Ministers Sendeza, Zikhale Ngoma and Police IG Yolamu asked to act on brutal harassment of an elderly citizen by Nyau masqueraders

A screenshot of the video clip as the Nyau assaults the elderly citizen

* Asks them to expeditiously arrest the individuals behind the masked Nyau to face the mighty hand of the law

* Malawi is a society of equals and should therefore be a country and place where everyone must feel safe irrespective of age

By Duncan Mlanjira

Concerned over the brutal torture of an elderly citizen by younger village folks masquerading as traditional Nyau dancers — whose despicable act was caught on video and its clip went viral on social media — Malawi’s social and economic issues commentator, Hesi Chikoko has asked the authorities to identify and bring the culprits to book.

In his open letter to Minister of Gender, Community Development & Social Welfare, Jean Sendeza; Minister of Homeland Security, Ken Zikhale Ngoma and the Inspector General of Malawi Police Service, Marlyne Yolamu — Chikoko is asking them “to expeditiously arrest the individuals behind the [masked] Nyau to face the mighty hand of the law”.

The exact location where the horrible act took place was not known when Chikoko reacted but from some captions, it is indicated that the senior citizen was being accused of practising witchcraft by using his magical powers to influence that the rains should not come.

This is a common belief by village folks that when rains delay, it’s the elderly people who influences through their alleged magic.

Chikoko said he had not been able to establish the date and place of the act and and wished that it “did not happen in our beloved country of Malawi — even though it would remain unacceptable if it happened elsewhere”.

“I categorically put it to your publicly-funded offices that this behaviour goes against the country’s commitment to the rule of law — which is part of the State President, His Excellency Dr Lazarus Chakwera’s Hi-5.

“Malawi is a society of equals and should therefore be a country and place where everyone must feel safe irrespective of age.”

He reminded the leaders of the three law enforcement offices that Malawi observed the International Day of Older Persons in Malawi on October 1 on which the United Nations Development Programme (UNDP) released a report on Rule of Law and Human Rights.

“The report noted that older persons comprise 2.7% of the total population of Malawi, but face human rights challenges such as discrimination, violence, neglect and verbal abuse.

“We must, with speed, ensure that  persons who violate the rights of the elderly are not only held accountable but educated on the rights and dignity of the elderly persons.

“I am delighted that the government of Malawi is working tirelessly to ensure that older persons live with dignity. I have noted with much appreciation that the government is putting in place legislative instruments and protective mechanisms to safeguard the human rights of the elderly population.

“I fully support the development of the Older Persons Bill and eagerly look forward to its enforcement.

“Meanwhile, we should never allow some lawless people to hide behind a socially and traditionally appreciated Nyau culture and put water on a flame of hope that the government of Malawi has ignited for the elderly population.

“I will be following up with your publicly-funded offices on the progress made on this matter. I remain the law-abiding and bonafide citizen of the Republic of Malawi and will continue to excercise my full rights and responsibilities guaranteed to me by the Constitution of the Republic of Malawi.

Of late, cases of brutal assault on the elderly people on unsubstantiated allegations of practising witchcraft are rampant and several people have observed that such acts are sanctioned by traditional chiefs — as also opined on this Nyau case.

In 2022, Inkosi ya Makhosi M’mbelwa V strongly suggested that the belief and witchcraft practices should be critically and legally scrutinized after a heartless assault and humiliation of an elderly woman who was forced to bury a dead body at a graveyard in Mandala Zimba Village at Eswazini area of Inkosi Kampingo Sibande in Mzimba.

It was reported that family members accused the senior citizen, identified as Christina Mphande of bewitching her daughter-in-law who died in South Africa and the remains of the deceased was repatriated back home.

During the burial ceremony, a group of people pulled the senior citizen from the rest of the mourners and forced her to bury the body alone — and in sympathy, her sister joined her to offer help.

In the process, according to Mzimba Police public relations officer, Peter Botha after the incident went viral on social media, some people assaulted the victim to the extent that she lost two of her teeth.

The video clip showed some stones being thrown at her and when she paused to check who was doing that, one male undressed her of her headgear (dhuku) and as she picked up her gear, another came over and unleashed a brutal brow.

She fell down and rolled over to fall into the 6-foot hole and in his statement, the King of the Ngoni Nation-Mzimba said together with entire Mbelwa Chiefs’ Council, the incident was “deeply saddening above everything”, saying “two senior citizens had such humiliation heartlessly imposed on them on accusations that they practise witchcraft”.

“Usually such allegations are propelled by the acts of witchcrafts whose practices should be critically checked and entirely condemned in our society. Beliefs and theories from the witch doctors have created tension and threats, especially on the elderly who are often accused of practising witchcraft.

“We wish to condemn this barbaric attitude towards the elderly. It must always be remembered that the elderly are the fountain of wisdom and that at all times they should be treated with respect and dignity.”

He reminded Malawians that accusing a person of practising witchcraft is an offence under the Laws of Malawi.

Before he became the Attorney General, Thabo Chakaka-Nyirenda wrote a legal piece entitled ‘On Criminalisation of Witchcraft and Fighting Witchcraft Using Spiritual Powers’ in which he said: “The belief in witchcraft is shared by the great majority of the community in Malawi such that over 99% of Malawians believe in its existence even though the majority of them have not personally experienced its power nor have they fallen victims of the same.

“The belief in witchcraft is often associated with the unenlightened members of the community who conform to the pre-scientific world.

Equipped with the desire and desperation to combat enormous social challenges emanating from the belief in witchcraft and its associated activities, the Colonial Government enacted the Witchcraft Act in 1911, which was revised in 1929 and further revised in 1946.  

“The Act is a wholesome copy of the Witchcraft Act of England and was imposed on all the British colonies. There are various offences created with a view to stamp out the belief in witchcraft. Some are directed at the actual purported practitioners and some to purported victims. Some offences are directed at those people who purportedly exorcise witchcraft demons through muabvi.  

“Recently there have calls especially from traditional and religious leaders to repeal the Witchcraft Act of 1911 and come up with a new Act which should recognize and criminalise witchcraft practices.

“As I am writing this paper, I understand the Malawi Law Commission is reviewing the witchcraft Act of 1911. These calls emanate from child-witch confessions which have led to the arrests and convictions of a good number of people for running witch-craft academies.

“The purported witchcraft instructors have been tried and convicted of practicing witchcraft under the veil of the offence of pretending witchcraft or of actual practicing witchcraft — very wrong convictions. Some have been charged and convicted of conduct likely to cause breach of peace.

“The resurgent of witchcraft accusations has largely been blamed on Nigerian movies based on pre-scientific lore which largely embody a completely different comprehension of the scientific truth. Some have blamed it on ill-will by some people who have taken advantage of the pre-scientific lore prevalent amongst the great majority of the citizens.

“Indeed there are various reports by the police to the effect that some people have conspired with little children to brand particular individuals they hate or envy instructors of witchcraft. Those who look old and fiery have also been perpetual targets of witchcraft accusations.

“Stories about witches and wizards which abound are to the effect that witches or wizards can transform into hyenas, night owls, ants, snakes, etc. It is also said that witches and wizards can bring about various misfortunes such as ill-health, death, impotence, prevent rains, etc.

“Stories are also told that witches are cannibals and vampires; they feast on human flesh and blood.  In any case the recent trials on witchcraft in our subordinate courts, to say the least, have been unfair and the convictions wrongful and occasioning great miscarriage of justice.

“The witchcraft Act of 1911 as revised in 1929 and  as further revised in 1946 generally rejects the notion that witchcraft exists. All the provisions in the Witchcraft Act aim at addressing the various social problems of witchcraft.

“It should also be reiterated and acknowledged at the outset that the law does not recognize the existence of witchcraft let alone criminalizing the practicing of witchcraft since evidence of witchcraft would not lie in the ordinary world but in the unnatural world to which we do not belong despite the fact that we may be victims of the same at one time if not actual practitioners ourselves. The reason for rejecting the existence of witchcraft is in line to keep and maintain societal order.

“It has also been stated elsewhere that witchcraft beliefs are mere symptoms of madness and primitivity.  Further, the accusations of witchcraft are often based on superstitious assumptions and imagination such that a belief in the efficacy of witchcraft has been held to be an unreasonable belief.  

”This notwithstanding the belief in witchcraft has been said to be an unreasonable belief in several decisions of the courts across Africa and the world at large and the courts have been astute at condemning those who kill believed witchcraft practitioners.

“The courts have also stated that it would, be a dangerous precedent to recognise that because of a superstition, which may lead to a terrible result as is often stated in the communities  and as is the case in most African communities,  is reasonable. Courts  regard the holding of such beliefs as unreasonable.

“Arguably, the reason why the existence of witchcraft is rejected is based on policy as opposed to assertions that witchcraft does not exist. In order to better serve the policy the framers of the law in their wisdom, which obviously should be commended, decided to outlaw the belief in witchcraft.  

“As seen above, according to those who believe in witchcraft, witches and wizards can cause misfortunes, sicknesses and deaths against defenceless innocent souls.  In all these cases, a person may be justified to take a pre-emptive action since it is an essential element of all crimes of violence that the violence should be unlawful that self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution.

“If the prosecution fails to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime, namely, that the violence used by the accused was unlawful.

“The common law rejects the metaphysical as a ground of reasonableness, pre-scientific lore accepts that harm, illness and death can result from sorcery, and to kill the witch is the supreme defence of the person.

“The distinction between physical and metaphysical threats, however, can be understood only after knowledge of the findings of micro-biology. In pre-scientific culture the threat of the witch is not metaphysical, but an honestly believed threat of physical harm.

“The logical result of this is that there could be a conviction of murder by depriving the accused of his defence of an honest belief in the necessity for self-defence.

“To this, vantage Courts have rejected the notion that a belief that a person’s life is threatened by witchcraft is a reasonable belief and so a person would not rely on the defence of self-defence if he kills another even though he reasonably believes that that person is threatening his life through witchcraft.  

“What this entails is that one would not be justified to deliberately take another’s life on grounds that the latter poses danger to his life through occult means. The courts would also not even allow the defence that such taking of life constitute excusable homicide.

“Now, since a man may defend himself by killing his assailant if there appeared an intention on the part of the latter to kill him, or at least to cause him grievous harm and if he shows that the killing was necessary to avoid such consequences, the recognition of the existence of witchcraft would inevitably lead to rampant killings of those accused of being witches or wizards and the courts would certainly hold that the deliberate taking of the lives of wizards and witches in the circumstances where the said witches or wizards pose immediate danger to persons constitute justifiable homicide.  

“As pointed out above, courts reject that an accused would be entitled to a defence of self defence if kills someone under the firm belief that the latter posed danger to his life through metaphysical powers.

“For example, the Malawi Supreme Court of Appeal in Twoboy Jacob v R MSCA Criminal Appeal No. 18 of 2006 (unreported), the High Court — sitting with a jury — convicted the appellant of murder and further the judge sentenced him to hang for murdering his second wife in cold blood using a panga knife on suspicion that she bewitched him so that he was unable to have sexual intercourse with his first wife.  

The Supreme Court also upheld the death sentence imposed on Mr. Twoboy Jacobs. Had the laws recognised the existence of witchcraft, Mr. Twoboy Jacobs would have successfully pleaded the defence of provocation but fortunately to justice this was never the case.

“Whether one believes in the existence of witchcraft or not, our Witchcraft Act, is one of the best laws in Malawi and hence the need to preserve and enforce it as much as possible.

“Within the framework of their understanding of witchcraft offences public prosecutors have charged many persons with the offence of practicing witchcraft based on child confessions when such persons were to be regarded as complainants for the offence of charging a person with witchcraft.

“Trial magistrates too have characterized what the criminal law proscribes such as the charging of another with witchcraft and the trial by ordeal to be logical and useful.  They have gone to the extent of convicting persons with practicing witchcraft when it should never be the case and not acceptable by the law.  

“The course taken by the majority of trial magistrates and public prosecutors is retrogressive and will in the long run serve to perpetrate chaos. Witchdoctors who administer muabvi to suspected witches and wizards have been commended as doing something acceptable and necessary in order to get rid of witches and wizards.

“Despite numerous calls to criminalize practicing witchcraft, the actual criminalisation in the present generation has been ruled out completely and its criminalization in the future generation has been doubted.

“The perpetual convictions of  persons of practicing witchcraft, which offence is alien to criminal law and modern science, in effect has given legitimacy to witchcraft. These perpetual convictions of persons of the practicing witchcraft are a time-bomb which might explode at any time.

“It is, however, acknowledged that science and common sense cannot control the whole world and cannot provide answers for every human affair or problem. There are certain aspects of life which  should be left to the gods to control — witchcraft would be one of them.

“For those who believe in spirits — since evidence of witchcraft lie in the supernatural world as opposed to the physical real — witchcraft cannot be fought using the law but using the spiritual powers. It can be fought only using spiritual powers, namely, fervent prayers.

“I guess the Malawi Law Commission will listen to my call not to touch the Witchcraft Act of 1911.”