State v Lucky Mwembe

### Preamble
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HB 152/21
HCAR2170/20
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STATE

Versus

LUCKY MWEMBE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 12 AUGUST 2021

Criminal Review

TAKUVA J: 	This record was referred to the Registrar of this Court by the learned Regional Magistrate Hwange with the following request;

“… I therefore humbly seek guidance on whether the reformed law under the Criminal Code now criminalises mere utterances that one is a witch or a wizard without any reasonable basis or grounds and without imputing the use of non-natural means.”

THE FACTS

The accused appeared before a Magistrate at Binga facing a charge of contravening section 99 of the Criminal Law Codification and Reform Act Chapter 9:23 (The Act).  He was convicted on his own plea of guilty and sentenced to pay a fine of RTGS $1000-00 in default of payment 30 days imprisonment.  An additional 3 months were suspended for 5 years on condition of good behaviour.

The specific facts giving rise to the conviction are that the 30 year old accused met the complainant who is aged 78 years at complainant’s grinding mill.  The accused then directed the following words towards the complainant in the Tonga language;

“Ntoto yabanyoko, ulalowa Filimon” meaning, “Your mother’s vagina, you are a wizard Filimon.”

What troubled the Regional Magistrate is whether given the provisions of the law in sections 97, 98 and 99 of The Act the accused committed any offence by his utterance that “ulalowa Filimon” without imputing the use of non-natural means by Filimon?  The answer lies in the interpretation of the whole provision.

Section 97 states;

“97 INTERPRETATION IN PART VI OF CHAPTER V

In this part –

“accuse a person of witchcraft” means to indicate that the person –

has used, is using or is likely or able to use non-natural means to cause –

death or injury to or disease or disability in any person; or

destruction or loss of or damage to property of any description;

is possessed by a spirit which has caused, is causing or is likely to or able to cause –

death or injury to or disease or disability in any person; or

destruction or loss of or damage to property of any description;

“non-natural means” includes the practice of witch-finding.

98 ENGAGING IN PRACTICES COMMONLY ASSOCIATED WITH WITCHCRAFT

Any person who engages in any practice knowing that it is commonly associated with witchcraft shall be guilty of engaging in a practice commonly associated with witchcraft if having intended thereby to cause harm to any person, such practice inspires in the person against whom it was directed a real fear or belief that harm will occur to that person or any member of his or her family, and be liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.

Spoken or written words shall not in themselves constitute a practice commonly associated with witchcraft for the purpose of this section, unless accompanied by or used in connection with other conduct commonly associated with witchcraft.

…

...

99

Subject to this section, any person who groundlessly or by purported use of non-natural means accuses another person of witchcraft shall be guilty of indicating a witch or wizard and liable -

in a case of any purported use of any non-natural means, to a fine not exceeding level ten or imprisonment for a period of five years or both.

In any other case, to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

For the avoidance of doubt it is declared that no crime is committed by a person who without the purported use of non-natural means and having reasonable grounds for suspecting another person of committing an offence referred to in section 98, accuses that person of committing that offence.

The Regional Magistrate expressed the quagmire he faced in interpreting the above provisions thus;

“It would appear in my view, it is now also a crime for anyone to groundlessly accuse or allege that someone is a witch or wizard.  That is my reading and understanding of section 99 (1).

Section 99(2) cited above seem to be contradictory as it suggests that there must be imputation of “purported use of non-natural means and having reasonable grounds for suspecting another …”

It is not clear whether the word “and” in subsection (2) underlined above should be construed to mean “or”.

INTERPRETATION OF SECTION 91 OF THE ACT

It is the duty of a court to interpret statutes.

In Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 at p 356 FG the Supreme Court stated:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the Legislature as shown by the context or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result.”

See also Natal Joint Municipal Pension Fund v Endument Municipality 2012 (4) SA 593 (SCA) where the Supreme Court of Appeal of South Africa stated the following at paragraph 18:

“Interpretation is the process of attributing meaning to the words in a document be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.  Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; and the material known to those responsible for its production.”

In casu, a reading of section 99(1) of the Act does not reveal any ambiguity in the language used by the Legislative in the expression of its intention.  Quite clearly, the purpose and object of the statute can easily be ascertained from the ordinary and grammatical meaning of the language used.  The intention of the Legislature is to criminalise any person who groundlessly or by purported use of non-natural means accuses another person of witchcraft.  That accusation must be unfounded in the sense that it is not based on reason or evidence.

The offence is also committed if the accusation is by purported use of non-natural means for example through witch-finding or the throwing of bones etc.  In order to emphasise the seriousness of an accusation based on the purported use of non-natural means, the legislature empowered the courts to impose a more severe punishment than in any other case.  This is a material departure from the position under the repealed Witchcraft Suppression Act Chapter 9:19 that utterances that one was a witch or wizard without imputing the use of non-natural means did not constitute an offence.

In my view this reform is as a result of a groundswell of opinion among Zimbabweans that those who, without any shred of evidence accuse others of witchcraft should be prosecuted.  It was against this back drop that section 99(1) was promulgated.  The accused pleaded guilty to a competent charge, the conviction thereof and the subsequent sentence are competent and proper at law.

By way of orbiter dictum, I do not find any contradiction created by the provisions of section 99(2).  Firstly, the section does not relate to the offence created in subsection (1) of section 99 but to an offence referred to in section 98.  The rational which in my view is logical, is to shield from prosecution those who without the purported use, of non-natural means and having reasonable grounds for suspecting another person of committing an offence referred to in section 98, that is that, the person was engaging in practices commonly associated with witchcraft.  These complainants or whistle blowers need protection from prosecution to enable the law to be effective.  In the absence of such protection or immunity, every person who reports another of having committed an offence referred to in section 98would be ipso facto liable to prosecution in terms of section 99(1) supra.

I take the view therefore that section 99(2) is meant to obviate this absurdity.

For these reasons, I find that the proceedings in casu are in accordance with real and substantial justice and are hereby confirmed.