The Past and Present Society

The Past and Present Society
Witchcraft and Colonial Law in Kenya

Author(s): Richard D. Waller
Source: Past & Present, No. 180 (Aug., 2003), pp. 241-275
Published by: Oxford University Press on behalf of The Past and Present Society
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WITCHCRAFT AND COLONIAL
LAW IN KENYA*
In his considerationofjusticein colonialAfricain 1938, Lord
Hailey,summing up an accumulation ofcriticismsand concerns,
describedwitchcraft as 'theoutstanding problemofthelawgiver
inAfrica',andrecommended thatexisting be reviewed.'
legislation
His observationhas remainedtrue- and largely unaddressed -
to thepresentday.In Kenya,theWitchcraft Ordinanceof 1925
stilldefinesthelegalattitudetowardswitchcraft, buthere,as in
otherAfricanstatesfromTanzaniato SouthAfrica,government
is facingresurgentpopular demandsforaction- including
lynchlaw and vigilantism - whichit is not able, or perhaps
willing,to In
contain. the lastfewdecades,witchcraft has pene-
tratedbothpoliticsand popularconsciousness, yet law lags
the
behind.2
This articledoes notaddresstheissuesraisedbycontempor-
arywitchcraft directly.Instead,it focusesspecifically
on witch-
in
craftlegislation itscolonialcontext, in
partly orderto uncover
the historicalrootsof presentdilemmas,but also to providea
contribution to the studyof the makingand enforcement of
*
Earlierversionsofthispaperwerepresentedto theFive Colleges Consortiumat
SmithCollege, and to a conferenceon Crimein EasternAfricaorganizedjointlyby
the BritishInstitutein Eastern Africaand the Institutfrangaisde rechercheen
Afrique.I am grateful and organizersin bothcases, and especially
to theparticipants
to Elliot Fratkin,JohnLonsdale, Leslie Patrickand Tom Spear fortheirhelpful
commentsand suggestions,to my students,Laura Cardinal and Braam Nel, who
assistedme at an earlystagein research,and to the Directorand staffoftheKenya
National Archives,Nairobi. I am pleased to acknowledgethe financialassistance
providedby grantsfromtheNationalEndowmentofthe Humanities,theAmerican
PhilosophicalSocietyand BucknellUniversity.
1Lord Hailey,An
AfricanSurvey(London, 1938), 295-6. Metropolitancriticism
and calls forreformhad been spurredon by the controversialverdictin a 1931
witch-murdercase: see the collectionof papers read to the 1934 International
Congress of Anthropologicaland EthnologicalSciences, published in Africa,viii
(1935).
2 From a large and expandingliterature,see, forexample,Ray Abrahams(ed.),
Witchcraft in Contemporary Tanzania (Cambridge, 1994); Peter Geschiere, The
Modernity of Witchcraft 1997); Diane Ciekawyand PeterGeschiere,
(Charlottesville,
'Containing Witchcraft:ConflictingScenarios in Postcolonial Africa', African
StudiesRev., xli (1998); Onesmus K. Mutungi, The Legal Aspectsof Witchcraft in
A. Widner,BuildingtheRuleofLaw (New York,
East Afi'ca (Nairobi,1977); Jennifer
2001), 380-7.
? The Past and PresentSociety,Oxford,2003

242 PAST AND PRESENT NUMBER 180
criminallaw and justicein colonialEast Africa.3It considers

whylegislation againstwitchcraftwas deemednecessary, howit
was shaped and applied, and what administrative and legal
interestsand 'moral worlds'were involved.It also examines
Africans'attemptsto adapt an alienlaw to fittheirown social
concernsand jurisprudential principles.It begins with two
stories,separated time,space and apparenttheme,butwhose
in
meanings,whenjuxtaposed,illustrate vividlynotonlythelegal
problemsbut also the moraland social confusionsinherentin
a legalassaulton witchcraft.
One nightin the mid 1930s, in a remotepart of Baringo
District,threemen knockedat the door of a hut. When the
occupantopenedup, twoofthemproceededto smashhisskull.
Theythenleft,abandoningthebodywhereit lay.Later,one of
them,Lokoigut,was arrestedand toldhisstory.The threewere
brothers,and the man theyhad killedwas a witchwho had
alreadykilledby magictwo otherbrothersand a nephew.To
save themselves,the survivorshad decided to kill the witch
before he killed them. Though none doubted his story,
Lokoigutwas chargedwithmurder.To the lay person,there
mightseemtobe obviousmitigating circumstances - evena case
forself-defence - but thelaw thoughtotherwise. He was duly
foundguiltyand condemnedto death. His appeal failed,but
he was saved fromthe hangmanby executiveclemency.The
governor,with the concurrenceof the judges in the case,
commutedhis sentenceto sevenyears'hardlabour.4
On anotherevening,some thirtyyears earlier,Winston
Churchill,thenUnder-Secretary of Stateforthe Colonies and
on a tourthroughEast Africa,was being entertained by the
newlyappointedDistrictCommissioner in Embu.Afterdinner,
conversationturnedto localmatters and theyoungadministrator
complainedthatone of his verdictshad been quashed by the
SupremeCourton a proceduraltechnicality - 'someoneforgot
to sayBoo in therightplace'. A retrialhad been ordered.How,
3 This topic has receivedrelativelyless attentionrecently,especiallyas regards

witchcraft,but see Natasha Gray, 'Witches,Oracles and Colonial Law: Evolving
Anti-Witchcraft Practicesin Ghana, 1927-1932', Internat. Jl AfricanHist. Studies,
xxxiv(2001). I am also gratefulto Kate Luongo fordiscussinghercurrentresearch
on colonialwitchcraft legislationwithme.
4
Rex v. Lokoigutwero Churale, [Kenya] Supreme Court CriminalCase (here-
afterCrC) 138/35, papers encl. in Byrne to Thomas, 2 Mar. 1936: National
Archives,London, Public Record Office(hereafter PRO), CO 533/462/9.

WITCHCRAFT AND COLONIAL LAW IN KENYA 243
he asked,couldcolonialauthority be upheldiftheevidentlyguilty
wereapparently allowedto go freeforreasonsthatno African
couldunderstand? Churchill,himself a notablecutterofcorners,
might have been sympathetic to thiscomplaint,one thatwas to
be repeatedagain and again in colonialKenya,but he chose
insteadto teach the DistrictCommissionera lesson in good
government.He ranged himselfon the side of the 'Boo'.
Adherenceto thepreciseformsofthelaw was essentialbecause
theyalone protectedthe accused fromcarelessness,and even
oppression.Withoutthem,theruleoflawwouldbe replacedby
something else,dependententirely on thewhimoftheindividual
magistrate/administrator.5Reliance on the personalauthority
of administratorsin theirdealingswith'natives'was essential,
butthatauthority had to be limitedbya superiorpower- that
of the law itself.Authority, thoughtChurchill,would not
sufferbecause 'thetribesmen see thattheirruler- to themall-
powerful ... - is himselfobedient to some remote external
force,and theywonderwhatthatmysterious forcecan be and
marveldimlyat itsgreatness'.6
Thus Churchill,and High Courtjudgesafterhim,appealed
to a forceas intangible as, butno lessfiercein itsdemandsthan,
the fearof witchcraft thatled Lokoigutand his brotherto kill
theirtormentor. Churchill,ofcourse,saw his'mysterious force'
as a protective andbeneficent one,unlikethepowerofwitchcraft,
but itis less clearthatAfricans, especiallythoseundersentence
of deathfromeitherjudgesor witches,wouldhave agreed.As
one defendant,on trialforthe murderof a brotherwhomhe
believedto be a witch,put it: 'I foundthatfourofmybrothers
and one oftheirwiveshad died and I said [that]thismanwants
to finishus [so] I shallkillhim.I did, just as the otherssaid I
did. Then I gavemyself up to government and government will
killme'.7
5District Commissioners (hereafterDCs) also exercised magisterialpowers,
thoughtheirjurisdictionwas limitedand theirverdictssubject to judicial review.
Certain categoriesof crime, includingmurder,were reservedfor the Supreme
Court, and in such cases the magistrateconducted a preliminary enquirywhose
findingsbecame partof the trialmaterial.
6Winston S. Churchill,My AfricanJourney(London, 1908), 28-9. For an
importantdiscussionofthispassage,see JohnLonsdale, 'Kenyatta'sTrials: Breaking
and Making an AfricanNationalist',in Peter Coss (ed.), The Moral Worldof the
Law (Cambridge,2000), 196-201.
7Rex v. Ekali s/oLongolol,Lodwar CrC 26/50,preliminarystatementofaccused,
KNA), MLA 1/416.
19 Dec. 1950: Kenya NationalArchives,Nairobi (hereafter

I
LEGISLATION AND ITS LIMITS
Colonialrulewas neverable to resolvetheconflicts embedded
in these storiesbetweenmoral and legal guiltand between
administrativeexpediency, theneed fortransparent and publicly
accessible('substantial')justice,and the demandsof law and
due process.8Conflictwas inevitablewhereveran alien legal
systemwas imposedon more or less unwillingsubjects,but
witchcraft posed specialdifficulties.
Government had to strike
in two directions,againstboth witchesand thosewho killed
them;and thelatterwereseen as posingas muchifnotmoreof
a threatto coloniallaw and orderas theformer.9 The killingof
suspected witches was not to
only'repugnant [colonial]justice
or morality'but also a challengeto the monopolyof forceon
whichcolonial rule rested.10Yet if government was to treat
such formsof locallylegitimate self-defenceas simplemurder
thenit would itselfhave to take on the taskof protecting the
communityagainst witches.Anti-witchcraft legislationwas
thusin parta corollary to thepenalprovisionsagainstmurder,
as the rationaleforthe Witchcraft Ordinancemade explicit."
However,whileit was not difficult to prosecuteand convict
witchkillersunderthePenal Code, itwas farmoreso to secure
convictionsforwitchcraft underthe Ordinance.Thus, what-
ever its intentions,in practicegovernmentappeared to be
protecting witchesratherthanthecommunity. 'You whitemen
are destroying the community. The witches... are doingjust
8Clause 7 oftheKenyaOrder-in-Council (1920) statedthatcasesto whichAfricans

were parties should be decided in accordance with 'substantialjustice, without
undue regardfortechnicalitiesand withoutundue delay': see H. F. Morris and
JamesS. Read, Indirect Ruleand theSearchforJustice(Oxford,1972), 76-9.
9Griffin CJ summarizedthe officialpositionin his denial of appeal in thefamous
Kamba witch-killing case of 1931. Acknowledgingthat witchcraftbeliefs were
'deeply ingrainedin the native character',he nonethelessheld thatfear of being
bewitchedin itselfcould notbe groundsfora plea ofprovocationagainsta conviction
for murder. 'For courts to adopt any other attitudein such cases would be to
encouragethe beliefthatan aggrievedpartymay take the law into his own hands,
and no beliefcould well be more mischievousand fraughtwithgreaterdangerto
public peace and tranquillity':Rex v. Kumwaka wa Mulumbi and 69 Others
(1932), citedin 14 KenyaLaw Reports139.
10
Morrisand Read, Indirect Ruleand theSearchforJustice,174-6.
11Legal Opinion, encl. in Jacksonto Crewe, 26 July1909: PRO, CO 533/61.In
thepreviousyear,therehad been murderconvictionsin severalcases wherewitches
had been publiclyexecutedbytheircommunities.

whattheyplease,becausetheyknowwe can no longerkillthem

as we used to'.12
The KenyaWitchcraft Ordinancewas firstenactedin 1909,
amendedin 1918, and thenredrafted and reissuedin 1925.13
The 1909 Ordinancecreatedthreecriminal offences:to claimto
be a witchorto 'pretend toexerciseoruseanykindofsupernatural
power,witchcraft, sorceryor enchantment ... forthepurposes
ofgain' (section2); to adviseothershowto use witchcraft or to
supply them with the'pretendedmeans of witchcraft'(section 3);
andto use suchadviceormeansto 'injureanypersonorproperty'
(section4). The maximumpenaltieswererespectively one year's
imprisonment under section2 and ten years' under sections 3
and 4. The law seemedsimpleand straightforward, and passed
almostwithoutcommentin Nairobiand London,but itsprac-
ticalshortcomings quicklybecame obviousat thedistrict level.
The Ordinancelackeddefinition. On theone hand,thecatego-
ries of crimethatit establishedwere so broad as to include
activities,such as diviningand healing,to whichthe colonial
authorities had littleobjection.On the other,it was too nar-
rowlyframedto convictthosewhomthegovernment wantedto
punish.Witchesmightact forpurposesotherthan'gain'in any
materialsense,and itwas notwitchesthemselves, butthosewho
employedthem,whosuffered thegreater penalties.Mostimpor-
tantly,the Ordinancefailedto establishreasonablemeans of
proof.14
The 1918 amendmentrespondedto these criticismsby
sharpeningdefinitions and makingbetterprovisionforlegal
proof.'Gain' in section2 wasreplacedby'causingfear,annoyance
or injury'and 'injury'in section4 was glossed as 'injuryin
mind,personor property'. This, in principle,made it easierto
12'Old chief'
quoted in the introductionto C. CliftonRoberts,TangledJustice
(London, 1937), 3-4. Elders in Kenya made similarcomplaintsthatgovernment
had come 'to help thievesand wizards',but thereis no sign of the more sinister
connectionsmade in CentralAfricabetweenthe boma (districtheadquarters)and
the graveyard- thoughthe factthatconvictedwitcheswere oftensettledclose to
districtheadquartersmust have been worrying:see Hon. Charles Dundas, 'The
Organisationand Laws of some Bantu Tribes in East Africa',Ji Roy.Anthropological
Inst.,xlv (1915), 277.
13Ordinances9/1909,6/1918and 23/1925,cap. 67, Laws ofKenya(Nairobi,1962).
14The DC Meru's commentwas fairlytypical:'The ordinancemightbe made
useful;but,as at presentdrafted,is a failure':see YearlyNotes, 1917, Meru District,
PRB): KNA, PC/CP 1/9/1.See also correspondence
PoliticalRecordBook (hereafter
in KNA, filesAG 1/610and AP 1/1009.

distinguishbetween'black' and 'white' magic, to prosecute

witchesthemselves and to coversome at leastofthereal aims
and effectsof witchcraft. At the same time, possessionof
'charms,usually used in witchcraft'was made an offenceliable
to two months'imprisonment, thus offering the chance of
bringing tangibleevidenceintocourt.The redrafted wordingof
the 1918 amendmentwas carriedoverintothe 1925 revision
and formedthe legalframework withinwhichwitchcraft cases
wereprosecutedthroughout thecolonialperiod.
As a substitutefor,or an antidoteto, communityaction,
witchcraft legislationfailedfromtheoutset.Withinsix months
ofitsenactment, two further witchkillingswerereported,and
throughout the colonialperiodcases regularly came up fortrial
as communitiesand individualscontinuedto seek theirown
remedies,despiteofficial exhortations and ordersto bringcases
to the colonial authorities.15 Partlythis was because dealing
with witchcraft was a vitallyimportantarea of power and
responsibility thatelderswere unwillingto cede to unknown
outsiders, but it was also because legislationdemonstrably
failedto deterwitchesorto allaypublicanxiety, as bothAfricans
and administrators agreed.16The law couldneitherestablishits
authority overwitches nordemonstrate itsownprotective powers.
At the districtlevel, Churchill's'mysterious force'remained
mysterious, but impotentto oppose the equally mysterious
powerofwitchcraft.
Withthebanningoftraditional formsofdeterrence, witches
appearedto be operating withimpunity. In theabsenceofjudi-
it is impossibleto knowhow manyin factended
cial statistics,
up in court. Up to the early 1930s, prosecutionsunder the
Witchcraft Ordinancelay solelywithmagistrates, but although
individualDistrict Commissionersdid occasionallymount
campaignsagainstwitchcraft - one in Meru in 1927-8 led to
15Girouard to Crewe, 2 Apr. 1910: PRO, CO 533/72; Kitui District,Annual

Reports(hereafterAR) (1914/15 and 1917/18): KNA, DC/KTI 1/1/1;minutesof
meetingat Kitui, 1-2 Jan. 1915: KNA, DC/MKS 10A/6/1. A preliminary surveyof
fourteenyearsbetween1939 and 1952 forwhichcompletecase filessurvivehas so
faruncoveredeightwitch-murder trials.
16In 1916, reportingthatKamba headmenwererepeatedlyaskingforpermission
to killwitches,a DC commented:'theysay thatin the old days thatdid finisha
case whilethe Government'sway generallyresultsin the accused gettingoff.Very
truetoo' - Kitui District,AR (1915/16): KNA, DC/KTI 1/1/1.

sixty-one convictions (and tendeathsin custody)17- thereare

indicationsthattheOrdinancewas notbeingfullyused. While
prosecutingwitchcraft cases mightperhapsappearto endorse
local beliefs,losingthemundermined thecredibility
ofcolonial
so
rule. Cases were frequently for
withdrawn lack of evidence,
or convictions overturned on technicalities
(thuspubliclycom-
promising local colonialauthority,allowingwitchesto boastof
theirimmunity and exposingthosewho had been persuadedto
makeaccusationsand giveevidencein publicto thevengeance
ofthewitch),thatDistrictCommissioners respondedbysimply
refusing to prosecute- in effectturninga blindeye to more
apparentlyeffective local methodsof control,providedthat
theywere not made public.18From 1933, however,Native
Tribunals,whose jurisdiction had previouslybeen limitedto
cases involving 'nativelaw and custom',weregiventherightto
trysome statutory offences,includingwitchcraft.19
Here, in a
more familiarvenue - and one whose decisions inspired
confidenceas a magistrate'sdid not20 - prosecutionswere
'frequentand numerous',and itwas local Africancourts,rather
than the Magistrates'Courts,that subsequentlycarriedthe
main burden of applyingthe Ordinance.21As we shall see,
17Meru District,AR (1928): KNA, DC/MRU 1/2.Fadiman arguesthat legiti-
mate practitioners,as well as witches,were sweptup in a misconceivedattemptto
destroythe influenceof 'secret societies': Jeffrey A. Fadiman, When We Began,
ThereWereWitchmen (Berkeley,1993), ch. 12.
18 See, for example, DC Nandi to Registrar,Supreme Court, 6 June 1924:
KNA, AP 1/1009.In a notoriousinstance,the Samburu laibon(prophet-diviner),
Leaduma, claimed that he could 'turn the heart of governmentto water'. Con-
templatinga stringof failed murderprosecutionsagainst the laibon's followers,
an exasperatedDC wonderedifhe was right- DC Laikipia-Samburuto Provin-
cial Commissioner (hereafterPC), RiftValley, 21 Aug. 1936: KNA, PC/RVP
6A/17/45.
19Morrisand Read, IndirectRule and theSearchforJustice,131; ArthurPhillips,
A Reporton Native Tribunals(Nairobi, 1944), 5-6. In fact,Native Tribunalsseem
to have been hearingsome witchcraft cases beforethis,eitherin erroror as offences
under customarylaw: see the minutesof the AttorneyGeneral (hereafter AG), 13
Nov. 1931 and 29 Apr. 1932, on filesKNA, CNC 10/62and CNC 10/43;South
KavirondoNative TribunalReturns,1925-6: KNA, PC/NZA 3/33/6.
20This fact,urged earlyby administrators as an argumentforallowingNative
Tribunalsto hear witchcraft cases in the firstinstance,was onlylateraccepted by
centralgovernment:PC Coast to AG, 16 July1917 and replyby Chief Secretary
(hereafterCS), 25 Aug. 1917: AG 1/610;SecretariatCircular,31 Dec. 1943: copy
in KNA, DC/ISO 3/24/1.
21Judicial Advisorto CS, 31 July1945: KNA, MAA 7/835.Theirpowersofpunish-
mentwere,however,limited.Cases warranting heaviersentences,includingimprison-
mentoversix monthsand deportation,weretransferred to the Magistrates'Court.
(cont.onp. 248)

Native Tribunalsinterpreted its provisionsbroadly,if some-

times illegitimately,in an attemptto make the legislation,
despiteits limitations, a workableinstrument of community
defenceand control.
However,ifthelaw failedto deterwitches, it all too effectively
punishedthosewho killedthem.Here theformand rationality
of the law workedagainstthe accused. While witchcraft was
unfamiliar to the court,murderwas not. Cases were simple.
Therewas rarelydisagreement aboutthefactssinceexecutions
werepubliclycarriedout,or at leastnotconcealed.Usuallythe
killersofferedfullconfessions, fortheybelievedthatwhatthey
had done was right.22 Since murderwas a capitalcrime,and
sincenone of the possiblearguments fora reductionto man-
slaughter could succeed, defendants were routinely sentenced
to death,sometimesin embarrassingly largenumbers.23 With
the
appealsdeniedfor same reasons thatmade death sentences
theSupremeCourthadno recourse
inevitable, buttorecommend
mercy,handingoverthe impossibletaskof decidingbetween
the claimsof legal guiltand moralinnocenceto the executive
arm, the Governor-in-Council, who could make a decision
based on policy,not law. His decisionwas almostalwaysto
commutethesentenceto a termofimprisonment. This situation
was unsatisfactory. That the law had to be rescued froma
dilemmaof its own makingby invokingthe claimsof policy
suggestedthatitsoverriding and universalauthority mightitself
be overridden. The 'mysterious force'mightthenbe no more
(n. 21 cont.)
Statisticsare lacking,since Native Tribunal Case Registersfrombeforethe late
1940s rarelysurvive.During 1946 and 1947, 151 cases were reportedfromthe
fifteendistrictsthatrespondedto a call forreturnsofall witchcraft cases (returnsin
fileMAA 7/835). Between 1932 and 1938 (the onlyyearsforwhichColony-wide
figuresare available)DCs hearda totalof268 cases undertheOrdinance(an average
ofless thantwo per districtper year).
22Similarly,the killersrarelyseem to have shownremorseor attemptedto deny
theirguilt when confronted:see, for example, Committal Proceedings in Rex
v. Chelimu arap Komen and 4 Others,KabarnetCrC 6/47,Statementby accused,
Mar. 1947: KNA, MLA 1/272.
23Mutungi,LegalAspectsofWitchcraft inEast Africa,ch. 3. Rex v. Kumwakapro-
duced sixty death sentences (the other ten defendantswere juveniles) and a
correspondingoutcryin England: see papers in PRO, CO 533/420/8.However,
fromat least 1940, in murdercases involvingwitchcraft, DCs were requiredto
reporton what the 'proper procedure' would have been under 'native law and
custom'- CS to PC RiftValley,12 Feb. 1940: KNA, MLA 1/18.

than a superiorformof the particularistic

expediencythatit
so
appeared sternly to check.
II
OPPOSING RATIONALITIES
The contradictory wayin whichthe law appearedto operate
raisedlargerissues ofpower,accountability and themeaning
of justice. Attemptsto legislateabout witchcraft set moral
worlds in collision and opposed two different rationalities
and the systemsof jurisprudenceeach one supported.Legal
proofof witchcraft depended on a systemof thoughtradi-
callydifferent fromthe one thatproducedthe witches.That
one prevailedoverthe otherwas a matterofpower.One case
makes the point. In 1925, the Kitui DistrictCommissioner
thoughthe had a firmcase. He had a body,he had a suspect
and a confession,and he had much circumstantial evidence
fromthe communityattestingto the priorreputationof the
accused and suggestinga motive.Above all, he had a local
expertto testifythat a post-mortemrevealedclear signs of
witchcraft.The District Commissionerconvicted,but the
verdictwas reversedby the Supreme Court on the grounds
that there was no medical evidence to indicate how the
victimhad met his death. The understandablybewildered
witchwas thenreleased.Power,in thisinstance,lay withthe
Supreme Court in Mombasa, not in the Magistrates'Court
in Kitui.24
The essence of the problem lay in the incompatibility
between witchcraft,in both belief and practice, and the
Englishcommonlaw traditionthatthe Imperialgovernment
was committedto upholdingin its colonies.It was the ques-
in
tion of 'reason' that was at the heart of the difficulties
prosecuting witch killers.Belief in witchcraft
was not evi-
dence of legal insanity- it was 'sometimesheld by entirely
sane Africans'- and, withintheirown termsof reference,
thosewho killedwitcheswerereasonablemen, 'innocentand
24
Kitui District,AR (1925): KNA, DC/MKS 1/3/13.The ironiesof power are
but not in
neatlycaughtin Seidman's commentthatjudges believe in psychiatrists
diviners:RobertB. Seidman, 'WitchMurderand Mens Rea: A Problemof Society
underRadical Social Change', Mod. Law Rev., xxviii(1965), 49.

praiseworthy folk',performing a necessary actionon behalf

of thecommunity, but in law the'reasonableman',whose
assumptions wouldbe takenintoaccount, livedinManchester
notMachakos, andheneither believed innorkilledwitches.25
In prosecutingwitchcraft, thedifficultylayintheconnection
between beliefandaction.Colonialofficials hadlittledifficulty
in accepting therealityofAfrican beliefs theexistence
in of
supernatural orinrecognizing
forces thatindividualswhowere
creditedwiththeabilityto engagewithor manipulate these
forces,whether forpublicbenefitor privategain,wielded
considerable power.Whattheycouldnotrecognize, at least
wastheexistence
publicly, ofthesupernatural andtherefore
itself
theobjective validityofwitchcraft claims.26 witches
Officially,
mustbe quacksor fraudsat bestand sinister extortionistsor
poisoners atworst,theirpretensions tobe curbed forthe public
good.27Atthesametime,offences hadtobe provable in court
underan alienstandard ofevidence thattookno accountofthe
system of beliefwhich gave actions theirmeaning and which
provided itsown forms of proof. It wasnot quite witchcraft
that
was an 'imaginary offence', as Evans-Pritchard put it,in the
sensethat,becauseitsclaimswereimpossible, witchescould
have no real existence, but thatits actionand effects were
embeddedin,and givenmeaning through, a system ofcausal
logic and social practicefundamentally differentfromthat
25 SinclairJ, in
Philip Muswi s/o Musele v. Rex (1956), cited in 23 Courtof
AppealforEast AfricaReports625; FrankMelland, 'Ethical and PoliticalAspectsof
AfricanWitchcraft', Africa,viii (1935), 497. The idea of 'the reasonableman' as a
standardagainstwhichto measurebehaviourand beliefis partof the commonlaw
concept of mensrea (the 'guiltymind' or criminalintent): see Seidman, 'Witch
Murderand Mens Rea', 48-58.
26It is difficultto know theirprivateopinions: theyprobablyvaried widely.In
1928, respondingto elders' complaintsthata deposed headman had recentlyvis-
ited a witchto procurethemeans to killhis successorand to withholdrainfromhis
enemies, the PC proclaimed robustly,if unhelpfullyin an area menaced by
drought,that the claim that a witchcould preventrain was 'simplyfarcical'and
advisedtheheadmanjustto avoid his predecessorifhe was so afraidofhim.But an
earlierDC, worriedby the numberof deaths attributedto witchcraft and by the
lack of evidenceto prosecute,'[couldn't] help believingthatthereis some super-
natural power we know nothingof': note on ex-headman Ngovi wa Katama,
10 Sept. 1928, in Kitui District,PRB, vol. I: KNA, DC/KTI 7/1; Kitui District,
AR (1914/15): KNA, DC/KTI 1/1/1.
27Witchesweresometimesprosecutedforfalsepretencesunderthe Penal Code:
see, forexample, DC Nandi to PC Nzoia, 19 June 1933 and reply:KNA, DC/
KAPT 1/9/24.

whichinformed thelaw.28As oneDistrict Commissioner noted:

'Our rules of if
evidence, strictly applied,prevent conviction for
a practicewhichundoubtedly existsto therealdetriment of
nativelife'.29Moreover, 'imaginary' or 'pretended' actshad
'real' consequences. Witcheskilledand werekilled.'[The]
dangeris no lessrealbecauseimaginary; imagination actson a
manas reallyas gravitation, andmaykillhimas certainly as a
dose ofprussicacid'.30However, thelawwas concerned with
acts.Africans werefreeto believewhattheywished,provided
thattheydidnotacton theirbeliefs inwaysthatthelawdeter-
minedwerepunishable.31 Thisdistinction between actionand
context wasimpossible tosustain, giventhe centralimportance
of witchcraft beliefsin thecommunity, and undermined the
ofthe
credibility legal assaulton witchcraft.
Despitetheirpublicand privaterecognition of the acute
dilemmas thatbothwitchcraft and witch-killing trialsraised,
Supreme Court the
judgesthroughout period refused tomodify
theirinterpretationofthelawanditsrequirements. Particularly,
theyrefused to acceptbeliefin witchcraft itself
as a mitigating
factor in sentencing(though theymight urgeit as grounds for
executiveclemency), to varythe penaltyformurder, or to
acceptforms ofevidence thatwouldbe inadmissible ina British
28E. E. Evans-Pritchard,
Africa,viii (1935), 417-18. Evans-Pritch-
'Witchcraft',
ard was, however,concernedwith problemsof cognitionratherthan crime. He
drew a distinctionbetween'witchcraft' as a coherentset of beliefsand 'sorcery'as
an intentionally harmfulact. Merely criminalizingsorcerywould, he thought,be
pointlesssince it ignoredor misperceivedthe intellectualcontextof belief:ibid.,
418, 421; MaryDouglas, 'ThirtyYears afterWitchcraft, Oraclesand Magic', in Mary
Douglas (ed.), Witchcraft and Accusations(London, 1970), pp. xiv-xviii.
Confessions
See also PeterPels, 'The Magic ofAfrica:Reflectionson a WesternCommonplace',
AfricanStudiesRev.,xli (1998), 199-203.
29DC NorthKavirondoto PC Nyanza, 12 Apr. 1939: KNA, PC/NZA 2/386.
30Judgement in Rex v. Owuor Omolo, Kisumu CrC 756/38,quoted in DC Cen-
tralKavirondoto PC Nyanza, 31 Mar. 1939: KNA, PC/NZA 2/386.Commenting
on a case triedas one of poisoningbut whichhe advised retrying as witchcraft (in
whichcattlehad been cursedby a disgruntled herdboyand had subsequentlydied),
a DC complainedthat,sincethe Ordinanceassumedthatall witchcraft was 'merely
a pretence',it made no provisionforpunishingacts of real and apparentlyeffective
maleficence,as was the case here: DC South Nyerito AG, 27 July1935: KNA,
CNC 10/38.
31However, legal opinion on the whole agreed with Thomas Hobbes: 'As for
witches,I thinknot that theirwitchcraft is any real power,but yet thattheyare
justlypunishedforthefalsebelieftheyhave thattheycan do such mischief':quoted
in James Sharpe, Instruments of Darkness: Witchcraft in Early Modern England
(Philadelphia,1996), 264.

court.32As lawyers,
theytooktheutilitarian
viewthat,in effect,
societywas betterprotectedby executinghonestwitchkillers
thanbyallowingguiltywitchesto be lynched.33
In theirinsistence thatthelawbe administered in accordance
withthe principlesobtainingin England,as specifiedby the
Penal Code of 1930, the judges were supportedby weighty
metropolitan opinion.34There wereimportant issuesat stake.
Some concernedthe law itself;othersits function.Did good
lawsmakegood people,and couldlawbe used to modify public
behaviouras wellas to punishindividualcrimes?Proponentsof
legalreform withexperience in Africa,likeMellandand Roberts,
arguedthatwitchcraft legislationwas notmerelypoorlydefined
and inconsistentbut'ethically unsatisfactory'and 'politically
...
harmful'.35 Called into existenceto reformand civilizelocal
practice,it had become an uncivilinstrument of blind deter-
rence,punishingall users of magic,the witch-finder and the
witchtogether,with alien impartiality, driving them under-
ground and doingnothing either to addressthe legitimatefears
ofAfricans orto offer alternative of
ways dealing with deeplyheld
beliefs.The remedylay in abandoningan 'untenableposition'
in favourofco-operation withAfricansand recognition oftheir
concernsand beliefs.'Witchdoctors', properlylicensed,might
evenbe 'call[ed] in to helpus'.36
Beyondthe specificsof witchcraft legislation,Robertswas
concernedwithwhatmade'good citizens'.Africans couldnotbe
'scared' into good behaviourby penal sanctions;onlya long
processofeducationcouldchangetheirattitudes. In themeantime,
32In a stringof judgementsfollowingRex v. Kumwaka, Appeal Court judges
wrestledwithwhetherbeliefin witchcraft was 'reasonable' and underwhatcircum-
stances,whetherfearof bewitchmentor acts of witchcraft mightbe consideredas
'provocation',and whethersuch acts had to be 'immediate'and 'tangible':see Rex
v. Nzau wa Mukwata (1943), reportedin 20 KenyaLaw Reports 41, and othercases
citedin Mutungi,LegalAspectsofWitchcraft in East Africa,40-9.
33For a discussionofthelaw's reasoning,see Seidman,'WitchMurderand Mens
Rea', 53-8.
34 See, for example, Hailey, AfricanSurvey;Lugard to Editor, Times,20 Apr.
1932: cuttingin PRO, CO 533/420/8.The Penal Code of 1930 replacedtheIndian
Penal Code in Kenya and broughttheadministration ofjusticecloserto themetro-
politanmodel: David M. Anderson,'Policing,Prosecutionand theLaw in Colonial
Kenya', in Andersonand David Killingray(eds.), PolicingtheEmpire(Manchester,
1991), 188-9.
35Melland, 'Ethical and PoliticalAspects of AfricanWitchcraft', 495. Melland
had been a DC in NorthernRhodesia; Robertsa ResidentMagistrateand judge in
Uganda.
36 Ibid., 500-1.

theroleofthelawinthese wastoexercise
matters a wiseoversight,
to gainAfrican confidenceand to supportand developwhat
therewere.Thisargument
localjudicialinstitutions cameclose
toadvocating thereplacementofcommon lawprincipleswitha
codeofjusticeandprocedure specifically'fittedtothementality
andcustoms ofthenatives destinedtobenefit There
thereby'.37
hadalways beensupport forthisviewinKenya,anditdeveloped
overtimeas perceptive administrators becameincreasingly
worriedaboutthe disintegration of 'tribalcohesion',which
theythought had been partlyunderpinned by beliefin the
supernatural- 'theverymarrow ofthe structure ofsociety'-
and whollyby thecorporate judicialpowers of elders.Here,
thinkingaboutwitchcraft mergedwithwiderissuesof social
andinstitutional reformbasedon a modified versionof'native
custom'.38 But thiswould not do forthe judges. They were
moreconcerned
withwhatwas due to good subjects.They
believed,almostas an articleof faith,not onlythatEnglish
commonlaw was superior,universaland invariable,not to be
dilutedbylocalcompromise, butalso thatrecourseto itandto its
perhapsdebatableprotections was therightofcolonialsubjects
everywhere. To admitof 'local circumstances'and to create
specialcategoriesofprocedureorpunishment implieda kindof
second-classlaw. In theirview,underthelaw, ifnowhereelse,
Africanshad equal rights,and equal chances to prove their
guiltor innocence- accordingto standardssetin England.39
Arguments overthe law again drewtwo different worldsof
and of
knowledge ways knowing into collision:
notAfrican and
European but 'judicial'and 'administrative'.
The colonialjudi-
ciarywas staffedwithtrainedlawyerswho were part of an
37Roberts, TangledJustice,21-2, 53-5, 76-8; Governor-General,French West
Africa,describingFrench legal policy,quoted in C. CliftonRoberts,'Witchcraft
and Colonial Legislation',Africa,viii (1935), 493.
38Morrisand Read, Indirect Rule and theSearchforJustice,79 ff.;H. E. Lambert,
'Disintegrationand Reintegration in theMeru Tribe', c.1939, copyin ChukaPoliti-
cal Records,DC/MRU 4/5; J. C. Nottingham,'Sorcery among the Akamba in
Kenya',JlAfricanAdmin.,xi (1959), 7.
39This view was stronglyarticulatedin interwarHigh Court judgementsand
especiallyby the Bushe Commission: Reportof theCommission of Inquiryintothe
AdministrationofJusticein Kenya, Uganda and theTanganyikaTerritory in Criminal
Matters,ParliamentaryPapers, 1933-4 (Cmd 4623), ix. See also relatedjudges'
memorandain KNA, filesAP 1/1659and AP 1/1660.Bushe was Legal Advisorat
the Colonial Officein the 1930s and a forcefulexponentof the judicial point of
view. For the backgroundto the Commission,see Morrisand Read, IndirectRule
and theSearchforJustice,89-102.

Imperiallegal mandarinateand took an appropriately lofty

viewofthelaw. The colonialadministration, especiallyat the
level- wherewitchcraft
district cameto theboma40- consisted
of menwho were tied to thecolonyand pridedthemselves on
'knowingtheirpeople'.Judgesweredoubtful whether untrained
magistrates could interpret the law properly,and weresuspi-
cious of the value and purposeof the 'local knowledge'that
informedtheirverdicts.The Reportof the Bushe Commis-
sion dismissedas 'fundamentally unsound'the argumentthat
unfamiliaritywithlegal technicalities was morethancompen-
sated forby local knowledgewhichdelivereda justicethat,
while admittedly'rough and ready',was speedy,intelligible
and acceptedby Africans.In fact,it stated,what 'the rough
and readystyle'deliveredwas 'not infrequently ... roughand
ready injustice'.41 Administrators, on the other hand, were
frustratedby the lawyers'apparentobduracy and insensitivity
to local concernsand circumstances,and were inclinedto
see the law as 'only the hand-maidof administration'.42All
experts defend their professionalstatus, and the clash
betweenlegal and local knowledge- both equally arcane,
'mysterious'and internally - was in parta turf
self-validating
war.43 Yet the conflictit embodiedbetweenexpediencyand
due processwas centralnot just to witchcraft controlbut to
the moralauthorityof colonial rule itself.At issue was what
constitutedjustice,and forwhom; and how it mightbest be
delivered.
40See n. 12 above.
41 Quoting a judgementby Thomas J:ReportoftheCommission ofInquiryintothe
Administration ofJustice,17, 54.
42PC Nzoia to Chief Native Commissioner(hereafterCNC), 9 Sept. 1932:
KNA, DC/KAPT 1/9/23.The PC was flatlyrejectinga rulingby the AG setting
aside a findingunder the Witchcraft Ordinance. For a more reasoned defenceof
the 'administrative' view, see the memorandumby Wade, 12 Oct. 1933, encl. in
Moore to Cunliffe-Lister, 9 Nov. 1933: PRO, CO 822/53/2.
43Hamilton, Kenya's firstChiefJustice,saw proposals for a 'simple Code for
Africans'to be administered by laymagistrates in itselfbut
not onlyas retrogressive
as a 'direct threat' to Supreme Court jurisdiction:memorandumfrom 1908,
quoted in Morris and Read, IndirectRule and theSearchforJustice,81-2. For a
slightlydifferent view,see Anderson,'Policing,Prosecutionand the Law in Colo-
nial Kenya', 190-1. Legal reformers, too, had an axe to grind,for,as membersof
the InternationalAfricanInstitute,they were certain that sociologistshad an
importantadvisoryrole to play in mattersof colonial policyand lawmaking.The
Colonial Officedid not agree.

III
COLONIAL MISCONCEPTIONS AND AFRICAN REALITIES
The necessityofofficial scepticismand therequirements ofthe
law made it difficult to drafta Witchcraft Ordinancethatdis-
criminated betweenactsthatwereharmful and thosethatwere
not, and securedverdictsthatboth accordedwithlocal sensi-
bilitiesand servedcolonialends. Ordinanceshad to be framed
to specifyacts deemed criminaland, if appropriate, to define
thecircumstances thatmade themso comprehensively enough
to coverall cases,yetwithoutbeingso sweepingas to include
otheractionsby default.To do thiseffectively forwitchcraft,
however,required both a knowledge of local beliefand an
appreciation of its subtleties that went beyond the immediate
concern of those who framed the Ordinance. Local belief
and practiceencompasseda continuumof differentiated but
overlapping powers,functions and specializedareasofknowledge
thatstretched fromhealersand divinersthroughoathadminis-
tratorsand witchdoctors(in the sense of thosewho diagnose
and tryto counteractsofwitchcraft), to witches,whooftenused
medicinesto kill.44Different, but in some respectsrelated,
weretheprophet-diviners or laibonswho,amongstotherthings,
dealt with,and sometimesin, witchcraft.45 Initially,colonial
lawmakersignoredcomplexity, althoughtheykeptin mind a
vague distinction between 'white' and 'black' magic,theone to
be allowed,the otherto be penalized.In some ways,thisdid
reflectlocal distinctions betweenmgangaand mchawi, thewitch
doctorand thewitch,butlocal beliefembodiedan ambivalence
and a fluidity thatthelaw,dealingin demonstrable certainties,
could not tolerate.Ambivalencegave textureand meaningto
local experienceand reflectedthe fact that witchcraft was
simultaneously a meansto power,an idiomofpowerand a way
ofthinking criticallyaboutitsuses and morality. The knowledge
that made one successfulin findingand thwarting witches
44Even whenmedicinesand objectswereused, it was thoughtto be the 'psychic

power' investedin eitherthe object or the user,or both,thatcaused the effect.The
betweentoxicand non-toxicsubstancesdid haverelevancein law,however.
difference
For example,DC Meru to AG, 22 Dec. 1914: KNA, AG 1/610.
45Laibonsare a special case, as theirpowersstraddledthe unclearlines between
prophecy,divination and witchcraft.Theirrelationto thelaw requiresfullertreatment
elsewhere,butsee David M. Anderson,'BlackMischief:Crime,Protestand Resistance
in Colonial Kenya', Hist.Jl,xxxvi(1993), 851 ff.

mightalso be used forothermoresinister purposes;thespecial

powers that enabled a leader to protecthis followersfrom
Poweralwayshad
attackcould also be used to attackothers.46
twosides,to bless or to blast- as trueofcolonialpoweras of
anyother,as Africansubjectssoon understood.
Legalrationalitywasnoteverything, however.Colonialofficials,
as Englishmen whothoughttheyknewtheirhistory, had a past
to atone for and were influencedby stereotypes of African
beliefand behaviourwhichin part derivedfroma collective
nightmare oftheirown. 'It is notso longago thatwe burntour
witches'.47In the sixteenthand seventeenth witches
centuries,
in England had been in effectjudiciallymurderedunder
statutesendorsedby such pillarsof the commonlaw tradition
as JusticesCoke, Andersonand Hale. Africanswere now, it
seemed,whereEnglishmenhad once been, and it was easyto
construean alien presentthroughimages of villagehatreds,
thecredulityof the learned,officially sanctionedpersecution
and mob violencedrawnfroma familiar - iflargelymisrepre-
-
sented past.48
Witchcraft in colonialKenyawas not,in fact,muchlikeits
supposed counterpartin earlymodernEurope, or, forthat
matter,in contemporary CentralAfrica.49Accused witches
were not alwaysfemale,elderly,poor or marginalized:some
were powerfuland wealthy,in part preciselybecause they
were witches.Indeed, those who killedthemwere as likely
to fitthe stereotypeof marginality themselves.Nor was the
46
This paradox of power was succinctlycapturedby a Maasai elder: 'If we did
not have Loonkidongi[laibons],we would not need Loonkidongi',quoted in Paul
Spencer,'The LoonkidongiProphetsand theMaasai: ProtectionRacketor Incipient
State?',Africa,lxi (1991), 336.
47Roberts,'Witchcraft and Colonial Legislation',491; AG to CS, 18 July1917:
KNA, AG 1/610.By 1950, but probablynot much before,social researchmayalso
have playeda partin shapingcolonialattitudesto witchcraft. A considerationofthe
impactofcolonialethnography is, however,beyondthe scope ofthisarticle,but see
PeterPels and Oscar Salemink,'Five Theses on Ethnography as Colonial Practice',
HistoryandAnthropology, viii (1994).
48 How misrepresented is apparentin the lightof more recentresearch:see, for
example,Robin Briggs,Witches and Neighbours (New York, 1996).
49For a preliminary comparisonbetweenEuropean and Africanwitchbeliefs,see
RalphA. Austen,'The Moral EconomyofWitchcraft: An Essayin ComparativeHis-
tory',in Jean Comaroffand JohnComaroff(eds.), Modernity and itsMalcontents
(Chicago, 1993). The differences betweencolonialEast and CentralAfricarequire
further consideration,particularly in view of the possibilitythattheyspringin part
fromdifferent administrative and ethnographic aims and assumptions:see pp. 262-3
below.

WITCHCRAFT AND COLONIAL LAWIN KENYA 257
practiceofwitchcraft in itselfgender-exclusive,
thoughcom-
munitiesoftendistinguished betweenspecifically
male and
femaletypes.Unliketheirsouthern witchesin
counterparts,
Kenyadidnotcommonly flythroughtheair,taketheshapeof
animalsor gatherto feaston humanflesh- thoughthey
couldcertainly killand blastlivingthingsand interfere
with
nature(by withholding rain,for example).Witcheswere
differentfromordinary people,butthedifference waspsycho-
logical.Ideasvaried:witches in Kenyawereseenas menand
womeninwhosepsyches thenormalhumanfailings ofgreed,
jealousy,angerand meannessweremagnified to pathological
proportions, a situationwhichdrewthemto witchcraft and
enabledthemto killwithoutscruple.Althoughwitchcraft
beliefsingeneralmayexpressideas of an alternative state
oran inversion ofthenormalorderof things - the'stand-
ardisednightmare ofa group',as Wilsonputit- theimage
ofthewitchinKenyaseemsequallygrounded indailyexperi-
ence:partHobbesianman,partpsychopath, and partentre-
preneur.50
also misrepresented
Colonial thinking local waysof dealing
withwitches.Witcheswerecertainly judgedharshly,and cus-
tom supportedtheir killingor banishment,eitheron first
offenceor afterwarnings.Ideally,executionshouldbe public
bothclosekinandthecommunity.
andinvolve Yetthiswasnot
the workof kangaroocourts.Beforepunishmentsuch as the
king'olein Kamba was carriedout, guiltwas carefully
assessed
byelders'conclaves,drawingon experttestimony and notrelying
simplyon rumour,reputation of angry
and the accusations
- thoughall theseplayeda part,as theyhad in
relatives
case in Baringo,the accused
Europe.51 In one witch-killing
werecensuredby the Africanassessorssittingon the case for
havingtakenmattersintotheirownhandsratherthanbringing
50Monica Wilson, 'Witch Beliefsand Social Structure',Amer.fl Sociology,Ivi

(1951), 313. See also Karen E. Fields, 'Political Contingenciesof Witchcraftin
CentralAfrica:Cultureand theStatein MarxistTheory',CanadianJflAfJican Studies,
xvi (1982), 584-6.
51Lindblom, however, glossed king'ole as 'lynch law' and Governor Eliot
describedits purposes as 'terrorismand money-making':see GerhartLindblom,
TheAkamba in BritishEast Africa(Uppsala, 1920), 176-80; Sir Charles Eliot, The
East AfricaProtectorate(London, 1905), 126. But see Dundas, 'Organisationand
Laws of some Bantu Tribes', 258-9, and D. J. Penwill,Kamba CustomaryLaw
(Nairobi, 1951), 94-6, formoreinformedand sympathetic accounts.

theirfearsto the elders for action.52There were elaborate

systemsof jurisprudenceand forensicmedicineto deal with
cases ofwitchcraft.Zande and Nyakyusaareclassiccases,53but
Kikuyu and Kamba too had expertsin the detectionand
pathology ofwitchcraft.Thus,at leastaccordingto non-witches,
proceedingsagainstwitcheswere nothinglike the scenes of
frenziedlynchingimaginedby colonialistsas the inevitable
productoffearful minds.54
and superstitious In themid 1940s,
Phillips,the JudicialAdvisor,stillwonderedwhetherit was
wise to allow Native Tribunalsto hear cases of witchcraft,
despitetheirgrowingresponsibility and importanceas local
courtsoffirst
instance.Couldtribunal elders,themselvesprobably
influencedby witchcraft, be trustednot to allow theirjudge-
ment to be warpedby superstition?55 In fact,except in the
kindsof penaltytheycould inflict, NativeTribunalsprobably
dealt withwitchcraft withthe same degreeof discrimination
that,contrary to colonial assumptions,had alwaysinformed
localjudgements. They did notinvariablyconvict- 42 percent
ofthe 113 cases reportedin 1946-7 in sufficient
detailendedin
acquittal- and they often imposedpenalties well below the
maximumallowable.Theirverdicts wereusuallyconfirmed.56
52Rex v. Amge arap Tuitaekand Chesangarap Tuitaek,SupremeCourt CrC 92/

39, Judge'sReport,30 Dec. 1939: KNA, MLA 1/18.Local eldersagreedwiththe
assessorsbut thoughtthatthe accused were too youngto be expectedto behave
properly in thecircumstances.They also suggestedthatthefactthatso manycases of
witchcraft weredismissedforlack of (legal) evidencemightbe consideredas a factor
in theyouths'decisionto act: DC Baringoto PC RiftValley,7 Mar. 1940: ibid.
53E. E. Evans-Pritchard,Witchcraft, Oracles and Magic among the Azande
(Oxford,1937); Monica Wilson, GoodCompany(Oxford,1951), ch. 5.
54Case evidencesuggests,however,thatnot all executionswere carriedout with
decorum.In Rex v. Kumwaka, forexample,properprocedureunder Kamba 'law
and custom' had not been followed.Mwaiki,thewitch,was in factbeatento death
when the terrifiedwoman,who had been broughtto liftthe spell fromhervictim,
attemptedto run away. An earlierNandi case looks even more like a lynching:
Machakos District,AR (1931): KNA, DC/MKS 1/1/24;DC Nandi to PC Nyanza,
1 Aug. 1914: KNA, AG 16/388.
55JudicialAdvisorto CS, 31 July1945: KNA, MAA 7/835.A minority ofadmin-
istratorsagreedwithhim:see, forexample,DC Kisumu-Londianito PC Nyanza, 6
Apr. 1939 and reply:KNA, PC/NZA 2/386.
56DCs sometimesdefendedthelogic oftribunaldecisionsagainstlegal criticism.
In a case fromMumias, forexample,a youngman was foolhardyenoughto abduct
the daughterof a local rainmakerand thenrefuseto pay bridewealth.The angry
fatherthreatenedto call down hail on the seducer's fields,and perhaps did so.
In orderto protectcrops in the area fromthisprivatevengeance, the elders then
(cont.onp. 259)

ANDCOLONIALLAWIN KENYA
WITCHCRAFT 259
Therewas,in fact,a sharpdifference
betweenwitchcraft
as
in
represented colonial where
thinking, evencareful
accounts
wereoftenstrangely
colouredwithluridvignettes
ofevilwitch
doctorsand wretched victims
thatowedmoreto imagination
thanobservation, and the oftenratherprosaicpresentation of
witchesin Africanaccounts.57One Kikuyu,explainingwitch-
craftto a missionary, beganbypointingout thatwitchcraft was
in
a trade,like any other.Witchesdealt death,just as others
tradedin goods; and theyfoundwillingbuyers- therewereas
many convictionsfor trafficking as for bewitching.Witches
wentabouttheirbusinesssecretly, and it tooksubterfuge or an
expertto catchone. They wereto be fearedand avoided,but
theirmagic could be neutralizedor turnedagainstthemand
theythemselvescould be detectedand eliminated.In Nyanza,
witchcraft was simplypart of inter-clanpolitics,updated to
encompassthe new politicsof colonial chiefship.Clans had
theirownwitchesand expectedothersto use witchcraft against
In
them.'" manyways, there was nothing 'unnatural' about
witches,howeverfearsometheymightbe, and,to some extent,
the'imaginary crime'thatcolonialofficialswerecombatingwas
one imaginedbythemselves.
Misinformed bytheEuropeanpast,officials werealso captives
of the Africanpresent.Colonial rule determinedhow crime
would be categorizedand criminalbehaviourconstruedand
laid downtheproceduresthroughwhichitwouldbe punished,
but it reliedon local knowledgeand initiativeto makeenforce-
mentpossible.In thematter evidence,evenin Magistrates'
of
Courts,legal decision essentiallyrestedon Africanopinion.
It was men like the tribunalelderswho worriedPhillipswho
pronouncedon whetherthe instruments of witchcraft
brought
(n. 56 cont.)
prosecutedthe rainmakerunder the Ordinance, and both finedand imprisoned
him. Defendingthe severityof the verdict,the DC wrotetrenchantly thathe 'saw
no reason to interferewith this reasoned judgementand sentence'. DC North
Kavirondoto AG, 6 July1950: KNA, CNC 10/54.
57See, forexample,Frank Hulme Melland, In Witch-Bound Africa(New York,
1967); Melland to Editor, Times,13 Apr. 1932: cuttingin PRO, CO 533/420/8.
Chanock notestheimportanceofearlyoutsidemisrepresentations in theshapingof
officialattitudesto witchcraft:Martin Chanock, Law, Customand Social Order
(Cambridge,1985), 87.
58Anon., 'The AfricanExplainsWitchcraft: Kikuyu',Africa,viii (1935), 516-19;
M. G. Whissonand J.M. Lonsdale, 'The Case ofJasonGor and FourteenOthers:
A Luo Succession Dispute in HistoricalPerspective',Africa,xlv (1975).

in evidencewere harmfulor not,59 and who interpreted the

meaningof words used to bewitch.60Thus, it was Africans
themselveswho determined whatwitchcraft was, evenifit was
thecolonialstate'sdecisionwhether ornotto punish.Moreover,
because prosecutionswere generallyinitiatedon the basis of
'informationreceived', it was African complainantsand
informants,not officials,who determinedwho were the
witches.The statethenconfirmed - orrejected- theiropinion.
In thematterofpunishment, too,local opinioncarriedweight.
Commentsaboutthe'traditional punishment' forwitchesappear
in statements,
fairlyfrequently and it is likelythatlocal elders
used theimplicit
threatoffurther violenceto ensurethatwitches
wereremovedfromthecommunity.61
IV
WITCHCRAFT AND POWER
EveniftheOrdinance itselfwas poorlyframed,thepurpose
behindit was surelyclearenough.Yet here,too,therewere
mixedmotives, forbeneaththenormative rhetoric
oflawand
good government lay a determination to ensurethatrival
sourcesofpowerandauthority wouldbe subordinatedorelim-
inated.Witchcraft
was notpenalizedprimarily becauseitwas
harmful and opposedto 'progress and enlightenment',62
but
becauseitwaspowerful, andinthewrong hands.Thisis notto
suggestthatthehumanitarian concernexpressed was merely
disingenuousbut to pointout thatadministratorsas wellas
59DC CentralKavirondo to PC Nyanza, 11 May 1929, forwarding decision in

CriminalConfirmation Case 194/29:KNA, PC/NZA 3/3397.Tiameeti ole Koonyi,
forexample,a minorlaibonin Trans-Mara,was convictedunderthe Ordinancefor
possession of 'charms' solely on the evidence of three chiefswho identifiedhis
materiamedicaas commonlyused for 'evil purposes': Enquiry under Section 9
Witchcraft Ordinance,encl. in DC Narok to Officer-in-Charge, Masai Reserve,27
June1943: KNA, DC/NRK 2/2/3.The identification of medicinesraisedquestions
about the nature of 'experttestimony'in witchcraft cases: Russell & Co. to PC
Nyanza, 8 March 1939, and DC NorthKavirondoto PC Nyanza, 12 Apr. 1939:
KNA, PC/NZA 2/386.
60Despite theirobvious significance,it was not until 1929 that spoken words
were recognizedat law as amongstthe 'means' of witchcraft: Rex v. Shangatiole
Sauroi (1929), reportedin 12 KenyaLaw Reports163.
61See, forexample,DC Teita to PC Coast, 13 Nov. 1947 and minute,28 Nov.
1947: KNA, MAA 7/89; MgenyiMwakiserereto DC Teita, 9 June 1953: KNA,
DC/TTA 3/9/44.
62
[Kenya] NativeAffairs Department,AR (1926), 10.

Africanssaw witchcraft as a touchstoneofpower.Failureto

punish witchcraftrevealed the hollownessof the District
Commissioner's power,just as successful
evasion
builtupthatof
thewitch.Recognition thatwitchesposed a majorpotential
challengeto colonialauthority shapedgovernmentattitudes
to
quiteas muchas aversion
witchcraft to 'methodsofbarbarism'.63
Whenearlyadministrators investigatedtheethnography of
theysaidlittleaboutwitchcraft
theirdistricts, beliefsbutoften
reportedin detailaboutindividual witchesandthepowerthey
werethought towield,forthiswasan important featureofthe
localpoliticalterrain.64Moreover, government's attitudewas
morecircumspect thanitspublicrhetoric suggests,precisely
becausewitchcraft wasa matter ofpower.Therationale forthe
1909 Ordinancedrew a distinction between'proper'and
'improper'usesofwitchcraft thatrevealed an awareness ofthe
relationshipbetween control of the supernatural local
and
power, andof the need to shapelegislationaccordingly.Elders,
it conceded,usedwitchcraft to control theirjuniors- 'thisis
largelythe basis of theirauthority' - and the law did not
intendto undermine it.65To protectitsownagentsandallies,
andtoconfirm their nowexerted
authority, insupport ofcolonial
to
rule,appeals the supernatural wouldbe criminalizedselectively.
Chiefsandelderswhileexercising theirauthority werespecifi-
callyexempted fromactionundertheOrdinance.66 Political
considerationsalsoaffected lawenforcement. In a 1913case,in
whichtwowitches werepublicly burnedtodeathontheorders
ofthelocalcouncilofeldersin Kiambu,theelderswerecon-
victedofculpablehomicide, notmurder, sincetheyhad'acted
in good faith'in administering 'nativecustom',eventhough
theyhad exceededtheirlegalpowers.Theyeach receiveda
63Hamilton CJ,quoted in Morrisand Read, Indirect Rule and theSearchforJus-

tice,82. See, forexample, [Kenya] LegislativeCouncilDebates,1925, 2nd session,
pp. 543-4. Nonetheless,DCs were sometimesdisturbedby the methodsused to
forexample,DC Nandi to DC CentralKavirondo,
extractconfessionsofwitchcraft:
28 Sept. 1932: KNA, DC/KAPT 1/9/24.
64 See, forexample,'Medicine Men in KikuyuDistrict',1909, Kiambu District,
PRB, Part II E: KNA, DC/KBU 3/27; 'Medicine Men in Mugo's District',1917,
EmbuPoliticalRecords:Emberre Location:KNA, DC/EBU 3/1.
65Legal Opinion,in Jacksonto
Crewe, 26 July1909: PRO, CO 533/61.
66 Ordinance 9/1909,?5 (added at committeestage in LegislativeCouncil, and
removedin 1925): see LegislativeCouncil, Minutes,18 May 1909. What was in
mindherewas probablytheuse of oaths ratherthanwitchcraft per se.

sentenceofoneday'simprisonment.67 In threeearlywitchkillings,
government headmen were involved. In two cases, theywere
summarilydeposed and exiled: they had already attracted
suspicionand weredispensable. thethirdcase, theKiambu
In
case noted above, the locationheadmanwho had allowed,if
not ordered,the public burning,was not broughtto trial,
thoughhe was deportedsomemonthslater,whileChiefKinanjui,
who had actuallypresidedoverboththewitches'trialand their
execution,was leftuntouched:he was thekeyfigure in Kiambu
Districtand his supportwas indispensable.68 Similarpolitically
weightedchoices over whetheror not to prosecuteseem to
have been made whereaccusationsof witchcraft became the
staple of local intrigueand where government headmen were
oftenthetargets.69
Contrastsbetweenthe ordinancesin different coloniesmay
also shed lighton thepoliticalcontextin whichlegislation was
made. Criticizing inconsistency in colonialwitchcraftlegislation,
Orde Brownenotedsignificant differences betweenlocal ordin-
ances in whatwas punishedand how severely.CentralAfrican
ordinancesconcentrated on outlawing accusationsofwitchcraft
and had littleto say about witches:the Kenya ordinancedid
not mentionaccusationuntilitsredraft in 1925, but punished
'pretendedwitchcraft' severely.70One reason forthe marked
difference in emphasisbetweenEast and CentralAfricamight
simplybe thatitreflected local circumstances. Thereweresoci-
eties in CentralAfricawherewitchcraft accusationswere a
common social strategyand where the poison ordeals that
followedwereboth potentially fatalin themselvesand all too
manipulable.In Kenya,theprocessofaccusationand adjudica-
tion took different forms.However,one mightalso view the
67
Rex v. Karoga wa Kithengiand 53 Others (1913), reportedin 5 East Africa
ProtectorateLaw Reports50-3.
68Girouardto Crewe,2 Apr. 1910:
PRO, CO 533/72;DC Nandi to PC Nyanza,
1 Aug. 1914: KNA, AG 16/388; 'Chiefs and Headmen', Kiambu District,PRB,
Part II C: KNA, DC/KBU 3/25.
69 For example,in Nyanza, see Whisson and Lonsdale, 'Case of JasonGor and
Fourteen Others', 57-62; ProvincialNative Courts Officerto DC South Kavi-
rondo,4 May 1949: KNA, CNC 10/43.Ex-chiefIsaac Ogoma of Kanyada and his
henchmenwere removedto Mfangano Island in 1943 for creating'fear ... by
means of pretendedwitchcraft' in his location. Ogoma had publiclythreatenedto
killthe presentchiefand his family:papers in KNA, filesMAA 7/89and PC/NZA
3/1390.
70G. St J. Orde Browne, 'Witchcraftand BritishColonial Law', Afica, viii
(1935) 481-6.

differencefromtheperspective ofpower.In someofthestates

thattheBritish confronted in theearlystagesofcolonialrule
in CentralAfrica,controlofwitchcraft accusationsandtheir
adjudicationwas a royalprerogative and a keysourceof
power.But it was not the kindof powerthatthe British
could comfortably co-opt.Instead,theyundermined it by
removing adjudicationfromroyalcontroland by outlawing
theaccusationsthatsupported it.71In Kenya,on theother
hand,theprincipal challenge earlycolonialruleseemedto
to
come fromcharismatic individuals, like the Nandi laibons
Koitaleland Barserion, or theprophetNdonyewa Kautiin
Machakos,whoseclaimsto supernatural powerthreatened
to providea focusforcommunity resistance. The language
oftheKenyaordinancewas intendedto covertheiractivi-
ties and its penaltiescould be used to bringthemunder
control.72
The revision oftheWitchcraft Ordinance in 1925reflected
theseconcernsand showshowpowersundertheOrdinance
couldhavewiderusesin maintaining colonialorder.Bynow,
government had a clearersensebothoftheproblemit faced
andofwhomitwishedto target. The newordinance retained
the substanceof its predecessor but was muchlonger,with
eightmainclausesinsteadoffour.It increased thepenalties for
existingoffencesand extended itsscope intwo new ways. set
It
up orderlychannels of information and struckat localwitchcraft
controls by making it a serious offence forheadmen notto
report witchcraftactivity in theirareas, and by outlawing all
accusationsnotmadetoa 'proper [thatis,government] authority'.
It also providedforthe closersurveillance of witches:they
could now be deportedon the expiryof a prisonsentence
(section10) or,ifmerely suspected ofwitchcraft, orderedto
resideundersupervision (section9). Section 9 caused contro-
versy sinceitimplied thatwitches couldbe punished (byforced
relocation)without trial.One criticon theLegislative Council
describedit as 'so un-British' - an ironiccomment in the
71See Chanock,Law, Customand Social Order,87 ff.
72David M. Anderson,'Visions of the
Vanquished', in David M. Andersonand
Douglas H. Johnson,RevealingProphets(London, 1995), 168 ff.;J.Forbes Munro,
ColonialRule and theKamba (Oxford,1975), 118-20. Barserionand Ndonye were
deportedratherthanprosecuted,but witchcraft formedpartof the chargesagainst
them. See also CynthiaBrantley,'An HistoricalPerspectiveof the Giriama and
WitchcraftControl',Africa,xlix (1979), 118-20.

circumstances.73The billwas eventually passedwiththeprovi-

sions forlegal and executiveoversightof sections9 and 10
strengthened. During the debates,the politicalend of legal
means emerged.74The administration claimed that closer
supervisionor removal was necessary protectwitchesfrom
to
community vengeance, and prosecution witnessesfromthatof
thosetheyhelpedto convict.However,itbecameclearthatitalso
saw theprovisionas a wayofpermanently removing suspicious
characters,
including laibonswhoused supernatural powerin the
pursuitof criminalactivitieslikestocktheft, but againstwhom
nothingsubstantialcouldbe provedin court."If,however, they
couldbe convicted ofan offence undertheWitchcraft Ordinance
- possessionofcharms,forexample- deportation couldfollow
withoutfurther need for enquiryor proof.Ole Koonyi,for
instance,was removedfromTrans-Mara,not because his
'charms'werea threatbut becausehis influence overthe local
Maasai murran('warriors')at a timeof extremecross-border
tensionwas.76 In some ways,then,the Witchcraft Ordinance,
apartfromitsostensible function,actedas a kindofcatch-allto
hold and punishthose whose contrary acts and transgressive
behaviourdidnotfiteasilyintoexisting criminal categories.77
73 Capt. Coney, 12 Aug. 1925, in Legislative CouncilDebates,1925, 2nd session,

p. 448. Otherunofficial memberssharedhis doubtsthatdetention,effectively with-
out trial,was in accord with'the past traditionsof Englishlaw': Conway Harvey,
ibid.,p. 447. The sectionalso gave legal sanctionto the idea of providingseparate
areas ('sanctuaries')forwitches.Althoughthelanguagesuggestedthatresettlement
mightbe voluntary,in realityit was mostlyforced:see, for example, 'Witches',
Nandi District,PRB, vol. I, Section 1G: KNA, DC/NDI 3/1.A similarpolicy of
restriction was applied to entire'laibonclans' in Nandi, and laterin Kipsikisand
Maasai: see Anderson, 'Black Mischief', 870-1; Narok District,Handing Over
Report,Oct. 1946: KNA, PC/SP 2/2/1.
74LegislativeCouncilDebates,1925, 2nd session,pp. 439-50, 541-8. The CNC
admittedthathis officers were alreadyoperatingbeyondthe law - and asked that
the law be expandedto bringthemback withinit: 14 Aug. 1925, ibid.,p. 544.
75Laibonswere a key target,partlybecause theywielded power inaccessibleto
colonial authority- a concernin itself- but also because theirinfluencewas such
thatevidenceagainstthemwas exceptionallydifficult to get: see David Anderson,
'Stock Theftand Moral Economyin Colonial Kenya', Africa,Ivi (1986), 406 ff.
76Narok District,ARs (1942-3): KNA, DC/NRK 1/1/3.
77 For a similarexample fromUganda, see Elizabeth Hopkins, 'The Politics of
Crime: Aggressionand Controlin a Colonial Context',Amer.Anthropologist, lxxv
(1973), 731 ff.The DeportationOrdinance(2/1923)could also be, and was,used for
similarpurposes.Deportationhad the advantageof being enforceablerapidlyand
withoutthenecessity ofa trial.It is difficult
to knowwhyin somecases theDeportation
Ordinancewas used and in otherstheWitchcraft Ordinance.Overtime,theuse ofthe
(cont.onp. 265)

Deporteescouldbe detained indefinitely, subjecttoperiodic

review.For ordinary witches, the chance of return generally
depended on the temper oftheir since
communities, localelders
wereusuallyaskedwhether theywouldallowit.Iftheirreturn
was opposed,witches weredoomedto a lifeofexile,growing
old andfeebleandeither dyingfarfromhomeandfamily like
AcholaNyayalfrom Kisiiorbecoming a chargeon thegovern-
mentlikean elderly Meru couple'dumped'on theedgeof
Isiolo.78Higher-profile however,
'politicals', wereheldat the
government's pleasurerather thanthatofthecommunity. Arap
Boisio was one of a groupof Kipsikis('Lumbwa')laibons
deported forsedition in 1913.He hadgrown oldandprospered
in NyeriTown,his place of exile,and had acquiredseveral
wives,twoorthree cultivated plots,andlivestock; healsoranthe
township beer hall.In 1928-9,however, a new 'Lumbwa panic'
erupted. Accusedofcontacts with'agitators', andofforetelling
theendofcolonialrule,arapBoisiowaspluckedfrom comfort-
ableretirement andtransported to Moyale.He dieden route.
Ndonyewa Kauti,theKambaprophet, deported in 1921for
'actsrelatedto witchcraft', was another victimofgovernment
concern forlawandorder:a petition forhisreturn in 1937was
refusedbytheMachakosDistrict Commissioner becauseofthe
current crisisovercompulsory destocking, eventhoughitwas
recognized thathewasnowprobably 'innocuous'.79
V
AFRICANINITIATIVES AND COLONIAL RESPONSES
Africans
Although and administrators to livein dif-
continued
worlds,colonialruledid accommodate
ferent itselfin some
(n. 77 cont.)
DeportationOrdinancebecamemorecommon, againstthemore'dan-
particularly
likeBarserion
gerous'characters, orLeaduma.Wherewitnesses wereterrified
and
theDeportation
theevidencecontestable, Ordinanceperhapsoffereda surerway:
see Anderson, 862-4;PC Northern
'BlackMischief', Frontierto CNC, 18 and 23
Dec. 1933:KNA,PC/NFD4/3/2; 9 June1924:KNA,AP
PC NyanzatoRegistrar,
filesAP 1/1314andPC/RVP6A/17/22.
1/1009;papersindeportation
8 June1935: copyin KNA, PC/NZA2/436;DC
78Wadeto Cunliffe-Lister,
Isioloto DC Meru,29 July1948 and reply:KNA, DC/MRU 2/11/4 and further
correspondenceinDC/ISO 3/24/1.
79DC Machakosto CS, 30 Dec. 1937:KNA, PC/CP 18/3/2. For arapBoisio
and'Lumbwapanics',seepapersinfilePC/CP18/3/1;Anderson, 'BlackMischief',
860,865-6.

respectsto local practicesand beliefsover time and, in so

doing, implicitlymodifiedits position on witchcraft. Two
related trendsare discernible:towardsthe routinizationof
enforcement and a reassessmentof the threatthat witches
posed; and towardsthe incorporation of local practiceinto
colonialgovernance.80The factthatjurisdiction overwitchcraft
cases was givento NativeTribunalsin the 1930s suggestsin
itselfthatcolonialauthoritiesno longerbelievedthatordinary
witchcraft directlythreatenedcolonial control.Prosecution
seemsto havebeen used withincreasing discrimination.People
accused of witchcraft in Embu in 1957 wererituallycleansed
ratherthanarrestedand prosecutedas thosein Meru had been
thirty yearsearlier.81More seriouscases continuedto end in
theMagistrates'Court,butadministrators werelearningto live
withwitches - andwithwitchdoctors.82 Theywerealsolearning
to live withbeliefsin the supernatural. At the beginningof
colonial rule, for example,oaths (oftenglossed as 'ordeals')
came withinthe categoryof prohibitedpracticesthat were
'repugnant' and savouredofwitchcraft.
In 1911,an administrator
in Machakoswas severelyreprimanded foradvocatingtheuse
of the locallybindingkithituoath to settledisputesand for
allowingwitnessesin his courtto validatetheirevidenceby
lickinga hot knife(kivyuoath).83Yet, twentyyears later,
anotherwas enquiringfromlocal eldersin Nyangori,Nyanza,
whethertherewas any oath sufficiently powerfulto controla
group of laibonswhom was
government considering returning
fromexile.84In Meru in the 1930s, convictedwitcheswere
requiredto take a formalcleansingoath on theirreleasefrom
soFields, 'PoliticalContingenciesofWitchcraftin CentralAfrica'.
81A total of 573 people were accused in Gichugu Division: Embu District,AR
(1957): KNA, DC/EBU 1/16.
82From the 1930s onwards,witchcraft eradicatorsweresometimesconditionally
allowed to operateunder permit:Brantley,'HistoricalPerspectiveof the Giriama
and WitchcraftControl', 120-1; correspondencere visitof 'the Giriama White
Magician' to Taita: in KNA, fileDC/TTA 3/9/44.For a discussionofsome of the
problems'witchcrafteradication'mightcause, see Karen E. Fields, Revival and
Rebellionin ColonialCentralAfrica(Portsmouth,NH, 1997), esp. 78 ff.
83Munro,ColonialRuleand theKamba,71; Penwill,Kamba Customary Law, 56-68.
Ironically,a 1915 Supreme Court judgementin a revisioncase also involvingthe
kivyuoath foundno proofthatthe oath involvedsupernaturalpower,and directed
thatthe magistrate'sverdictbe reversedand the defendantacquitted:Rex v. Joke,
reportedin 6 East AfricaProtectorateLaw Reports130-1.
84 'Report of Baraza at Chief Chewa's', 15 Sept. 1933: KNA, Native Affairs
DepartmentMS, iv,pt 1, 171.

prison,andbythe1940s,cleansing andpurging oathswerein

routine localcourtuse.85
Local courtpracticewas, however,changingfasterthan
judgesthought appropriate. Theygrudgingly madeconcessions,
butcontinued totheendtowithhold fullendorsement ofAfrican
beliefandpractice. WhentheKiambuDistrict Commissioner
enquiredwhether a Local NativeCouncilsuggestion thata
conditional on in
cursebe put wattlebarkstores themarket to
prevent theftwouldcontravene the Ordinance, he was told
that,whilethere wasnolegalobjection tothelaying ofcustomary
cursesbyelders,government couldnotgiveofficial recognition
to cursing thieves, norcouldtheCouncilgiveinstructions for
thecursetobe performed.86
Greater experience wasno doubtenabling administrators to
distinguish morefinely between 'proper'and'improper' usesof
witchcraft. However,notionsof whatwas dangerousand
challenging alsochanged
had as government fearsandpriorities
shiftedfocus.By the 1930s, 'criminallaibons'had largely
replaced'witches andwizards' inthecolonialdemonology, and
theseinturnweresoonoustedby'unscrupulous politicalagita-
tors',againstwhomtheWitchcraft Ordinance waspowerless.
Inhisdiscussion ofhowfarthelawmight be adapted toAfrican
circumstances, Haileypointed out thatitwas not law itself
that
to
was at issue but the extent whichadministrations were
'determined to impress theirownconceptions ofbehaviour on
Africa'.How fardid this'mostconspicuous instanceof the
superimposition ofthewhiteman'slaw and opinion'actually
changeAfrican beliefsandpractices?87 It is strikinghowlittle
impactcoloniallegislation seemsto havehad.88As suggested
by the extraordinary eventsin easternMachakosin 1955,
85DC Meru to CNC, 4 Apr. 1933: KNA, PC/CP 18/3/2;Native Courts Officer
to DC Nanyuki,20 May 1949: KNA, CNC 10/40; cases reportedin KNA, file
MAA 7/835.
86DC Kiambu to AG, 22 Dec. 1948 and reply:KNA, MAA 7/835.
87Hailey, AfricanSurvey,295; Orde Browne, 'Witchcraftand BritishColonial
Law', 484.
88For a similarconclusion,see Diana Jeater,'Their Idea ofJusticeIs So Peculiar:
SouthernRhodesia, 1890-1910', in Coss (ed.), Moral Worldof theLaw; Diana
Jeater,'I Am WillingTo Pay forthe Damage Done: Parallel Systemsof Criminal
Law in White-OccupiedSouthernRhodesia, 1896-1923', unpubd paper, 2002,
citedby permission.This is not,however,to discountthe extentto whichbeliefsin
the supernaturaladapted to embrace the new colonial environment:see Luise
White,SpeakingwithVampires(Berkeley,2000).

where,in the course of what amountedto a government-

sponsoredwitchcraft eradicationmovement, nearlytwothousand
people confessedto havingbroughtabout the deaths of an
averageof betweenfortyand a hundredvictimseach, witches
still abounded and communitieswere at least as concerned
abouttheiractivitiesas before- thoughtheywereperhapsless
likelyto killthem.89Peoplewerestillaccusedofusingthesame
methodsofwitchcraft. Theirreasonsfordoingso maysometimes
have reflected new sortsof social and economictensions,but
courtcases in the 1940s and 1950s stillrevealthe common
motivations ofgreedand malice,domesticmisery, thejealousy
of neighboursand the use of witchcraft to findand punish
thieves.Poisons and the substancesof witchcraft weretraded
much as theyhad been before,and people stillknewhow to
procuretheservicesofa witch,whether to kill,warnor cure.90
Given the natureof the sources,evidenceof changes in
behaviourcan mosteasilybe foundwherecases came to court.
There is some indicationthatcommunities wereframing their
accusations andperhaps their
evidence to fit
colonial expectations.
In 1948, theeldersofIgane in Meru werecarefulto showthat
theyunderstoodthelaw- 'we wishto escapefromourfearby
legal means' - whentheybroughtM'Maru wa Kibwituand
his wifeto theDistrictCommissioner witha requestthatthey
be banishedfor employingwitchesto kill membersof their
lineage.The eldersregretted thatthetwohad previously been
beaten (forwhichthe assailantshad been fined)but pointed
outthattheywereluckyto be alive.A yearearlier,thekillersof
Cheserekarap Kipkorosclaimedto have offered himthealter-
nativeof beingtakento the boma in Kabarnetas well as the
more traditionaloptionsof voluntaryexile or suicide (all of
whichhe refused)beforetheyclubbedhimto death.91Yet, it
remainsimpossibleto determinehow far,if at all, legislation
89J.Nottingham,'Some Notes on Witchcraft in the EasternArea of Machakos
District':KNA, PC/EST 12/14.
90Court
testimonypoints to the existenceof networksof witchcraft providers
and practitioners.'Contractwitches',usuallybroughtin fromoutsidethecommunity,
wererarelycaught.They werepartof a shifting underworld,onlypartlydefinedby
colonial categoriesofcrime,thathas yetto be fullyexplored.
91Inquiry . . . under Section 9 . . ., 5 Feb. 1948: KNA, DC/MRU 2/11/4;
CommittalProceedingsin Rex v. Chelimu: KNA, MLA 1/272.However,a later
witch-killingcase froma remoterpartofMeru showsthatevenin the 1950s thelaw
was not universally acknowledged:CommittalProceedingsin Rex v. M'Ambao s/o
Thambao and 5 Others,NanyukiCrC 3153/55:MLA 1/1342.

changedor shapedthewaypeoplethought aboutwitchcraft.

Although complainants, witnesses and eventheaccusedmay
haveusedcolonialcategories toframe theirarguments incourt,
we cannotknowto whatextent thiswasmerely a usefulstrat-
egy,orhowfaritrepresented a realintellectual shift.
It wasintheNativeTribunals thattheWitchcraft Ordinance
cameintoitsown.Unworried bylegalniceties, tribunalelders
sawitspotential rather thanitsdrawbacks as a wayofdealing
withwitches.They were much keenerto prosecute,and
attempted to appropriatetheOrdinance as a vehiclefortheir
ownsenseofjustice andgoodorder.92 YetNativeTribunals, too,
ranfoulofthelaw'sdemands,in waysthatthrowadditional
lightontheproblem ofwitchcraftlegislation.Likecolonialoffi-
cials,local elderssaw witches as a but
threat, theyconstrued
thatthreat in muchbroaderterms.Witchcraft did notmerely
harmindividuals, as a criminal it
act, also soweddiscordand
ruptured as a profoundly
relations, anti-social one.Convicting
a witchofan offence, therefore,wasnotinitself for
sufficient,
neithertrialnor statutory punishment couldput an end to
witchcraft anditseffects:onlyexecution, banishment ora public
purgingcould do that,by simultaneously addressing and
removing boththefactandthefear.93 Withexecution forbidden,
NativeTribunalsinterpreted the Ordinanceto giveofficial
sanction totheothertwo.In the1930s,theywerereprimanded
forexceeding theirpowersin ordering convicted or suspected
witches toleavethearea,sometimes inlieuofother punishment.94
92
The 1936 'clean up ofwitchdoctors'in Fort Hall, forexample,whichsecured
about a hundredconvictionsin the northernpart of the district,was undertaken
entirely by the local NativeTribunals:History
ofFortHall, 1936: KNA, DC/FH 6/1;
DC Fort Hall to PC Central,28 Sept. 1936: KNA, CNC 10/52.
93DC Embu to JudicialAdvisor, 21 Dec. 1946, and DC Fort Hall to PC
Central, 29 Oct. 1946: KNA, MAA 7/835; DC Fort Hall to AG, 5 Jan. 1948:
KNA, CNC 10/52. The 'open' nature of tribunalhearings (as opposed to the
'closed' hearingsin theMagistrates'Court) was an importantelementin legitimizing
proceedings.In 1947, eightywitnessesarrivedat the Kigumo Tribunal to give
evidence against a notoriouswitch allegedlyresponsibleforthe deaths of twelve
people in the previousyear,and to see him condemned:DC Fort Hall to Judicial
Advisor,29 July1947: KNA, MAA 7/835.
94AG to DC South Nyeri,20 Oct. 1934: KNA, CNC 10/38;AG to DC North
Kavirondo,29 May 1933, and DC NorthKavirondoto AG, 29 April 1935: CNC
10/54;AG to DC South Kavirondo, 12 Feb. 1935, and DC South Kavirondoto
AG, 23 Feb. 1937: CNC 10/43.Most,butnotall, ofthesecases involvedtheremoval
ofundesirableoutsiders(possibly'contractwitches')ratherthanthe banishmentof
locals. Sometimesthemove was allegedly'voluntary'.AG to DC South Kavirondo,
18 Sept. 1936 and reply:CNC 10/43.

The use ofoathsraisedmorecontentious and complexlegal

issues. Three in particularworriedthe law officers. The first
was the old questionof what constitutedevidenceof guilt.
Whileagreeingthat,in theabsenceofconcreteevidenceto the
contrary, accused witchesmightconfirmtheirinnocenceby
takinga bindingoath,theywereunwillingto followthe same
logic and accept thatrefusalto take such an oath indicated
guilt.In such cases, convictionswerereversedon thegrounds
thattheywere unsupportedby evidence,thus,in local eyes,
allowingeffectively self-confessedwitchesto go free.The law
officerswereperhapsinfluenced bycommonlaw notionsofthe
presumption of innocence, but theyalso misunderstood both
themeaningofoathsand howNativeTribunalswereusingthe
law.Forthelatter, theformaldeterminationofguiltorinnocence,
thoughnecessary to the working of the Ordinance,was less
important than the element ofpublicpurgationinherent in the
oath.95 In an important sense,the Ordinance was invoked in
order to sanction the oath ratherthan vice versa, as the
law assumed.96 The second concernwas withthe apparently
provisional natureofverdicts.Oathsdestroyed thosewho took
them in vain - one reason why unrepentantwitcheswere
reluctantto takethem- but theyworkedslowly.Thus, until
theiragreedspan ofoperationwas ended,witchesacquittedon
oath wereonlyconditionally innocent;an unexplainedfamily
death or misfortune mightstillpronouncethemguilty.This
differencein therelative ofjusticebaffled
time-scales lawyerswho
regardedguiltand innocenceas immediateand unconditional
95 For the overridingsignificanceattachedto oaths in witchcraftcases, see, for

example,DC Kiambu to AG, 23 Mar. 1949: KNA, CNC 10/45.WilliamMwasi of
Wundanyiwrotepersonallyregardinga case ofwitchcraft and childabuse in which
he had an interestas kin of the murderedchild. Tribunal proceedingshad stalled
because the suspectedwitchhad refusedto purgeherselfon the groundsthatshe
was a Christian.Mwasi, a Christianhimselfand a teacherin a missionhighschool
in Mombasa, demandedthattheDC use his authority to have thewomanforcedto
do so, possiblywith fatal results,and then fined and banished if she survived.
Mwasi to DC Teita, 6 Oct. 1949 and 14 Feb. 1950: KNA, DC/TTA 3/9/44.
96AG to DC FortHall, 26 Jan. 1934 and reply,and AG to DC FortHall, 9 Sept.
1935: KNA, CNC 10/52;Native Courts Officerto DC Nanyuki,20 May and 9
July1949 and replies:CNC 10/40.The question of recognizingoaths was made
more complexby the factthatapparentlysimilaroathshad different purposesand
meaningsaccordingto context:DC Nanyuki to Native Courts Officer,15 July
1949: CNC 10/40.For the moraland juridicalcontextof Kikuyuoaths,see Greet
Kershaw,Mau Mau fromBelow(Oxford,1997), 311-16.

outcomesratherthanas ambivalent
and sociallyconstructed
states.97
Underlying thesedifferences wasa third areaofdispute: over
therelationship between statute as
law, enactedbythecolonial
power, and'native lawandcustom'. In theory,thetwooccupied
separatedomains,the latterallotteda lesserauthority over
largely'civil'matterswherecoloniallawhadnowishorneedto
intrude. In practice,
however, suchan arbitrary distinctionwas
constantly subverted bydiffering definitions
of'civil'and'crim-
inal'andof'law'and'custom', whichinvited boundary crossing
inbothdirections; andwitchcraft belonged inbothdomains.98
However,wherestatutory law existed,it took precedence.
Accusedwitches wereto be triedunderitsprovisions andnot
thoseof'custom',and thismaximappliedofficially to proce-
duresas wellas punishments.99 Oaths,although integraltothe
of
process judgingwitches, were thus an arguablyillegitimate
intrusion fromonedomainintotheother.Theiruseembroiled
notonlytribunal elderswiththejudiciary butadministrators as
well.The latter hada closerunderstanding oftheroleofoaths
and a strong interestbothin upholding theauthority oftheir
local courtsand in dealingeffectively withwitchcraft. Here
administrative expediency warred withlegalscrupleon terrain
strangeto both. The dilemmais caughtin an exchange
betweentheJudicial Advisorand a Provincial Commissioner
overthequestionof whether oathsshouldbe mandatory in
Kikuyuwitchcraft cases. Phillipswas reluctantly willingto
acceptthemas a 'socialrequirement' butnotas a legalone,
evenunder'nativelawandcustom', as theProvincial Commis-
sionerwanted.100 Yetsuchdistinctions weremeaningless tothe
97See, forexample,Native Courts Officerto DC Kiambu, 1 Mar. 1949: KNA,
CNC 10/45.
98Similarproblemsof domain and definition made abductioncases and disputes
overthe recoveryoflivestockdebts equallydifficultto determine.
99AG to DC Fort Hall, 26 Jan. 1934 and reply:KNA, CNC 10/52;Judicial
Advisorto PC Central,15 Apr. 1947: KNA, MAA 7/835; Morrisand Read, Indi-
rectRule and theSearchforJustice,
75-7, ch. 6 passim.
100PC Centralto JudicialAdvisor,1 Nov. 1946, encl. DC Fort Hall to PC, 29
Oct. 1946; JudicialAdvisorto PC Central, 15 Apr. 1947; PC Centralto Judicial
Advisor, 19 May 1947: all in KNA, MAA 7/835. There was a concern that
Christiansand Muslims,assumed unable to take a 'pagan' oath,would be unjustly
penalized. Such religious sensitivitywas misplaced, for Christians, at least,
accepted the necessityof oaths and were willingto take them,ifnecessaryon the
Bible and beforetheirown pastor;and no one thoughtit odd thatChristiansmight
(cont.onp. 272)

local community. Keepingoathsvoluntary mayhave satisfied

the demands of statuteand have avoided any suggestionof
government endorsement, but it failedto addressthe larger
issueofhowthedamagedone bywitchesmightbe repaired.
Giventhejudicialoversight to whichtheirdeliberationswere
an
subjected,howwereNativeTribunalsable to bend alienlaw
to theirown purposes?First,theyattemptedsimplyto assert
theirown authority and local knowledge, ignoringtheletterof
thelawintheexpectation thattheirdefinitionofwhatwasin effect
'substantialjustice'wouldbe officially supported.Additionally,
liketheIgane elders,theycould adoptcoloniallegalrhetoric or
word theircomplaintsto speak to colonial sensitivities, thus
shifting witchcraft centrallyinto the DistrictCommissioner's
domainof 'law and order'.In 1949, forexample,in orderto
bringan end to a witchcleansingthatthreatened to getout of
hand, Taita elders claimed thata Giriama witch-finder's
activities
were being used as cover for an attemptto resurrectthe
(banned) Teita Association.101Cases involvingwitchcraft
mightalso be framedas chargesunderotherordinances.Two
cases fromMachakos are suggestive.In 1935, seven people
were chargedwith'unlawfulassembly'in Kilungu.They had
met at nightwiththe suspectedintentionof bewitchingthe
local headman, a not uncommonoccurrence.The District
Commissioner, however,ordereda retrialundertheWitchcraft
Ordinance.In 1941, fourteen personsaccused of 'riot'in Iveti
werefoundon enquiryto have surroundedthehomesteadofa
man thoughtto have withheldrain,demolishedpartof it, cut
downhistreesand barricadedtheentry withthem.This charge
stood.102Whilesuchshifts mayhavebeen strategic, theyspoke
also to the local realityof witchcraftas a pervasiveforcethat
couldnotbe comprehended withintheboundsoftheWitchcraft
Ordinancealone.
Scrutinizingoddlyframedchargesand apparently illogicalor
law officers
illegalverdicts, wereinclinedto assumethatNative
(n. 100 cont.)

be witchestoo - see the case of Lorance Koru in DC Fort Hall to AG, 28 Apr.
1945: KNA, CNC 10/52,and theTaita case in n. 95 above.
101Rev. Mcharo to DC
Teita, 23 Mar. 1949 withencls.: KNA, DC/TTA 3/9/44.
102DC Machakos to AG, 19
June 1935: KNA, CNC 10/62;DC Machakos to
PC Central, 18 March 1941: KNA, DC/MKS 7/2. Slightinga suspectedwitch's
homesteadwas intendedas a 'finalwarning',and the eldersmayhavebeen worried
thatmoreviolencewould follow.

ANDCOLONIALLAWIN KENYA
WITCHCRAFT 273
Tribunalsweresimply unabletograsptheprinciples ofcolonial
law.103As Jeater has pointedout,however, thequestionwas
notwhether Africans understood coloniallawbutwhether they
its In
accepted premises. refashioning thelawon witchcraft as
theydid,Native Tribunals were making it effective
and locally
meaningful,something thathadeludedtheir Seeninthis
rulers.
light, remark
Phillips's thattribunals
usedstatutory 'as
penalties
a sortofcontingency vote'to covera widevariety ofoffences
seems(unintentionally) perceptive.104
VI
WIDERCONCLUSIONS
The stories
withwhichwebegansuggestthreearenasofpower
andconflict: thecommunity
first, wherewitchcraft
itself, wasa
partoflocaldiscourseas wellas an instrumentofpower;second,
thedistrict,wheretheruleoflaw legitimated authority, evenas
itlimitedtheexerciseofpower(and witchcraft was a challenging
and disruptiveforce);and third,the SupremeCourt,where
judges,lay magistrates and elderscame into conflictoverthe
interpretationof law and the natureof justice.It is wherethe
differentarenasoverlapor collidethatwe mightlookforbroader
insightsintothelegalunderpinnings ofcolonialrule.
This studysuggeststwo.The firstconcernsAfricansand the
law. Hitherto,historianshave tended to concentratetheir
attentionon civildisputesin the courtsand on the ways in
which Africansboth invented or reinventedenforceable
'customarylaw' and soughtto bend colonial civillegislation
to theirownpurposes.Relatively lessattentionhas beenpaid to
the criminallaw,itsmakingand enforcement, and, particularly,
toAfrican Criminal
initiatives.105 codesandordinances haveoften
been seen largelyas alien instruments of domination, wielded
clumsilyto promoteor protectsectarianinterests.There is
muchtruthin thisview.Some laws,concerning quarantineor
trespass,forexample,did in effectcriminalize everyday actsin
103For example, see the disparagingcomments in Phillips, Reporton Native

Tribunals,ch. 23.
104Jeater,'I Am WillingTo Pay fortheDamage Done'; Phillips,Reporton Native
Tribunals,266.
105The workof David Andersonand Diana Jeater,who generouslysharedtheir
ideas withme, will do much to changethispicture.

theinterestsofpowerandproperty orinthepursuit ofa particular

social and economic order;others,includingthe Witchcraft
Ordinance,wereless clear-cutin theiraims.Moreover,Africans
did not merelyendure,evade or resistthe alien law. They
soughtactivelyto asserttheirown legal agencyboth in their
own Native Tribunalsand, in different ways,in Magistrates'
Courts.As withcivilmatters,theyreshapedand reinterpreted
colonial legislationand influencedits enforcement to serve
theirown needs, fornot all crimeswere colonialconstructs.
Colonial officialsand Africancommunities shareda common
viewthattheuse ofharmful witchcraftwas criminal,thoughit
tookcoloniallegislation to makeit a 'crime'.Yet theydisagreed
significantlyaboutwhatmade it so, and evenmoreaboutwhat
penaltiesmightbe mosteffective in combatingit.The resulting
arguments, bothin and out ofcourt,makeit clearthatAfricans
wereno morepassivein thefaceofthecriminallaw thanthey
werein thematterof'custom'.
The second concernscolonialofficialsand the law. Critics
were anxious about whetherthe law could be administered
'impartiallyand withoutbias' and theiranxietiesweresharedin
Kenya.106 Their misgivings coveredboththeframing and inter-
pretation of law and its enforcement. Hard cases notoriously
makeforbad law, and witchcraft producedmorethanits fair
share.It was clearthattheWitchcraft Ordinancewas unsatis-
factory:might it also be as unjust,inconsistentand even irra-
tional as the beliefs it challenged?Enforcement raised other
awkwardissues. Administrators and judges agreed that the
exerciseof colonialauthority had to be groundedin law, but
theydiffered in theirunderstanding of whatthismeant.The
formercomplainedthatthe technicalities of the law impeded
theirabilitynot onlyto dispensejusticeto theirpeople, but
evento deal speedilyand decisively withthosewho threatened
to disturbthepeace. The swordofjustice,theyfound,was too
oftenbluntedor deflectedby the veryinstitutions thathad
forgedit.Judges,moreawareoftheconflict ofinterest between
administration and magistracy,insistedthat administrative
actionshouldalwaysfollowthe letterof the law, thoughthey
wishedneitherto interfere in administrationnor to determine
whatlaws werepassed. Inevitably, in thepursuitofwhatthey
106 Roberts,'Witchcraft
and Colonial Legislation',489.

saw as good administration, administrators were temptedto

bendthelaw; and theywerethebetterable to do so becausethe
dense thicketsof the law providedmanyconvenientpathways
to expedientends.Justas Africans used thelaw to defendtheir
ownvisionsoforder,so did administrators.
Thus,evenbeforethe
Kenya Emergencyof the 1950s (a timewhenthe interestsof
justicewereclearlysubordinateto thoseofcounter-insurgency),
theformaledificeoflaw was restingon shakyfoundations, not
so much because the law was systematically floutedbut
because the flawed applicationof particularlaws, like the
WitchcraftOrdinance,undermined theclaimsofcolonialorder.
A cultureofuncertainty, createdbytheconstantcontradiction
betweenlegalityand expediencyand fedby culturalconfusions
and theunresolveddisputebetweenlegaland local knowledge,
precededthe 'law and disorder'of Mau Mau, and, in some
ways,made thatillegalityacceptable.107
BucknellUniversity RichardD. Waller
107Peter Evans, Law and

Disorder:ScenesfromLife in Kenya (London, 1956).
How the administration used one law to evade the requirementof another,and
made politicalchoices in theframingofcharges,requiresfurtherattention.


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Witchcraft and Colonial Law in Kenya

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