By: Isaac Christopher Lubogo
Introduction
“Africa cannot afford to prosecute shadows while blood crimes walk free. To punish the unseen is easy; to protect the living is harder. The future of our jurisprudence lies not in criminalising belief but in criminalising harm.”
— Isaac Christopher Lubogo
1) The hard facts (so we’re not debating fog)
On 15–16 Sept 2025, a Lusaka court sentenced Leonard Phiri and Jasten Mabulesse Candunde to two years’ imprisonment with hard labour for plotting—via ritual paraphernalia including a live chameleon, animal tail, powders and “concoctions”—to kill President Hakainde Hichilema. The charges rested on Zambia’s Witchcraft Act (1914), a colonial statute that criminalises (among other things) professing or practising witchcraft and using “supernatural means” to threaten harm.
2) The core legal question
If witchcraft’s causal power is empirically unprovable, is it tenable in modern criminal law to convict someone for attempting to kill by witchcraft?
Common-law doctrine of “impossible attempts”
Modern common law answers yes. Since R v Shivpuri (HL 1986), a person may be convicted of attempt even where completion of the crime was impossible—provided they intended to commit the offence and did acts more than merely preparatory. The law punishes the dangerous intention coupled with overt acts, not the metaphysics.
Translation to our case: If the State proves the accused intended to cause the President’s death and performed acts they believed would do so, the impossibility of sorcery working is not a defence. On this narrow theory of attempt, convictions can be doctrinally sound—even when the chosen instrument is a curse rather than a gun.
3) But Zambia didn’t charge a bare “attempt”; it used the Witchcraft Act
That matters. The Witchcraft Act (1914) penalises “practising” or “professing” witchcraft and using “supernatural means” to cause fear or harm—offences drafted without empirical standards of proof and born of colonial anxieties. Courts can convict by showing possession of instruments, profession of powers, threats, and intent, not scientific efficacy. Legally tenable? Under the Act’s text, yes. Normatively desirable in 2025? That’s the real debate.
4) Human-rights and constitutional tension
Africa’s regional baseline, Article 8 of the African Charter on Human and Peoples’ Rights, guarantees freedom of conscience and religion “subject to law and order.” The “subject to” clause lets States restrict practices to prevent harm. But criminalising beliefs, identity claims, or cultural healing as such runs into freedom-of-religion concerns and risks selective enforcement. Zambia’s Christian-nation constitutional milieu and social hostility to “witches” sharpen that tension. Reformers have flagged colonial witchcraft laws as incompatible with contemporary rights frameworks.
South Africa offers a way forward: move from suppressing “witchcraft” per se to prohibiting harmful practices associated with witchcraft accusations (violence, intimidation, trafficking for ritual harm), and protect self-identification while punishing injury and fraud.
5) The evidentiary problem courts can’t wish away
Witchcraft cases lean on:
(i) paraphernalia (charms, powders);
(ii) statements/confessions;
(iii) witness narrative (e.g., how the ritual was to work in five days).
None of these proves causal capacity; they prove belief + intent. That’s fine for attempt doctrine but perilous when statutes criminalise identity, reputation, or traditional practice—and when politics can colour prosecutions. The current Zambia case sits amid broader claims of politicised law-and-order; whatever one’s view, the optics are not neutral.
6) The Africa-wide implications (the policy fork in the road)
Across East and Southern Africa, sister statutes persist:
Uganda: Witchcraft Act (Cap 124)—still cited in rights analysis and practice; also infamous in the Salvatori Abuki litigation.
Tanzania: Witchcraft Act (Cap. 18) prohibits practising/claiming powers, public or secret.
Kenya: Witchcraft Act (Cap. 67) even criminalises accusing someone of witchcraft (to curb vigilante violence).
If Zambia’s verdict becomes a template, three continent-wide effects are foreseeable:
1. Pre-emptive incapacitation: States will rely on colonial statutes to neutralise perceived threats before harm, without having to prove physical causation. That is efficient for security; it is also ripe for abuse against opponents and non-harmful traditionalists.
2. Deepening of stigma and vigilantism: When the State treats “witchcraft” as inherently criminal, it may validate social hunts for witches. Regions already struggle with mob violence linked to accusations. The safer legal approach is to criminalise accusations and violence, not identity or benign ritual itself.
3. Rights friction: Blanket bans collide with Article 8 protections and with cultural rights; the better equilibrium is harm-based drafting plus fraud and intimidation offences that are belief-neutral.
7) Uganda specifically: lessons and options
Uganda has lived this movie. The Cap 124 regime has been used against alleged witches, yet our jurisprudence (see Abuki) exposed how exile-style punishments and vague definitions offend constitutional guarantees. The contemporary rights community still treats Cap 124 as live law and a recurrent problem in practice (including child-sacrifice prosecutions where overlapping statutes are used).
Policy reform should:
(a) retain robust penalties for harmful outcomes (kidnapping, murder, trafficking, poisoning), threats, intimidation, and fraud;
(b) abolish offences that target identity/label or benign traditional healing;
(c) protect the accused-as-victims side by criminalising accusations that incite violence (Kenya’s model); and
(d) invest in forensic-led policing so belief disputes don’t substitute for evidence.
8) Bottom line on tenability
Doctrinally (common law): Punishing an attempt to kill by witchcraft is tenable—Shivpuri closes the “impossibility” escape route. The legal wrong is the intent + steps, not the physics.
Statutorily (Witchcraft Acts): Convictions are easy where statutes criminalise practising/professing witchcraft and possession of “articles.” But ease is not virtue: these laws are overbroad, colonial, and rights-fragile.
Policy-wise: Africa should pivot from criminalising “witchcraft” per se to a harm-based, belief-neutral framework—protecting life and security without pathologising indigenous cosmologies or enabling politicised prosecutions.
A compact reform blueprint (for Zambia, Uganda, others)
1. Repeal/replace colonial witchcraft statutes with a Prohibition of Harmful Practices Associated with Witchcraft Beliefs Act.
2. Criminalise: threats “by any means,” coercion, fraud for spiritual services, trafficking/assault/poisoning, child sacrifice, and accusation-led incitement.
3. Protect: freedom of belief and benign traditional healing (Article 8), plus explicit bans on vigilante “witch-cleansing.”
4. Evidence rules: bar convictions based solely on reputation or paraphernalia; require acts objectively linked to a cognisable harm (threats, extortion, bodily injury).
5. Public health & education: de-mythologise harmful practices; strengthen victim support.
Conclusion
The Lusaka conviction is a warning bell for Africa’s jurisprudence. It shows the law’s ability to punish dangerous intentions even where the chosen means are fantastical. But it also shows the danger of letting colonial shadows linger in our statutes. The future of African justice is not in prosecuting curses but in protecting citizens from tangible harm—through law that is modern, precise, and rights-conscious.
