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The Criminal Code — inherited from 1918
Dutch colonialists — is to be revised. The government has proposed a new
bill to the House of Representatives for deliberation. The bill has
sparked controversy as it includes witchcraft in the penal code,
categorizing it as a criminal offense punishable under the law.
The reason
witchcraft must be incorporated into the criminal law is because it is
harmful to the people, and the Criminal Code should protect them from the
dangers of witchcraft. It should also protect those accused of practicing
witchcraft, charlatanism and black magic from any sort of violence, witch
hunts or sorcerer murders by the masses.
We have
frequently observed how witchcraft and attacks on perceived witches and
sorcerers occur across the country, while authorities who are supposed to
enforce the law to maintain public order and justice can do nothing.
That
witchcraft is hazardous to the people is beyond a shadow of a doubt. As a
result, we should take it seriously in order to prevent the excesses of
witchcraft and sorcery practices from escalating.
Nevertheless,
despite the social significance of adopting witchcraft into the penal
code, it is obviously important to define clearly what can be classified
as a witchcraft-related crime. In this regard, we should distinguish
three types of behavior: (1) killing-by-witchcraft or harming someone
with the use of magic or through sorcery, (2) witchcraft accusations that
often result in the assault of suspected witches and massacres, and (3)
mass violence involving taking the law into one’s own hands as a result
of a collective reaction to witchcraft and an expression of public anger
with the perceived witch.
There are
numerous anthropological studies showing that witchcraft is deeply
ingrained in the culture of a society. Much of anthropological research
has clearly shown that witchcraft is a part of the system of cosmological
beliefs of any society and exists both within primitive society and
modern society.
Anthropologists
commonly argue that witchcraft is a sort of psychic phenomenon shrouded
in mystery and secrecy, and sorcery is always practiced in clandestine
settings, which are beyond empirical observation by other people. Here,
people perceive that someone is practicing sorcery or employs witchcraft
on someone else simply through rumor and gossip.
Prominent
anthropologist Adam Ashforth (2005) once said that witchcraft is both a
subject of gossip and a product of gossip; and gossip is the medium
within which it lives. What emerges among the public is that accusations
of witchcraft lead to communal tension, even violence. In this sense,
accusations and tensions are the only proof of witchcraft.
Certainly,
this is the crux of the problem in relation to the prosecution of
witchcraft-related crimes. As witchcraft is employed with the use of
supernatural power and it always takes place in concealed areas, actual
physical proof is lacking. Equally, the way witchcraft works cannot be
observed directly, nor can empirical evidence of it be easily captured.
In most cases, accusations of sorcery and those who are accused of
employing witchcraft usually come about due to circumstantial evidence,
instead of empirical evidence, in the form of jealousy, abhorrence,
vengeance, retaliation and the like.
Having
considered the urgency of adopting witchcraft into the criminal code, it
is necessary to take a look at whether other countries apply, say, a
sorcery law. Here, we can learn from one of the most advantageous and
modern states like Canada, which has regulated witchcraft and magic. The
Canadian Criminal Code (c.C-46, 1985, section 365) clearly states:
“Everyone who fraudulently (i) pretends to exercise or to use any kind of
witchcraft, sorcery, enchantment; (ii) undertakes, for a consideration,
to tell fortune; or (iii) pretends from his skill in or knowledge of an occult or crafty
science to discover where or in what manner anything that is supposed to
have been stolen or lost may be found, is guilty of an offence punishable
on summary conviction.”
We can also
learn from most African countries that apply the same law. Take the case
of the Republic of the Ivory Coast, which adopted the French Criminal
Code and issued a decree on Nov. 19, 1947 stipulating: “Shall be punished
by one to five years of imprisonment whoever has … practiced witchcraft,
magic, or charlatanism, susceptible to trouble the public order or to
injure persons or damage property” (see Veerle Gijsegem, Criminal Law of French Origin — The Modernity of
Witchcraft Trials in the Republic of the Ivory Coast, 2006).
Furthermore,
it is interesting to take the case of how the prosecution process of
witchcraft-related crime in African countries is carried out. It is
reported that such prosecution rests solely on the judge’s interpretation
of the enacted law, and judgments are therefore issued based on the faith
and beliefs of judges. This approach is taken simply because of the
absence of empirical evidence.
When the
judges are asked why they take this kind of approach, they respond to
such concerns in an hilarious way: “the judge will look at them [the
accused persons] and see if they act like witches, illustrating that
acting like a witch entailed behaving ‘strangely’ or ‘nervously’ in
court” (Graeme Wood, Witchcraft and
the Law in Central African Republic,
2010).
It is widely
acknowledged that the difficulty of bringing a witchcraft case to justice
is how to provide proof and evidence. Indeed, this is the most
challenging task that needs to be tackled by experts and lawmakers during
the legislation process of the proposed bill. ●
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