal Appeal No. 01 of 2014) [2017] UGSC 34, at *9.

173 Mutungi, supra note 61.

174 The State v. Shingirai Hamunakwadi [2015] ZWHHC 323 (Zimbabwe).

175 Galikuwa v. Rex (1951) 18 E.A.C.A. 175, 176 (Court of Appeal for Eastern Africa).

176 Id. at 178.

177 Kamiliango & 5 Others v. Republic, 1983 T.L.R. 186 (Tanzania Court of Appeal) (accessed through Tanzania Legal Information Institute, https://tanzlii.org/tz/judgment/court-appeal-tanzania/1984/5).

178 Id.

179 Uganda v. Yuman (Criminal Case No. 15 of 1994) [1995] UGHC 20, at *4.

180 Id. at 4.

181 R. v. Kauna (1945) 12 E.A.C.A. 104, 106 (Court of Appeal for Eastern Africa).

182 Charles Kayumba v. Uganda (Criminal Appeal No. 8 of 1981) [1986] UGSC 13, at *5.

183 Uganda v. Munyirwa Laliyo & 6 Others (HCT-00-CR-SC-0103 of 2004) [2005] UGHC 40, at *1.

184 Id. at *8.

185 R. v. Kelement (1943) 10 E.A.C.A. 49, 50 (Court of Appeal for Eastern Africa).

186 Id. at 51.

187 Francis Kutosi v. Uganda (Criminal Appeal No. 7 of 1978) [1978] UGCA 8.

188 Id. at *2 (reciting the facts of the case).

189 Id. at *3.

190 Mwanengu v. Republic (Criminal Appeal 272 of 2006) [2007] eK.L.R. (Kenya).

191 Yovan v. Uganda (1970) 1 E.A. 405 (Court of Appeal at Kampala).

192 Id. at 405 (reciting the facts of the case).

193 Id. at 407.

194 Uganda v. Bashaija (HCT-05-CR-SC-0198 of 2000) [2003] UGHC 32.

195 Id. at *2–3 (reciting the facts of the case).

196 Id. at *17.

197 Mwanengu v. Republic (Criminal Appeal 272 of 2006) [2007] eK.L.R. (Kenya).

198 Katiba v. Republic (Criminal Appeal 123 of 2014) [2015] eK.L.R. (Kenya).

199 Dumin, Jennifer, Superstition-Based Injustice in Africa and the United States: The Use of Provocation as a Defense for Killing Witches and Homosexuals, 21 Wisconsin Women's Law Journal 145 (2006).

200 Id.

201 Id.

202 People v. Schmitz, 231 Mich. App. 521 (1998).

203 Id. at 523–24 (reciting the facts of the case).

204 R. v. Kibiegon Arap Bargutwa (1939) 6 E.A.C.A. 142, 145 (Court of Appeal for Eastern Africa).

205 Dressler, Joshua, When Heterosexual Men Kill Homosexual Men: Reflections on Provocation Law, Sexual Advances, and the Reasonable Man Standard, 85 Journal of Criminal Law and Criminology 726 (1995).

206 The State v. Shingirai Hamunakwadi [2015] ZWHHC 323, *5 (Hungwe, J.) (Zimbabwe).

207 Dressler, Joshua, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 Journal of Criminal Law and Criminology 421, 422 (1982). It has also been argued that the defense is rooted in the “white Western notion of male honour” prevalent in the seventeenth century, when the defense was properly formulated: Kate Fitz-Gibbon, Homicide Law Reform, Gender and The Provocation Defense: A Comparative Perspective 25 (2014).

208 Penal Code Act (1950), Cap. 120 § 189 (Uganda), states, “Any person convicted of murder shall be sentenced to death.”

209 Attorney General v. Susan Kigula (Constitutional Appeal No. 03 of 2006) [2009] UGSC 6, at *45.

210 Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) October 1, 2013, paragraph 17 (Uganda).

211 Augustine Obura, Presentation on the Situation of the Death Penalty in Uganda at The Parliamentary Round Table on the Abolition of the Death Penalty (October 7, 2015), http://www.pgaction.org/pdf/2015-10-07-Obura.pdf (slides).

212 Uganda, Death Penalty Database (last updated May 14, 2014) https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Uganda.

213 Extenuating circumstances may reduce moral blameworthiness and provide grounds for not imposing a death sentence. Uganda v. Mukasa (Criminal Sessions Case No. 0142 of 2015) [2018] UGHCCRD 28, at *3.

214 Uganda has fifty-six recognized tribes. Constitution of the Republic of Uganda 1995, third schedule.

215 Jonathan Herring, Criminal Law 152 (8th ed. 2011)

216 Seidman, supra note 33.

217 Hence the principle of ignorantia juris non excusat or ignorance of the law is no defense embodied in the Penal Codes of most common law jurisdictions, for example section 6 of Uganda's Penal Code Act (1950), Cap. 120.

218 Leikind, Robert, Regulating the Criminal Conduct of Morally Innocent Persons: The Problem of the Indigenous Defendant, 6 Boston College Third World Law Journal 161 (1986).

219 Hart, Henry M., The Aims of the Criminal Law, 23 Law and Contemporary Problems 401, 413 (1958).

220 Leikind, supra note 218, at 162.

221 Choi, Carolyn, Application of a Cultural Defense in Criminal Proceedings, 8 Pacific Basin Law Journal 80, 86 (1990).

222 Ashforth, supra note 32, at 6.

223 Id. at 10.

224 Leikind, supra note 218, at 177.

225 Choi, supra note 221, at 87.

226 R. v. Kumwaka (1932) 14 L.R.K. 137, 139 (Kenya).

227 Center for Health, Human Rights and Development (CEHURD), Protecting the Right to Health in the Campaign against Female Genital Mutilation: A Rapid Assessment of Stakeholder Interventions in Kapchorwa District, Eastern Uganda (2015), https://www.cehurd.org/wp-content/uploads/2015/11/FGM-response-and-R2H-1.pdf.

228 Health Risks of Female Genital Mutilation (FGM), World Health Organization (2018), http://www.who.int/reproductivehealth/topics/fgm/health_consequences_fgm/en/.

229 Prohibition of Female Genital Mutilation Act (2010), §§ 1–2.

230 Sussman, Erika, Contending with Culture: An Analysis of the Female Genital Mutilation Act of 1996, 31 Cornell International Law Journal 193, 210 (1998).

231 Judicature Act (1996) Cap. 13, § 15.

232 Cassman, Rachelle, Fighting to Make the Cut: Female Genital Cutting Studied within the Context of Cultural Relativism, 6 Northwestern Journal of International Human Rights 128, 129 (2008).

233 The president did, however, urge those who had been pardoned to become “anti-FGM ambassadors.” Joan Chemitai, Museveni Pardons FGM Convicts, Daily Monitor, December 31, 2014, http://www.monitor.co.ug/News/National/Museveni-pardons-FGM-convicts/688334-2573664-wu91wrz/index.html.

234 Macklin, Audrey, The Double-Edged Sword: Using the Criminal Law against Female Genital Mutilation, in Female Circumcision: Multicultural Perspectives 207, 212 (Abusharaf, Rogaia Mustafa ed., 2006).

235 Law and Advocacy for Women in Uganda v. Attorney General (Constitutional Petition No. 08 of 2007) [2010] UGCC 4.

236 Id. at *20.

237 Constitution of the Republic of Uganda 1995, article 31(1); Penal Code Act (2007), Cap. 120 § 129(1).

238 Anne Mugisa & Catherine Mwesigwa, Uganda among the Worst in Child Marriages – Study, New Vision, May 29, 2013, https://www.newvision.co.ug/news/1321344/uganda-worst-child-marriages-study.

239 Gülden Gürsoy Ataman, Uses of Culture and ‘Cultural Relativism’ in Gender Violence Discussions, 2013 Kadin Aras¸tirmalari Dergisi 61.

240 Smeulers, Alette & Hoex, Lotte, Studying the Microdynamics of the Rwandan Genocide, 50 British Journal of Criminology 435, 442 (2010).

241 Constitution of the Republic of Uganda 1995, article 33(2).

242 Susan S. M. Edwards, The Genocide and Terror of Witchcraft Accusation, Persecution and Related Violence: An Emergency Situation for International Human Rights and Domestic Law, 2013 International Family Law 322.

243 Mgbako, Chi Adanna & Glenn, Katherine, Witchcraft Accusations and Human Rights: Case Studies from Malawi, 43 George Washington International Law Review 389, 393 (2011).

244 See, e.g., Uganda v. Munyirwa Laliyo & 6 Others (HCT-00-CR-SC-0103 of 2004) [2005] UGHC 40; Uganda v. Maido Robert & 2 Others (HCT-03-CR-SC-0720 of 1999) [2000] UGHC 4. In the Kenyan case of R. v. Kumwaka (1932) 14 K.L.R. 137 (Kenya), seventy men were on trial for the killing of one witch.

245 See, e.g., Uganda v. Maido Robert, HCT-03-CR-SC-0720 of 1999; Mohammed Tawa Kea & 2 Others v. Republic (Criminal Appeal 45 of 2015) [2016] eK.L.R. (Kenya).

246 See, e.g., Watete v. Uganda (2000) 2 E.A. 559 (Supreme Court of Uganda).

247 See, e.g., Uganda v. Munyirwa Laliyo, HCT-00-CR-SC-0103 of 2004; Uganda v. Kakubi & Another, (BUS-00O-CR-A-0214-2005) [2008] UGHC 172; Mwanengu v. Republic (Criminal Appeal 272 of 2006) [2007] eK.L.R. (Kenya).

248 See Kakubi, BUS-00-CR-A- 0214-2005, at *1–2.

249 Obedling & 3 Others v. Uganda (Criminal Appeal No. 167 of 2012) [2016] UGCA 17, at *7–8.

250 Yahudu Kitunzi, Five Family Members Arrested for Allegedly Killing Father over Witchcraft, Daily Monitor, September 15, 2017, http://www.monitor.co.ug/News/National/Five-family-members-arrested--killing-father-witchcraft/688334-4096988-format-xhtml-u7lgbrz/index.html. In Uganda v. Marani & Another (Criminal Session Case No, 33 of 2012) [2012] UGHCCRD 58, at *2, two men killed their stepmother, accusing her of witchcraft. In Uganda v. Bashaija (HCT-05-CR-SC-0198 of 2000) [2003] UGHC 32, at *8, a son hacked his own father to death after he claimed to be bewitching him.

251 Regina v. Magata (1957) E.A. 330, 330 (High Court for Uganda at Kampala).

252 Joseph v. Republic (1983) T.L.R. 186 (Tanzania Court of Appeal) (accessed through Tanzania Legal Information Institute, https://tanzlii.org/tz/judgment/court-appeal-tanzania/1984/5).

253 See, e.g., Uganda v. Seruga Yonasani & Others (HCT-00-CR-SC-0198 of 2003) [2004] UGHC 44.

254 Tebbe, supra note 18, at 212.

255 Id.

256 Republic v. Juma (1974) E.A. 336, 338 (High Court of Tanzania at Mbeya) (Kwikima Ag, J.).

257 Hassan Higenyi, This Whole Witchcraft Thing Is a Big Sham, Daily Monitor, March 6, 2011, https://www.monitor.co.ug/artsculture/Religion/689744-1119222-100ox66/index.html.

258 Anatoli Wasswa & Henry Ford Miirima, Unveiling Witchcraft in Uganda: Is It a Pack of Lies and Tricks, a Traditional Culture, Theft by Witch-Doctors, or a Traditional Religion? (2006).

259 These would primarily be Christian church leaders, as the 2014 census data indicates that 83 percent of the Ugandan population identifies as Christian. Uganda Bureau of Statistics, supra, note 34, at 19.

260 Cohan, supra note 58, at 836. One pastor warned his congregation, “Even if you're in New York where witchcraft is not seen, and you're in suits and ties, your ancestors’ spirits will get to you.” Cited in Sophie Elizabeth Bremner, Transforming Futures? Being Pentecostal in Kampala Uganda 211 (Feb. 2013) (unpublished Ph.D. dissertation, University of East Anglia), available at https://core.ac.uk/download/pdf/9839516.pdf.

261 Juliet Lukwago, Former Witchdoctor Warns against Witchcraft, New Vision, March 17, 2014, https://www.newvision.co.ug/new_vision/news/1338742/witchdoctor-warns-witchcraft.

262 Stroeken, supra note 121, at 260.

263 Tobbias Jolly Owiny, Angry Locals Burn Witchdoctor's Shrine, Daily Monitor, August 8, 2017, http://www.monitor.co.ug/News/National/Angry-locals-burn-witchdoctor-s-shrine/688334-4049510-mgoxw/index.html.

264 Brian Mutebi, The Story of the First Pentecostal Church in Uganda, Daily Monitor, September 23, 2012, http://www.monitor.co.ug/artsculture/Religion/The-story-of-the-first-Pentecostal-church-in-Uganda/689744-1514122-ydm6d1z/index.html.

265 Samantha Spence, Witchcraft Accusations and Persecutions as a Mechanism for the Marginalisation of Women 18 (2017).

266 Kieckhefer, Richard, The First Wave of Trials for Diabolical Witchcraft, in The Oxford Handbook of Witchcraft in Early Modern Europe and Colonial America 164 (Levack, Brian P. ed., 2013).

267 Allen, supra note 39, at 372.

Keywords

WITCH-KILLINGS AND THE LAW IN UGANDA

  • Rukundo Solomon (a1)

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