The Criminal Code — inherited from 1918 Dutch colonialists — is to be revised. The government has proposed a new bill to the House of Representatives for deliberation. The bill has sparked controversy as it includes witchcraft in the penal code, categorizing it as a criminal offense punishable under the law.
The reason witchcraft must be incorporated into the criminal law is because it is harmful to the people, and the Criminal Code should protect them from the dangers of witchcraft. It should also protect those accused of practicing witchcraft, charlatanism and black magic from any sort of violence, witch hunts or sorcerer murders by the masses.
We have frequently observed how witchcraft and attacks on perceived witches and sorcerers occur across the country, while authorities who are supposed to enforce the law to maintain public order and justice can do nothing.
That witchcraft is hazardous to the people is beyond a shadow of a doubt. As a result, we should take it seriously in order to prevent the excesses of witchcraft and sorcery practices from escalating.
Nevertheless, despite the social significance of adopting witchcraft into the penal code, it is obviously important to define clearly what can be classified as a witchcraft-related crime. In this regard, we should distinguish three types of behavior: (1) killing-by-witchcraft or harming someone with the use of magic or through sorcery, (2) witchcraft accusations that often result in the assault of suspected witches and massacres, and (3) mass violence involving taking the law into one’s own hands as a result of a collective reaction to witchcraft and an expression of public anger with the perceived witch.
There are numerous anthropological studies showing that witchcraft is deeply ingrained in the culture of a society. Much of anthropological research has clearly shown that witchcraft is a part of the system of cosmological beliefs of any society and exists both within primitive society and modern society.
Anthropologists commonly argue that witchcraft is a sort of psychic phenomenon shrouded in mystery and secrecy, and sorcery is always practiced in clandestine settings, which are beyond empirical observation by other people. Here, people perceive that someone is practicing sorcery or employs witchcraft on someone else simply through rumor and gossip.
Prominent anthropologist Adam Ashforth (2005) once said that witchcraft is both a subject of gossip and a product of gossip; and gossip is the medium within which it lives. What emerges among the public is that accusations of witchcraft lead to communal tension, even violence. In this sense, accusations and tensions are the only proof of witchcraft.
Certainly, this is the crux of the problem in relation to the prosecution of witchcraft-related crimes. As witchcraft is employed with the use of supernatural power and it always takes place in concealed areas, actual physical proof is lacking. Equally, the way witchcraft works cannot be observed directly, nor can empirical evidence of it be easily captured. In most cases, accusations of sorcery and those who are accused of employing witchcraft usually come about due to circumstantial evidence, instead of empirical evidence, in the form of jealousy, abhorrence, vengeance, retaliation and the like.
Having considered the urgency of adopting witchcraft into the criminal code, it is necessary to take a look at whether other countries apply, say, a sorcery law. Here, we can learn from one of the most advantageous and modern states like Canada, which has regulated witchcraft and magic. The Canadian Criminal Code (c.C-46, 1985, section 365) clearly states: “Everyone who fraudulently (i) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment; (ii) undertakes, for a consideration, to tell fortune; or (iii) pretends from his skill in or knowledge
of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found, is guilty of an offence punishable on summary conviction.”
We can also learn from most African countries that apply the same law. Take the case of the Republic of the Ivory Coast, which adopted the French Criminal Code and issued a decree on Nov. 19, 1947 stipulating: “Shall be punished by one to five years of imprisonment whoever has … practiced witchcraft, magic, or charlatanism, susceptible to trouble the public order or to injure persons or damage property” (see Veerle Gijsegem, Criminal Law of French Origin — The Modernity of Witchcraft Trials in the Republic of the Ivory Coast, 2006).
Furthermore, it is interesting to take the case of how the prosecution process of witchcraft-related crime in African countries is carried out. It is reported that such prosecution rests solely on the judge’s interpretation of the enacted law, and judgments are therefore issued based on the faith and beliefs of judges. This approach is taken simply because of the absence of empirical evidence.
When the judges are asked why they take this kind of approach, they respond to such concerns in an hilarious way: “the judge will look at them [the accused persons] and see if they act like witches, illustrating that acting like a witch entailed behaving ‘strangely’ or ‘nervously’ in court” (Graeme Wood, Witchcraft and the Law in Central African
It is widely acknowledged that the difficulty of bringing a witchcraft case to justice is how to provide proof and evidence. Indeed, this is the most challenging task that needs to be tackled by experts and lawmakers during the legislation process of the proposed bill.
The writer is an anthropologist by training, who obtained a PhD degree with his doctoral thesis titled Political Power, Corruption and Witchcraft in Modern Indonesia from the University of Sussex, the United Kingdom.