The Kenya Law Reform Commission is obligated by section 5 (6) (b) of the sixth schedule to the Constitution to cooperate, work together and co-ordinate with the Commission for the implementation of the Constitution and the Attorney-General in preparing and tabling in parliament, the legislation required in implementing the Constitution. This is in addition to other values and principles enshrined in the Constitution that the Kenya Law Reform Commission must ensure are adhered to in the preparation of critical legislation required to implement the Constitution both at the National and County levels of Government.

The Kenya Law Reform Commission Act, No. 19 of 2013 in section 6 further obligates the Commission to undertake several other functions with far reaching repercussions on the Republic. Section 6 (a) of the Kenya Law Reform Commission Act obligates the Commission to keep under review all the laws and recommend its reform to ensure-

1. that the law conforms to the letter and spirit of the Constitution;
2. that the law systematically develop in compliance with the values and principles enshrined in the Constitution;
3. that the law is, among others, consistent, harmonized, just, simple, accessible, modern and cost-effective in application;
4. the respect for and observance of treaty obligations in relation to international instruments that constitute part of the law of Kenya by virtue of Article 2(5) and (6) of the Constitution;
5. keep the public informed of review or proposed reviews of any laws; and
6. keep an updated data of all laws passed and reviewed by Parliament.

It is in cognisance of the aforementioned Constitutional and statutory obligation that The Kenya Law Reform Commission seeks to review the Witchcraft Act CAP 67 which was first enacted in 1925 to be in line with the Constitution and also seek public participation to appreciate stakeholders’ concerns.

The Witchcraft Act commencement date was 12th November, 1925 as Act No. 23 of 1925. The Act borrowed heavily from the British jurisprudence on the matter. During independence the Act was lifted into the Kenyan statute book and has never been amended. After the promulgation of the Constitution in 2010 it is the mandate of the Kenya Law Reform Commission to amend the Act to be in line with the new Constitution.

The Witchcraft Act is divided into the following sections-

1. Section 1- Short title;
2. Section 2- Person pretending to exercise witchcraft, etc;
3. Section 3- Witch-doctor supplying advice or article for witchcraft with intent to injure;
4. Section 4- Persons using witch medicine with intent to injure;
5. Section 5- Possession of charms an offence;
6. Section 6- Charging persons with witchcraft;
7. Section 7- Attempt to discover crime by witchcraft;
8. Section 8- Chief permitting the practice of witchcraft; and
9. Section 9- District Commissioner may order person practising witchcraft to reside in specified place.

RATIONALE FOR THE REVIEW OF THE WITCHCRAFT ACT, CAP 67

The Witchcraft Act of Kenya needs review to be aligned to the Constitution of Kenya and also to eradicate contradictions on whether witchcraft exists or not. Words used in the statute such as “so-called witchcraft” in section 2 of the Witchcraft Act need to be substituted with less ambiguous words to bring out the certainty that is craved by the courts and the consumers of the law.

“Witchcraft” also needs to be defined in the reviewed statute so as to cure the confusion brought about by lack of clear definition in the Witchcraft Act cap. 67.

The Witchcraft Act also recognises the now outdated provincial administration which was present in the repealed Constitution. This is the case in section 9 which provides that the District Commissioner may order person practising witchcraft to reside in specified place.

The above stated observations clearly justify the need for review of the Witchcraft Act.

JUSTIFICATION FOR REVIEW

THE CONSTITUTIONAL QUESTION

The Constitution of Kenya in Article 27 guarantees inter alia protection from discrimination on basis of Religion, Belief and Culture. It would therefore be key to analyse witchcraft and how it relates to religion, ones belief and culture.

a) Witchcraft vis a vis Religion and Belief.

The Constitution of Kenya in Article 8 clearly asserts the Kenyan state’s position as a secular state by providing that there shall be no state religion. Article 27 (4) goes on to provide that no one shall be discriminated directly or indirectly on ground of religion amongst other grounds.

This therefore leads as to determine whether witchcraft is a form of religion or otherwise. Although the Constitution does not define religion, the most appropriate definition would be that, a religion is an organized collection of beliefs, cultural systems, and world views that relate humanity to an order of existence. The word religion is sometimes used interchangeably with faith, belief system or sometimes set of duties.

On the other hand, witchcraft is defined as the use of magical faculties, most commonly for religious, divinatory or medicinal purposes.

From the above provided definition it is clear that there is a thin line that separates witchcraft from religion. The line is that, religion tends to rely on broader social acceptance and witchcraft tends to rely more on private belief. In the words of Émile Durkheim, religion differs from private belief in that it is "something eminently social".

Witchcraft also sharply differs with religion in that the spells can be used to harm another party whereas religion brings out virtues and ensure ones spiritual wellbeing.

It can also be argued that the spirit of Article 27(4) of the Constitution was not meant to endorse trends which would lead to more harm than good. As widely observed, religion is the glue which together with the law tightens the social fabric of any population.

b) Witchcraft vis a vis Culture

African cultures have history of endorsing witchcraft from time in memorial. This was a tool used to instill fear and also used for medication purposes. This however doesn’t make witchcraft good culture.

Although in the United Kingdom and Australia, it is generally felt that the times have long since passed when witchcraft and fortune telling represented a danger to law and order or a focus for criminal activity, in the African set up such jurisprudence cannot be adopted as witchcraft is still central not only in 'rural' societies but in 'high-class' societies as well.

COMPARATIVE STUDY

1. BRITAIN

In Britain the jurisprudence has been that the laws on witchcraft have been loosened over the years and penalties made less severe. In the Witchcraft Act 1542 there was the death penalty, in the Witchcraft Act 1562 the penalty was largely reviewed to imprisonment for lesser harm caused by the witchcraft. The Witchcraft Act 1604 changed the law of witchcraft by making it a felony, thus removing the accused from the jurisdiction of the ecclesiastical courts to the courts of common law. This provided, at least, that the accused witches theoretically enjoyed the benefits of ordinary criminal procedure. Burning at the stake was eliminated except in cases of witchcraft that were also petty treason; most convicted were hanged instead. Any witch who had committed a minor witchcraft offence (punishable by one year in prison) and was accused and found guilty a second time was sentenced to death.

Finally the Witchcraft Act 1735 marked a complete reversal in attitudes. Penalties for the practice of witchcraft as traditionally constituted, which by that time was considered by many influential figures to be an impossible crime, were replaced by penalties for the pretence of witchcraft. A person who claimed to have the power to call up spirits, or foretell the future, or cast spells, or discover the whereabouts of stolen goods, was to be punished as a vagrant and a con artist, subject to fines and imprisonment. The Act applied to the whole of Great Britain, repealing both the 1563 Scottish Act and the 1604 English one. The last threatened use of the Act against a medium was in 1950. In 1951 the Witchcraft Act was repealed with the enactment of the Fraudulent Mediums Act 1951.

The Fraudulent Mediums Act further reduced the threshold and severity of the penalty.

2. AUSTRALIA

In Australia until relatively recently, there were a number of laws covering the pretence of witchcraft in the Act. However, the Discrimination Act 1991 now makes it unlawful to discriminate against a person on the basis of among other things the persons’ religious convictions.

In the New South Wales State of Australia, the position is that, the English Witchcraft Act of 1735 which was repealed in 1951 by the Fraudulent Mediums Act was subsequently repealed in New South Wales by the Imperial Acts Application Act, 1969. Furthermore, the offence of fortune telling was repealed by the Summary Offences Act, 1979.

In Australia, it is generally felt that the times have long since passed when witchcraft and fortune telling represented a danger to law and order or a focus for criminal activity.

3. SOUTH AFRICA

The Witchcraft Suppression Act No.3 of 1957 of South Africa covers the offence of witchcraft but largely fails to fully appreciate the existence of witchcraft by using the words ‘pretends to exercise...witchcraft’. This wording fails to bring out the existence witchcraft and just like the current United Kingdom and Australian statues views witchcraft to be perhaps acts of a confident artiste.

4. TANZANIA

Tanzania endeavoured to draft the latest edition of the Witchcraft Act in the East Africa Region. However, the Act does not differ with the Kenyan and Ugandan Witchcraft Act in substance. The Tanzanian witchcraft Act just like the Kenyan and Ugandan Acts fails to boldly define witchcraft hence occasioning a lot of ambiguities for example in dealing with what is perceived to be ‘instrument of witchcraft’.

The Tanzanian Act uses extending definition to define witchcraft by stating that it includes sorcery, enchantment, bewitching, the use of instrument of witchcraft, the purported exercise of any instrument of witchcraft, the purported exercise of any occult power and the purported possession of any occult knowledge.

The definition fails to address exactly what witchcraft is and enhances the confusion by saying witchcraft includes bewitching. The only positive from the Tanzanian jurisprudence is that unlike the other developed commonwealth countries, it has appreciated the need to retain the Witchcraft Act despite its ambiguities. This shows that witchcraft is still a reality amongst Africans and such is the case with Uganda and Kenya which have also retained their Witchcraft Acts which bare similar ambiguities especially on matters of definition and substance.

RECOGNITION OF THE EXISTENCE OF WITCHDOCTORS AND WITCHCRAFT

Whether witchdoctors exist is a question which (though dictum) was basic to the statements by the High Court of Kenya in Athuman v. Republic. In that case the appellant had been charged and convicted of obtaining money by false pretences by pretending that he, Athuman, was a witchdoctor with power to remove devils (Majini) from the wife of one Aloisi. The wife suffered from pains in her head, stomach and eye, and the appellant was contacted for help. After stating that he would cure the wife, the appellant asked for and received Ksh. 418 as payment for the treatment in addition to a goat and two yams. Shortly thereafter, the appellant announced that he would not undertake the treatment and returned the goat but not the money. The complainant, Aloisi, regarding the matter as a swindle, complained to the police. In its decision the court began by questioning the particulars of the charge. The statement in those particulars that the appellant pretended that he was a witchdoctor could perhaps be criticized since the phrase may imply that there are such things as genuine witchdoctors.' Shortly thereafter, but in the same paragraph, the phrase, "so-called witchdoctors," is used by the court in reference to witchdoctors. The court continued: Is it not possible, it may be asked, that honest though strangely deluded witchdoctors exist, and that the appellant may be one of them? We may be forgiven for saying that there probably are witchdoctors. There may well be men who undertake the cure of ailments for reward and have an honest belief in the efficacy of rituals, incantations and the like. 'Common sense leads us to suppose that those who practice medicine with the aid of such arts are likely to have lost much, if not all, of their faith in those arts by reason of hard experience.'

The court's attitude appears to indicate a denial of the existence of witches. To the court, witches are not human beings. They are "things." This approach could not, however, be maintained in view of the charge against the accused. At the root of "falsely pretending to be a witchdoctor" lies the assumption that genuine witchdoctors exist, and in the absence of that assumption it is difficult, if not impossible, to imagine the rationale for the crime which the appellant committed. The court, perhaps realising the absurdity of the approach it had thus far taken, shifted its argument and appeared to acknowledge that witchdoctors can exist: "But we do not deny the possibility of the existence of an honest witchdoctor."' If "an honest witchdoctor" can exist, then the court had to determine whether the appellant was one of the genuine witchdoctors.

The High court's reluctance to acknowledge the existence of witchdoctors seems unnecessary in light of the innumerable instances where the existence of witchdoctors has been granted judicial acknowledgement. For instance, Lord Hale, charging a jury in 1665 said "that there are such creatures as witches I have no doubt at all."

The witchcraft trials in India " and the many practices in England and the United States of America" illustrate that the notion of the existence of witches is prevalent in "developed" as well as "under-developed" countries.

Assuming then that witches and genuine witchdoctors exist, the next question is how to identify them. There are no universally agreed upon criteria, even in East African communities, on what constitutes a witchdoctor. The characteristics which make a witchdoctor in one tribe are not necessarily what another tribe would consider sufficient to "qualify" a person to be called a witch or witchdoctor. Thus, among the Nandi, witches have the power to kill or injure people by means of spells or cause illness, deformity, madness or bodily swelling." Witches are also believed to have the power to cause small black snakes or bits of stone or wood to enter a victim's body.' Among the Gisu tribe of Uganda, witches walk about naked late at night, cause crops to wither and animals to die, commit incest, feed on human flesh and use human arms to stir the beer which is said to give the witches extra strength.' In the Amba tribe of Uganda, witches are believed to quench their thirst with salt, to have supernatural powers to open the body of a victim and remove his entrails in an invisible manner and to have cannibalistic propensities.'

These illustrations are not exhaustive, but they are sufficient to show the diversity of the concept of the nature of witches among the tribes. It is submitted that the characteristics which make a witch, different as they are from one tribe to another, should be considered by the court when dealing with witchcraft cases. How, for example, can a court deal with an allegation that one party falsely obtained money by holding himself out as a witch without considering whether the alleged offender was or was not a witch within the meaning of that word in the community concerned? There is no definition of a "witch" in the witchcraft statutes in East Africa. In the absence of such a definition, it is submitted that the courts have no choice but to determine whether the accused is a witch on the basis of the facts and evidence before the court. This means a determination as to whether the accused is a witch according to the traditions of the specific tribe. And this, it is further submitted, is what the court in Athuman should have done.

Recognition of the existence of witchdoctors is not synonymous with the recognition of the existence of witchcraft. It is therefore necessary to examine whether or not witchcraft exists and if so whether its existence is recognized. The importance of this consideration cannot be overemphasized because, if witchcraft does not exist in the eyes of the courts, then the relevant witchcraft statutes may be superfluous. Whether witchcraft exists is a matter of definition, and, in search for a definition of witchcraft, the initial source of inquiry would appear to be the witchcraft statutes. One would expect, however, precise definitions of "witchcraft," especially in light of the heavy penalties stipulated in the East African witchcraft statutes. Unfortunately, that is not the case. In Uganda the interpretation section of the Witchcraft Act reads: "For the purposes of this Act, Witchcraft does not include bona fide spirit worship or the bona fide manufacture, supply or sale of native medicines." The Act, however, does not say what witchcraft is and the "exclusions" do not furnish us with the "inclusions." 

In Kenya the Witchcraft Act appears to contribute more confusion than assistance. Like the Kenya High Court in Athuman, the Act seems to deny the existence of witchcraft while at the same time recognising that witchcraft can cause injury to another in mind, person or property. Section 3 reads: "Any person professing a knowledge of so-called witchcraft shall be guilty of an offence. The use of the phrase "so-called witchcraft" constitutes a denial of the existence of witchcraft and is the same phrase as used in Athuman; however, the proposition that witchcraft does not exist but yet can cause injury to another in mind, person or property is untenable. 

Furthermore, it should be noted that unlike the Uganda Act, which hints that witchcraft involves supernatural power, the Kenya Act clearly takes the position that witchcraft and supernatural power are two different phenomena. The relevant portion of section 2 provides that "any person who pretends to exercise any kind of supernatural power, witchcraft, sorcery or enchantment, shall be guilty of an offence." The Tanzania statute is on better footing. Section 2 reads: Witchcraft includes sorcery, enchantment, bewitching, the use of instruments of witchcraft, the purported exercise of any occult power and the purported possession of any occult knowledge. While definition by listing a term's coverage is not uncommon, where the "inclusions" are themselves subjects deserving of definition, it is doubtful whether the definition serves much purpose. To say that witchcraft "includes bewitching" is not particularly helpful. Indeed, such definition hangs on the verge of absurdity. The reader who does not know what witchcraft is, is made no wiser by knowing that it includes "bewitching." Furthermore, how one is to identify "instruments of witchcraft" in the absence of any knowledge of what witchcraft is, is a legal curiosity. Section 2, however, does demonstrate that in Tanzania witchcraft is considered to be a supernatural power even though the term "purported" is used in connection with occult power and occult knowledge.

In the absence of a satisfactory statutory definition of witchcraft, the alternative is to look to the case law for assistance. Even here, however, the one authority dealing with the definition of witchcraft recites only the Webster's dictionary definition and concludes that "the meaning of witchcraft is narrowed to the practices or art of witches or intercourse with evil spirits." 

To recapitulate, the East African witchcraft statutes do not seem to offer sufficient guidance in the very area of the law that they purport to regulate. Not only are the definitions of witchcraft inadequate but (and this applies particularly to Kenya) the statutes seem to deny the existence of the very subject matter of the crimes they aim to prevent. In light of these contradictions in the operative law, the statutory witchcraft offences render themselves vulnerable to criticism.

Witches and witchcraft are viewed with abhorrence by the tribal communities. This is evidenced not only by the practice of putting witches to death but also by the likelihood of defamation when an accusation of practising witchcraft is laid against a member of the community.

RECENT CASE STUDY IN KENYA

1. In The Star Newspaper, in an article by Ibrahim Oruko on 24 August 2012 under the heading, ‘Kenya: House Committee Wants Witchcraft Law Enforced.’ It was reported that a House committee wanted the government to enforce the Witchcraft Act to deter people in the Coastal region from practising witchcraft. The joint committee on National Security and equal opportunity also wanted leaders in the region to prioritise the sensitisation and continued persuasion of the indigenous people against embracing retrogressive, negative and harmful traditional practices. The report by the committee was tabled in parliament by Nominated MP Mohammed Affey on 23rd August 2012.
2. On Friday, 26 June 2009 on BBC, there was a big headline titled ‘Horror of Kenya's 'witch' lynchings’. One of the people interviewed, one Joseph Ondieki stated that, “Here in Kisii, people are being burned on mere allegation (of witchcraft) and most of them are old." This shows the stigma attached to witchcraft in Kenya.
3. On Friday, 5th September 2014 it was reported on Nation Newspaper by Farouk Mwabege that two elderly brothers were hacked to death in Kinango Sub-County on suspicion that they were engaging in witchcraft. The assailant is said to have attacked and killed Mr Kombo Guphe and Mr Chipitu Guphe with a machete. This shows that the issue still seriously affects Kenyans.

CONCLUSION

There is need to reform the witchcraft laws in Kenya to abide to the current jurisprudence in the commonwealth. However, the cultures and beliefs of Kenya's indigenous peoples should be accorded the necessary legal recognition in line with Article 11 of the Constitution and be respected until such time as the majority of Kenyans, living in rural as well as urban areas, grow out of their beliefs and fears in witchcraft. Chadwick Hansen, author of Witchcraft at Salem, states that Western civilization stopped executing witches when the literate and balanced portion of its members stopped believing in their capacity to harm. In determining whether the majority of the indigenous peoples have grown out of the fears and beliefs in witchcraft, formal Western-type of education should not, per se, be the criterion. Witchcraft fears, and all that go with them, exist and haunt a large proportion of Kenyans, both "educated" and uneducated.