WITCHCRAFT: A HUMAN RIGHTS CONFLICT BETWEEN CUSTOMARY/TRADITIONAL LAWS AND THE LEGAL PROTECTION OF WOMEN IN CONTEMPORARY SUB-SAHARAN AFRICA
NTRODUCTION
I.
II.
BACKGROUND: WITCHCRAFT AND SUB-SAHARAN AFRICA
A. Definition of “Witch” and “Witchcraft” B. Witchcraft Accusations C. How an Accusation of Witchcraft Operates D. Statistics of Witchcraft Accusations in Sub-Saharan
Africa E. Witchcraft and Its Effects on the Social Ordering Of
Communities Within Sub-Saharan Africa
THE “MULTI-FACETED” LEGAL STRUCTURE IN SUB-SAHARAN AFRICA
A. B.
C.
History of Legal Systems Within Sub-Saharan Africa Sources of Law Within Contemporary Sub-Saharan Africa Witchcraft: A Legal Enigma in Sub-Saharan Africa
III. WITCHCRAFT AND HUMAN RIGHTS
A. B. C.
D.
The Human Rights Question and Sub-Saharan Africa The Human Rights Answer to the Witchcraft Challenge The Local/Regional Perspective on Women’s Rights in Africa
The International Perspective on Women’s Rights
IV. POSSIBLE SOLUTIONS CONCLUSION
INTRODUCTION
In January 1998 the circumstances of a young man’s death in Kumbungu, Ghana, were seen as unnatural,1 and an act of “bewitch- ment was invoked to explain [his] death.” 2 “Three days later, about eight masked vigilantes ‘avenged’ his death by bludgeoning and stoning to death two women, aged 55 and 60 years old, on suspicion that the pair were witches and had caused the man’s death by super- natural means.”3
Unfortunately, this same witchcraft belief system runs across most of sub-Saharan Africa, such that “ ‘every evil and misfortune that is incapable of rational explanation is attributed to witchcraft.’”4 Most individuals branded and victimized as witches are women,5 especially older women and widows.6 Furthermore, while believers in witchcraft within sub-Saharan Africa do accept the fact that a person has died of a certain illness, be it malaria or heart disease, “which explains how the misfortune happened[,]—these cultures [still] seek a metaphysical answer for why it occurred.” 7
This Note seeks to provide insight into the concept of witchcraft and its legal implications for women, particularly older women, in contemporary sub-Saharan Africa. Part I explores the foundation for the belief in witchcraft and witchcraft’s place in and effect on the social ordering within communities in sub-Saharan Africa. Part II examines the clash of customary/traditional laws against state legal systems, mostly common and civil law traditions. Witchcraft histori- cally fell under the jurisdiction of customary/traditional legal systems,8 and, today, accused witches in sub-Saharan Africa have no specific legal or human rights protections under most state constitutions.9 And because there is not one universal law within sub-Saharan Africa against witch hunts,10 this
State action is enough to protect these women, or whether specific rights are being violated under state laws. Part III follows with an analysis of various international treaties, principles, and norms and explores international law and human rights standards that could or should arguably protect this victimized class of women in contem- porary sub-Saharan Africa.
In Part IV, the Note concludes by brainstorming suggestions and potential methods to handle situations involving witchcraft accusations. This is crucial, as the notion of witchcraft, as a basis of discussion, is one of many traditional belief systems, yet is one that adversely affect women within contemporary sub-Saharan Africa, and which lacks clear legal remedies.11 These methods include utiliz- ing the perspective of traditional laws, national legal systems, or a combination of both. Additionally, Part IV will focus on the different roles the international community can play in assisting these mar- ginalized women. This Note concludes by analyzing whether an inter- national solution, rather than a domestic grassroots approach, is the more efficient method of protecting women without simultaneously destroying the current integrated, customary/traditional, and state legal systems of contemporary sub-Saharan Africa.
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