A review of the provisions included in the Bill against witchcraft accusations:

The drafting of a Bill to address the issues around accusations of witchcraft is a pretty remarkable achievement in and of itself. And many provisions in the Bill are equally commendable: provisions for protecting victims and punishing offenders, the

March 8, 2015, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -17 March. 06- 2015 (Falgun 22, 2071)

The logic and practice of accusing women of practicing witchcraft has been entrenched in Nepali society and culture since antiquity. In particular, women who are vulnerable—uneducated, Dalit, widowed, or poor—face violence every day on the basis of such accusations.

Due to superstitious beliefs, customs, and lack of education, to this day, many Nepalis are inclined to take the ill to see witchdoctors rather than to hospitals and health posts. Chillingly, it is not unusual to hear incidents where, after the death or failure in recovery of a sick person, the family members of the ill or deceased person accuse a vulnerable woman from their community—often those towards whom they had preexisting animosity—of being a witch, and physically or mentally torture the accused—occasionally going as far as making her ingest human faeces. While such accusations could theoretically be made against men, the majority of such cases involve women, as demonstrated through research and stories reported in the media.

Accusations of witchcraft are grave acts of violence against women. Thus, such incidences should be handled very seriously and sensitively. For that, it is necessary to revise and create legislation and policy to offer victims psychological counselling, medical treatment, social recognition, the right to housing, the right to family life, and access to justice; and to ensure that perpetrators receive appropriate punishments for their crimes.

Prevalent legal provisions

In 2001, in Mahottari district, a 60-year-old woman, Marani Devi, was physically and mentally tortured by her neighbours who accused her of being a witch. The incident received a lot of attention and notoriety, after which voices demanding justice for victims and punishment for perpetrators in such crimes started to mount. Subsequently, the Supreme Court issued a directive order to create laws against accusations of witchcraft, responding to a writ petition filed by Reshma Thapa against the Government of Nepal (NKP 2062, No. 7498, Vol 3, Pg 205). In response, the GoN added a provision to penalise such perpetrators to the chapter on decency/etiquette in the General Code (1963).

On the positive side of things, article 20 (3) of the Interim Constitution of Nepal (2007) guarantees that violence against women—physical, mental, or otherwise—is punishable by law, accepting such acts to be criminal in nature. Similarly, the above-mentioned amendment to the General Code has criminalised the act of accusing another person of practicing witchcraft. Under that provision, perpetrators can be fined anywhere between NPR five to twenty-five thousand and/or imprisoned for three to twenty-four months. Finally, since signing on the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (1979), and other international treaties and conventions, the Nepali state has tried to amend discriminatory legislation and to enhance the legal capacity needed to end violence against women, to promote gender equality, and to protect women’s rights.

Regardless of the above-mentioned facts, patriarchy holds a tenacious grip over Nepal’s social, cultural, religious, economic, and political institutions as well as the media. Hence, prejudices against women live on through practices such as favouritism towards sons over daughters, child marriage, dowry, polygamy, chaupedi, jhuma, and deuki. To put and end to such backward customs, awareness programs that bring together civil society, religious figures, and community leaders, targeting both males and females, need to be organised. Additionally, gender awareness needs to be systematically inculcated through various educational programs. Finally, an environment conducive to nurturing positive attitudes towards women should be fostered by the state in collaboration with the Nepali media. These are only a few of the noteworthy recommendations that the international community has given us.

Review

The drafting of a Bill to address the issues around accusations of witchcraft is a pretty remarkable achievement in and of itself. And many provisions in the Bill are equally commendable: provisions for protecting victims and punishing offenders, the provision allowing for arrests and investigations, the provision mandating the arrest of perpetrators followed by legal action, allowing protection to victims in the interim period of investigation, requiring cases to be filed within three months of an alleged offence, and the provision which lists offences in the scope of this Bill under schedule one of the Government Cases Act (1992). Nonetheless, there is plenty of room for improvement. The following is a list of recommendations made with the hope of increasing victims’ access to justice:

1. It is most appropriate to add the following to the preamble: “To end the injustice, suffering, and torture inflicted on women through accusations of practicing witchcraft; since an effective piece of legislation does not exist regarding punishment for such crimes; and to increase the public’s knowledge of these laws through awareness programs…”

2. In section 1 (chapter 1) [‘Short Title and Commencement’], the ‘Act’ should be named ‘Witchcraft Accusation (Offence and Punishment) Act’. The word ‘Accusation’ is currently missing from the title.

3. In section 1 (1), the gender-specific term for a male witch (boksa) should be added to the title.

4. In section 4 (1) [chapter 3: on reporting incidents related to the accusation of witchcraft, and protecting victims], a provision must be added to allow any individual to report offences—past, ongoing, or future—‘to local authorities’.

5. In 5 (1) of the same chapter: if a victim needs to go to the hospital but is physically or mentally incapable of doing it, a police officer must take the person to a nearby hospital for ‘free’ medical treatment. [‘Free’ should be added.]

6. In section 6 of the same chapter: In the preliminary investigation of an application received under section 4, victims, any relevant members of their families, ‘witnesses’, etc. shall be provided, if necessary, with the appropriate level of police protection. [‘Witnesses’ should be added]

7. In section 4 (7) (c) in chapter 3, the provision that allows for the search and arrest of alleged offenders without warrants must be scrapped.

8. Section 9 in chapter 3: Upon request, a separate legal option should be provided ‘free of charge’ to victims to help defend their case. [‘Free of charge’ should be added.]

9. A subsection (3) must be added to create a monitoring mechanism to check whether or not interim protection is provided to the relevant people during preliminary investigations of alleged offences under the Act.

10. Section 11 (1) in chapter 4 [punishment and compensation]: penalties to be increased

A) Those who commit offences listed under 11 (1) (a) & (b) shall be fined between NPR thirty to fifty thousands and/or jailed for three to six years.

B) Those who commit offences listed under (c) & (d) shall be fined between NPR fifty and seventy thousand and/or jailed for three to seven years.

C) Those who commit offences listed under (e) shall be fined between NPR fifty and eighty thousand and/or jailed for three to eight years.

11. Section 11 (3) in chapter 4: If a person commits an offence listed under this Act on a person whose guardianship or protection he/she is entrusted with, or if the offender holds any position that is accountable to the public, the appropriate penalty, as listed in subsection (1), shall increase by twenty five percent.

12. Section 12 (1) of the same chapter: Instead of determining the amount of money paid as compensation to a victim on the basis of the offender’s financial situation, a fund shall be established to ensure that each victim receives an appropriate compensation. The monetary fines that offenders pay for their crimes shall be deposited into this fund, along with the amounts mentioned in subsection 2 (1). Compensations between NPR fifty to one hundred thousand should be handed out to victims.

13. Section 12 (4) in chapter 4: [Provision to be added] If a victim is killed as a result of being accused of witchcraft, his/her husband or wife should be given compensation. If the victim does not have a spouse, then the children should be considered. If the victim does not have any children, the parents can also be compensated.

14. Section 13 (2) in chapter 4: If an offender, due to his/her financial circumstances, cannot afford to pay for his/her victim’s medical treatment, an appropriate amount of money shall be made available for the treatment through the fund for victims of gender-based violence.

15. Section 14 (1) in chapter 5 [Miscellaneous]: ‘Recovery centres shall be established in all districts.’ [To be added to the provision.]

16. Section 14 (1) (2) (1) of the same chapter: A victim kept at a recovery centre as per subsection (1) can be given access to legal aid, psychological counselling, and financial assistance, as necessary, by the centre.

17. A provision must be kept for victims staying at recovery centres to stay there for as long as it takes to complete any kind of training that can make them self sufficient.

18. Victims should be rehabilitated into their own localities rather than being resettled somewhere else.

19. Cases filed under this Act should fall under the Summary Procedures Act (1972).

20. A victim’s right to privacy of must be respected.

This research and recommendation paper prepared by advocate Sadhana Shrestha for the Nepal Constitution Foundation has been finalised based on the inputs given by various pressure groups: women, indigenous communities, Dalits, Madeshis, youth, and others. The NCF would like to thank Krishna Niraula, Yagya Prasad Adhikari, Punyashila Dawadi, Tejkumari Tiwari, Sujan Lopchan, Sarita Gautam, Srijana Adhikari, Dr. Surya Dhungel, Sindhu Sapkota, Motikala Subba Dewan, Dipendra Kumar Rai, Badri Subedi, Khilnath Ghimire, as well as Sabin Rana, Ganeshdatta Bhatta, and Dr. Bipin Adhikari.

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