How do you legislate against a belief in witchcraft? If you genuinely believe your neighbour is trying to kill you with black magic, do you have the right to use violence against them?
Let's take a look at how the 'reasonable belief' test has been applied in Africa 🧵 x.com
Let's take a look at how the 'reasonable belief' test has been applied in Africa 🧵 x.com
First off, how many people are killed as suspected witches every year in Africa? That's hard to say, but some estimates from South Africa alone suggest many thousands. x.com
Anglophone African countries possess many types of anti-witchcraft legislation, leftover from British colonial rule. Murder relating to witchcraft and sorcery was clearly rife enough that colonial administrators required specific laws to deal with it. x.com
Concepts and legal definitions of self-defence and mistaken belief in many African countries are drawn from English criminal law. Meaning that the right to defend oneself, and the legal defence that your actions were a consequence of a false or mistaken belief both exist. x.com
One of the problems with the idea of witchcraft, or 'attack at a distance', is that it's incompatible with English criminal law. With no physical attack or even a threat, it cannot be a defence to argue that you were the victim of sorcery and could retaliate against the witch. x.com
The early cases of using the mistaken belief defense ran into the problem of 'reasonableness' - is it reasonable to believe in witchcraft? As one researcher remarked, this test applies the standard of 'reasonable English man' in judging the behaviour and beliefs of an African man x.com
A real quandary opened up, with some courts insisting that the English standard of reasonableness could be applied anywhere. x.com
Other courts instead pushed to use different criteria, with Zambia looking to create a generic 'member of modern society' and Botswana going further in looking to the class of community the person belonged to. x.com
It is striking how these cases turned on the specific English common law question of reasonable. Under Penal Codes, even smashing a 9 year old to death with a hatchet under the belief they are a goblin-spirit could be a simple 'mistake of fact'. x.com
Some post-colonial courts have altered the test to abide by a localist principle - what is reasonable within the defendant's community? Under this view killing a family member for being a dark wizard could lead to a manslaughter charge rather than murder. x.com
Zimbabwe has taken this to its logical endpoint, in accepting that witchcraft is a reality and drafting laws with that in mind. In this sense Zimbabwe has instituted a return to a pre colonial legal system, albeit with the trappings of Anglo law. x.com
English law has itself diverged in recent decades, with the reasonableness test replaced with 'honest belief', a test which would be more sympathetic to witchcraft cases, but it hasn't been adopted in African law. x.com
Anglophone African nations have also diverged, with West African countries retaining a degree of reasonable test, and others allowing witchcraft beliefs to be used as defences. x.com
The mixed system of today risks legitimising people's beliefs in supernatural malevolence on the part of suspected witches. One result of this is the common substitution of the death penalty for another punishment in such cases, but to otherwise punish the offenders. x.com
I should add that, in attempting to cobble together a legal framework over such a widespread belief in witchcraft (AKA a rulebook for djinnbrain), the question of proportionality has been almost completely lost. x.com
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