Thomas Bangili and Samike Maduhu v. R., Crim. App. 239-M-69, 28/6/69, Kimicha J.

Thomas Bangili and Samike Maduhu v. R., Crim. App. 239-M-69, 28/6/69, Kimicha J.

The four accused were convicted of three offences against the Witchcraft Ordinance Cap. 18: (1) representing themselves to have the power of witchcraft c/ss 3(3) and 5(2); (2) using an instrument of witchcraft, that is a “talking guard”, c/ss (3) (ii) and 5 (2): and (3) supplying an instrument of witchcraft c/ss 3(iii) and 5(2). The accused were traditional doctors who diagnosed illnesses by use of spirits and a talking gourd, and dispensed medicines and other objects to cure those illnesses, or to counteract the harmful effects of witchcraft. The facts forming the basis of the charges are reproduced for the light they throw on the general significance of the Witchcraft Ordinance.

Held: (1) “Witchcraft has existed in our society from time immemorial and its practice has all the time been unpopular. Witches have been subjected to public executions, tortures, had their property confiscated by the tribe and were ostracized and treated with contempt. The Legislature was therefore right in crystalising this natural abhorrence to witchcraft in to a punitive Ordinance. But at the same time it is common knowledge that our society has also from time immemorial enjoyed the experience and honest services of native doctors who dealt with all the different diseases known to our society from ordinary fevers to leprosy, lunacy, epilepsy and sterility. We have our general practitioners and specialists. These attribute the cause of discases either to natural causes or to witchcraft and they are expected to cure their patients accordingly. As is with our medical practitioners’ they have to diagnose their patients before giving them treatment. The medical practitioner does this by examining the patient and by listening to his explanation of his ailment. Very often X-ray examinations and complicated pathological tests are necessary before deciding on a course of treatment. Our native doctors do not have X-rays and pathological laboratories and being aware of this limitation they have overcome this handicapt by using all sorts of devices loosely called fortune telling or possession of what is known in sophisticated societies “as sixth sense” or a spirit in native parlance. Some of these physicians are famed for their accurate diagnosis and people travel for many miles to consult them. I must hasten to add that the word “spirit” is also commonly used to mean invisible beings that are capable of being under the control of some persons, invariably witches, and they can be used by their masters in causing death or injury to persons and property. I think these are the spirits which have been covered by the provisions of the Ordinance. The Legislature enacted the Witchcraft Ordinance because it was aware of its existence and of its harmful effect on society but it is my view that the Ordinance was not intended against those who either diagnosed or cured witchcraft spells. It is also my view that diagnosing or curing witchcraft spells is not synonymous with practicing witchcraft and that this group of practitioners is covered by the provisions of section 37 of Cap. 409 of the Laws.” (2) “I now proceed to deal with the case under consideration. How did Thomas Bangili and his colleagues offend against the law in this case? Ramadhani Saidi had a critically sick child whom other doctors failed to cure. He was referred to Thomas. Thomas

Diagnosed its disease accurately and then treated it personally. It had a remarkably quick recovery. P.W. 5 Nyamwala d/o Musa …….. had the same wonderful story to tell. She had been sick for a long time and other doctors had failed to cure her. She was referred to Thomas and she was quickly cured. In each case the fee claimed was extremely reasonable. Certainly the medicine that he used in each case was not harmful and it produced wonderful results. Thomas’ offer to treat Ramadhani’s child and Nyamwla d/o Musa forms the particulars of the 1^st count. And his treatment of the two witnesses forms the particulars of the third count. But I do not see how these facts can be fitted into any of the provisions of the Witchcraft Ordinance …. I am sure in my mind that his case is covered by section 37 of Cap. 409 of the Laws which provide: - “Nothing contained in this Ordinance shall be construed as prohibiting or preventing the benafide practice of systems of therapeutics according to native methods by person s recognized y the community to which they belong to be duly trained in such practice …..” For the above reasons all the 4 accused’s conviction on counts 1 and 3 was quashed and the sentences were set aside.”  (3) “The use of the talking gourd forms the particulars of the 2^nd count. This has been termed as an instrument of witchcraft. Thomas gave evidence on oath and gave an explanation of the gourd to tell fortune of peopled. This is the gourd which was telling me about the troubles of patients and their sicknesses and their wishes. This gourd does not speak; I speak myself through it when I find out the fortune of people. I use my spirits in this art of telling fortunes …… Taking the whole evidence into consideration I take the word “spirits” to mean sixth sense or something having that meaning and not the harmful spirits that I have alluded to earlier. This is not an uncommon phenomenon. There are persons in America and Europe who fully exploit their sixth senses and conduct world tours exhibiting their wonderful gifts. This gift is not intentionally cultivated or developed by their possessors. It just comes to them …. In the case under consideration, Thomas’ clients have just to speak to him and then his sixth sense goes into action. It appears to me that the gourd was only a means of making the process more impressive to his clients. His diagnosis was accurate and led to wonderful cures. Under the circumstances there is nothing criminal in his having the sixth sense and in the use of the gourd. For the above reasons all the four accused’s convictions on the 2^nd count was quashed and the sentences were set aside.” (4) Appeals allowed.