The beautiful sounds of Christmas carols will fill homes, restaurants and streets as Ugandans generally enjoy the holiday season. The Christmas story, at its root, is based on the idea that God became man through a miracle by which a virgin, Mary, who was betrothed to a man called Joseph, conceived a baby – Jesus.
Christmas is celebrated as the moment when the son of God was born to man, for the express purpose of later serving as a sacrifice – through whose crucifixion humanity could hope to escape the burden of sin, and have everlasting life after death. If one thinks too hard around this narrative, there is no escaping the implausibility of the story.
And yet, those who believe in all, or part, of the story are entitled to suspend rationality and order their lives around the promise it provides. Indeed, the suspension of reason is often a key ingredient of religious belief. As Hebrews 11:1 (New King James Version) informs us: ‘faith is the substance of things hoped for, the evidence of things not seen.’
This fundamental human need – to believe in something – is specifically protected in Article 29 of the 1995 Constitution, which assures to all persons the ‘freedom of thought, conscience and belief’ and, specifically, the ‘freedom to practise any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organization in a manner consistent with [the] Constitution’.
Faith in the Christmas story, therefore, is specifically protected under our Constitution. As the United States Court of Appeals (Eighth Circuit) noted in the 1998 case of Argello v City of Lincoln: ‘Government is not free to declare certain beliefs — for example, that someone can see into the future — forbidden.
Citizens are at liberty to believe that the earth is flat, that magic is real, and that some people are prophets.’ If this is the case, a compelling question that arises is as to why, in 2023, Uganda stills maintain a statute – the Witchcraft Act, Cap 124 – which essentially criminalizes, under pain of imprisonment, certain forms of African traditional belief.
Aside from the freedom of religion, the Act offends the freedom from discrimination (Article 21), the principle of legality (Article 28 (12)), the freedoms of expression and association (Article 29) and the rights to culture and health. Given the strictures of space, we may only consider the first three of these: religion, discrimination and legality.
In terms of the freedom of religion, and the guarantee of a secular State (Article 7), the Supreme Court in the 2004 case of Sharon Dimanche and Ors v Makerere University has already stressed the fundamental notion that neither the sincerity nor the substance of a citizen’s belief is open to question by the State (see dicta of Chief Justice Benjamin Odoki and Justice Bart Katureebe).
People are entitled to hold beliefs – however bizarre – which should be accommodated, as far as possible, under the constitutional order. A similar position was adopted by the Court of Appeal in the 2011 case of Tom Butime v David Muhumuza & Anor, in which the right of a witness to refuse to hold a Bible or Koran in taking oath was affirmed (see lead judgment of Remmy Kasule JA).
Similarly, in the 2017 case of Rev. Fr. Cyril Adiga Nakari v Rt. Rev. Sabino Ocan Odoki and Registered Trustees of Arua Dioces Judge Steven Mubiru rightly observed that the separation between the Church and the State was founded on two principles: i) there was no state religion, and the state had to refrain from identifying itself with any faith; and ii) religious institutions had the right to conduct their religious activities without undue state interference.
More recently, in the 2020 case of Rev Charles Oode Okunya v Registered Trustees of the Church of Uganda Judge Musa Ssekaana noted that courts were ‘ill-equipped’ and had ‘limited jurisdictional competence’ to resolve purely religious disputes, for three reasons: i) they were remote to, and lacked familiarity with, the relevant doctrinal issues; ii) such intervention might be ‘interpreted as an endorsement of one religious view over another or importing practices not conforming to spiritual and religious teachings’; and iii) religious claims lacked ‘objectivity and empirical bases’.
To the Judge, the very narrow window for state intrusion related to instances where any religious practices ‘seriously damage[d] the constitutional fabric.’ Evidently, the Witchcraft Act offends all the above well-stated principles of religious freedom and the guarantee of a secular, non-intrusive State.
In particular, under Section 1, the Act assumes the ability to distinguish between ‘witchcraft’ on the one hand, and ‘bona fide spirit worship’ – effectively placing the State and its institutions in the role of ‘refereeing’ between ‘good belief’ and ‘bad belief’. Uganda is left in the strange position where all kinds of foreign belief systems are permissible, while a form of indigenous belief is derided and criminalized.
Of course, the freedom of religion is not absolute. In terms of Article 43 of the Constitution, it is limited by the human rights of others, and may also be constrained in the public interest. The proviso, under Article 43 (2), however, is that public interest may not permit any limitation ‘beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in [the] Constitution’.
In this regard, the State may limit manifestation of religion if, for instance, it resulted in serious harm to oneself or others. There are several offences under the Penal Code Act, Cap 120, which would suffice in this regard, such as assault occasioning bodily harm (Section 236); murder (Sections 188 and 189) and others.
Additional recourse could be had to the Prevention of Trafficking in Persons Act (2009) and the Prevention and Prohibition of Human Sacrifice Act (2021). These general protections make it impossible to justify the continued maintenance of a specifical law, targeting and stigmatizing a particular belief system, as the Witchcraft Act does.
The Act also significantly offends the freedom from discrimination, guaranteed under Article 21 of the Constitution. The Equal Opportunities Commission Tribunal in the 2018 matter of Bwengye Deusdedit v Bishop Stuart University, for instance, determined that certain provisions of the respondent’s Guild Constitution were discriminatory, in so far as they reserved particular offices in the students’ guild for Anglican students.
It found them to be ‘unfair, irrational and unreasonable’ and pointed out that the university should have considered ‘alternative ways of promoting values of the Anglican faith and other desirable elements of Christian philosophy without discriminating against sections of its students’.
Similarly, in a 2021 decision in Kakaire Sadiki and Another v Uganda National Examinations Board and Another, the Constitutional Court faulted UNEB for organizing national exams on days reserved for Muslim religious days, that is to say, Idd Adhua and Idd el Fitr.
In her lead judgment for the Court, Justice Elizabeth Musoke upholding the petition, correctly noted that the right to freedom of religion was a critical part of an individual’s identity and that it was ‘a precious asset for atheists, agnostics, sceptics and the unconcerned’. It is difficult to see how, based on these clear postulations, the Witchcraft Act can be perceived as anything other than religious-based discrimination of the most egregious kind.
This position is made even clearer when one considers that general religious feeling is actually protected under a range of statutory law. For instance, the whole Chapter XIII of the Penal Code Act is dedicated to ‘offences against religion’, which include insulting religion (Section 118); disturbing religious assemblies (Section 119) and writing or uttering words with intent to wound religious feelings (Section 122). In addition, under Section 2 (bb) and 21 (f ) of the Income Tax Act, Cap 340, some kinds of religious practice are actually encouraged by the State, through the possibility of tax exemptions.
Such a situation – where some religions are protected and even encouraged through statutory law, and one (which happens to be indigenous) is disparaged and criminalized by an Act of Parliament – is manifestly discriminatory, and unconstitutional. The Witchcraft Act also offends the principle of legality, which is established under Article 28 (12) of the Constitution in the following terms: ‘except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law’.
The Constitutional Court had the occasion to consider this in the 1997 case of Salvatori Abuki & Another v Attorney General. On this point, Justices Mpagi- Bahigeine, Egonda-Ntende and Tabaro correctly observed the vague nature of identifying ‘witchcraft’, which could result in the absurdity of ordinary items – a white cock, gourd or a tortoise – being held up as proof of offences under the Act when in fact they have several other ordinary uses.
On appeal, the Supreme Court took a different view on this point. According to Chief Justice Wambuzi, the ‘natural and ordinary meaning’ of the word ‘witch’ referred to ‘a man or woman who practise[d] witchcraft’, and ‘witchcraft’ was ‘the exercise of supernatural powers by a person in league with the devil or evil spirits…’. Justice Tsekooko agreed, taking the view that it was ‘obvious that practicing witchcraft involve[d] abnormal or unnatural behavior … intended for bad motives or aimed at satisfying supernatural beliefs or wickedness.’
In my view, the Supreme Court was wrong in this regard. The definitions of ‘witchcraft’ offered by Wambuzi CJ and Tsekooko JSC are circuitous. Essentially, the term is defined by reference to similarly indeterminate concepts: ‘supernatural’, ‘the devil’, ‘evil spirits’, ‘wickedness’ and others.
How can a Magistrate or Judge in Uganda be tasked with identifying and locating ‘the supernatural, ‘evil’ and ‘the devil’? These are certainly not subjects taught in law schools. And it is difficult to conceive of any ‘expert witness’ who might similarly have the ability to assist courts in such determination – unless, perhaps, such person is an ‘expert witch’ themselves.
As Judge Mubiru noted in the Rev. Fr. Cyril Adiga case above, the Constitution of Uganda ‘create[d] a private sphere within which religious bodies [we]re free to govern themselves in accordance with their own beliefs’ and courts had to ‘use restraint and be slow to intervene’ in doctrinal matters so as to avoid entering ‘the hazardous hemisphere of religion’.
The Witchcraft Act invites judges to precisely entire this ‘hazardous hemisphere’ – in a manner which is not only unfair to them and to any persons accused under that Statute – but which also grossly offends Article 28 (12) of the Constitution.
I have outlined here only a very brief sketch of the deep constitutional problems represented by the Witchcraft Act. A fuller account – which includes a socio-political examination of the history of the law (as primarily a reaction by the colonial State to political resistance led by indigenous religious leaders in Kigezi from 1912-1921 under the Nyabingi movement, and Buganda under Kigaanira Ssewanyanna Kibuuka in the wake of the 1953 Kabaka crisis) – is contained in an article, published in the Oxford Journal of Law and Religion earlier this month.
In my view, the Witchcraft Act is a window for understanding a larger task which confronts the Ugandan society in general, and the legal community in particular: that of having the courage to rethink and undo a colonial legacy that delegitimized African identity, language, culture, belief and even law.
As we head into the Christmas season, in which the improbable story of the virgin birth in a manger in Bethlehem is retold and celebrated in sermon and song, perhaps it is time we allowed those who believe in their own improbable narratives – rooted in indigenous African belief – to hold and manifest their beliefs without the threat of arrest and imprisonment under the Witchcraft Act.
It is the right, and constitutional, thing to do.
The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.
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