Witchcraft imputations and the tort of defamation in Ghana

Introduction

Witchcraft beliefs and witchcraft accusations are widespread in many African countries, including Ghana. ¹ Since the pre-colonial period, thousands if not millions of Africans have been accused of being malevolent witches and subjected to various forms of mistreatment and violence – banishment/ostracism, forcible confinement, discrimination, enslavement, neglect, deprivation of the necessities of life, physical assault or torture and murder, amongst others. ² Writing about her travels in West Africa and the scale of witchcraft-related crimes in the region between the 1890s and early 1900s, Mary Kingsley makes the following assertion: ‘The belief in witchcraft is the cause of more African deaths than anything else. It has killed and still kills more men and women than the slave trade. Its only rival is perhaps the smallpox’. ³ Even though Kingsley's description of the scale of witchcraft-related killings in African communities during the colonial period seems exceedingly exaggerative, the relevant extant literature and reports do not dispute the claim that witchcraft beliefs posed and still pose significant danger to society, particularly vulnerable people in Africa. ⁴

During the colonial period, witchcraft-related mistreatment and violence were so common that the English criminal law could not ignore such crimes – anti-witchcraft legislation was deemed necessary and unavoidable by the colonial administrators. Thus, anti-witchcraft statutes which criminalised witchcraft-related activities and conducts, including reckless accusations of witchcraft, were passed in almost all Anglophone African countries. ⁵ Most of these statutes still exist even though some have been amended to bring them in line with changing political, socio-cultural, economic, and religious conditions in the respective independent nations. ⁶ However, unlike most Anglophone African nations, no anti-witchcraft legislation currently exists in Ghana. In fact, the country is one Anglophone African country that has never passed a definite anti-witchcraft legislation since the colonial period. Consequently, witchcraft accusations, though generally discouraged, are not a criminal offence. Accusers thus usually get away with their reckless and potentially poisonous witchcraft allegations.

In Ghana, as in other African countries, witchcraft imputations usually provoke negative public reaction against the people accused of being witches or wizards (male witches). ⁷ Thus, once people are labelled as witches, it is only a matter of time before a recent ‘victim’ of their witchcraft or a recent calamitous occurrence supposedly resulting from their witchcraft is identified and they are persecuted. For centuries, accused witches have frequently been subjected to intense persecution and witch-hunts in Ghana. ⁸ A recent study suggests that at least 130 victims of witchcraft-related crimes and violence were reported in just three Ghanaian news/media outlets between 2014 and 2020. ⁹ The study also shows that about four elderly women are murdered on witchcraft allegations each year in the country and that ‘at least seven out of every 10 witchcraft-related abuse cases in Ghana involve physical torture’. ¹⁰

Interestingly, there are instances, even if rare, where the hunter (the accuser) becomes the hunted (the accused) – this occurs where people accused of being witches sue their accusers for defamation. However, such legal battles are not always straightforward as mere vituperation or name-calling such as witchcraft imputation is generally not actionable under the received or English common law. Drawing on a wide range of pertinent academic literature and, more importantly, case law, the present study explores the Ghanaian courts’ attitude towards witchcraft-related defamation claims, examining how they have navigated the complex and often confusing system of legal pluralism (the coexistence of received common law and customary law) since the 1970s.

Section ‘The Ghanaian concept of witchcraft and witch’ of this article offers a concise exposition of the Ghanaian concept of witchcraft. This aids an understanding of the environment within which witchcraft imputations occur and consequently facilitates a better appreciation of the discussion on witchcraft-related defamation claims that follows. Section ‘Customary law and the tort of defamation’ presents a succinct description of the tort of defamation and legal pluralism, highlighting key customary law and common law principles on defamation. Drawing largely on relevant judicial decisions, Section ‘The courts’ attitude towards witchcraft-related defamation claims’ explores the Ghanaian courts’ attitude towards defamation claims/lawsuits that border on witchcraft accusations, examining how they (the courts) have navigated the complicated system of legal pluralism since the 1970s. This is followed by a conclusion that recaps the key points. It must be clarified at the outset that the phrases ‘received common law’ and ‘English common law’ are used synonymously and interchangeably in this study. The term ‘witchcraft-related defamation claim’ refers to defamation cases bordering on or provoked by witchcraft accusations.

The Ghanaian concept of witchcraft and witch

Witchcraft is incontrovertibly one of the most widespread superstitious beliefs in Ghana. Witchcraft beliefs are held by all manner of people regardless of their education level or qualification, socio-economic background, profession, or religious affiliation. ¹¹ In a study involving approximately 1000 participants in Ghana, Gallup found that about 77% of Ghanaians believe in the existence of witchcraft and witches. ¹² The ‘notion of witchcraft possesses a multifaceted semiology’; ¹³ thus, witchcraft beliefs vary across countries and cultures or ethnic groups. ¹⁴ Therefore, it is difficult to provide a single definition which reflects all the different perceptions or notions that the various communities and ethnic groups in Ghana have of witchcraft and witches. However, although the notions of witchcraft and witches vary amongst Ghana's diverse cultures and ethnic groups, there are many fundamental similarities that run between them.

In a study conducted by the Ghana National Commission for Civic Education (NCCE) on witchcraft and the human rights of women in northern Ghana, about 89% of witchcraft believers defined witchcraft fundamentally as the use of supernational powers by certain human beings to harm or kill others. ¹⁵ Even though Nelson Tebbe admits that witchcraft beliefs and practices vary from place to place, he proposes a definition that he claims many groups in Africa would accept, namely, ‘the practice of secretly using supernatural power for evil – in order to harm others or to help oneself at the expense of others’. ¹⁶ Generally, witchcraft may be understood amongst most Ghanaian ethnic groups as a set of beliefs that accentuates the supposed ability of certain human entities to secretly control, harm and/or kill others or to help themselves at the expense of others, through the use of supernatural powers.

Tebbe defines the term ‘witch’ or ‘wizard’ as ‘a human being who secretly uses supernatural power for nefarious purposes’. ¹⁷ Emmanuel Sarpong Owusu describes Ghanaian witches as ‘entities who possess extraordinary malevolent spiritual powers and whose intentions are almost always to do evil against others’. ¹⁸ To Mensah Adinkrah, the Ghanaian witch is a person who deploys ‘malevolent spirits to inflict misfortunes and death on others’. ¹⁹ He however mentions that amongst the Akan, the largest ethnic group in Ghana, it is believed that some witches use ‘their witchcraft power in beneficent ways to advance their personal interests and the welfare of selected loved ones’. ²⁰ However, the general belief is that witchcraft is essentially a malevolent spirit that is utilised to wreak havoc on victims or cause harm to people and their property. ²¹ The fundamental element in all witch-believing communities in Ghana is that witches are individuals who possess supernatural powers to perform mostly devious and insidious deeds/activities.

Because witches are generally viewed as the epitome of evil, alleged witches are blamed for all kinds of misfortunes or unpleasant occurrences such as untimely deaths, protracted or incurable diseases, epidemics, financial or economic predicaments, infertility, mental disorder, droughts, crop failure and alcoholism, amongst others. ²² In most indigenous Ghanaian communities, when people suspect that they or their close family members are being bewitched, they would normally consult a traditional spiritualist or witchdoctor for validation and to seek a remedy. ²³ Today, many religious ministers, particularly pastors of Pentecostal churches, have taken the position of the witchdoctors, claiming to know the causes of all misfortunes and to have the power to detect witches and dismantle witchcraft spells. ²⁴ It must be emphasised that almost every witchcraft-related abuse or violence is preceded by witchcraft imputation. Thus, because of the widespread belief that witches have the ability to cause great social harm and calamities, accused witches are generally reviled and persecuted. ²⁵

Witchcraft is a highly stigmatising phenomenon in the Ghanaian society. Because it is deemed a heritable trait amongst some groups, imputation of witchcraft may tarnish the integrity of not only the accused persons but also their families. ²⁶ Writing in the early 20th century, John Mensah Sarbah notes that ‘[s]o much annoyance, mischief, and injury is caused by the reckless imputation of witchcraft, that many a woman has been known to commit suicide, unable to bear the disgrace of a false imputation’. ²⁷

As a matter of fact, in typical indigenous/traditional communities, people who feel that they have been falsely accused may lodge a complaint against their accusers with the traditional authorities. The traditional or customary authorities/institutions that usually enforce slander-related norms/laws (including laws against reckless witchcraft accusations) are village chiefs (also known as sub-chiefs) assisted by community elders. However, a party dissatisfied with the decision of a sub-chief in a particular traditional area (i.e., a big community) may appeal to the relevant paramount chief (the overlord of that traditional area). If the parties are from different villages, the matter may be dealt with directly by a paramount chief. The indigenous or traditional courts have been dealing with witchcraft-related defamation claims since pre-colonial times. ²⁸ However, with the introduction of state courts (British-based legal system), the popularity of the traditional courts has dwindled considerably, and enforcing compliance with traditional courts’ decisions has been extremely difficult as there are no proper existing mechanisms for doing so. This has compelled some victims of witchcraft imputation to bring defamation claims against their accusers at the state courts (or courts of law). The next section thus offers a succinct exposition of customary law and defamation, highlighting the Ghanaian customary law principles on defamation vis-à-vis the common law principles.

Customary law and the tort of defamation

As already mentioned, during the colonial period, the British colonial administrators formulated and passed anti-witchcraft ordinances that criminalised witchcraft-related activities and conducts, including reckless witchcraft accusations, in almost all Anglophone African countries. ²⁹ Ghana is one country where a definite anti-witchcraft statute has never been passed since the colonial period. There were, nonetheless, a few witchcraft-related prohibitions at various times during the colonial period, but they were either reversed or never maintained. ³⁰ Therefore, presently, reckless witchcraft accusations are not a criminal offence in Ghana. ³¹ However, such conducts, as shall be seen in this discussion, are deemed a civil wrong under customary law.

The courts’ attitude towards witchcraft-related defamation claims

During the 19th century, the British colonial administrators passed laws, such as the Native Jurisdiction Ordinance of 1883, that recognised the authority of native courts/tribunals in Ghana – these were Ghanaian courts instituted to administer customary law. ⁶⁴ One of the tribunals’ key functions was to resolve cases concerning witchcraft accusations. Individuals who believed or feared they had been bewitched could file complaints with the native tribunal in their locality. The tribunal would then order the suspect to be tested by an oracle or subjected to some form of ordeal. ⁶⁵ Accused witches could also seek redress if they felt that they had been falsely or recklessly accused. ⁶⁶ However, in 1930, the colonial administrators revoked ‘the power to judge witchcraft cases exercised by Native Tribunals’ and went further to prohibit the practice of witch/wizard detection or finding. ⁶⁷ In 1932, the ban was revised to allow only voluntary participation in witch-finding activities. In other words, accused witches could no longer be ordered or compelled to be tested by an oracle – they could only be tested if they voluntarily agreed to present themselves. ⁶⁸ This meant that accusers or supposed victims of the act of witchcraft could not seek ‘justice’ in court at all.

Evidently, unlike the received common law, customary law recognises the existence of witchcraft and malevolent witches. Therefore, suspecting and/or accusing a person of being a witch or practising witchcraft is not necessarily unlawful under customary law. It is unlawful only when the right or appropriate customary procedures are not observed or followed. ⁶⁹ For example, in a typical indigenous community, when people suspect others of bewitching them or their close relatives, they are required to lodge a formal complaint with, or report the suspect to, the relevant traditional institutions who would then investigate the allegation. ⁷⁰ If the witchcraft claim is found to be valid or found to be based on reasonable grounds, the guilt or innocence of the person accused of witchcraft would then be established through divination or a trial by ordeal conducted by a traditional spiritualist such as a fetish priest or diviner. ⁷¹ If the accused persons are found guilty, the appropriate sanctions may be imposed on them, and if they are found to be innocent, the relevant authorities would mediate between the two parties to find an amicable solution. ⁷² So, calling a person a witch in public without observing the required customary process and/or without any reasonable basis renders such an allegation reckless, unacceptable and, consequently, actionable under customary law. ⁷³

It is worth clarifying that in Ghana, whereas common law recognises both slander and libel, customary law deals with only slander. ⁷⁴ This is because customary laws or norms were formed/formulated and developed in an era where the people did not know of or were not familiar with written communication, and the only means of social and commercial intercourse was the spoken word. ⁷⁵ Slander was thus the only form of defamation that was known to the indigenous people. Today, customary law has, to a significant extent, embraced written communication and other modern ways of interacting with people. ⁷⁶ However, the courts generally enforce customs and traditions (customary laws) that are proved to be established and long-standing practices within a particular community. ⁷⁷ For instance, the Ghana Supreme Court Ordinance enacted in 1876 stipulated that the courts would validate or enforce only customs or customary laws that existed prior to the passage of the Ordinance. ⁷⁸ Thus, because libel is not an established and long-standing practice within Ghanaian indigenous communities, it cannot be dealt with under customary law.

For several decades, if not centuries, the state/law courts’ position was that ‘for mere general abuse spoken no action lies’. ⁷⁹ For instance, in Bonsu v Forson, the defendant, during a heated squabble with the plaintiff allegedly said something to the effect that the plaintiff (a well-known lawyer in the community and a Member of Parliament (MP)) was a thief, a hopeless lawyer and MP and a clientless legal practitioner. ⁸⁰ Drawing on relevant extant judicial decisions at the time, the High Court dismissed the claim, stating that ‘[s]uch words of heat and vulgar abuse have been held not to be actionable’. ⁸¹ This decision was consistent with the District Court's ruling in an earlier case, Arnoah v Djabi, decided in 1926. ⁸² However, since 1963, the argument or position that mere vituperation is not actionable has been regarded as a misleading statement of the law by some judges and Ghanaian customary law experts. They argue that vituperation or words of abuse and name-calling, such as witchcraft imputation, may and should be deemed defamatory in appropriate circumstances and within certain environments.

One of the landmark cases that changed the tort of defamation (slander) landscape in Ghana is Wankyiwaa v Wereduwaa, ⁸³ a case heard by five different courts between 1959 and 1963. This case concerned two neighbours who were not on speaking terms and openly hostile to each other. The defendant told the plaintiff, during angry exchanges between them, that her ‘vagina stinks’. The plaintiff brought an action for slander against the ‘defamer’ in the Local Court (previously known as the Native Court/Tribunal or Traditional Court), and damages were awarded in the plaintiff's favour. However, this judgment was reversed by the District Court to which the defendant appealed. The claimant then challenged the District Court's decision in the Magistrate Court which reversed the judgment of the District Court and restored that of the Local Court. The defendant also appealed against this ruling to the Circuit Court. Quite dramatically, the Circuit Court also overturned the judgement of the Magistrate Court. Dissatisfied with the judgement of the Circuit Court, the plaintiff appealed to the High Court which ruled in her favour – setting aside the decision of the circuit judge and restoring that of the Magistrate Court. The major difficulty that the lower courts evidently faced in the instant case was determining the applicable law (English common law or Ghanaian customary law) and/or the correct interpretation of the common law and customary law principles. Thus, the law each court applied and how it interpreted the chosen legal system's principles determined the conclusion reached.

The High Court judge, in considering the Circuit Court's judgement, remarked that the judge failed to consider the important question as to ‘which law was properly applicable to the matter in question’. He further stated: ‘I feel no doubt whatsoever that this matter ought to be determined by customary law’. ⁸⁴ The court explained that even though the statement complained of fell short of slander and may not be actionable under the English common law, it was actionable under customary law. Apaloo J, who would later become the Chief Justice of Ghana, made the following interesting pronouncement:

That brings me to the question whether customary law provides a remedy for mere vituperation which falls short of slander…I cannot think of any reason why on principle there should be none. The fact that the law of England provides no remedy is quite beside the point. The society of England is different from the society of Ghana. In this country, where words of abuse are taken seriously, it would, in my opinion, be socially intolerable if customary law provided no sanctions against a man who finds pleasure in injuring the feelings of his neighbour by vituperation…I am prepared to hold that abuse by itself is a wrong redressible by damages according to customary law. The fact that the words of abuse were spoken in the heat of a quarrel is no doubt a matter that the good sense of a tribunal would take into consideration as a mitigating factor, but it does not by itself negative liability. ⁸⁵

The principles enunciated in Wankyiwaa were affirmed by the Court of Appeal in Attiase v Abobbtey in which the defendant was sued for calling the plaintiff a ‘prostitute’. ⁸⁶ Touching on the relevant remedies or reliefs that could be sought and/or granted under customary law, the Court of Appeal made the following statement:

The real concern of a plaintiff in an action for defamation under customary law is to vindicate his character and not merely to make money. That being the case, the most satisfactory relief which traditional courts could give a plaintiff in such a case is to get the defendant proved guilty of defamation to withdraw his words in the same manner and with the same publicity as he published them so as to eradicate from the minds of the public the injury he did thereby to the reputation and good name of the plaintiff. ⁸⁷

As already indicated, witchcraft-related defamation cases were/are uncommon in Ghana. The present study thus relies on the sparse reported cases most of which were decided from the 1970s. The question as to why most of the sparse extant cases occurred or were decided during and after the 1970s is unclear. However, the evidence suggests that such actions were hardly contemplated and initiated in the courts of law prior to the 1970s because witchcraft imputations were considered a mere vituperation or name-calling and thus not actionable under the received common law. It thus seems that the superior courts’ decisions in Wankyiwaa and Attiase, which clarified the scope and threshold of the tort of slander under the Ghanaian customary law, to some extent, offered people accused of being witches the needed confidence to invite the state courts to enforce the customary norm relating to defamation arising from witchcraft accusations.

One of the well-known and well-publicised witchcraft-related defamation claims is Abotchie v Nuumo. In this case, the defendant uttered the following statement to the plaintiff's sibling: ‘Tell your sister [meaning the plaintiff] that the reason why I do not speak to her is that she is a witch and she leads a gang of witches to come and eat me up’. ⁸⁸ After receiving the message, the person accused of being a witch sued her accuser for defamation of character in the Hight Court. At trial, the defendant admitted uttering the words imputing witchcraft to the plaintiff and insisted that her claim was true. She requested that the judge allow fetish priests or witchdoctors to testify as to the truth of her statement/allegation. But the judge declined the request, stating:

The court must act with considerable caution in allowing fetish priests to testify as to the truth of such a statement…In my considered opinion, the traditional mode or method of proving witchcraft which the defendant intends to adopt or follow has not gained any recognition in the courts of law. ⁸⁹

It is submitted that in the Abotchie case, the court applied the principles of both customary law and common law as well as the so-called repugnancy clause/doctrine. For instance, the established customary or traditional method of detecting a witch in indigenous Ghanaian communities was/is by divination or trial by ordeal usually conducted by traditional spiritualists such as fetish priests. ⁹¹ Yet, the High Court declined the defendant's request to use this traditional/customary method to prove the truth of her witchcraft allegation. The court perhaps felt that such a method breached the repugnancy clause. Additionally, under the Ghanaian customary law, witchcraft accusations are lawful only if they are made through the right channel – the traditional leaders or elders. Therefore, the court could have found the defendant liable solely on the ground that she did not make the witch allegation through the right medium or existing customary process. Yet, the court consciously or unconsciously ignored that customary principle. It seems that the court felt uncomfortable and was unwilling to recognise the validity of this customary system which legitimised/legitimises witchcraft accusations made through the traditional leaders and elders.

In 1975, the courts were invited to resolve two interesting witchcraft-related defamation claims, Ama Kunta v Abena Kobua and another ⁹² and Kofi Badu v Abena Kobua and another ⁹³ . These cases are unique in the sense that the main accuser (the first defendant) claimed she was herself a witch. ⁹⁴ The facts of the two lawsuits, which were filed against the same persons, are that the first defendant, whose 8-month-old infant daughter had recently died, went to the houses of the two plaintiffs, banging a spoon against a cookware to draw the attention of bystanders and announcing that she was a witch and that the two plaintiffs were also witches that belonged to her witch coven. She then accused them of being malevolent, cannibalistic witches who had bewitched or spiritually cannibalised her infant daughter. The first defendant, who proclaimed herself as a vegetarian and fructivorous witch, claimed that all efforts to stop the plaintiffs from consuming her baby in the spiritual realm proved unsuccessful. She further accused the two plaintiffs of being in an amorous relationship in the spiritual world. It was claimed that the first defendant was encouraged to make those disparaging accusations by her mother-in-law (the second defendant). There was no evidence that any of the defendants was suffering from mental disorder.

The plaintiffs (a fish vendor in the first case and a fisherman in the second case) who lived in a small fishing community supposedly lost a significant number of their customers following the witchcraft imputations. Thus, their regular and potential customers shied away from their fish, fearing that the fish they supplied or sold might not be real fish but some weird animal turned into fish through their witchcraft powers. The plaintiffs also apparently lost social standing in the community in which they lived due to the defendant's imputation of witchcraft. This prompted them to sue their accusers for defamation, seeking a retraction, an apology, and damages. The defendants were found liable for defamation of character in both cases and ordered, amongst others, to pay a hefty amount of money in damages. The following passage from a local newspaper illustrates the court's reasoning for finding the defendants liable in the Badu case:

‘Witchcraft is abhorrent to human beings everywhere, particularly in Ghana where the imputation tends to scare people away from anyone so suspected’. As a result of the defendants’ imputation of witchcraft, the court said Kofi Badu's reputation in the small rural community had been blemished beyond repair. In pointing out the many ways in which the imputation of witchcraft may affect the plaintiff, the magistrate averred that it would be detrimental to his business as a fisherman. He noted: ‘The plaintiff is a fisherman who made a living by fishing and selling his catch to the public. But now every catch he made was suspected to be tainted with elements of wizardry. People will surely avoid him and his catches. He may be forced by circumstances beyond his control to leave Ankaful and fish somewhere else. Difficulties loom ahead of him. He is caught up in a whirlpool of events over which he has no control. I give him 300 cedis damages with costs of 120 cedis for his counsel’. [It must be noted that 300 cedis was equivalent to $300 in those days.] ⁹⁵

Another interesting and worth-examining defamation case arising from a witchcraft imputation is Afriyie v Dansowah. ⁹⁷ In this case, the court justified why it was/is necessary to chastise people who accuse others of being witches. It reasoned that witchcraft is believed to be hereditary; therefore, to call a person a witch is to imply that members of his/her family also possess malevolent powers capable of causing irreversible harm. For this reason, words imputing witchcraft is a civil wrong and actionable per se. This view reflects that of Sarbah who opines that what makes witchcraft imputation ‘a serious offence is that witchcraft is considered hereditary, and to call a person…wizard, witch, implies that every member of such person's family is possessed of an evil spirit capable of doing infinite mischief, and the less one has dealings with any of them the better’. ⁹⁸

Even though in Ghana it is trite law that the legal system applicable in witchcraft-related defamation claims, where the parties are from the same group, is customary law, there have been instances where judges dealing with such cases in the country have struggled to decide which of the two sources of law (common law and customary law) should be applied or relied upon in resolving the matter. One instructive case in this regard is Afful v Okyere and another. ⁹⁹ This case concerned a senior nutrition officer with the Ministry of Health who, without provocation, was accused by her male co-tenants of being a witch and killing two of the first defendant's children by witchcraft. The woman filed a defamation lawsuit against her accusers in the High Court, but the trial judge dismissed the case after incorrectly applying the received common law principles. The plaintiff appealed on the grounds that ‘the trial judge had (a) erroneously interpreted the evidence on the record and (b) confused the common law principles on defamation with that of customary law’. ¹⁰⁰ Allowing the appeal, the Court of Appeal made the following important statement:

Although to call somebody a witch under the common law was not actionable without proof of special damage, on the authorities under the customary law, it was actionable per se without proof of damage. In the instant case, the parties were Akans, and therefore the law applicable was the Akan customary law. Accordingly, the first defendant was guilty of defamation of character when he called the plaintiff ‘a witch’ and accused her of having killed his two children. In the circumstances, the trial judge erred in dismissing the plaintiff's action. ¹⁰¹

In a study that largely focuses on witchcraft-related mistreatments and victims’ reactions to witchcraft accusations against them in northern Ghana, Leo Igwe identifies and reports details of several defamation lawsuits occasioned by witchcraft imputations. ¹⁰³ In one case, a 60-year-old woman lodged a defamation claim with the District Magistrate Court against two community members, a woman (first defendant) and her husband (second defendant), who had publicly accused her of being a witch and using witchcraft to cause the second defendant's ailment. The allegation compelled the plaintiff to flee the community for fear of her life. The court action was initiated after several attempts to get the accusers to retract the slanderous statement before the community at the village chief's palace had failed. In October 2013, the case was discontinued (or struck out) following an out-of-court settlement, which apparently included a retraction and/or an apology, mediated by the village chief. ¹⁰⁴ The plaintiff was able to return to the community following the settlement.

In another case, a 70-year-old man was accused by a group of villagers of being a witch and causing the sickness and eventual death of the village chief. He was banished from the community by his accusers led by six men (the defendants). When all calls for the defendants to retract the witchcraft imputation and to allow the plaintiff to return to the community fell on deaf ears, the septuagenarian, in July 2013, sued the six men in the District Magistrate Court, seeking, inter alia, the following reliefs: (a) an order directed at the defendants to allow the plaintiff to return to the village, (b) ‘[a]n order directed at defendants to prove or retract [publicly] the accusation they made that he was the brain behind the illness and death of the late village chief…’, and (c) ‘[a] compensation…for defamation of character’. ¹⁰⁵ In February 2014, the court, in accordance with article 72 of the Ghana Courts Act (Act 459 as amended by Act 620), ¹⁰⁶ settled the matter amicably between the parties. It was agreed amongst other things that (a) all the parties would live in peace in the community, (b) the defendants had ‘no such powers to banish the plaintiff…from the community’, (c) the accusation that the plaintiff was a witch who had caused the sickness and death of the late village chief was ‘far-fetched since it cannot be substantiated’, and (d) to accuse ‘one of killing somebody spiritually is baseless…[and] the law has no respect for spiritual matters’. ¹⁰⁷

Some jurists and academics have suggested that it is unenlightened for the law of torts to provide a remedy against mere vituperation or name-calling. For instance, in Nkrumah v Manu, Taylor J strongly criticised the courts’ reasoning in both Wankyiwaa and Attiase and their approval of the indigenous community values relating to verbal abuse. He reasoned as follows:

I must say though that it is about time the customary law of slander took on a more enlightened garb and moved so to speak with the demands of modern times. When village communities were small and the written word was unknown to customary law the only means of social and commercial intercourse was the spoken word. It was therefore essential for the preservation of the peace of those small communities that idle insults which ridicule and may therefore ruin a person be discouraged by the body politic. With the very drastic changes which modern civilization has imposed on community and rural life throughout the country it seems to me that the law has more serious problems than silly vituperation… ¹⁰⁸

However, it is submitted that it is appropriate for customary law to provide a remedy for certain kinds of insults and affronts, such as witchcraft imputation, to personal dignity. It is generally agreed that cases such as those bordering on witchcraft accusations ‘are better understood and handled within local customary jurisdictions’. ¹⁰⁹ It has also been argued by some academics that Ghanaians are generally more sensitive to insults than people in European countries, particularly Britain. ¹¹⁰ Therefore, refusing to provide a remedy for insult ‘may…lead to insulted Ghanaians taking the law into their own hands or at least speaking ill of the law for not giving just redress to their felt grievances’. ¹¹¹

Conclusion

This paper has sought to explore the common law standards and customary law principles of defamation in Ghana and to examine the Ghanaian courts’ attitude towards defamation claims or lawsuits provoked by witchcraft imputations. It has established that unlike the received common law which serves to protect only reputation, the Ghanaian customary law protects not only reputation but also dignity. Therefore, statements which may injure people's dignity without necessarily damaging their reputation are actionable under the customary law. In Ghanaian societies, reckless statements that baselessly accuse people of being witches or practising acts of witchcraft are frowned upon as they injure the dignity of the accused. Hence, reckless imputations of witchcraft are actionable per se under customary law.

Recent studies on witchcraft's impact on crimes in various parts of Ghana clearly demonstrate that imputations of witchcraft can have debilitating consequences on the well-being and safety of the persons accused of being witches – it could result in banishment, physical and psychological torture, lynching and so on. For this reason, it is submitted that the customary law principles concerning witchcraft-related defamation is justifiable, and the courts’ willingness to impose damages or some form of sanctions on persons who recklessly accuse others of being malevolent witches is laudable. Restricting the intervention of customary law in such cases only leaves the plaintiffs, who have been falsely accused of witchcraft and suffering unbearable abuse and pain as a result, with no legal remedy.

Today, witchcraft-related defamation cases are uncommon partly because victims of witchcraft imputations, most of whom are illiterate elderly people, tend to have no knowledge of the fact that they could sue for defamation in the courts of law. The present study thus raises awareness that there is an opportunity today for victims of reckless witchcraft accusations to sue for defamation, using the important body of case law that has been developed through judges’ interpretation of slander as understood through the lens of customary law. It is relieving that the Parliament of Ghana is presently debating an anti-witchcraft bill for passage into law. This bill, if/when passed, will criminalise witchcraft accusations. However, until this important bill is passed, people accused of witchcraft can only be encouraged to bring defamation lawsuits against their accusers in the courts of law. Since most victims of witchcraft accusations are poor and not able to afford the exorbitant legal fees, legal practitioners are encouraged to take up witchcraft-related defamation cases on a pro bono basis. Non-governmental human rights protection organisations are also encouraged to financially support such actions.