Kenyans who advise others on how to bewitch or harm people, supply articles represented as instruments of witchcraft, or use alleged witchcraft practices with the intention of causing harm risk imprisonment of up to 10 years under Sections 3 and 4 of the Witchcraft Act, Chapter 67 of the Laws of Kenya.
Lawyer Danstan Omari has warned of the legal consequences of engaging in practices prohibited under the Act, which addresses conduct involving alleged supernatural powers, intimidation and attempts to cause injury.
The law, which dates back to 1925, provides different penalties depending on the offence committed, meaning the maximum 10-year prison sentence does not apply to every case associated with witchcraft.
It also addresses pretending to possess supernatural powers, possession of certain charms and making accusations of witchcraft against other people.
Offering witchcraft services can attract 10 years
Section 3 of the Witchcraft Act addresses people who profess knowledge of witchcraft or the use of charms and advise others on how to bewitch or injure people, animals or property.
It also covers supplying articles purported to be instruments of witchcraft.
A person convicted under this provision faces imprisonment for a term not exceeding 10 years.
The provision focuses on the conduct described in the law, including offering prohibited advice or supplying articles represented as means of witchcraft.
Section 4 addresses people who use or assist in using alleged witchcraft practices with the intention of causing injury.
The section provides for the same maximum punishment prescribed under Section 3, meaning an offender may face imprisonment for up to 10 years.
The provision makes clear that criminal liability is not necessarily confined to people who present themselves as witchdoctors or claim to possess supernatural powers.
However, the particular conduct and intention required by the law must be established before criminal responsibility can arise.
Pretending to possess supernatural powers attracts five years
Section 2 creates a separate offence involving people who present themselves as witchdoctors capable of causing fear, annoyance or injury, or pretend to exercise supernatural powers, witchcraft, sorcery or enchantment calculated to produce such effects.
The offence carries a maximum prison sentence of five years.
This distinction is important because the penalties prescribed under Sections 2, 3 and 4 are different.
Not every offence involving alleged witchcraft automatically attracts the maximum 10-year sentence.
Section 5 addresses possession of charms and other articles commonly associated with witchcraft, sorcery or enchantment for the purpose of causing fear, annoyance or injury.
Where the statutory conditions are established and a person fails to show reasonable cause for retaining such an article, the offence carries imprisonment for up to one year, a fine not exceeding Sh1,000, or both.
The provision also allows a magistrate to order the forfeiture and disposal of the article involved.
However, possession of a traditional, cultural or symbolic object does not automatically constitute an offence.
The purpose for which the item is held and the other requirements of the law are important in determining whether criminal liability arises.
The Act also criminalises certain accusations and threats involving allegations of witchcraft.
Under Section 6, a person who accuses or threatens to accuse another of being a witch or practising witchcraft may face imprisonment for up to five years or a fine not exceeding Sh500.
The provision makes an exception for accusations reported to specified authorities, including police officers, chiefs and other persons in authority.
The law is particularly significant in communities where allegations of witchcraft can intensify family disagreements, land disputes and hostility between neighbours.
People who suspect criminal conduct are encouraged to report their concerns through lawful channels rather than resort to threats, intimidation or public accusations.
Colonial-era law faces calls for review
The Witchcraft Act was enacted in 1925 and remains part of Kenya's statutory framework.
However, its colonial-era language and approach to alleged supernatural practices have attracted criticism.
The Kenya Law Reform Commission has previously called for a review of the legislation to align it with the Constitution and address ambiguities in its provisions.
The commission raised concerns about the Act's terminology and the difficulties involved in interpreting offences associated with witchcraft.
The debate highlights the need to distinguish personal and cultural beliefs from specific conduct that the law prohibits.
It also raises questions about how the legislation can protect people against intimidation and harmful conduct while ensuring that criminal responsibility is established through evidence.
Omari's warning draws attention to the potential criminal consequences of engaging in conduct prohibited under the Witchcraft Act.
However, the penalties vary according to the offence, and the maximum 10-year prison sentence applies specifically to the offences covered by Sections 3 and 4.
The existence of the law does not mean that every allegation of witchcraft establishes criminal liability.
The particular conduct, relevant statutory provision and available evidence must be considered.
Kenyans facing family disagreements, property disputes or personal conflicts should pursue lawful remedies rather than resort to threats, intimidation or attempts to harm others.
Understanding the law is important both for protecting individuals against prohibited conduct and ensuring that allegations are handled through proper legal channels.
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