Witch Murder And Mens Rea: A Problem Of Society Under Radical Social Change
| Date | 01 January 1965 |
| Author | R. B. Seidman |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01045.x |
| Published date | 01 January 1965 |
WITCH MUR.DER AND
MENS
REA:
A PROBLEM
OF'
SOCIETY UNDER
RADICAL SOCIAL CHANGE
THAT
Africa is a land of extreme contrasts is the hackneyed
introduction to every travelogue. One such contrast is between
those areas where the indigenous peoples have assimilated the
colonihlists' mores, and those areas where they have not. Now,
in the blazing morn of independence, the new African govern-
ments face the task of developing legal, social and economic institu-
tions which will bring the more backward elements
of
the population
into harmony with the demands of twentieth-century industrialised
society.
To
what extent
is
the criminal law an apt tool to
accomplish these changes
?
In the last decades of Empire, the colonial courts were presented
with this problem in a variety of masks. Perhaps the most per-
sistently nagging cases are those in which the defendant was tried
because he killed a supposed witch in imagined self-defence against
her diabolical craft. With monotonous regularity, courts have con-
victed, sentenced the defendant to death, and-in the same breath-
recommended executive clemency. Why this ambivalent result
?
Is
there some organising concept which, tolerably with the pattern
of the criminal law, can resolve the seeming contradiction
?
To
answer this question, we shall examine
first
the nature of
witchcraft belief, the defences raised in prosecutions for the murder
of supposed witches, and the judicial response to them.
In
an effort
to find a satisfactory solution, however, we shall have to explore the
conceptual mazes of
mens
rea,
which is the analytical concept chiefly
at issue.
I
For
many Africans, witchcraft belief is an integral part of their
Weltanschauung,
growing out of indigenous theories about the
psyche.' The Akan (one of the largest West African tribal group-
ings), for example, postulate man as tripartite.
His
physical body,
a mere shell, encloses two indwelling souls the
kra,
or
life-soul and
the
sunsum,
or
personality-soul.2
A
wicked entity, the
obayi,
on
occasion seizes dominion of the
sunsum
of a witch. Without her
1
Field,
Search
for
Security
(1960),
passim;
and see Evans-Pritchard,
Witchcraft,
Oracles
and
Magic
among
the Azande
(1937),
p.
21
("
A
witch performs no
rite, utters no spell, and possesses no medicine.
An
act
of witchcraft
is
a
psychic act
").
2
Meyrowitz,
The Sacred State
of
the
Akan
(1951),
p.
24;
Rattray,
Ashonti
(1923),
p.
46.
46
Jax.
1965
WITCH
MURDER AND MENS
REA
47
volition, her
sunsum
makes excursions from her earthly body. Free
of physical restraint, it attacks the
kra
or
sunsum
of its victim by
sucking
it
forth secretly from its material shell.
As
the
kra
is
devoured, sometimes by degrees, sometimes in a rush,
so
the
physical body of the victim withers. As the
sunsum
is destroyed,
so
will the victim's hope of worldly success disappear.=
Prior to European overlordship, death, usually in some pecu-
liarly horrible form,' was the invariable punishment
for
proven
witches. The colonial governments, having but recently abolished
equally barbaric measures against witches in the metropole,
abolished them in the colonies as well. But superstition nevertheless
flourished albeit now shorn of institutional protection.
The African who believes in witchcraft is thus faced by a fearful
dilemma. He believes in witches to his bones.? He knows that they
can
destroy his
kra
or
sunsum
in sundry mysterious ways, without
chance for defence,
so
that both his physical being and his hope for
earthly success are endangered, as much as by threatened blow of
panga
or
spear
or
matchet. He sees nothing in the societal order
to which he can appeal for protection. His tradition approves of
capital punishment for witches.
Faced by such dread forces, bereft of societal shield, terrified
by the loss of the values at stake, some Africans not surprisingly
have struck back in terror and
in
self-defence.
How
have the
common
law judges treated them when they were charged with
murder
?
Field,
op. cit.,
note
1
above, p.
36;
Debrunner,
Witchcraft in Ghana
(1959)
at p.
35
et
seq.
4
See Debrunner,
op. cit.,
note
3
above, p.
102;
Rattray,
Religion and Art
among the Ashanti
(1927),
p.
29;
Rattray,
Ashanti Law and Constitution
(1929),
p.
313.
The shocking mode of execution of wizards in Uganda (see
Hayden,
Law and Justice in Buganda
(1960),
p. 283) was actually used by
the defendants in
Fabian0
(1941) 8
E.A.C.A.
96
(Uganda). [Note: place
names after E.A.C.A. and W.A.C.A. citations indicate country of origin of
the cause.] Rattray,
Ashanti Law and Constitu-
tion
(1929),
p,p.
392-395;
Kingsley,
Traoels in West.Africa
(1897),
p.
464;
Parrinder,
Wttchcrajt: European and African
(1958),
pp.
177, 178.
A death
arising from such an ordeal was the
actus revs
in
Palumba
s/o
Fundikila,
14
E.A.C.A.
96
(Tanganyika)
(held,
since the defendant intended to cau8e
death only
if
deceased were
a
witch, and since witches are imaginary, he
is
not
guilty
of intentional homicide but only of manslaughter).
0
In
Africa,
a8
in Europe, witchcraft superstition seemingly flourishes in times
of social instability, Parrinder,
op.
cit.,
note
5
above, p.
205;
Debrunner,
op. cit.,'
note
3
above, p.
71.
Colonialism made African society even more
unstable than it had been.
7 The judges repeatedly find that the defendant genuinely believed that the
deceased
was
a witch who threatened
his
life. See,
e.g.,
Galikuwa
(1951)
18
E.A.C.A.
175
(Uganda);
Gadam
(1954) 14
W.A.C.A.
442
(Nigeria). Many
Africans are convinced that they are witches; in some of the cases, the
deceased has threatened the defendant. See,
e.g., Sitakimatata
s/o
Kimwage
(1941)
8 E.A.C.A.
57
(Tanganyika). Field,
op.
cit.,
note
1
above, is baaed
upon confeesions of witches made
at
anti-witchcraft shrines
in
Ghana.
8
All
the
formerly British African countries have criminal codes embodying,
in
most essentials. the common law
of
crimes.
5
Typically,
the
''
proof
"
was
by
ordeal.
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