Polling places and “slow punctured provocation”: occult-driven cases in postcolonial Kenya's High Courts

Abstract

In Kenya, witchcraft remains central to the intersecting arenas of politics and justice. Postcolonial case files of witchcraft-related crimes offer important insights into the ways that approaches and attitudes to witchcraft, politics, and justice have shifted since independence. High Court cases addressing witchcraft and electoral fraud underscore the fact that the occult is now thought of as a clear path to state power, rather than a challenge to it. In Kenya's high courts, cases of witchcraft-driven violence have involved complex shifts in the judiciary's willingness to negotiate with “local” attitudes towards witchcraft in assessing pleas for and against mitigation. These cases indicate that while the postcolonial courts take the existence and efficacy of witchcraft for granted in a way that their colonial predecessors certainly did not, they retain a circumspect approach to witchcraft when the primacy of state power in matters of politics and justice is at stake.

Keywords:

• Kenya
• witchcraft
• oathing
• elections
• High Court

Notes

1. Kareithi, “Witchdoctor to the Rescue.”

2. The Commission of Inquiry on Post Election Violence (Waki Commission), The Waki Report: Findings of the Commission of Inquiry into the Post–Election Violence in Kenya, October 2008, 216. http://www.eastandard.net/downloads/Waki_Report.pdf. Mwadilo, “Minister Blames Loss.” Anon, “Kenyans Hand Back ‘Cursed’ Loot.”

3. Tebbe, “Witchcraft and Statecraft: Liberal Democracy in Africa,” 193.

4. Bond and Ciekawy, “Introduction,” 1–38.

5. Waller, “Witchcraft and the Law in Colonial Kenya”; Luongo, “Motive Rather than Means.”

6. Mwadilo, 2007.

7. Mwakileo v Mwamzandi & another, Election Petition No. 25 of 1979, High Court at Nairobi, September, 1980 (hereafter, Mwakileo), http://www.kenyalaw.org

8. Elima v Ohare & another, Election Petition No. 64 of 1993, High Court of Kenya at Nairobi (Law Courts), December 17, 1994 (hereafter, Elima). Available records that another electoral petition alleging that the petitioner's opponent had oathed voters was put forward in roughly the same period as Elima. However, the court found insufficient evidence to support the petitioner's allegations that oathing had been carried out. Isaak v Hussein & another, Election Petition No. 2 of 1993, High Court at Nairobi, November 22, 1994, http://www.kenyalaw.org

9. Mwakileo.

10. Chapter 67 – Witchcraft Act. http://www.kenyalaw.org

11. Chapter 67 – Witchcraft Act. http://www.kenyalaw.org.

12. Chapter 66 – Election Offences Act, my emphasis. http://www.kenyalaw.org

13. Elima, my emphasis.

14. Kombo's victory was overturned 9 months into his term. He was banned from contesting an election for five years, but politically rehabilitated through the Inter-Parliamentary Group pact, which reprieved those who had been found guilty of election offenses. He is currently Chairman of FORD–Kenya.

15. Elima.

16. The broadly lethal Kamba “kithitu” is a notable example of such an oath. For a discussion of kithitu as it pertains to civil law, see Thomas, “Oaths, Ordeals and the Kenyan Courts,” 59–70.

17. KNA MAA 7/835, Ministry of African Affairs, “Oathing & Witchcraft,” 1945–1947.

18. KNA MAA 7/835, Ministry of African Affairs, “Oathing & Witchcraft,” 1945–1947. Letter from the PC, Central Province (Nyeri) to the Judicial Adviser re. Native Oaths, November 1, 1946.

19. KNA MAA 7/835, Ministry of African Affairs, “Oathing & Witchcraft,” 1945–1947. Letter from the Judicial Advisor, Nairobi, to the PC, Central Province (Nyeri), April 15, 1947.

20. PRO CO 542/19, Official Gazettes of the East Africa Protectorate, Special Issue: An Ordinance to Consolidate and Amend the Law Relating to Witchcraft 1925, 1131. Witchcraft Ordinance predated the Witchcraft Act discussed above. Enacted in 1909, revised in 1918 and 1925.

21. For a sharp and succinct analysis of the evolution of the Witchcraft Ordinance see Waller, “Witchcraft and the Law.”

22. KNA VP/2/2/21, Rehabilitation Advisory Committee, 1954. Report on the Sociological Causes Underlying Mau Mau with Some Proposals on the Means of Ending It, 1954.

23. Kenya. The Penal Code (chapter 24) and the Criminal procedure code (chapter 27), Nairobi, Govt. Printer, 1949. The Laws of Kenya, Ordinance No. 52 of 1955. Durand, “Customary Oathing.”

24. Branch, Defeating Mau Mau. See also Luongo “If You Can't Beat Them.”

25. Elima.

26. Savula and Teyie, “MPs Rush.” A thread entitled, “Kombo Practises Witchcraft!” on the Africa-wide discussion board, Mashada.com, stimulated intensive debates about what counted as “witchcraft” in contemporary Kenyan sociopolitics. http://www.mashada.com

27. Elima.

28. See Clause 7 of the Kenya Colony Order-in-Council, 1921. PRO CO 533/397/9. Colonial Office. Kenya Original Correspondence. 1905–1951. Native Tribunals Ordinance,1930.

29. Elima.

30. Chapter 67 – Witchcraft Act. http://www.kenyalaw.org

31. Elima.

32. Chabal and Daloz, Africa Works, 63–76.

33. For a discussion of death penalty cases in East Africa generally see Stacey Hynd, “The Extreme Penalty of the Law” in this volume.

34. Kenya's major dailies regularly report the extra-judicial killings of alleged “witches” and the pervasiveness of “witchcraft” beliefs and practices. At the time of the writing of this article, reports like “Groups Join War against Lynch Mobs” and “DC Says State Cannot Stop the Killing of Elderly in Malindi,” to name a few were carried in the mainstream press. See Mayoyo, “Groups Join War.”; and Nyassy, “The Killing of Elderly in Malindi.”

35. Rex versus Karoga was Kithengi and 53 Others (1913) 5 Law Reports of Kenya, 1913–1914 (hereafter, Karoga).

36. For a discussion of the institution of the kiama see Shadle's article, “White Settlers and the Law in Early Colonial Kenya,” in this volume.

37. Karoga. Luongo, “Motive Rather than Means.”

38. Sections 191 and 192 of the Kenya Penal Code (1930) defined “killing on provocation” and “provocation.” “When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.” And, “The term ‘provocation’ means and includes, except as hereinafter stated, any wrongful act or insult of such nature as to be likely to, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, filial, or fraternal relation, or in relation of master and servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as asforesaid, the former is said to give to the latter provocation for an assault.” KNA AG/52/90. 46. The colonial situation complicated issues of mens rea. See Seidman, “Witch Murder and Mens Rea.”

39. Rex versus Kumwaka s/o Mulumbi & 69 others, 14 Law Reports of Kenya (1932) (hereafter, Kumwaka).

40. Rex versus Fabiano Kinene s/o Mukye, Seperiano Kiwanuka s/o Kintu, Albert Iseja s/o Kintu, 1941, 8 East Africa Court of Appeal (1941) (hereafter, Fabiano).

41. Eria Galikuwa v Rex, 18 East Africa Court of Appeal (1951) (hereafter, Eria Galikuwa).

42. Eria Galikuwa v Rex, 18 East Africa Court of Appeal (1951) (hereafter, Eria Galikuwa).

43. Ashforth, “On Living in a World with Witches,” 206.

44. Wero v Republic, Criminal Appeal No 15 of 1982, Court of Appeal at Nairobi (hereafter Wero (1982)). Wero v Republic, Criminal Appeal No 50 of 1983, Court of Appeal at Nakuru, October 7, 1983 (hereafter, Wero (1983)). http://www.kenyalaw.org

45. Wero (1982).

46. Wero (1982).

47. Wero (1983).

48. Republic v Chivatsi & another, Criminal case No. 21 of 1988, High Court at Mombasa, May 25, 1988 (hereafter, Chivatsi). http://www.kenyalaw.org

49. Republic v Chivatsi & another, Criminal case No. 21 of 1988, High Court at Mombasa, May 25, 1988 (hereafter, Chivatsi). http://www.kenyalaw.org.

50. Republic v Chivatsi & another, Criminal case No. 21 of 1988, High Court at Mombasa, May 25, 1988 (hereafter, Chivatsi). http://www.kenyalaw.org.

51. Yovan v Uganda [1970] EA 405.

52. Chivatsi.

53. Patrick Tuva Mwanengu and Republic, Criminal Appeal 272 of 2006, Court of Appeal at Mombasa, n.d. (hereafter, Patrick Tuva Mwanengu). http://www.kenyalaw.org. Also, Nyamboga, “Kenya: Bench Watch.” Ochana, “Law Report.”

54. Patrick Tuva Mwanengu.

55. Patrick Tuva Mwanengu. The justices commented, “We are conscious about the dangers alluded to by Mr. Ogoti [the state counsel] which were the same fears expressed more than 70 years ago in the Kumwaka case.”

56. Comaroff and Comaroff, eds. Law and Disorder.

57. Geschiere, The Modernity of Witchcraft.