A Critical Evaluation Of Cultural Defence In Witchcraft Cases: A Case Of Zimbabwe And South Africa
This article is a philosophical and practical examination of the cultural defence in witchcraft cases. This article assessed the thorny issue of cultural defence: is a person who kills a ‘witch’ while labouring under overpowering fear that the victim possesses harmful witchcraft powers, a fit subject of criminal punishment? In order to gauge the role and interpretations attached to cultural defence in the 21st Century, a series of explorative qualitative research methods of collecting data and the legal research methods of data collection were employed as the research methodologies for the purposes of this article. A socio-cultural theory and human rights based approach were adopted to ground the article.The article explores the legal provisions and the practical effect of a cultural defence in witchcraft cases.The article findings showed that the Witchcraft Suppression Acts of both countries are arguably noted to merely show the beliefs of a specific group of people and not others without a plausible justification. As such, it can be opined that the denial of cultural defence for genuine indigenous people is unconstitutional as it violates the right to cultural subscription, freedom of religion and beliefs. The article suggests that a subjective test should be a preferred method used to check whether an accused person honestly believed in witchcraft before cultural defence is used as a defence.
Key words: Cultural Defence, Witchcraft, Criminal Responsibility and Overpowering Fear.