Witchcraft as an Offence in the Cameroon Penal Code

Abstract

The colonial experience did not in any way alter belief and practices in some communities in Cameroon. Witchcraft is not new in Cameroonian society, and despite several responses from traditional courts and state courts in the common law jurisdiction of Cameroon, the challenge is still evident. Witchcraft trials in Anglophone regions is sanctioned by applicable laws of the country. This article exposes contradictory developments in the fight against witchcraft in state courts in Anglophone regions of Cameroon. It argues that, while criminal law recognizes the existence of witchcraft as a popular belief system and punishes its practice, there are legal contradictions and procedural lapses, especially in the admissibility of evidence, rendering it ineffective in practice. To suppress witchcraft beliefs and accusations effectively, the article proposes, amongst other measures, enacting a new law on the suppression of witchcraft, thereby pruning for the respect for human rights and the use of education as a tool for the fight against false accusation.

Keyword: Witchcraft, Criminal law, Crime, Acussation      

Introduction

The complexity of criminal law, makes it both fascinating and frustrating to Cameroonians. The complexity emanates from the fact that, judges fail to understand or adhere to fundamental principles (Ayukegba, 2012). As a result rendering judgement in cases related to witchcraft is usually challenging.

Criminal law exist time immemorial and several issues or cases has mostly been substantive[1]. Reason because it determines what is or is not a crime. This paper focuses on witchcraft as an offence under the Cameroon penal code.

Witchcraft is an offence punishable under the Cameroon penal code. It is necessary to defined fundamental criminal patterns. A crime may be defined as ‘an act or omission or a state of affairs which contravenes the law and which may be followed by prosecution in criminal proceedings with the attendant consequences, following conviction, of punishment’[2].

Witchcraft may be defined as the surreptitious use of supernatural power for evil (KIYE, 2018). Those accused of practicing witchcraft are usually persecuted and brutalize. In Cameroon, witchcraft is practice in different domains and mostly for power relations, the quest for wealth, but it remains essential in modern days (Geschiere, 1997).

The socio-economic situation of some Cameroonians are often relates to superstitious propaganda based on certain behaviors. However, these beliefs provides a milieu for some individuals to evade culpability for their personal failures by attributing them to witchcraft while it has allowed others to eliminate potential rivals in leadership roles. According to KIYE (2018), witchcraft is a societal menace; it undermines social stability and development and subverts state authority. But Gluckman (1963) posed that, witchcraft has a positive social impact, as it exerts pressure on people to observe social virtues, thereby a one may be suspected of practicing witchcraft.

The offence of witchcraft in Cameroon Criminal Law

The practice of witchcraft is punishable under section 251 of the Penal Code. In Cameroon, most courts are usually aware of witchcraft cases through denunciation, which may sometimes be defamatory. As such, section 305(1), is usually associated with witchcraft trials. Section 251 provides:

“Whoever commits any act of witchcraft, magic or divination liable to disturb public order and tranquility, or to harm another in his person, property or substance, whether by the taking of a reward or otherwise, shall be punished with imprisonment for from two to ten years, or with fine of from five thousand to one hundred thousand francs”.

The legislator did not provide any distinction between the terms; witchcraft, magic, and divination, rather its considered as a single offence. Anyangwe (2011: 255) in KIYE (2018) argued that, the terms are used not disjunctively but rather with implied similarity or equivalence. He further expantiate on the fact that, witches, witchdoctors, soothsayers, sorcerers, diviners, etc. fall within the purview of section 251 and the provision recognises the role of witchcraft as based on societal beliefs. The penal code does not sanction witchcraft per se; it only punishes acts of witchcraft liable to disturb public order or tranquility and harm the person or property of another, and not that the act must actually have disturbed or harmed (KIYE, 2018). As such, if the practice does not produce any of these results is not criminalised. Cameroon has no legislation on the suppression of witchcraft as in Zimbabwe and Uganda[3].However, witchcraft imputations is sanctioned by section 305(1) which criminalises defamation and provides the following:

“Whoever … injures the honour or reputation of another by imputations, direct or indirect, of facts which he is unable to prove shall be punished with imprisonment for from six days to six months and with a fine of from five thousand to two million francs, or with only one of the penalties.”

Based on section 305(1) of the Cameroon penal code, a person is guilty of criminal defamation if he injures the honour or reputation, directly or indirectly, of another person through claims that he is unable to prove. The provision punishes imputations in the form of libel, slander, and innuendo that injure the reputation of another (KIYE, 2018). Section 305(1) is equally a menace to the press, as headlines which index some politicians and businessmen are contrary to the spirit of section 251. An accusation of witchcraft against someone under section 251 is liable to be punishable as defamation under section 305(1), thereby causing mutual conflict between both provisions.

Proof and Evidence under Cameroonian Criminal Law

Far before the colonial era, the practice of witchcraft has always existed, yet administrators regarded accusations as “grounded on delusions which could not be proven by a cause-effect relationship” (Fisiy, 1998: 148). However, the quest for tangible proof and evidence of direct causation, was the reasons for acquittal of some cases at the time, thereby, administrators were considered as allies and protectors of witches (Fisiy, 1990; Fisiy & Geschiere, 1990; Liepe, 2016).

Cameroon has a bi-jural system, and law advocates fair trial[4]. The common law system is founded on principle of presumption that the accused is innocent until found guilty during a hearing conducted in strict compliance with the rights of a defense[5] council. This is a fundamental right granted to all accused persons who appear before any court in Cameroon.

Under the common law system practice in the two Anglophone regions in Cameroon, the presence of the accused during trial is mandatory and the burden of proof cast upon the prosecution can only be discharged by proof “beyond reasonable doubt”[6]. Proof “beyond reasonable doubt” is to the effect that the evidence against the accused must be strong and or supported empirically, otherwise the slightest of doubts discharges the accused of culpability (KIYE,2018). Prosecution must establish direct and empirical evidence linking the accused to witchcraft practices or to the harm suffered by the victim for the judge to ensure that, no one other than the accused could have committed the offense he is charged. Conversely, to be acquitted of witchcraft imputations (defamation), the accused, in his defense, must provide justification for his allegation or must establish empirical evidence linking the complainant to witchcraft practices. The burden of proof lies with the prosecution[7].

The metaphysical aspect of witchcraft cases is usually challenging to the prosecution with regards to standard of proof. This principle makes it incumbent on the prosecution to prove every component of the offense. However, the quest to establish the constitutive elements of witchcraft presents a hurdle to the prosecution. More so, nature of witchcraft offenses makes it even more challenging for the requisite element of mens rea to be established. For proof of facts by testimonial or material evidence the prosecution requires the oral testimony of witnesses and physical evidence[8].

Cameroonian criminal law is clear on matters relating to the acquisition of evidence. In most witchcraft cases, only oral evidence are admissible in courts and it must be direct[9], and not irrelevant propaganda (Galega, 2006: 250–251). In the absence of a voluntary confession,[10] alleged witches are unlikely to be convicted under section 251. The penal code equally punishes witchdoctors and others who make witchcraft imputations under section 305(1). Thus, the standard of proof in criminal trials is set considerably higher.

More so, alleged witches have regularly been acquitted and their accusers convicted of defamation. Through a review of selected case laws below, analysis will be done on the fight against witchcraft in the state courts as per sections 251 and 305(1).

Review of some cases of witchcraft in Cameroon

In West Africa, statesmen have been very critical about the practice of witchcraft, thereby enacting criminal law to prosecute the offence, despite the difficulty in acquiring evidence. Meanwhile, in Cameroon, witchcraft trials take two forms: harm or threat of harmarising from witchcraft practices under section 251, and damage to reputation from witchcraft imputations under section 305(1) (KIYE,2018).

The case of Ndam Phillip Mbah v The People of Cameroon (1999)

The case of Ndam Phillip Mbah v The People of Cameroon (1999)( Anyangwe (2011: 256–257) was an appeal against the judgment of a Court of First Instance in the North West Region. The appellant, Ndam Phillip Mbah, the headmaster of a primary school in Batibo[11],was charged with, and convicted of, practicing witchcraft by the trial court. The facts of the case revealed that a primary school under the appellant’s charge had a farm in which food crops, including yams, were grown. The farm adjoined the complainant’s compound. Yams were routinely stolen from the school farm and, to scare away the thief, the appellant adopted a scare practice traditionally used by the people of the area, consisting of sprinkling wood ash on stolen property and placing it where the thief would see. Superstition held that bad fortune would befall the thief upon seeing the stolen item sprinkled with wood ash. The yam tubers were then conspicuously exhibited in the school farm so that they would undoubtedly be seen by the thief should he come back to steal from the school farm. The following day, the complainant lodged a complaint with the police alleging that he had seen witchcraft paraphernalia near his compound, and that he had confronted the appellant who admitted placing it there.

The North West Court of Appeal, sitting in Bamenda, reversed the judgment of the trial court and acquitted the appellant. It stated:

“the elements of the witchcraft were never made in the lower court [as] there was no evidence that the appellant had done anything to disturb public order or its tranquility. All he did was to put to practice a tradition that is used in the milieu where he lived to scare away thieves and to protect property”. Further, there was no “objective test to show that use of wood ash was nefarious to [complainant’s] health or that of the population… [and] no medical certificate was produced to attest to such effect” and that “the use of wood ash without more does not tantamount to the practice of witchcraft under section 251”.

The case was a review of the trial court’s verdict convicting the appellant for practising witchcraft contrary to section 251. The judgment of the trial court represented a departure from established precedents and, unsurprisingly, it was overturned by the appellate court. Professor Anyangwe (2011: 257), was critical about the appellate court’s decision as correct, arguing that it was a miss-statement of the law for the court to intimate that the offense of witchcraft under section 251 is not consummated without proof of disturbance or without medical evidence of harm to the complainant or the population[12]. Furthermore, he averred that actual harm or disturbance to the population need not necessarily have occurred for the offense to have been consummated. Thus, the refusal of the appellate court to recognise the act of the appellant as constitutive of witchcraft, among others, led to the acquittal of the appellant.

The People of Cameroon v Alemji Mariana Forzi and five others

The case of The People of Cameroon v Alemji Mariana Forzi and five others,[13] was based on a voluntary confession made by the first accused, Alemji Mariana Forzi, she, alongside five other accused persons were charged with, and convicted of, practising witchcraft contrary to section 251. The evidence tendered to the Court of First Instance, Muyuka, suggested that through an act of witchcraft, the daughter of the complainant was rendered sick and subsequently died (KIYE,2018).

The first accused (Alemji Mariana Forzi) confessed during trial in 2005, that she belonged to a witchcraft cult which the other five accused were adherents. She alleged that she was initiated into the cult without her knowledge and that the cult was responsible for several deaths including that of the daughter of the complainant. These allegations were rejected by the other accused persons, who distanced themselves from the allegations of the first accused. In reaching its verdict, the court concluded that although the issue had dragged on for five years, the first accused had, throughout that period, been consistent in her confession. Furthermore, she was of sound mind and had established thorough knowledge of the other accused persons. Moreover, the Court intimated that had the other accused persons raise the offence of defamation as per section 305(1) against the confession against the first accused, the procedure will have taken a different shift, which they failed to do.

The Court held that, although the first accused was a victim of circumstance, as she was initiated into the cult without her knowledge and had done everything in her power to withdraw from it, she could not, however, be exonerated from the offense of witchcraft (KIYE,2018). The penal code is clear on the punishment and the fine to be paid when a decision is taken in court. But the discretion of the judge is sometimes difficult to understand by the common man. Following the confession of the first accused, a lenient sentence was meted on her, while the others accused persons each received a term of 6 years imprisonment and a civil liability of 1,000.000 francs CFA to the civil claimant, the first accused received a 2 year imprisonment sentence suspended for 3 years and a fine of 1,000.000 francs to the civil claimant.[14]

Criminal law is based on evidence for judgement to be given. In this case, no empirical evidence is presented before the Court establishing a link between the (five other) accused persons, just the confession of the first accused of act of witchcraft, led to the conviction of all the accused persons. This case exposes the complexity and frustrating nature of criminal law, thereby focusing on a rationale which the Court implicitly demonstrated the potentially conflicting relationship between sections 251 and 305(1) of the Penal Code. KIYE (2018) argues that, there is a nuisance in criminal law in relation to witchcraft, which is based on two aspects: firstly, the potential impact of section 305(1) to derail prosecutions under section 251 and, secondly, an accused witch, to avoid prosecution under section 251, may initiate a reverse prosecution against her accusers by filing a complaint against them under section 305(1).

The People of Cameroon v Mortine Chimene Tchangow

Confession is not the only prerequisite for the judge to give a sentence and fine to be paid by the accused. There are certain circumstance which oral confession is not need to validate an offence, that is the case of The People of Cameroon v Mortine Chimene Tchangow[15] before the Court of First Instance, Kumba. The accused lured a four-year old child, Roland Akoh, to her house and cut seven marks, the shape of the number 7 with 7 dots in-between the numbers, on the back of his right leg with a razor blade and then applied a peppery concoction on the bleeding wounds[16]. To stop the child from crying, she gave him food. Prior to this incident, the accused had requested of two of her neighbours that they would permit their virgin daughters to come to her house and cut her body with a razor blade so that she could apply on the wound a concoction she got from a witchdoctor; this request was denied (KIYE,2018). She had made the requests in the reverse form, as it was she who needed to make the incisions into the children’s bodies.

Several questions have been raise by researcher and legal minds as to whether reconciliation and compensation can be use in order to alter legal procedure in relation to witchcraft as per section 251 of the penal code in Cameroon. The evidence presented before the Court suggested that the accused made several attempts at reconciliation with the parents of Roland Akoh, including financial compensation, but those attempts were failed because the latter denied to  disclose why the incisions had been made in the child’s body or to explain the nature of the peppery substance that had been applied to the cuts[17]. The Court established that the child’s evidence in identifying the accused as the perpetrator of the act was consistent throughout the pre-trial and trial phases and, with regard to the marks cut on the child’s body and the peppery substance applied, it concluded in paragraphs 12–13 on page 16 of its judgment thus[18]:

“The act in itself was unorthodox, in fact mystical. The boy was probably initiated [into a cult].”

Witchcraft is punishable and sanctioned by section 251 of the penal code in Cameroon. But proof and evidence a prerequisite for punishment, the accused testimony about her witchdoctor request that a virgin be used to make her drug efficient for undisclosed purposes, and the medical report evidencing that the cut marks were related to sorcery, the latter was convicted as charged. The accused was sentenced to 5 years imprisonment with hard labour and a fine of 75.000 francs in default of the fine, an additional sentence of 6 months imprisonment with hard labour. The convict was also required to pay the cost of proceedings to the court fixed at 154.190 francs and, in default of payment, an equivalent sentence of 9 months with hard labour will be added (KIYE,2018).

Science is link to metaphysics, occultism, witchcraft, which are usually romance with words like school of torts. A medical report will always be evidential, even with the absence of confession. In this case, the court inferred to witchcraft practice on a four-year old child based on a medical report issued by a medical practitioner. Based on the rationale of the Court, the accused had no authority to interfere with the child, sought no permission to do so, and also failed to inform the child’s parents about the acts she had performed on the latter. However, her refusal to disclose the nature of the substance applied on the cut marks of the victim and her assertion that she was instructed to perform the acts by her witchdoctor, who is regarded as a ‘super witch’, correlates with the punishment prescribe by section 251 of the penal code, which focuses on witchcraft. The case if appeal, the opinion of the Court of Appeal would provide a clear bearing on the offence of witchcraft.

Conclusion

Several cultural practices and cults existed before the colonial experience, though some have been eradicated, other are still evident during cultural events in some communities in Cameroon. Some of this cultural practices are usually link to witchcraft, have the emerging number of accused and victims appeal on recovery methods. Victims of witchcraft are likely to recover, while the only remedy offered by state courts is the unlikely imprisonment of accused witches. However, KIYE (2018) argues that, by incarcerating witches, the criminal justice system does not prevent witches from re-offending. This validates Peter Geschiere (2006: 222) argument that, imprisonment produces the opposite effect; the fear is that upon their release from prison, witches will become even more dangerous. The state needs to adopt a comprehensive approach in order to combat witchcraft. Thereby, advocating for good practices in local communities, and providing rehabilitation centers for accused witches pending the neutralisation of their powers.

Even as a suspect or accused, certain human rights must be respect by society. The fight against witchcraft should not only be limited on accusations, but be examined whether is credible or false. Human rights should be respected to guarantee the life of victims of witchcraft accusations, who are often subjected to violence, and even death[19]. It is necessary, therefore, for human rights organizations and activists to orient their fight also towards witchcraft cases.

Education is a vital element when combating deviant behavior. Human rights activists, non-governmental organizations, and academia must advocate for best practices to respond to witchcraft accusations. Although superstition affects all sectors of Cameroonian society, it affects mostly illiterates in rural communities. Thus, illiterates alienate success to witchcraft beliefs and accusations are emerging in different communities in Cameroon. Education remains a ‘weapon’ necessary for progress and sustainable development, which will help contest false allegations of witchcraft aimed at furthering other goals in communities.

About the author

Reference

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Currie, E.P. 1968. Crimes without criminals: Witchcraft and its control in Renaissance Europe. Law and Society Review, 3(1): 7–32.

Fisiy, F.C. 1990. Palm Tree Justice in the Bertoua Court of Appeal: The Witchcraft Cases. African Studies Centre Research Paper, Leiden.

—— 1998. Containing occult practices: Witchcraft trials in Cameroon. African Studies Review, 41(3): 143–163.

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Fisiy, F.C. & P. Geschiere 1990. Judges and witches, or How is the state to deal with witch craft? Examples from Southeastern Cameroon. Cahiers D’études Africaines, 30(118): 135–156.

Galega, P. 2006. Justice and Witchcraft: A perspective of common law jurisdictions in Cameroon. In (E. De Rosny, ed.) Justice et Sorcellerie, pp. 245–254. Karthala, Paris.

Geschiere, P. 1997. The Modernity of Witchcraft: Politics and the Occult in Postcolonial Africa. University Press Virginia, Charlottesville.

—— 2006. The State, witchcraft and the limits of the law-Cameroon and South Africa. In (E. De Rosny, ed.) Justice et Sorcellerie, pp. 87–120. Karthala, Paris.

—— 2009. The Perils of Belonging: Autochthony, Citizenship, and Exclusion in Africa and Europe. University of Chicago Press, Chicago.

KIYE, Mikano Emmanuel. Combating Witchcraft in the State Courts of Anglophone Cameroon: The Insufficiency of Criminal Law. African Study Monographs 2018, 39(3): 121-140

Liepe, B. 2016. Examining the growth of witchcraft accusations in sub-Saharan Africa. Grand Valley Journal of History, 4(1): 1–18.

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[1] Capital Murder as an offence in the Cameroon Penal Code. A research project submitted to the department of law of University of Buea in partial fulfillment of bachelor degree in law (2012) by Agbor Joel Etchu Ayukegba

[2] Michael J Allen (2001), Criminal law, p.1

[3] Witchcraft imputations are punishable under Section 1(a) of the South African

Witchcraft Suppression Act, 1957 (as amended), Section 99 of the Zimbabwe’s

Witchcraft Suppression Act, 2006, and Section 3 of the Uganda’s Witchcraft Act, 1957.

[4] The Preamble of the 1996 Constitution (Law No. 96-06 of 18 January, 1996, to amend the Constitution of 2 June, 1972) states: “The law shall ensure the right of every person to a fair hearing before the courts”.

[5] See Preamble of the Constitution. Also see Section 8 of the Criminal Procedure Code which states:

1. Any person suspected of having committed an offense shall be presumed innocent until his guilt has been legally established in the course of a trial where he shall be given all necessary guarantees for his defense.

2. The presumption of innocence shall apply to every suspect, defendant and accused.

[6] Section 137(1) of the Evidence Act Chapter 62 of the laws of the Federation of Nigeria, 1956, provides: “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”

[7] Section 307of the Criminal Procedure Ordinance, 2005: “The burden of proof shall lie upon the party who institutes a criminal action.”

[8] Ibid

[9] Section 335 of the Criminal Procedure Code.

[10] Section 315(1) of the Criminal Procedure Ordinance, 2005, defines a confession as: “a statement made at any time by an accused in which he admits that he committed the offense with which he is charged”. Sub Section (3) provides: “A voluntary confession shall constitute evidence against the person who made it”.

[11] A small town located in Momo Division of the North West Region.

[12] Ibid

[13] Suit No MUM/389C/05-06CC: unreported.

[14] Another case in which an accused person was convicted based on a voluntary confession is the case of The People of Cameroon v Cecilia Edema (TM//202C/95 of 11 December,1995), where the accused pleaded guilty of practicing witchcraft on her daughter (Galega, 2006: 251).

[15] Suit No. CFIK/DS/589/2011: unreported.

[16] KIYE, Mikano Emmanuel. Combating Witchcraft in the State Courts of Anglophone Cameroon: The Insufficiency of Criminal Law. African Study Monographs 2018, 39(3): 121-140

[17] Ibid

[18] Ibid 16

[19] In Tanzania, between 1991 and 2001, about 20,000 people were killed, accused of practicing witchcraft, a disproportionate number being elderly women (Petraitis, 2003). Online. http://infidels.org/library/modern/richard_petraitis/witch_killers.html (Accessed

23 October, 2016).