“If the government were not here we would kill him” – continuity and change in response to the Witchcraft Ordinances in Nyanza, Kenya, c.1910–1960

Abstract

The Kenyan Witchcraft Ordinances, passed by the British administration in 1909 then revised in 1918 and 1925 represented an attempt by the colonial government to control the punishment of a variety of magical practitioners. This article examines how successfully they were applied in Nyanza. Administrators and judges were forced to recognise their own ignorance of what constituted an offence and leave definitional control of witchcraft in the hands of local people, especially after 1933 when Native Tribunals were authorised and actively encouraged to hear most of the cases. There remained a fundamental incompatibility between the “cognitive map” that underpinned beliefs in the power of magic and a colonial rational–legal judicial system that relied on empirical evidence. Despite indications to the contrary, British officials persisted in their claim that such “superstitions” would naturally decline with the advance of education. In this context the colonial mindset had a lesser claim to reality than belief in the power of magic.

Keywords:

• Kenya
• Nyanza
• witchcraft
• Witchcraft Ordinances
• Native Tribunals, law

Acknowledgements

Many thanks to Sloan Mahone and Jane Garnett for their comments and to David Anderson and the British Institute in Eastern Africa for their assistance in setting up the research at the Kenya National Archives.

Notes

1. Kenya National Archives (KNA) DC/KSM/1/19/206, Extract from judgement of Mr Hyde Clarke, Resident Magistrate Kisumu, in letter to the PC NZA from DC CK, 31 March 1939.

2. KNA PC/NZA/2/7/40, DC Report from a baraza at Marenyu, 17 May 1932.

3. Brantley, “An Historical Perspective of the Giriama,” 123.

4. Ordinances 9/1909, 6/1918 and 23/1925 cap. 67 Laws of Kenya (Nairobi, 1962).

5. “Native Tribunals” were referred to as “African Courts” after the 1950 African Courts Ordinance.

6. For instance, see KNA DC/KSI/1/4, Annual Report 1933.

7. LeVine, “Witchcraft and Sorcery in a Gusii Community,” 225 and 232–3.

8. The titles of files are an indication of this. For instance, KNA PC/NZA/2/5/20, “Witchcraft Doctors”. See also Luongo, “Conflicting Codes,” 92; Waller, “Witchcraft and Colonial Law,” 264; Anderson, “Black Mischief” for examples of the label “witchcraft” applied as a “catch-all”.

9. Geschiere, “Witchcraft and the State,” 322.

10. Ciekaway and Geschiere, “Containing Witchcraft,” 8.

11. Geertz, “An Anthropology of Religion and Magic,” 83–4.

12. Pels, “The Magic of Africa,” 202.

13. Luongo, “Conflicting Codes,” 92–114.

14. Luongo, “Conflicting Codes,” 15–16 and 341.

15. See Waller, “Witchcraft and Colonial Law,” especially 244 and 248 for a more detailed discussion of the difficulties connected with witch-killing.

16. Waller, “Witchcraft and Colonial Law,” 244; Morris and Read, Indirect Rule, 175.

17. See Shadle, “Changing Traditions,” 416–17; Morris and Read, Indirect Rule, 131 for discussion of the creation and use of Native Tribunals; KNA PC/NZA/2/9/1, for the enabling of Native Tribunals to hear witchcraft cases; KNA PC/NZA/2/9/32, for correspondence in 1943 confirming that that the majority of Nyanza witchcraft cases were heard by Native Tribunals.

18. Shadle, “Changing Traditions,” 416.

19. See Waller, “Witchcraft and Colonial Law,” 263–4 for a discussion of the controversy surrounding deportation without trial and the use of witchcraft as a “catch-all” to remove undesirable characters from sensitive locations.

20. Ogembo, Contemporary Witch-Hunting, 35; Melland, “Ethical and Political Aspects of African Witchcraft,” 498 on concealing the killing of witches.

21. KNA DP/1/91, Anthropological Report on the Wakisii (Abagusii).

22. LeVine, “Witchcraft and Sorcery,” 232, 236, 255.

23. KNA DC/KSM/1/19/206, Letter from DC Nandi to DC CK, 28 September 1932 and letter from Z.P. Musumba to DO Ukwala division, 5 September 1959.

24. KNA PC/NZA/3/15/111, Letter from PC NZA to DC South Nyanza, 9 December 1949.

25. KNA PC/NZA/3/15/111, Letter from DC SK to Judicial Advisor, Nairobi, 23 April 1946.

26. KNA MAA/7/835, Letter from DC SK to Judicial Advisor, Nairobi, 13 July 1947.

27. For instance, see KNA PC/NZA/3/15/111, the case in Bondo division on 1 April 1946.

28. KNA PC/NZA/2/7/40. Enquiry under Section 9, 18 October 1943.

29. KNA AP/1/1009, Letter from Senior Commissioner NZA to Registrar Supreme Court, 9 June 1924.

30. KNA PC/NZA/2/7/40. DC Report from a baraza at Marenyu, 17 May 1932, where Muthuni had been tried twice and convicted once before; KNA PC/NZA/2/7/100, Letter from DO SK to Judicial Advisor, Nairobi, 12 August 1945 for Doho case where accused had been convicted twice before.

31. KNA PC/NZA/3/15/111, Judgement of Magistrate P.G. Tait.

32. Waller, “Witchcraft and Colonial Law,” 267–8.

33. KNA PC/NZA/2/7/40, Letter from DC CK to PC NZA, 26 June 1934.

34. KNA PC/NZA/3/15/8, Native Tribunal Returns 1939–40.

35. Ogembo, Contemporary Witch-Hunting, 164.

36. KNA PC/NZA/2/7/40, Petition to Chief Secretary, Nairobi, 15 November 1945.

37. KNA DP/18/17, Law Panel Meeting Minutes 1954–61.

38. KNA PC/NZA/2/7/40, Petition of Midhune to Chief Native Commissioner, Nairobi, 21 October 1933.

39. KNA DP/30/24, Safari Diary of H.L. Hunter, 22 August 1937.

40. KNA PC/NZA/3/15/111, Judgement of Magistrate P.G. Tait.

41. KNA PC/NZA/2/7/33, Letter from PC NZA to Hon. Ag. Chief Native Commissioner, Nairobi, 10 July 1933.

42. KNA PC/NZA/2/7/33, Report of baraza held by DC CK at Chief Chweya's Camp on 15 September 1933. “Laibon” was being used mistakenly by the colonial officials in this case since these “mchawi” were not like the “orkoiik” of Kipsigis/Nandi or the Maasai “laibon”.

43. KNA PC/NZA/3/15/4, Letter from DC SK to PC NZA, 12 July 1935.

44. Waller, “Witchcraft and Colonial Law,” 247–9.

45. KNA DC/KSM/1/19/206, Extract from judgement of Mr Hyde Clarke, Resident Magistrate Kisumu, in letter to the PC NZA from DC CK, 31 March 1939.

46. Shadle, “Changing Traditions,” 428 and see Luongo, “Conflicting Codes,” 80–81 and KNA PC/NZA/2/7/40, report from a baraza at Marenyu, 17 May 1932 on the use of assessors.

47. KNA PC/NZA/2/9/32, Correspondence from DC NK, CK, SK to PC NZA December 1943 to January 1944.

48. KNA PC/NZA/3/15/111, Extract from PC meeting January–February 1946.

49. A second incomplete sample of 17 Native Tribunal cases across Nyanza between April 1946 and September 1947 reveals only one sentence was revised down, one was quashed after a retrial and one was appealed to the DO who confirmed the ruling of the Tribunal. KNA PC/NZA/2/7/114, Native Tribunal Returns 1940–42 and KNA PC/NZA/3/15/111, correspondence from DC NK, CK and SK to PC NZA between April 1946 and September 1947.

50. KNA PC/NZA/2/9/1, Letter from PC NZA to Chief Native Commissioner, 7 February 1933.

51. Shadle, “Changing Traditions,” 428.

52. PC/NZA/2/7/40, Report from a baraza at Marenyu, 17 May 1932.

53. See Whisson and Lonsdale, “The case of Jason Gor,” for cases involving such accusations and KNA DP/30/24, Safari Diary of M.W. Low, DO, 11 September 1937 for disputes involving Elders in Ritongo Kiomangis.

54. KNA PC/NZA/3/15/111, Letter from DC NK to Judicial Adviser, Nairobi, 8 November 1947.

55. KNA PC/NZA/3/15/111, Letter from DC SK to Legal Adviser, Nairobi 24 October 1947 and 5 September 1947.

56. Ordinance 23/1925, cap. 67 Laws of Kenya (Nairobi, 1962).

57. KNA AP/1/1009, Letter from Chief Justice to Acting Chief Secretary, Nairobi, 22 August 1917.

58. KNA DC/KSI/1/16, Safari Diary of M.W. Low, DO, 11 September 1937.

59. KNA DC/KSM/1/19/206, Letter from DC KSM to DC SK, 18 July 1949.

60. KNA DP/1/91, Anthropological Report on the Wakisii (Abagusii).

61. KNA DP/1/61, Letter from DC Kisii to the Permanent Secretary, Nairobi, 22 November 1962. It is not clear that the removal of “evil” was the objective in trepanning – it may have been a purely physical pain-relief operation. See Mahone, The Trepanned Skull.

62. For other cases of the fluidity of witchcraft and the difficulty in separating “good” and “bad” magic see Richards, “A Modern Movement,” 452 for the redefinition of “good” charms as evidence of evil witchcraft and Geschiere, “Witchcraft and the State,” 324–6 for the “circularity” of harming and healing.

63. KNA DC/KSM/1/19/206, extracts from Russell's letter forwarded in another letter from PC NZA to the DCs of NZA, 25 March 1939.

64. KNA DC/KSM/1/19/206, Extract from judgement of Mr Hyde Clarke, in letter to the PC NZA from DC CK, 31 March 1939.

65. KNA PC/NZA/2/7/40, DC Report from a baraza at Marenyu, 17 May 1932.

66. KNA PC/NZA/2/7/40, Enquiry under Section 9, 18 October 1943 and KNA DC/KSI/3/1 “Characters of Chiefs”, entry of Chief Izaak Ogoma.

67. KNA MAA/7/835, Letter from Judicial Adviser to Chief Secretary, Nairobi, 31 July 1945.

68. KNA PC/NZA/3/15/111, Letter from DC SK to Judicial Adviser, 2 August 1947.

69. KNA MAA/7/835, Letter from Judicial Adviser to Chief Secretary, Nairobi, 31 July 1945.

70. KNA PC/NZA/3/16/19, Letter from DC Elgon to PC NZA 28 December 1956.

71. For instance, see the cases in KNA PC/NZA/3/15/111, especially KNA DC/KSM/1/19/206, Letter from DC SK to DC CK, 16 March 1938 request information on the reputation of a witchcraft suspect employed by a local Chief.

72. KNA PC/NZA/3/16/19, Letter from DC Elgon to PC NZA 28 December 1956.

73. For the contemporary critiques of this “administrative justice” such as the Bushe Commission see Waller, “Witchcraft and Colonial Law,” 254 and Morris and Read, Indirect Rule, 98–103.

74. KNA DC/KSI/1/4, Annual Report for South Kavirondo 1935.

75. Orde Browne, “Witchcraft and British Colonial Law,” 485.

76. KNA DC/KSM/1/19/206, Letter from Father Coenen to DC CK 13 June 1939.

77. KNA DC/KSM/1/19/206, Letter from C.J. Openda Ong”are to DC CK, 4 August 1955 and KNA DC/KSI/1/4 Annual Report 1934.

78. KNA PC/NZA.3/45/12, (Microfilm Section 5, Reel 2) Monthly Intelligence Report from CK for April 1930.

79. Evans-Pritchard, “Witchcraft,” 421.

80. Ogembo, Contemporary Witch-Hunting, vi–vii.

81. Ogembo, “Cultural Narratives,” 13 and Ogembo, Contemporary Witch-Hunting, 9, 31–41 and 158–9.

82. Geschiere, “Witchcraft and the State,” 323.

83. Richards, The Imperial Archive, 6.

84. KNA PC/NZA/3/15/111, Circular letter from the Secretariat, Nairobi, 7 March 1946.

85. KNA PC/NZA/3/16/19, Letter from the African Courts Officer to PC NZA and PC Central Province 24 October 1956.

86. KNA PC/NZA/3/16/19, Letter from DC South Nyanza to PC NZA, 26 November 1956 and Letter from DC Elgon to PC NZA, 28 December 1956.

87. Stoler, “Colonial Archives,” 97.

88. KNA MAA/7/835, Letter from Judicial Adviser to Chief Secretary, Nairobi, 31 July 1945.

89. Geschiere, “Witchcraft and the State,” 334.