An evaluation of the belief in withchcraft as a defence in african jurisdictions

Abstract

This Essay attempts to offer an analysis of the possibility if any, of the "belief in witchcraft" being admitted as a defence in Sub Sahara African Jurisdictions, relating to murder cases where the accused pleads to have killed as a result of the fear of witchcraft. The analysis highlights the difficulties which the belief in witchcraft as a defence would face. The first difficulty pertains to the position that witchcraft as a cultural belief has in these Sub Sahara African legal systems as determined by the colonial legislators. The colonial legislators deemed it unreasonable and non-existent as is evident from the anti Witchcraft legislation still applicable in this region. Although this is the main difficulty underlying the impediment of the belief being a defence, the Essay also points out specific challenges that the belief is presented with in attempts to bring it under established defences. These being self-defence, provocation and insanity. Due to these difficulties, a new defence, known as cultural defence will also be analysed to determine the possibility of it being admitted as a defence, or merely considering cultural factors in mitigation of sentence. This defence, however, whether as a stand-alone defence or pleading cultural factors in mitigation of sentence cannot avoid the difficulties posed in the area of proof. The analysis will have regard to the principles of evidence which govern these legal systems in order to highlight the evidential challenges that the belief faces. In the light of these challenges, certain recommendations have been proposed.