Constitutional and Law Reform Commission of Papua New Guinea - Occasional Paper 04
LAW REFORM COMMISSION
PAPUA NEW GUINEA
OCCASIONAL PAPER NO. 4
The Law Reform Commission of Papua New Guinea was established by the Law Reform Commission Act 1975 and began functioning in May 1975.
The Commissioners are –
Bernard Narokobi, Chairman
Francis Iramu, Deputy Chairman
Abdul Paliwala is Secretary to the Commission.
The Commission’s office is on the ground floor of the Development Bank Building in Waigani. The postal address of the Commission is -
Law Reform Commission,
PO. Wards Strip,
Papua New Guinea.
P R E F A C E
The former Minister for Justice, Mr. Ebia Olwale asked the Law Reform Commission to look into the types of sorcery practised in Papua New Guinea to determine how widespread the practice of sorcery is, suggest to him if the present law against sorcery is effective, and also suggest to what extent the law should further deal with sorcery, if at all.
At the end of this working paper is a series of questions. These questions are meant to help you think better. It would help us if you could answer these questions. However, if you wish to send in your own ideas and comments without answering our questions, that would be helpful too.
Commissioners will be visiting different places to hear your views later in the year. Please listen to the radio and look in the Wantok Nius Pepa and the Post Courier for advice on times and places of meetings.
Please send your comments or answer by 30th November to
P.O. Wards Strip
PAPUA NEW GUINEA
Table of Contents
There is no doubt that the practice of sorcery is widespread in Papua New Guinea. Its existence causes much fear, fighting, quarrels and killing. There are some laws which deal with sorcery. A t the same time people have their own way of dealing with sorcery.
Most disputes about sorcery seldom come before the official courts of the country. They are dealt with by the people themselves under the traditional legal system. The main remedy for injury or death caused by sorcery is compensation which is agreed between the clans concerned. However, occasionally more drastic measures may be taken against an alleged sorcerer. A sorcerer may be killed either with sorcery or with a spear, knife or an axe.
There are two recent examples in which a traditional court has ordered that an alleged sorcerer be killed by a 'hangman' appointed by this court. In each case the 'hangman’ himself has been later tried for murder in the National Court, one in Wewak and the other in Kieta.
Sorcery is made an offence under the Village Courts Act 1973 by Regulation 3(b) of the Village Courts Regulations 1974. This Regulation makes the following offences: -
(i) practising or pretending to practise sorcery;
(ii) threatening any person with sorcery;
(iii) making somebody else do sorcery;
(iv) possession of implements or charms used in sorcery;
(v) payment for sorcery.
If a person commits these offences, he can be fined up to K50.00 or ordered to do community work for up to 4 weeks. If the person does not pay the fine or do the community work, he can be sent to prison for up to 5 weeks.
Another way in which the Village Courts have power over sorcery is in hearing claims for compensation. Where an act of sorcery has caused death then the village court can order any amount of compensation. In cases where no death is caused, the court can order up to K300 worth of compensation. Again, a person may be made to do community work or sent to prison if compensation is not paid. The maximum prison sentence is calculated by counting 1 week for every K10. This can mean for example that in a case where K4,000 compensation is ordered and not paid for a death caused by sorcery, a person can be sent to jail for 8 years. A Village Court decision may be reviewed by the District Court Magistrate or the Supreme Court.
A Village Court or a Village Peace Officer may also order a person not to make any sorcery and thereby keep the peace. The Village Courts thus have wide powers on sorcery. The rules for showing that sorcery has been done are simpler for the Village Courts, as it is up to the Village Courts themselves to decide how sorcery is to be proved. It is harder to prove sorcery in the Local, District and National Courts, which often follow strict rules of evidence and procedure.
The present law against sorcery as applied by the Local, District and National Courts is found mainly in the Sorcery Act 1971. This law recognizes that sorcery such as witchcraft, magic, enchantment, ‘puri puri’, ‘mura mura’, ‘dikana’, ‘vada’, ‘mea mea’, ‘sanguma’ or ‘malira’ exist, and concern the supernatural or natural things of human behaviour.
The Sorcery Act says that some of these types of sorcery are very bad because they kill or harm people, and are forbidden under the Law. The Act also says that there is good and innocent sorcery. This is the sort of sorcery which helps people, for example to cure sickness, to chase out evil spirits or to make rain or grow gardens. These types of sorcery are not against the law. If something is good sorcery, people may continue to practise it. However, the Act does not admit that the powers of sorcery have the effect that they are believed by many people to have. In other words, the Sorcery Act says, if sorcery does have effect , then the sorcerers would be punished. It does not say that sorcery does in fact have effect and those who practice evil sorcery should be punished.
A number of offences relating to evil sorcery are created by this Act. These can be dealt with in the Local, District or National Courts. The maximum penalty which can be given by the Local Court is 6 months imprisonment. The maximum penalties which may be given by the District or National Court are given below:
1. Anyone who pretends or holds himself out to be a sorcerer is guilty of an offence (S. 10 (1)).
Penalty: District Court, l year in prison.
National Court, 2 years in prison.
2. Any-one who uses sorcery or the threat of sorcery to influence another person in a bad way is guilty of an offence (S.lO(2)).
Penalty: District Court, 1 year in prison.
National Court, 2 years in prison.
3. Anyone who does anything that is in fact evil sorcery or helps another person make evil sorcery is guilty of an offence (S. 11).
Penalty: District Court, l year.
National Court, 5 years.
4. Anyone who gives to another person anything (sorcerous substance) which is designed t o make evil sorcery is guilty of an offence. (S. 13).
Penalty: 8 years in prison.
5. Anyone who has in his possession tools or equipment for, making evil sorcery is guilty of an offence (S.15).
Penalty: 1 year in prison.
6. Anyone who tries to commit a crime by sorcery can be punished for attempting to commit that crime, whether this attempt is successful or not. (S. 12).
Penalty: Depends on the crime he is trying t o commit.
In addition to the Sorcery Act, the Criminal Code also has an offence dealing with sorcery:
7. Anyone who pretends to exercise witchcraft or tells fortunes is guilty of an offence (S.421)
Penalty: 1 year in prison.
Most of these offences punish sorcerers or persons performing acts of sorcery. The Sorcery Act also recognizes that people can use the law to accuse their enemies falsely of being evil sorcerers. Thus, while it is not an offence to accuse somebody of being a sorcerer in the courts if one has good reason for doing so, it is an offence to make d deliberately false accusations against anyone. The Act says:
8. Anyone who blames another person falsely of making evil sorcery on another person is guilty of an offence.
Penalty: 1 year in prison.
A court has power to order compensation to be paid by the sorcerer to any victim of sorcery. (S. 18).
Profits made from evil sorcery have to be given up to the government under the Sorcery Act. (Ss. 16, 17). Tools or equipment, made or used for evil sorcery will also have to be given away to the government, to be dealt with in any way the government directs.
An act of evil sorcery may amount to a wrongful act or insult, provoking the victim to strike or kill the person making evil sorcery. In a charge of wilful murder, if the accused can prove that he was provoked by sorcery of another or that the evil sorcery was directed a t some other person, he would not be found guilty of wilful murder. He may be convicted of murder or manslaughter which carry lesser terms of imprisonment.
The strict rules of evidence do not apply. Any information or facts which are relevant to the sorcery question to be determined by the court may be admitted into the court to help decide whether a person has done wrong or not (S. 221). Moreover, the possession of instruments of sorcery by a person will, if there is no other evidence the other way, be treated as proof that the person concerned is a sorcerer (S.21).
The 1971 House of Assembly law follows customary law by making the distinction between good or innocent and bad or evil sorcery. The former is not against the law. The latter is against the law. Also, the courts can give the customary remedy of compensation. In PNG there are as many types of sorcery as there are languages, tribes, vines, herbs, plants and chants.
Not everyone in the village knows how to make good or evil sorcery, Special men or women only knew how to make sorcery. Sorcery is very secret. It is used for a variety of reasons and purposes. Evil sorcery is used to kill a person the sorcerer did not like. A person may be made sick through evil sorcery because somebody else has given money or presents to the sorcerer to do the job. If a person in the village tries to be too powerful, he will be sorcerised by those who are envious, jealous or fearful of the person.
I f a man wants to marry a woman badly or if a woman wants to marry a man badly, he or she will make magic or sorcery and attract the other party. If a person wants to destroy another person's garden, he will put a curse on the garden. If a person wants to make forest, seas and rivers barren of any produce, he will cast a spell on the subject.
Some forms of sorcery consist of straight out blood or food poisoning or straight out murder. Other forms of sorcery consist of powerful psychological persuasion. At some stage the victim will be informed that he or she has been sorcerised. The fear works on the mind and the make up of the victim until he eventually dies.
Various customary techniques exist for ascertaining who the sorcerer is. First, it might simply be ‘known’ in the village, that certain person is a sorcerer. Secondly, the person’s way of life, the foods the person eats, the company he keeps, the manner of speech, the dress styles are factors which go towards showing whether a person is a sorcerer or not.
Thirdly, through various methods of divination, it may be determined whether someone is a sorcerer or not. It could be through pulling bamboos or eating mumu. Fourthly, the sorcerer himself or a fellow tradesman or tradeswoman might expose the sorcerer. Exposure is often done to enable the victim or his relatives to pay the sorcerer in return for recovery from the illness. It may also be because the sorcerer is dissatisfied with the payment promised or through a sense of sympathy for the victim.
As far as can be ascertained, much falsehood and much reality surround sorcery. Clearly some deaths or illness occur because of natural illness for which there was no customary explanation. Individuals, for reasons of building personal status would claim responsibility for certain deaths. Other deaths are caused by straight out food or blood poisoning or through straight murders. And yet there are other deaths which can be said to be directly attributable to psychological persuasion associated with one form of sorcery or another.
Evil sorcery according to custom was never indiscriminate. Every evil sorcery killing had to be authorised by elders and justified as an act of vengeance over one sort of injustice, wrong doing or another. Nowadays, evil sorcery tends to be indiscriminate, and tends to be organised on an individualistic basis, without justification or approval from the village or clan elders.
Evil sorcery is not permitted under customary law, if it is practiced without good reasons or without authority from elders. In societies without an organised police force and without a jail system, evil sorcery was used as the final and ultimate sanction against persistent wrong doers or violators of the customary laws. If used against innocent people, it certainly called for retaliatory killing or deliberate exile of the sorcerer from the community of the innocent victim.
It is possible that the amount of sorcery is increasing as a result of the uncertainties involved in modern development or 'underdevelopment' in Papua New Guinea. In a society in which differences in status and income are increasing and traditional obligations are no longer as strongly upheld as they used to be, people often act against those who get too far ahead in social status through sorcery. Many senior public servants who have died young are believed to be sorcerised by their work mates who are believed to be envious of the promotions of the former.
It is often the case, that the person who knows a lot about evil sorcery will also be the person who knows about innocent sorcery. However the reverse is not always true. There are many men or women who know a lot about innocent sorcery but know little or nothing about evil sorcery. A person who knows about evil sorcery to destroy gardens or to make people sick only, may not know about the type of evil sorcery which results in the death of the victim. Again a person who makes evil sorcery to kill another person, may not know about good sorcery to grow gardens. Sorcery is very often a property people inherit from their fathers and forefathers. As such, it is deeply engrained in the emotions of the people.
We have written some general ideas about sorcery we know from our own experience as Papua New Guineans. In order to get a balanced view of sorcery we would like to say that sorcery is very much a matter of the innermost belief of the people. Fear of, or the practice of sorcery or various occults is a world wide phenomenon. Sorcery or black magic exists in Europe, in Asia, in Africa and in North and South America as well as the Pacific.
Major world religions claim the reality of forces or personalities greater than the human and animal powers. Whether these powers or personalities can be shown to exist is often quite irrelevant to the belief. From these beliefs many practices and procedures follow. Many rational beings hold to belief which cannot be supported by empirical evidence. Some people believe for example that the numeral 13 is an unlucky number. In many western nations, hotel doors do not have a room with number 13. Take another example. Many rational people believe in the Blessed Trinity, the Mystery of Incarnation and so on, even though they have no material evidence to prove these.
And so it is with sorcery. No matter how educated, scientific, rational or modern a person is, it does not necessarily mean that such a person no longer believes in or fears the power of sorcery, for good or for evil. Papua New Guineans certainly do not suddenly become non-believers in sorcery or fearless of its good or evil effect just because they have university degree.
Even though through science and technology, mankind is gaining more and more knowledge of the secrets of the universe and the elements that make it up, much lies beyond the finite mind of the human being. Consequently, the belief in and the practice of occult sciences of which sorcery, both good and evil are clearly part, are part of man's make up. Man constantly seeks explanation for events. Man constantly strives to be in contact with the divine or the infinite powers. Sorcery whether good or evil is also part of man's struggle to be in contact with superior powers.
All this amounts to is that sorcery is part of the psychic and the religious beliefs of our people which no-one can change with ease. No matter what laws we come up with, sorcery will continue to be feared and practised. It is important to realise therefore that the best we can do is to minimise the effects of sorcery. Evil sorcery will only be eliminated when the deeply held beliefs of the people in its effects are forgotten. This does not mean that the law should do nothing about it. What it means is that the law has definite limits in how far it can be used to change the attitudes of the people. There are limits to the mental dimensions of belief beyond which the law cannot go, and if it does it will create more social harm than it will create social good.
In order to propose laws on sorcery that will fit the circumstances of Papua New Guinea, we need your help. The more information you give us about sorcery, the better e will be able to propose suitable laws on sorcery. We would like you to answer all the questions and send back to us your answers. Please use extra paper if you like. You may like to write your own ideas without answering these questions. That is alright too.
1. Do you believe sorcery really exists in your village or in the neighbouring villages?
2. How do you know that sorcery really exists?
3. What types of evil or bad sorcery are practised in your area?
4. What types of good sorcery exist?
5. How is evil sorcery performed?
6. What are the implements or the tools or equipment for making evil sorcery?
7. Please write down the chants or the words or the songs sorcerers use in making evil sorcery?
8. How can you tell that a person is an evil sorcerer?
9. Do only men make evil sorcery or the women also make evil sorcery?
10. How can you tell that someone is sick or has died because of evil sorcery and not because of a natural illness like bad malaria, tuberculosis (T.B.), cancer, pneumonia and so on?
11. Does the evil sorcerer in your village take the form of changing into birds, or animals? If so please describe the process through which this takes place.
12. Tell us the different ways your people use to discover who in fact is the evil sorcerer. For example in some places bamboo sticks are used. In other places through dreams, it is known who is the sorcerer.
13. How can we be 100% or very very sure these methods are correct and not just tricks or guesses?
14. How can it be shown, by way of example or demonstration that evil sorcery does in fact work? For example, can an animal be killed and brought back to life by evil sorcery to prove the reality of evil sorcery?
15. How did your people come to learn about sorcery whether evil or innocent?
16. If sorcery is widespread in your village, why is it that it is not reported to the police or the courts?
17. In your opinion, what village or area of your province is mostly feared for making evil sorcery?
18. Why do people make sorcery?
19. Is sorcery used to kill bad people who cannot be corrected in any other way, or is sorcery used simply because one person does not like another?
20. Is sorcery used against people who are getting too far ahead in business and other things? Is this a good thing or a bad thing?
21. Is sorcery increasing in your area or is it decreasing? Why is this?
22. Do you think some claims of sorcery are false and that some big men say they are sorcerers to gain status and create fear in other people and collect money from other people?
23. Are people afraid of taking known sorcerers to courts? If people are afraid is there any way you can suggest to enable people to report the sorcerers and not be known as reporters?
24. Do you know of instances where people have left the village because they fear sorcery?
25. Do you know of instances where businesses and other activities have failed because of known or suspected sorcery?
26. Can evil sorcery be abolished altogether? How can it be abolished?
27. Would good sorcery also be abolished if evil sorcery is abolished? Can we keep good sorcery and abandon evil sorcery? How can this be done?
28. Does Christianity promote or wipe out sorcery whether evil or innocent?
29. What is the best way of finding out about sorcery? Is it through public meetings or is it through private and secret meetings with people believed to know about sorcery and are willing to talk about it?
30. In your opinion, how long do you think it will be before people will stop practicing sorcery in your place? Would it be 5 years, 20 years, 100 years or do you think it will go on forever?
31. Do you think if people learn to do other things like play sports, learn to read and write, build roads, see films read books and do other useful things that they might eventually forget about sorcery?
32. Do you think the present law is good enough and no change is required?
33. How should sorcery cases be tried or dealt with?
34. What courts should handle sorcery cases?
Village courts only Local Courts only
District Courts only
National Courts only
All the courts?
Some of these courts?
35. What sort of punishment should be imposed on persons practicing evil sorcery?
- go to jail for life.
- go to jail between one to five years.
- pay compensation to the victims.
- pay fine to the government.
- order to stay out of his village.
- work on community projects
- corporal punishment.
- burn their houses and destroy their gardens?
- destroy implements of sorcery.
36. How should sorcery be proved in court?
37. Should traditional methods of proving sorcery such as pulling bamboo be allowed to prove in court?
38. Have you any other comments or ideas which would help us come up with a good law to deal with sorcery?
39. Should traditional medicine men and women or healers be used in modern hospitals for treating patients?
40. Should traditional healers be registered with the government to heal sick people?
41. Should they be allowed to charge fees?
42. How can the government be sure traditional healing does in fact work?