Why court has dismissed petition on killing of 'witches' in Kisii and Kilifi

The High Court has dismissed a public interest petition filed by Kituo Cha Sheria seeking to hold the State accountable for allegedly failing to protect elderly women accused of witchcraft from attacks and killings in Kisii and Kilifi counties.

In a judgment delivered on Thursday, Justice Lawrence Mugambi ruled that although the petition raised serious constitutional concerns regarding the rights of elderly persons, the evidence presented by the petitioners fell short of the legal threshold required to establish liability on the part of the government.

Kituo Cha Sheria had sued the Director-General of the National Intelligence Service, the Attorney General, the National Police Service, the Cabinet Secretary for Interior, and the county governments of Kisii and Kilifi, alleging that they had failed to protect elderly women who were allegedly being targeted, attacked and killed after being branded witches.

The petition was anchored on Articles 10, 26, 29, 44 and 57 of the Constitution and claimed that the respondents had violated the women's rights to life, security, dignity and protection under the law.

Justice Mugambi noted that the petitioners had properly identified the constitutional provisions they claimed had been violated and explained the manner in which the violations allegedly occurred.

“From the above analysis, it is evident that the petitioner has distinctly outlined the constitutional rights that have been violated and how they have been violated regarding a certain group of victims, such as elderly women, that is allegedly targeted for practising witchcraft,” the judge said.

However, he found that the petition lacked the specific evidence required to support such grave allegations.

“The description is too wide and falls short of any specifics that contain exact details, such as the police reports containing the names of those who have been killed in the manner alleged or other credible sources confirming persons who died under those circumstances,” Justice Mugambi states

The judge reiterated that constitutional petitions must not only identify alleged violations but also provide credible evidence demonstrating that those violations occurred.

“A properly pleaded constitutional petition must be pleaded with some reasonable degree of precision, identifying the constitutional provisions that are alleged to have been violated, or threatened, and the manner of violation or threatened violation,” he said.

The court cited Sections 107 and 109 of the Evidence Act, which place the burden of proof on the party making allegations.

“It is the duty of the petitioner to prove on a balance of probability that the allegations in the instant petition are indeed true. The mere allegation of facts or allegations of killings of elderly women without producing credible evidence in support is not enough,” the judge stated.

Justice Mugambi observed that although Kituo Cha Sheria contended that it relied on witness statements, affidavits and reports, the record showed that the petition substantially depended on newspaper reports and online publications.

The materials relied upon included newspaper articles and material obtained from the Kenya Human Rights Commission website.

The court held that while newspapers may be admissible to show that a publication exists, the facts contained in them amount to hearsay unless verified through testimony or affidavits from the authors or persons with direct knowledge of the events.

“Though the newspapers may be presumed genuine, the same remain inadmissible in evidence for failure to avail the makers to give evidence and produce the same upon oath to have perceived the facts as reported,” Justice Mugambi said.

He further faulted the petitioners for failing to call the authors of the articles or file affidavits authenticating the information contained in the reports.

“The sources of facts that led to the publication of those newspaper articles cannot be verified, as not even the authors of these reports swore affidavits to authenticate the reports relied upon by the petitioners,” he said.

The judge ultimately found that the petition had not established the alleged constitutional violations on a balance of probabilities.

“On a balance of probabilities, I would not regard this as credible evidence to be used as a basis of finding liability,” he ruled.

“The conclusion that this court must inescapably reach is that this petition fails for want of proof on a balance of probabilities.”

Justice Mugambi consequently dismissed the petition in its entirety but declined to award costs because it had been brought in the public interest.

“It is therefore dismissed in its entirety as a public interest petition and I make no order as to costs,” he ruled.