¹ Middleton, John and Winter, Edward H., eds., Witchcraft and Sorcery in East Africa (London: Routledge & Kegan Paul Ltd., [1963] 2004)Google Scholar; Crehan, Kate, The Fractured Community: Landscapes of Power and Gender in Rural Zambia (California: University of California Press, 1997)Google Scholar; Haar, Gerrie ter, ed., Imagining Evil: Witchcraft Beliefs and Accusations in Contemporary Africa (Trenton, NJ: Africa World Press, 2007)Google Scholar; Bob Tortora, “Witchcraft Believers in Sub-Saharan Africa Rate Lives Worse: Belief Widespread in Many Countries,” Gallup (Aug. 25, 2010), https://news.gallup.com/poll/142640/witchcraft-believers-sub-saharan-africa-rate-lives-worse.aspx; Adinkrah, Mensah, Witchcraft, Witches and Violence in Ghana (New York: Berghahn Books, 2015)CrossRefGoogle Scholar; Gershman, Boris, “Witchcraft Beliefs and the Erosion of Social Capital: Evidence from Sub-Saharan Africa and Beyond,” Journal of Development Economics 120 (2016): 182–208CrossRefGoogle Scholar.

² Russell, Jeffrey Burton, Witchcraft in the Middle Ages (New York: Cornell University Press, 1972)Google Scholar; Mesaki, Simeon, “The Evolution and Essence of Witchcraft in Pre-Colonial African Societies,” TransAfrican Journal of History 24 (1995): 162–77Google Scholar; Ludsin, Hallie, “Cultural Denial: What South Africa's Treatment of Witchcraft Says for the Future of its Customary Law,” Berkeley Journal of International Law 21, no. 1 (2003): 62–110Google Scholar; Cimpric, Aleksandra, Children Accused of Witchcraft: An Anthropological Study of Contemporary Practices in Africa (New York: UNICEF/WCARO, 2010)Google Scholar.

³ Cimpric (n2) 11.

⁴ Evans-Pritchard, Edward E., Witchcraft, Oracles, and Magic Among the Azande (Oxford: Clarendon Press, 1937)Google Scholar.

⁵ Nelson Tebbe, “Witchcraft and Statecraft: Liberal Democracy in Africa,” Georgetown Law Journal 96 (2007): 183–236, at 190.

⁶ Boris Gershman, “Witchcraft Beliefs Around the World: An Exploratory Analysis,” PLoS ONE 17, no. 11 (2022): 1–19, at 1.

⁷ Robert Alan LeVine, “Witchcraft and Sorcery in a Gusii Community,” in Witchcraft and Sorcery in East Africa, eds. John Middleton and Edward H. Winter (London: Routledge and Kegan Paul, [1963] 2004), at 225.

⁸ Tebbe (n5) 190.

⁹ Pieter A. Carstens, “The Cultural Defence in Criminal Law: South African Perspectives,” De Jure 37, no. 2 (2004): 312–30, at 315.

¹⁰ Adam Ashforth, “Witchcraft, Violence, and Democracy in the New South Africa,” Cahiers d’Études Africaines 38 (1998): 505–32, at 505; Ludsin (n2); Justus Ogembo, Contemporary Witch-Hunting in Gusii, Southwestern Kenya (Lewiston, NY: Edwin Mellen Press, 2006); Adinkrah (n1); Samantha Spence, Witchcraft Accusations and Persecutions as a Mechanism for the Marginalisation of Women (Cambridge: Cambridge Scholars Publishing, 2017).

¹¹ Mary Kingsley, West African Studies (London: MacMillan, 1901); Henrietta L. Moore and Todd Sanders, eds., Magical Interpretations, Material Realities: Modernity, Witchcraft and the Occult in Postcolonial Africa (London: Routledge, 2001), at 184; Ter Haar (n1); Isak Niehaus, Witchcraft and a Life in the New South Africa (Cambridge: Cambridge University Press, 2012); Adinkrah (n1); Spence (n10); Emmanuel Sarpong Owusu, “The superstition that Maims the Vulnerable: Establishing the Magnitude of Witchcraft-Driven Mistreatment of Children and Older Women in Ghana,” International Annals of Criminology 58, no. 2 (2020): 253–90.

¹² Kingsley (n11) 315.

¹³ Onesmus K. Mutungi, “Witchcraft and the Criminal Law in East Africa,” Valparaiso University Law Review 5, no. 3 (1971): 524–55; Daniel D.N. Nsereko, “Witchcraft as a Criminal Defence, from Uganda to Canada and Back,” Manitoba Law Journal 24, no. 1 (1996): 38–59; Richard D. Waller, “Witchcraft and Colonial Law in Kenya,” Past & Present 180 (2003): 241–75; Ter Haar (n1); John Alan Cohan, “The Problem of Witchcraft Violence in Africa,” Suffolk University Law Review 44, no. 4 (2011): 803–72; Natasha Joseph, “Critical Role: How South African Justice Deals With Witchcraft Claims,” Index on Censorship 43, no. 4 (2014): 47–50.

¹⁴ Richard Petraitis, “The Witch Killers of Africa,” Infidels (2003), https://infidels.org/library/modern/richard-petraitis-witch-killers/; Silvia Federici, “Women, Witch-Hunting and Enclosures in Africa Today,” Sozial.Geschichte Online 3 (2010): 10–27; Hamisi Mathias Machangu, “Vulnerability of Elderly Women to Witchcraft Accusations Among the Fipa of Sumbawanga, 1961–2010,” Journal of International Women's Studies 16, no. 2 (2015) 274–84; Annie Singh and Norah Hashim Msuya, “Witchcraft Accusation and the Challenges Related Thereto: Can South Africa Provide a Response to this Phenomenon Experienced in Tanzania?” Obiter 40, no. 3 (2019): 105–16.

¹⁵ N.V. Ralushai, M.G. Masingi, D.D.M. Madiba, and J.A. Van Den Heever, Report of the Commission of Inquiry into Witchcraft Violence and Ritual Murders in the Northern Province of South Africa (Northern Province: The Commission, 1996). It is indicated on page 63 of this report that ‘most […] black policemen also believe in witchcraft and as a result of this belief, the police are sometimes reluctant to be of any assistance to people having been accused of practicing witchcraft’; a similar idea is expressed in Riekje Pelgrim, Witchcraft and Policing: South Africa Police Service Attitudes Towards Witchcraft and Witchcraft-Related Crime in the Northern Province (Leiden: African Studies Centre, 2003).

¹⁶ Natasha Gray, “Witches, Oracles, and Colonial Law: Evolving Anti-Witchcraft Practices in Ghana, 1927–1932,” International Journal of African Historical Studies 34, no. 2 (2001): 339–63.

¹⁷ On July 28, 2023, Ghana’s parliament passed an anti-witchcraft bill which, as of this writing, is awaiting presidential approval/assent to become law. The bill seeks to proscribe the practice by any person as a witchdoctor or witchfinder, and to criminalize the practice of declaring, accusing, naming, or labelling people as witches. Making such an accusation may lead to a hefty fine or prison sentence.

¹⁸ Tanzania Witchcraft Act, passed on 28 December 1928, amended in 1935, 1956, and 1998.

¹⁹ Botswana Witchcraft Act 1927, ch. 09:02, last amended 1959.

²⁰ Witchcraft Suppression Proclamation 1933 (Proclamation 27 of 1933), published in Official Gazette no. 538 on Dec. 1, 1933. Assented to on Nov. 24, 1933, commenced on Dec. 1, 1933.

²¹ Witchcraft Suppression Act 3 of 1957 (Assented Feb. 19, 1957, commenced Feb. 22, 1957) as amended by Witchcraft Suppression Amendment Act 50 of 1970.

²² John Griffiths, “What is Legal Pluralism?” Journal of Legal Pluralism and Unofficial Law 18, no. 24 (1986): 1–55, at 1.

²³ Muna Ndulo, “African Customary Law, Customs, and Women's Rights,” Indiana Journal of Global Legal Studies 18, no. 1 (2011): 87–120, at 87– 88.

²⁴ Berihun A. Gebeye, “Decoding legal pluralism in Africa,” Journal of Legal Pluralism and Unofficial Law 49, no. 2 (2017): 228–49, at 228.

²⁵ Gordon R. Woodman, “Legal Pluralism and the Search for Justice,” Journal of African Law 40, no. 2 (1996): 152–67.

²⁶ Constitution of the Republic of Ghana, sec. 11(1–2).

²⁷ Julie A. Davies and Dominic N. Dagbanja, “The Role and Future of Customary Tort Law in Ghana: A Cross-Cultural Perspective,” Arizona Journal of International & Comparative Law 26, no. 2 (2009): 303–33, at 303.

²⁸ Ndulo (n23).

²⁹ Samuel N.C. Obi, Modern Family Law in Southern Nigeria (London: Sweet & Maxwell, 1966), at 7.

³⁰ G.K. Acquah, “Customary Offences and the Courts,” Review of Ghana Law 18 (1991–1992): 36–67, at 36.

³¹ Ndulo (n23) 88.

³² Obi (n29) 7.

³³ Elijah A. Taiwo, “Repugnancy Clause and its Impact on Customary Law: Comparing the South African and Nigerian Positions—Some Lessons for Nigeria,” Journal for Juridical Science 34, no. 1 (2009): 89–115. The ‘non-repugnant, equity and good conscience’ principle was introduced into all former British colonies in Africa by the colonial administrators in the 19th century. This principle recommends that the courts enforce only customary or indigenous norms, practices, and rules that are not inconsistent with the non-repugnancy doctrine.

³⁴ Maakor Quarmyne, “Witchcraft: A Human Rights Conflict Between Customary/Traditional Laws and the Legal Protection of Women in Contemporary Sub-Saharan Africa,” William & Mary Journal of Women and the Law 17, no. 2 (2011): 475–507; Spence (n10).

³⁵ G.W. Paton, “Reform and the English Law of Defamation,” Illinois Law Review 33, no. 6 (1938–1939): 669–84.

³⁶ Ibid., at 669.

³⁷ Halsbury's Laws of England (4th ed., vol. 28, Reissue, LexisNexis, 1997), para. 10.

³⁸ Ellyn M. Angelotti, “Twibel Law: What Defamation and Its Remedies Look like in the Age of Twitter,” Journal of High Technology Law 13, no. 2 (2012–2013): 430–507, at 442.

³⁹ Vincent R. Johnson, “Comparative Defamation Law: England and the United States,” University of Miami International and Comparative Law Review 24 (2016): 1–97.

⁴⁰ Ibid., at 22.

⁴¹ Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127 (HL) 192.

⁴² Ibid.

⁴³ Herman Robert Hahlo and Ellison Kahn, The Union of South Africa: The Development of its Laws and Constitution (Cape Town: Juta & Co. and Stevens & Sons, 1960).

⁴⁴ S.K. Date-Bah, “Reflections on the Law of Defamation in Ghana,” University of Ghana Law Journal 10, no. 2 (1973): 129–48, at 134.

⁴⁵ Ibid.

⁴⁶ Ibid.

⁴⁷ Ibid., at 130; T. Olawale Elias, “Insult as an Offence in African Customary Law,” African Affairs 53, no. 210 (1954): 66–69, at 66, noting that “[because] of the over-riding importance of the maintenance of social equilibrium in African society, customary law rigorously discourages any conduct, whether by word or deed, that is likely to lead to a disturbance of the peace of the community.”

⁴⁸ John Mensah Sarbah, Fanti Customary Laws. A Brief Introduction to the Principles of the Native Laws and Customs of the Fanti and Akan Districts of the Gold Coast (2nd ed., William Clowes and Sons, 1904), 113; Elias (n47).

⁴⁹ Anas A. Anas v. Kennedy Agyepong [2023] Civil Suit no. Gt/892/2018 HC.

⁵⁰ Wankyiwaa v. Wereduwaa and Another [1963] 1 GLR 332.

⁵¹ Ibid., at 334.

⁵² Ibid., at 335.

⁵³ Attiase v. Abobbtey (unreported) July 29, 1969; also cited in Date-Bah (n44) 132.

⁵⁴ Abotchie v. Nuumo [1974] 1 GLR 142.

⁵⁵ Ibid.

⁵⁶ Ibid.; see also Sarbah (n48) 113; Joseph Boakye Danquah (ed.) Cases in Akan Law: Decisions Delivered by the Honourable Nana Sir Ofori Atta (London: Routledge & Sons, 1928) xxiii.

⁵⁷ Afriyie v. Dansowah [1976] 2 GLR 172, at 175. The facts of this case are that the plaintiff and the defendant were both yam sellers at a popular marketplace in the western part of Ghana. On the day in question, someone had wanted to buy yams from the plaintiff, but one Atta (also a yam seller) called him, and the man bought Atta’s yams instead of those of the plaintiff. The plaintiff accused Atta of unfairly snatching her ‘customer’ and a squabble ensued between the two women. The defendant suddenly jumped to Atta’s defence, accusing the plaintiff of being envious. When the plaintiff told the defendant that she was not talking to her and that she should not involve herself in the matter, the defendant became upset and publicly accused the plaintiff of being a witch and using her witchcraft to kill one Atta Maame, a market woman who had died a few weeks prior to this incident and whose stall in the market, the defendant alleged, the plaintiff had taken over or occupied barely a week after her demise. The defendant further claimed that everybody in the market knew that the plaintiff was a witch. The plaintiff sued for defamation; and the defendant countersued, alleging that the plaintiff had called her a prostitute who had had sexual intercourse with all the men in the community although she was married. The magistrate dismissed both the plaintiff’s claim and the defendant’s counterclaim on the grounds that there was no sufficient evidence before him to believe the stories of the parties, and even if their allegations were true, it would be inappropriate to find one party liable since both parties purportedly insulted each other when their tempers were high. The plaintiff then appealed to the High Court, but the defendant did not appeal. The appellate court ruled that the trial magistrate erred in his evaluation of the evidence; besides, he proceeded on the wrong principles of law and thus misdirected himself.

⁵⁸ Sarbah (n48) 113–14.

⁵⁹ Afful v. Okyere and Another [1997] 1 GLR 730 (CA).

⁶⁰ Ibid., at 731.

⁶¹ Ibid., at 732; see also Spence (n10).

⁶² Afful at 732.

⁶³ Lothar Bednarek and Others v. Mine Hannam and Another [2016] Case no. I 2615/2013 NAHCMD 12 (Feb. 3, 2016), para. 16; Claudia Mbura v. Gotlob Katjiri and Another [2017] Case no. I 4382/2013 NAHCMD 103, para. 17.

⁶⁴ Mbura (n63).

⁶⁵ Ibid., para. 10.

⁶⁶ Ibid., para. 11.

⁶⁷ Bednarek (n63).

⁶⁸ Mbura (n63), para. 18.

⁶⁹ Ibid., para. 17. This was a repetition of the court's pronouncement in Bednarek (n63), para. 16.

⁷⁰ Mbura (n63), para. 18.

⁷¹ Ibid.

⁷² Herman Amukete v. Ester Iiyagaya [2019] Case no. 2019/00047 NAHCNLD 103.

⁷³ Ibid., para. 1.

⁷⁴ David Kashululu v. Joolokeni Nakale [2018] Case no. I 132/2015 NAHCNLD 44.

⁷⁵ Ibid., para. 49.

⁷⁶ James S. Read, “Criminal Law in the Africa of Today and Tomorrow,” Journal of African Law 7, no. 1 (1963): 5–17; H.R. Hahlo and Ellison Kahn, The South African Legal System and its Background (Cape Town: Juta, 1968); AJGM Sanders, “The Characteristic Features of Southern African Law,” The Comparative and International Law Journal of Southern Africa 14, no. 3 (1981): 328–35; Christa Rautenbach, “Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law,” Journal of Legal Pluralism and Unofficial Law 60 (2010): 143–77.

⁷⁷ Esselen v. Argus Printing and Publishing Co. Ltd. and Others [1992] (3) SA 764 (T), 770 F–H.

⁷⁸ Chittharanjan Felix Amerasinghe, Defamation and Other Aspects of the Actio Iniuriarum in Roman-Dutch Law (Colombo: Lake House Investments Ltd., 1968); Hahlo and Kahn (n43) 547.

⁷⁹ Constitution of the Republic of South Africa no. 108 of 1996 (date of promulgation: Dec. 18, 1996, date of commencement: Feb. 4, 1997).

⁸⁰ Minister of Police v. Mbilini [1983] (3) SA 705 (A), 715G–716A.

⁸¹ Sokhulu v. New Africa Publications Ltd. t/a “The Sowetan Sunday World” and Others [2002] 1 All SA 255 (W), 259 (c–d).

⁸² Brenner v. Botha [1956] (3) SA 257 (T), at 261–62. It is important to mention that even though witchcraft-related defamation claims may be dealt with under customary law, statutory law, or common law, the South African court, in Ida Buthelezi v. Kate Msimang [1964] 13 of 1964 BAC 105, stressed that the system of law applied to the cause of action must be the same as that applied in assessing damages. In that case, the defendant publicly uttered the following words of and concerning the plaintiff: “Let the old witch come, she has long been bewitching me and today I shall expose her in public” (at 106). The plaintiff sued for defamation in the Traditional Court which gave judgment in her favor but awarded only a fraction of the damages sought. The plaintiff then appealed to the court of the Bantu Affairs Commissioner. Applying Bantu customary law to the cause of action and common law to the assessment of damages, the Commissioner found the defendant liable and awarded damages totalling R450 (approximately US$23 at the time). The defendant then appealed on the following grounds: that the Bantu Affairs Commissioner erred in (1) applying customary law instead of the common law, (2) finding the defendant liable under customary law but using common law principles to assess the damages, and (3) finding that the alleged words were defamatory. The appellate court ruled that the words imputing witchcraft were defamatory and that the Commissioner was justified in determining liability under customary law. However, it reasoned that “the Bantu Affairs Commissioner erred in applying common law to the assessment of damages. He should have granted the remedy provided by the system of law that he applied to the cause of action” (at 108). The damages awarded the plaintiff by the Commissioner was consequently reduced to R50 (approximately US$3).

⁸³ J.B. Nyalungu v. Dumisani High School Learners and Dept. of Education [2013] Ref no: MP/2011/0035 (Human Rights Commission).

⁸⁴ Ibid., paras. 3.1–3.6.

⁸⁵ Ibid., para. 7.

⁸⁶ Ibid., para. 8.

⁸⁷ Media t/a Daily Sun and Others v. Precious Sithole [2022] Case no. 38734/2020 ZAGPPHC 99; Precious Sithole v. Media t/a Daily Sun and Others, Case no. 38734/2020 (pending at the time of this writing).

⁸⁸ Media t/a Daily Sun (n87), para. 9.

⁸⁹ Ibid., para. 11.

⁹⁰ Motanalo Gobudilwe and Another v. Kesebonye Shaobuye and Another [1993] BLR 56.

⁹¹ Ibid., at 61.

⁹² Ibid.; see also Peter Manda, B.D.D. Radipati, Roshana Kelbrick, Elize Delport, Isabeau Southwood, Muhawu I. Maziya, Alfred W. Chanda, I.A. Donovan, and R.A. Phillips, “Current Legal Developments,” Comparative and International Law Journal of Southern Africa 26, no. 3 (1993): 410–32, at 415.

⁹³ Gobudilwe (n90).

⁹⁴ Joseph Makati v. Beama Publishing (Pty) Ltd. and Another [2008] Case no. 1469 OF 2005 BWHC 194; Beama Publishing (Pty) Ltd. and Another v. Joseph Makati [2009] Case no. CACLB-010-08 BWCA 89.

⁹⁵ Beama Publishing (Pty) Ltd, (n94), para. 18.

⁹⁶ Ibid., para. 20.

⁹⁷ Hassani v. Kithuku and Chali [1983] TZHC 34. Retrieved from Tanzania Legal Information Institute, https://tanzlii.org/tz/judgment/high-court-tanzania/1983/34.

⁹⁸ Ibid.

⁹⁹ Ibid.

¹⁰⁰ Ibid.

¹⁰¹ Ibid.

¹⁰² Nyabagaya Mtani v. Nyakanyi Kabera [1984] TZHC 39. Retrieved from Tanzania Legal Information Institute, https://tanzlii.org/tz/judgment/high-court-tanzania/1984/39.

¹⁰³ Ibid.

¹⁰⁴ Ibid.

¹⁰⁵ The Courts Act 1993 (Act 459), art. 54, rules 5–6.

¹⁰⁶ Gray (n16); Quarmyne (n34); Adinkrah (n1); Owusu (n11).

¹⁰⁷ Abotchie (n54).

¹⁰⁸ Republic v. Tommy Thompson Books Ltd. [1997–1998] 1 GLR 611, 644.

¹⁰⁹ Abotchie (n54).

¹¹⁰ Mbura (n63), para. 17; Bednarek (n63), para 16.

¹¹¹ This standard was adopted by the Botswanan courts in Innocent Manjesa v. the State [1991] CA no. 30 of 1991. A similar test is used by the courts in Kenya, Uganda, and other African countries in witchcraft-related cases.

¹¹² Tanzania Witchcraft Act (n18).

¹¹³ Mtani (n102).

¹¹⁴ Natalie Idehen, “Tackling Witchcraft Accusations in Tanzania,” HelpAge International (July 4, 2014), https://www.helpage.org/blogs/natalie-idehen-23204/tackling-witchcraft-accusations-in-tanzania-724/#:~:text=In%20Tanzania%20between%202005%20and,to%20witchcraft%20accusations%20in%202012.

¹¹⁵ Ibid.

¹¹⁶ Singh and Msuya (n14).

¹¹⁷ For the present study, a total of seventeen witchcraft-related defamation claims/cases were analysed. Of this figure, sixteen (approximately 94%) succeeded.

¹¹⁸ The professions/occupations of fifteen out of eighteen plaintiffs in the cases examined were known. Of the plaintiffs whose professions or socio-economic status could be ascertained, at least eleven (approximately 73%) had high socio-economic backgrounds or reasonable incomes.

¹¹⁹ Emmanuel Sarpong Owusu, “The Superstition that Maims the Vulnerable: Establishing the Magnitude of Witchcraft-Driven Mistreatment of Children and Older Women in Ghana,” International Annals of Criminology 58, no. 2 (2020): 253–90, at 267, noting that almost all the victims of witchcraft accusations and concomitant violence, “especially the older women (over 98%), had low socio-economic status and lived in poverty. There was not a single case where a well-educated and well-to-do woman was abused.”; see also Justus Ogembo, Contemporary Witch-Hunting in Gusii, Southwestern Kenya (Lewiston, NY: Edwin Mellen Press, 2006); Adinkrah (n1) 78, affirming that “[l]ow socioeconomic status and poverty are additional risk factors for imputation of witchcraft and victimization for violence related to witchcraft accusations,” adding that indigent, elderly people “with little formal education are subject to witchcraft accusations in greater proportion to their peers in the higher socioeconomic classes. Older women who are economically well-off are seldom targets of witch accusations.”

¹²⁰ Emmanuel Sarpong Owusu, “Witchcraft Imputations and the Tort of Defamation in Ghana,” Common Law World Review, 0(0), https://doi.org/10.1177/14737795231201433 (published online Sep. 11, 2023).

¹²¹ Ghana Bar Association, “Proposed Scale of Fees – Mid-Year Review Conference On 20th April, 2022 at Labadi Beach Hotel in Accra,” GhanaWeb (Apr. 22, 2022), https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Here-are-the-new-legal-fees-issued-by-Ghana-Bar-Association-1521173.

¹²² Ralushai and others (n15); Ogembo (n10); Ter Haar (n1); Silvia Federici, “Witch-Hunting, Globalization, and Feminist Solidarity in Africa Today,” Journal of International Women's Studies 10, no. 1 (2008): 21–35; B.L. Meel, “Witchcraft in Transkei Region of South African: Case Report,” African Health Sciences 9, no. 1 (2009): 61–64; Cohan (n13); Adinkrah (n1); Owusu (n11); Judith Bachmann, “Witchcraft and Its Implications for Women Reconsidered,” Religion and Gender 12 (2022): 29–51.