Provocation by Witchcraft: Exploring the Evolution of the Kenyan Courts’ Interpretation of the Doctrine of Provocation in Relation to Witchcraft Beliefs

Abstract

AbstractThe belief in witchcraft and sorcery is a significant cause of intentional homicide in Kenya. Moreover, those who kill people suspected of being witches often employ as a defense for their actions the so-called provocation by witchcraft argument: the homicide was purportedly committed under the influence of belief in witchcraft and sorcery. One major legal difficulty that the Kenyan courts have frequently been invited to resolve is thus the question as to whether the belief in witchcraft and sorcery avails to an accused person the defense of grave provocation and, if so, under what circumstances. Drawing largely on pertinent case law, statutes, and academic literature, the author explores the controversy over provocation by witchcraft. The author first offers an exposition of the concept of witchcraft and sorcery in Africa and critically discusses the evolution of the Kenyan courts’ interpretation of the country’s law on provocation in relation to witchcraft beliefs since the 1930s. The author establishes that under the current Kenyan common law, defenses of heat of passion and sudden provocation may apply in instances where there is no real provocation and that the courts have exceeded the boundaries of the provocation defense without well-grounded reasons. The author cautions that giving the doctrine of provocation such a broad construction and application may increase the already rampant killings of suspected witches in Kenya.