An evaluation of the belief in witchcraft as an extenuating circumstance in murder sentencing-Chibale V. The people

Abstract

This research provides an evaluation of the belief in witchcraft as an extenuating circumstance in murder sentencing, in light of the case of Chibale v.The People SCZ/62/2013. Belief in witchcraft is common in most parts of Zambia today, especially in rural areas. This affects the behavior and actions of people in societies that are deeply rooted in this belief. Such individuals can hold a genuine belief that their lives are in danger due to witchcraft being practiced against them. This has resulted in desperate actions believed to be the only way to protect one’s life, such as the murder of the one suspected to be practicing witchcraft. When this occurs, the question of whether or not killing under the belief that doing so will protect one’s life or the life of another would diminish morally the convicted persons guilt, and therefore amount to an extenuating circumstance. The specific focus of this research is to analyse the topic of extenuating circumstances in murder sentencing and how a belief in witchcraft qualifies as an extenuating circumstance .It aims to highlight how the law addresses witchcraft related murder cases and to discusses the reasons why a belief in witchcraft is upheld to amount to an extenuating circumstance by the Zambian Courts. It then considers the Chibale case and highlights why the belief in witchcraft was not upheld to be sufficient enough to amount to an extenuating circumstance in that particular case. The subjectivity that goes into determining whether or not extenuating circumstances exist that should set aside a death penalty has been brought out. This is especially so in a topic as controversial as the belief in witchcraft. There are no strict guidelines on what amounts to a valid extenuating circumstance, but merely a guiding principle found in Section 201 (2) (a) of the Penal Code Chapter 87 of the Laws of Zambia. An extenuating circumstance is said to be any facts associated with the offence that diminish morally the convicted person’s guilt. This results in contrasting views on the part of the judiciary as to whether the circumstances of a case amount to a valid belief in witchcraft capable of amounting to an extenuating circumstance sufficient to set aside a death penalty. In the Chibale case, there are contrasting views as to whether the death penalty should have been set aside. These have been acquired through oral interviews with members of the bench and presented. The methodology that has been adopted and utilized is the review of a diversity of academic books, journals, articles and legal instruments, as well as a review of case authority. Oral interviews with judges have also been used. A conclusion has been drawn and recommendations made of how to maintain consistency I deciding cases involving a belief in witchcraft as the motivation for the killing. These recommendations bring out suggestions of how to avoid the challenges that arise in the handling of cases involving the controversial issue of witchcraft.