Tuesday, September 29, 2020

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    Saturday, September 26, 2020

    Corporal punishment

    Corporal punishment


    By: Dapuri M. Cephas

    Corporal punishment is one of the most widely accepted modes of correcting delinquent or wayward behaviors of children. Most often than not, parents and caregivers who do not resort to corporal punishment to correct deviant behaviors of their wards or children are assumed to so permissive and encouraging bad manners of children.

    By way of definition, Straus & Donnelly (2005) defines corporal punishment as the use of physical force intended to cause pain, but not injury, for correction or controlling a child's behavior.

    Literature shows that many people have indeed defined corporal punishment in their own opinions. However, I find the definition above ideal for this article since it indicates the purpose of corporal punishment, thus, to correct deviant behaviors and not to injure the child.

    A child per the Constitution, 1992, is any person who has not attained the age of 18. However, in the context of corporal punishment, a child would be any child under sixteen (16) years of age (Section 41 of the Criminal Offences Act 1960). This article, among other useful information, seeks to address the primary question of most parents on whether their children can sue them for disciplining them and to what extend the law allows parents to discipline their children.

    As stated earlier on, corporal punishment has a wide range of acceptance that it is seemly impossible to find an individual within the Ghanaian society who can boast of never being beaten in his childhood or has never beaten a child to stop a deviant behavior. If one is ever exempted from corporal punishment in the home, you may be less likely to be exempted in the school. Most corporal punishments meted out in the homes by parents or legal guardians or in the schools, by educators and school staff includes hitting, squeezing, whipping pinching, paddling, pulling hair, slapping, kneeling, and among others.

    Corporal punishment has long-lived and has religious and legal approval in some jurisdictions.

    In the Jewish Orthodox Bible, Proverbs 22:15, states that “Foolishness is bound in the heart of a child, but the rod of correction shall deprive it of him".

    Also, Proverbs 19:18 declares that “chasten thy son while there is hope, let not thy soul spare for his crying.” Finally, the most popular verse in this context states that “He that spareth the rod, hateth his son; but he that loveth him, chasteneth him betimes (Proverbs 13: 24).

    Customarily, in the Northern part of Ghana, it is widely believed that refusing to resort to canning or other modes of corporal punishment is a bad method of child upbringing, and encouraging the deviancy of children.

    Legally, Section 41(a) of the Criminal Offences Act, 1960 (Act 29) approves that a father or mother may correct his or her legitimate or illegitimate child, being under sixteen years of age, or any guardian, or person acting as a guardian, his ward, being under sixteen years of age, for misconduct or disobedience to any lawful command. It is significant to state that Ghana has put a halt to corporal punishment in schools but there is no clear amendment of Section 41 which halts corporal punishments in the home.

    However, the question that seems so unanswered by religious and legal provisions that approve corporal punishment is: to what extent can a parent subject his child to corporal punishment?

    Under the Ghanaian setting, Article 13(2) of the Children’s Act of 1998 captures the extent of meting out corporal punishment as "justifiable and reasonable" correction of a child. Justifiable and Reasonable application of force confirms the definition of Straus &Donnelly, thus, corporal punishment is not meant to cause injuries but rather correct the child.

    For a better understanding of “Justifiable and reasonable” application of force, it would be significant to state the facts and holdings of A v. United Kingdom (1999) held in the European Court of Human Rights.

    The facts of A v. UK (1999) are simple: the victim of the punishment (and for convenience would be hereinafter referred to as “A”) was canned by his stepfather with a garden stick. The stepfather argued that A was ill-discipline and was disobedient to school and parental rules, guardians and control. A pediatrician confirmed A’s injuries were consistent with the use of a garden cane applied with considerable force. The jury found the stepfather not to be in breach of the law as the actions of the stepfather were reasonable chastisement of "A". On appeal to the European Court of Human Rights, "A" argued that the state has failed to protect him from the maltreatment of his stepfather.

    The Court allowed the appeal and held that there was a violation of Article 3 of the European Commission on Human Rights. To the court, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Essentially, the court stated that child discipline utilizing corporal punishment that leads to injuries or actual bodily harm cannot be said to be justified on the grounds of reasonable chastisement and punishment. A nine (9) year old boy found to be injured by the severity of canning cannot be said to be reasonable chastisement.

    Even though the judgment in A v. UK (supra) admonished the United Kingdom to adhere to the rules as stated in CRC of the United Nation abolishing all forms of corporal punishment, the UK’s Children’s Act, 2006, does not abolish corporal punishment in the homes but requires that no one deliberately or recklessly causes injury to a child which is more than transient and trifling (See Section 58 of the Children’s Act).

    Therefore, section 58 of the current Legislation. The United Kingdom's Children Act removes the defense of lawful chastisement for parents or adults acting in locus parentis where the accused person has caused grievous bodily harm or injuries in the bait of correcting the child.

    The justification of lawful correction has always eliminated unreasonable assault against children. In R v. Hopley (1860) 2F&F 202, the court stated that “By the law of England, a parent may correct what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable".

    Relating the above precedents in the United Kingdom to the Ghanaian Section 41 (a) of the Criminal Offences Act, 1960, it is obvious that the wording of the section is not so different from the position of the law in the United Kingdom. Therefore, the interpretation of justifiable and reasonable as stated in the Ghanaian laws can be said to mean not causing unreasonable bodily harm to children. The canning, slapping, or pinching must be very moderate never to cause grievous bodily harm to children. Also, punishment is not justifiable if because of the young age of the victim, he or she is incapable of understanding the purpose of inflicting corporal punishment (Section 41(2) (3) of the Criminal Offences Act, 1960).

    The excess of the application of force to children will amount to liabilities in assault and battery.

    In a few instances, parents seem to exert so much force on children; it is unlawful and there is no protection of the law for such assailants on the grounds of the reasonable and justifiable chastisement of the child in the process of child upbringing. The lives of children must be adequately protected from assaults and excessive corporal punishments.

    Due to the excesses, international bodies and scientific research have gotten involved in the discovery of the effects of corporal punishment on children. The results have always remained undesirable: “In a major meta-analysis, all 12 studies found that corporal punishment is significantly associated with a decrease in children’s mental health, including with behavior disorders, anxiety disorders, depression and hopelessness” (Talwar V, Carlson SM & Lee K, Effects of a punitive environment on children’s executive functioning:

    A natural experiment.

    Social Development, 20, 805–824).

    Consequentially, the United Nations Convention on the Rights of the Child (UNCRC) which sets out international norms for the political, health, social, economic, and cultural rights of children demand that member states abolish corporal punishment.

    Article 19(1) of UNCRC provides that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

    Article 37 states that “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.”

    Ghana is a signatory of the UNCRC and ought to adopt the provisions of Article 19 and 37 of the UNCRC. However, it is difficult to achieve a Ghana where no parent can even correct a child without any form of spanking, pinching, canning, or even a little slap. Section 41 of Act 1960 remains unamended even though many people advocate for its amendment. Reasonably, before Article 19 of the UNCRC can be achieved fully, Section 19 has to be amended.

    However, it the writer’s suggestion that this process of introducing a whole new culture of child upbringing should be progressive in the Ghanaian society. the Ministries are making broadcast and educating the populace on the effects, that is a commendable activity.

    Parents should rather, as it stands now, be encouraged to correct their children reasonably and justifiable since it will be strange and practicably difficult for parents to assimilate a whole new culture and halt a long-lived belief in the corrective nature of the cane.

    Whilst transforming the Ghanaian society progressively, education must be made available on how one can correct a deviant behavior without resorting to corporal punishment. Additionally, they should be educated, in the time being, the effects and legal consequences of meting out extreme corporal punishments. It is not however impeccable to expect the whole populace to give a universal approval to corporal punishment-free child upbringing within a short period, therefore, stakeholders must educate parents on the current law, thus, justifiable and reasonable chastisement (Section 41 of Act 25).

    In conclusion, the evils of our belief in corporal punishments have been revealed by science and we do expect the same science to give us alternatives ways of child upbringing without any form of corporal punishment. The laws governing us guarantees us protection if our child training by moderate canning and moderate modes of corporal punishment is reasonable and justifiable. If the law on justifiable and law chastisements is to be amended, then, the populace must be educated on how never to resort to corporal punishment but achieve upbringing responsible and non-deviant children. If this is not done, then the courts must be ready to settle court cases between children and their parents based on breach of the law that will protect them from never being "touched" when they consistently carry out deviant behaviors, since the Ghanaian mother and father has grown to believe adopt corporal punishment as a means of correcting a child. Corporal punishment to its excess is completely bad, and if eradication of corporal punishment is achieved in Ghana, it will be laudable, however, it will require education so intense to convince the populace. If we resort to criminalizing all forms of corporal punishment without the good interest of the people in such law, the law will not have the quality of general acceptance which is a basic characteristic of every good law.

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    Witchcraft law in Ghana

    Witchcraft law in Ghana

    Dapuri M. Cephas

    Ghanaian laws have turned a blind eye to activities of fetishism, witchcraft and witch-hunting. The existence of witchcraft cannot be denied in the society of men. Lord Hale remarked that "There are such creatures as witches I do not doubt at all. First, the scriptures affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence in such a crime." (See the Trial of the Suffolk Witches, 6 St. Tr. 687 at 700-01 (1665)).

    In other jurisdictions, the Witchcraft Act has been passed to prevent people from engaging in activities that are associated with witchcraft.

    In South Africa, Section 1(f) of the Witchcraft Suppression Amendment Act 3 of 1957 criminalizes activities that are related to witchcraft and practiced for gain pretends. Some of these activities include sorcery, enchantment or conjuration, or undertaking or telling of fortunes and among others.

    In Zambia, witchcraft includes the throwing of bones, the use of charms, and any other means, process, or device adopted in the practice of witchcraft or sorcery (Witchcraft Act 1914, Zambia). In the United Kingdom, the English Fraudulent Mediums Act which has reenacted the old Witchcraft Act 1735 punishes people who "pretend to exercise any kind of witchcraft, sorcery or conjuration." It must be emphasized that these laws on witchcraft also prevent and criminalize witch-hunting. According to the Cambridge Dictionary, witch-hunting is "an attempt to find and punish people whose opinions are unpopular and who are said to be a danger to society.”

    Witchcraft Suppression Act 3 of 1957 of South Africa criminalizes number activities of witch-hunting; Section 1 criminalizes “imputing to any person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or naming or indicating any other person as a wizard.”

    Activities of alleged-witches that are weird and considered as bewitching in their various communities should be abolished. Illustratively, in R v. Fabiano Kinene (1914)8 E.A.C.A. 96, the accused killed an alleged witch who was found crawling naked in his compound early in the morning. Activities such as seen in R v. Fabiano Kinene (supra) should be entirely abolished. The chiefs should be admonished to pass bye-laws to serve as “flesh” to state laws to curb activities so weird and bewitching. As seen in the Zambian Witchcraft Act 1914, the throwing of bones, the use of charms, and any other means, process, or device adopted in the practice of witchcraft or sorcery should be abolished.

    Ghana needs State Laws to curb the activities of witch-hunting. The old must be treated with kindness and not served with unimaginable accusations, assaults, and killing. In most parts of the world and even in certain parts of Ghana, old-age is a blessing; however, this is rather the opposite in the Northern part of Ghana for the aged especially old women. Due to the abject poverty in these areas, the aged are susceptible to being accused of any kind of misfortune befalling a family or the community. In light of this, people who accuse others of being witches should be manifestly punished by the law. The law should not take course only when such an alleged witch is assaulted to death but rather prevent the assault by punishing the accusers. As seen in Witchcraft Suppression Act 3 of 1957 of South Africa, any person who engages in the act of imputing to any person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or naming or indicating any other person as a wizard commits an offense. The Ghanaian laws must stop the suppression of the old and vulnerable in society.

    Ghana seeks to renovate existing witch camps into havens. This would lessen the humiliation however; it does not stop the stigmatization. As long as these areas are named witch camps, inhabitants and their generations yet unborn will be stigmatized with the title of witches, hence a need for laws to stop the suppression, accusation, and possible integration of our mothers and fathers into the society.

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    Saturday, September 19, 2020

    Practice of Witchcraft and the Law.

    Practice of Witchcraft and the Law.

    The existence of witchcraft:

    The belief in witchcraft has long-lived. Even thousands of years before modern Courts were ever established, the Laws of Moses recorded in the Ancient Book of the Christians (The Bible) had already determined the liabilities of any person who practiced witchcraft. The 18th verse of the 22nd Chapter of Exodus provides that, “Thou shall not suffer for a witch to live”. Literally, Any person who practiced witchcraft was liable to a mandatory death sentence under the Biblical Mosaic Law.

    In 1497, Albrecht Durer, a German Renaissance Artist, made a famous artistic work engraving four seductive witches which he titled "The Four Witches". Many people gave interpretation to the artwork of Albert Durer, but the general view was that in the medieval ages there was widespread fear of witches associated with intimidating evil works such as sucking of blood, flying, and other horrific activities.

    In the trial of the Suffolk Witches (1665), a British Judge, Lord Hale stated that “there are such creatures as witches I do not doubt at all. First, the scriptures affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence in such a crime." The learned judge expressed his views on the existence of witchcraft which stands to affirm Scriptures. To this extent, it is not uncommon and strange to find legislators and judicial bodies make laws governing the belief in witchcraft and its associated practices. If it existed not, the laws on it would be of no use. The question that arises most is whether or not the practice of witchcraft is therefore an offense against state laws?

    The Offence of Witchcraft:

    As Lord Hale stated in Suffolk Witches (Supra), “the wisdom of all nations had provided laws against such persons", in other words, the practice is unacceptable and society frowns at it. Witches are believed to be people (both male and female in this context) who possess inherent supernatural powers which they use knowingly or unknowingly to harm others or to benefit themselves (Nukunya, 2004).

    Henry VIII of England (who reigned from 1509-1547) was the first to define witchcraft as a felony punishable by death in The Witchcraft Act of 1952 (Henry VIII c.8); this likened to the punishment meted out by the Mosaic Law in Exodus 22:18. The Act was later repealed by several Acts until the passage of the Witchcraft Act 1735. Under Act 1735, witchcraft remained an offense punishable by fines or imprisonment or both. Not to dwell much on that, the Witchcraft Act of 1735 was repealed by the Fraudulent Medium Acts of 1951.

    The Fraudulent Medium Act of 1951 did not involve the use of the word witchcraft but has provisions that prohibit certain activities akin to the activities of witchcraft; it provides that, any person who:

    with intent to deceive purports to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers; or
    In purporting to act as a spiritualistic medium or to exercise such powers as aforesaid, uses any fraudulent device; shall be guilty of an offense.

    In Africa, it is believed that the belief in the supernatural and witchcraft is predominant. The reasons seem so weird, but to Greta Bloomhill “belief in, and practice of, witchcraft flourishes more in Africa because of hypnotism, a relatively undeveloped skill in the West, has been a skilled art in Africa for many years." However, in Africa as well, the laws concerning witchcraft have not made the practice legal but an offense.

    In Zambia, witchcraft includes the throwing of bones, the use of charms, and any other means, process, or device adopted in the practice of witchcraft or sorcery (Witchcraft Act 1914, Zambia). These practices constitute an offense against Witchcraft Act 1914, Zambia.

    In Nigeria, the law prohibiting witchcraft is section 216 of the Penal Code which provides that: Any person who:

    by his statements or actions represents himself to be a witch or to have the power of witchcraft or

    accuses or threatens to accuse any person with being a witch or to with having the power of witchcraft or

    makes or sells or uses assists or takes part in making or selling or using or has in his possession or represents himself to have any juju, drug or charm which is intended to be used or reported to possess the power to prevent or delay any person from doing any act which such person has legal right to do or compel any person to do any act which such person has a legal right to refrain from doing or which is alleged or reported to possess the power of causing any natural phenomena or any disease or epidemic is guilty of a misdemeanor and is liable to imprisonment for two years.

    In the Republic of Tanzania, a country situated in the eastern seaboard of the African continent, The Witchcraft Act, 1998, prohibits witchcraft and certain practices related to the practice of witchcraft. In South Africa, the Witchcraft Suppression Act, 1957 3 of 1957 prohibits various activities related to witchcraft and witch-hunting. S.1(f) of the Act criminalizes activities for gain pretending to exercise or use any supernatural power, witchcraft, sorcery, enhancement or conjuration, or undertaking to tell fortunes, or pretending from skill in or knowledge of any occult science to discover where and in what manner anything supposed to have been stolen or lost may be found.

    Activities relating to witchcraft are not formalized and legalized in the Western world and Africa alike. It is a strong recommendation the countries that do not have specific legislation prohibiting the act of witchcraft should pass laws to regulate it. These Acts must as well regulate witch-hunting which has, for some time now, become almost an activity leading to the death and assault of people who may not even be practitioners of witchcraft. The next section of this article seeks to deal with how some jurisdictions have their laws and courts deal with the issue of assault against people who, in the opinion of people, are witches and are dangerous to the society.

    Witch Hunting and the Law:

    According to the Cambridge Dictionary, witch-hunting is “an attempt to find and punish people whose opinions are unpopular and who are said to be a danger to society”. Historically, Matthew Hopkins, English Witch hunter, sometimes titled as Witch Hunter General lived from c. 1620 to 12 August 1647 was one of the first persons to have chalked success in the activity of witch-hunting. He is believed to have been responsible for the executions of over 100 alleged witches between 1644 and 1646. His method of investigations and discovery of witches are found in his published book titled “The Discovery of Witches”. Considerably, he used various ways including cutting the arm of the accused. If he or she did not bleed after the cut, it confirmed that the accused person possessed of supernatural powers. After some time, Hopkins' activities were criticized but he also soon retired.

    Activities of witch-hunting did not end with Hopkins but continued in most parts of the world. In most jurisdictions, the act of accusing someone of witchcraft is an offense. Section 216 of the Penal Code of Nigeria criminalizes that act of accusing people of witchcraft. Suppression Act 3 of 1957 of South Africa equally prohibits the act of pointing accusing fingers at people as witches.

    The laws seem not to adequately solve the problem of discrimination against old people. In other countries such as Ghana, camps have been established to accommodate people who mostly are old and believed to be witches. These Camps are associated with inadequate provision portable of water and other basic social amenities. It is a plea to stakeholders in countries with these camps to disband the camps and assimilate their citizens back to the community.

    Not only have the camping of witches humiliated many people who may or may not even possess any supernatural powers but the assaulting of these vulnerable poor people who are supposed to be subjected to kindness and love; rather are subjected to regrettable deaths or grievous bodily harms. Assaulting a person to death is homicide and where there is no considerable defense for the killing, it amounts to murder. The title of witchcraft does not reduce a human to an animal and it is not appropriate to raise matters of witchcraft for complete acquittal in a murder case. In the case of Donald Taulo & Another v. The People (2018) , a recent case that happened in the Republic of Zambia, two accused persons were convicted of murdering an elderly woman but pleaded that their belief in the witchcraft of the elderly woman was an extenuating circumstance for their action. The Supreme Court sentenced both accused to a mandatory death sentence when they failed to prove beyond a reasonable doubt that their belief was based on reasonable grounds to amount to an extenuating circumstance.

    Much ideally, the populace must desist from harming people who are alleged witches. The law has no complete protection if your defense is mainly witchcraft even though it may, in few cases, amount to extenuating circumstances such as provocation - a partial defense to murder. However, the activities of people who are alleged witches sometimes can be very weird and horrific, this often time may lead people to overreact leading to their sudden death or grievous bodily harm. People may harm allege witches claiming that they were protecting themselves from being bewitched, thus, as we may simply put it, a "self-defense" against their activities. Others may also harm them if their activities towards them are extremely provoked. The next section of this article seeks to highlight cases involving the above reasons for the harming of alleged witches and how the law has sought to handle such situations.

    The right of “self-defense “and witch killing/assaulting

    This section of this article is written in the context of the Ghanaian criminal law; consequentially, certain provisions as may be seen in some in the Ghanaian Criminal Law may not apply in all other jurisdictions but may only have persuasive effects. Defense against crime as a defense against charges can only be raised if in causing the assault, he acted for the prevention of, or for the defense of himself or any other person against any crime, or the suppression or dispersion of riotous or unlawful assembly (Section 37 of The Criminal Code, 1960).

    An accused person is most likely to plead under Section 37 of the Criminal Code, 1960 if the matter involved is mainly metaphysical. If the defense against crime has to do with the protection of oneself from activities of alleged witchcraft, the Courts' are less likely to grant the plea. In the Ghanaian case of Maawole Konkonba v. Queen (1952) which rose to the West African Court of Appeal, the accused genuinely had belief in the existence of witchcraft and that his brother was killed by witchcraft and the alleged witch was seeking to kill another via the same means. The accused confronted the alleged witch (the deceased) and demanded medicine for the relief of his brother. When the alleged witch said he had none, the accused assault him with a blow on his head which subsequently caused the death of the assaulted alleged witch. To the desperate accused, he acted to protect his brother from being killed the same way he believed his deceased brother was killed, literally, defense against the death of his brothers.

    However, the West African Court of Appeal dismissed his appeal against his murder sentence. The Court stated that "We have no doubts however that the appellant honestly believed when he struck the fatal blows that he was striking a man who had already killed one of his brothers through witchcraft and was in the process of killing another, but that is no defense in law although is a matter which the Executive will no doubt consider when the case comes before it for consideration.” The courts are not to be condemned for the inconsideration of such circumstances; for public policy and to prevent assaulters from seeking unreasonable refuge under the cover of witchcraft, the courts, therefore do have a valid and understandable grounds for the rejection of the plea of defense against crime when sought by assaulters of alleged witches. “It is difficult to see how an act of witchcraft unaccompanied by a physical attack could be brought within the principles of English Common law”. If the floodgates are opened, the old will not be spared in the community.

    Emphatically, the courts are not so willing to assimilate the customary belief in witchcraft of the African society in respect of defense against crime. People living in developed cities may not fear the threat of words and activities of fetishism but people living in rural areas, who believe in the supernatural, may shiver at the threatening fetish activities and words of so-called witches. Therefore, to such people “consistent with a belief prevalent in his locality such a threat is no less menacing than the threat of a gun attack”. In an article titled “witchcraft and the Criminal Law in East Africa”, Montungi wrote the event where three teachers of a school in Kenya fled in fear of witchcraft after they believed had been attacked in different forms. These teachers believe in the existence and effect of witchcraft threat; the situation does not remain the same for all people. In R v. Odo, a Nigerian case that rose to the West African Court of Appeal in 1938, the accused placed a charm on the Judge’s table with the view of influencing the decisions of the judge. However, to Kingdom C.J “a person may lawfully hold a belief whether based on superstition or not that by some intrinsically innocuous and inoffensive act he can influence a court in his favor”. The judge did not believe in the powers of fetishism. The above illustrates how individuals have different views about witchcraft, so therefore, people react differently to it.

    As stated earlier on, a fetish threat may not trigger fear for a want of self-defense in a person who does not believe in it, however, to the other who genuinely believes in it, he may in all capacity try to protect himself from being harmed by the supernatural. We cannot deny the existence of these powers; even the Bible did not. The assaulting of alleged witches is a condemnable act, but the courts need to apply “equity” in special extenuating circumstances especially where the alleged witch carries out explicit activities of fetishism against the assaulter such as burying charms or threatening words indicating how dangerous he or she can be to the accused or his family. This is because it is not infrequent to see the same or other persons who might have been carrying out such fetish activities make prophecies of doom against people and have those prophecies come to pass as if they ever possessed a power akin to that of God. Self-defense therefore based on explicit witchcraft should be equitable, thus, accepted to reduce the penalty of assaulters in very few but special situations. Such special situation was seen in R v. Fabiano Kinene (1941), where the courts considered the actions of the deceased- an alleged witch as extenuating when he was found crawling naked in the compound of the accused early in the morning concerning fetishism.

    The plea provocation and witch assault/killing:

    In the context of criminal law, provocation is when a person commits an offense base on his reactions to preceding events that would cause a reasonable person to extremely lose self-control. In other words, provocation is the extreme loss of self-control which leads to actions that were never premeditated by the accused. Provocation is an extenuating factor that does not acquit the offender but lessens his offense. For example, in murder cases, if the plea of provocation is granted, the offender’s charge is reduced from murder to manslaughter [][].

    The plea of provocation has been abolished in some jurisdictions; and in some other jurisdiction, it remains a partial defense but has a very restrictive application in murder cases. Tasmania in Australia abolished provocation as a partial defense in homicide cases under the Criminal Code Amendment (Abolition of Defense of Provocation) Act 2003. In Canada, provocation has not been wholly abolished but very restricted. Article 232(2) of the Criminal Code of Canada requires the accused to have acted on it on sudden and before there was time for their passion to return to normal. In other words, the plea of provocation would fail under this statute if there was a reasonable time that any reasonable man would have recovered from their provoked state of being. In cases of assault and battery, provocation reduces charges but does not completely acquit the offender.

    In Ghana, under Section 54 of The Criminal and Offences Act, 1960 (Act 25), provocation is a partial defense; and in murder cases, it reduces the offense of murder to manslaughter if successfully pleaded.

    However, the plea of provocation pleaded on the grounds of witchcraft has been rejected by the courts unless very strict conditions are met. In Maawole Konkonba v. Queen (supra), the Courts stated that “In murder cases, a defense (of provocation) founded on witchcraft has always been rejected except in cases where the accused himself had been put in such fear of immediate danger to his own life that the defense of grave provocation has been proved.”

    Notably, the Eastern African Court of Appeal has not also totally rejected the plea of provocation based on witchcraft. Activities of witchcraft may amount to extreme provocation – an extenuating circumstance to reduce offenses of the accused. In R. v. Fabiano Kinene (supra), the Eastern Court of Appeal allowed a plea of provocation even though it was pleaded based on witchcraft. The facts of R v. Fabiano Kinene (supra) were this: the accused woke in the morning and found the deceased (alleged witch) crawling naked in the compound of the accused. The accused, therefore, killed the deceased per how the community would kill a witch, thus, by inserting banana stems into the bowels of the deceased via the anus. The Eastern Court of Appeal was of the view that "We think that if the facts proved to establish that the victim was performing in the actual presence of the accused some act which accused did genuinely believe and which an ordinary person of the community to which the accused belongs would genuinely believe to be an act of witchcraft against him or another person under his immediate care {which act would be a criminal offense under the criminal law, Witchcraft Ordinance, and similar legislation in the other East African territories) he might be angered to such extent as to be deprived of the power of self-control and induced to assault the person doing the witchcraft. And if this be the case a defense of provocation is open to him”

    Inferable, the position of the law concerning pleas of provocation on the basis on witchcraft (per the East African Court of Appeal), is that provocation is likely to be opened to the accused if the bewitching activities of the alleged witch were done in the presence of the accused and such activities of the witch might have amounted to an offense in the state. Also, a reasonable man belonging to such a community must regard such activities as bewitching. It is therefore noteworthy that, one cannot base on his sentiments or words of another (maybe another alleged witch hunter) assault an alleged witch and later plead provocation. Certain activities might have been done in the presence of the accused and such activities must amount to an offense and as well considered as bewitching by any reasonable person belonging to that sect of people.

    The restrictive nature of a plea of provocation laid down by the court in Fabiano (supra) favors public policy and also puts into consideration the culture of the "people". Wholly rejecting provocation pleaded based on witchcraft will encourage certain threatening activities of alleged witches in the society. However, without restriction on the plea, humanity is apt to using personal sentiments and opinions of others to assault or kill them and later pray to the courts to grant them the plea of provocation.

  • Conclusion and Recommendation:
  • The existence of witchcraft cannot be denied, to Lord Hale, "there are such creatures as witches I do not doubt at all. First, the scriptures affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence in such a crime."

    The courts can be given an easier judicial function in that aspect if each jurisdiction makes legislation regulating the conduct. In most jurisdictions, the Witchcraft Act has been enacted regulating persons from taking advantage of others with supernatural activities. Likewise, the Witchcraft act in most jurisdictions protects the citizenry from being accused and treated as witches, in other words, incriminates witch-hunting.

    It is a strong encouragement, especially in Ghana, that if the Witchcraft Act is to be passed, it should ban the establishment of witch camps and dissolves the existing ones to liberate old people and vulnerable children from the "invisible prison" called witch camp. These camps are associated with abject poverty and inadequate social amenities for livelihood.

    For a complete and successful integration of these alleged witches back into the communities: Governments must ban activities which the communities widely believe to be bewitching and harmful to the society. There is single doubt that a reasonable man would be subjected to intense fear if he finds a human being crawling naked in his compound in the morning. Therefore, certain activities that are very weird or might have driven the community to title people as witches should be banned. Through the local chiefs, bye-laws can be made to regulate the conduct of people who may use fetishism as a threat to humanity. The State may also pass laws to regulate practices relating to the practice of witchcraft and similar practices. In the South African jurisdiction, Section 1(f) of the Witchcraft Suppression Amendment Act 3 of 1957 criminalizes activities that are related to witchcraft and practiced for gain pretends. Some of these activities include sorcery, enchantment or conjuration, or undertaking or telling of fortunes and among others.

    To add to that, the stigmatization of being a called a witch or child of a witch would reasonably prevent alleged witches back into the society as they would find a sense of belonging in their various camps. However, this can be lessened if they are given proper health care, moral education talks, and support to live a life beyond abject poverty. As long as these witches stay in those camps, they will be stigmatized with the title of witch even generations to come. The children and grandchildren yet unborn will still inherit the titles of their parents and grandparents if they are not integrated into the society, thus, unending stigmatization of alleged witches and their offspring. Furthermore, Governments must extend a helping hand to children of alleged witches when integrated into society. Education is a key factor in the development of human resources. If these children are given better education, they would in turn cater to their parents and grandparents who may be rejected by society.

    Lastly, it must be emphasized that if alleged witches are integrated into society, their activities associated with witchcraft and fetishism as generally believed by society must be banned. Also, the law must seek to protect alleged witches from being harmed by members of their society. if these alleged witches are brought back to the society, the stigmatization would not persist forever but shall end when mechanisms are put in place to curb it. In South Africa, the Witchcraft Suppression Act, 1957 3 of 1957 criminalizes the act of "imputing to any person the causing, by supernatural means, of any disease in or injury or damage to any person or thin, or naming or indicating any other person as a wizard." If such a law is passed after the integration, the stigmatization would be greatly lessened if not completely curbed.

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    Friday, September 11, 2020

    When will waec released 2020 result

    The West African Examinations Council (WAEC) Council Head of Public Affairs, Damianus Ojijeogu during an interview on Saturday disclosed that the results of the 2019 WASSCE for School Candidates will be released in 45 days and the 45 days has passed but previous years is 60 days, if they work on 60days probably the result is coming out on Saturday 27 July 2019.

    The council, he said, was satisfied with the conduct of the just concluded examination for school candidates nationwide.

    The WASSCE for school candidates examination commenced on April 1st, 2019and was concluded on 27th May 2019.
    “We are indeed happy that the examination was conducted in a hitch-free manner. Right now, we have commenced coordination, briefing and subsequently, marking,” he said. 
    “We are looking at releasing the results in 45 days or earlier than that time.
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    Thursday, September 10, 2020

    Application of HADD punishment on the Rich.

    Assalaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of us).

      One of the objectives of islamic law is the protection of human dignity, which is held in high esteem. Islam has clearly established principles guiding human conducts in all ramifications.

    There have been misconceptions about the implementation of HADD (Fixed punishment) on the RICH, especially amputation of the hand of a person found guilty of theft.

    The shariah is applicable to all irrespective of class; Poor or Rich because in Islam All human being are equal in the eyes of Almighty Allah the only distinction which Allah recognizes is the distinction in piety.

      Allah {S.W.T} says: “O mankind, verily we have created you from a single (Pair) of a male and a female, and have made you into nations and tribes, that you may know each other. Verily the most honored of you in the sight of Almighty Allah is the most righteous” (Quran, 49:13).

    Islamic jurisprudence prescribed certain punishments in certain situations, most of these punishments were meant to act as deterrents. Islam forbids theft, forgery, usurpation, embezzlement, cheating, Riba, bribery etc.

    In the case of theft, there are established prerequisites to be consider before carrying out punishment of amputation.

      Allah {S.W.T} stated in the Noble Qur'an Al-Ma'idah 5:38

      [As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise.

    preconditions before amputating the hand of a thief.

    There are preconditions before amputating the hand of a thief. If any of these preconditions is not fulfilled, the hand should not be cut:

    1. The thief must not have been compelled to commit theft.
    2. The worth of the stolen object must be valued. The Prophet (peace and blessings of Allah be upon him) said: “The hand should be cut off for (the theft of) a quarter of a dinar or more.”
    3. He must be a Muslim
    4. The stolen property must be (legally) valuable.
    5. The thief must have taken away the stolen property from proper place himself. If one takes out the thing from its safe place and another one takes it away, neither of the two can be punished for theft.
    6. Eatables stolen during the times of famine do not make the thief liable for having his hands cut. It is narrated from Imam Ja’far as-Sadiq (R.A.) that he said: In the time of famine and draught the hands of a thief are not cut off for stealing edible items like bread and meat etc.
    7. If one of the parties to a contract steals a property and claims that it rightfully belongs to him, he is not liable to be punished. (Emphasis mine)
    8. The object should have been stolen from a place where the owner’s permission is required to enter. If a theft takes place in a public mosque or public bath, the thief does not have his hand amputated.
    9. The thing should have been stolen from a secure place.
    10. The thief must be sane. So if an insane person steals, his hand is not amputated.
    11. If before a theft is proved, the thief goes to the judge and repents and promises not to steal in future he is saved from the punishment. Allah {S.W.T} says: Whoever repents to Allah, Allah forgives him, no matter how great his sin is. Allah Says: { Say: "O my Servants who have transgressed against their souls.
    Despair not of the Mercy of Allah: for Allah forgives all sins: for He is Oft-Forgiving, Most Merciful."}
    [Quran 39:53]
    12. The thief must be an adult. Abdullah Ibn Sinan relates the following tradition from Imam Ja’far as-Sadiq (A.s): “When a minor child* *steals for the first and the second time he is *forgiven. If he does it for the third time he is* *issued a strict warning and beating. If he persists in his crime, the tips of his fingers are slightly cut and if he repeats the act, some more of his fingers are cut away.”*
    13. The theft itself has to be proven, either by the testimony of two qualified witnesses or by the confession of the thief twice.

    From the forgone preconditions, it is evidenced especially precondition No. 7, stealing of public property does not qualify for the application of HADD punishment of cutting off the hand of the person. But rather Ta'azir (judge discretionary punishment) according to the majority of the scholars. Because there might be possibility of him having shares in the stolen item. There is Maxim which states that “hudud are to be prevented when there are doubts”. The Maxim which root from the saying of prophet {S.A.W} "Set aside the execution of hudud punishments in cases of doubt (shubhah)."

    However, The thief is not absolved of liability. Because, theft is ab initio a sin, a crime and eternally punishable even if one escapes the worldly sanction, certainly he won't on the day of reckoning because it infringe on the rights of the person(s) stolen from unless the victim forgives.

    May Allah {S.W.T} Forgive us and Guide us Ahright.


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    Monday, August 17, 2020

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