A/HRC/34/59
reasoning applies to other harmful practices, including attacks against persons with
albinism: harmful practices can never be justified.
41.
Article 18 of the International Covenant on Civil and Political Rights distinguishes
the freedom of thought, conscience, religion or belief from the freedom to manifest religion
or belief. On the one hand, it does not permit any limitations whatsoever on the freedom of
thought and conscience or on the freedom to have or adopt a religion or belief of one’s
choice. These freedoms are protected unconditionally. On the other hand, restrictions on the
freedom to manifest religion or belief are permitted if limitations are prescribed by law and
are necessary to protect public safety, order, health or morals, or the fundamental rights and
freedoms of others. 18 In joint general recommendation No. 31 of the Committee on the
Elimination of Discrimination against Women/general comment No. 18 of the Committee
on the Rights of the Child (2014) on harmful practices, the committees recognize that
harmful practices are deeply rooted and that there are often attempts to justify them by
invoking sociocultural and religious customs and values. However, harmful practices can
never be justified and must be eliminated, including by challenging sociocultural norms and
attitudes that underlie them. In addition, States cannot justify any delay in taking action on
any grounds, including cultural and religious grounds.
42.
Despite these considerations, it appears that various countries with records of attacks
do criminalize witchcraft, using a definition of the phenomena in their legislation.
However, most of these laws were inherited from the colonial period and are often out of
touch with present reality. They bear a limited understanding of witchcraft — its extent,
scope, flexibility and evolution — and proffer a definition of the phenomena that is difficult
to enforce.
43.
It is important to reiterate that although witchcraft per se should not be criminalized,
any killing of persons for the use of body parts in witchcraft-related practices such as muti
or juju should be prosecuted. To do so, it is necessary to ensure that legal provisions
criminalize a broad range of attacks and assaults, as well as criminalize the possession and
trafficking of body parts. Linking such a criminal action to muti and juju would be
challenging, given the difficulty in establishing objective evidentiary standards.
Nonetheless, where evidence substantially supports the proposition that muti and juju were
the purpose of the criminal activity, States could consider including that factor as an
aggravating circumstance leading to a heavier sentence and ultimately deter crime
incentivized by witchcraft. Non-legal tools such as public education and sociocultural
interventions with stakeholders would also be necessary to complement such legal practice
in dissuading muti, juju and all crimes related to witchcraft.
44.
While defining witchcraft as an element of crime raises issues, witchcraft
accusations could be objectively defined without defining witchcraft. Therefore, to suppress
witchcraft accusations, they could be proscribed with legislation, enforceable with relative
ease.
Harmful practices
45.
In joint general recommendation No. 31/general comment No. 18, the Committee on
the Elimination of Discrimination against Women and the Committee on the Rights of the
Child have provided guidance on what constitutes harmful practices, which are defined as
“persistent practices and forms of behaviour that are grounded in discrimination on the
basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting
18
Human Rights Committee, general comment No. 22 (1993) on freedom of thought, conscience and
religion.
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