BY: C.K. ANYANWU, LL.M, PhD in view.
&
PRECIOUS OSUEKE (Miss)
ABSTRACT
This article explores the complex intersection of indigenous cultural beliefs and formal statutory prohibitions within the Nigerian legal system. Specifically, it examines the legal status of trial by ordeal and witchcraft accusations under the Criminal Code and Penal Code legal frameworks. Through a meticulous analysis of constitutional provisions and recent appellate courts decisions, including the landmark judicial pronouncements, the research demonstrates that the Nigerian judiciary unequivocally rejects subjective spiritual beliefs as justifications for criminal acts. The authors employed a doctrinal legal research method which incorporates both primary and secondary sources of law and legal materials. The article highlights that while trial by ordeal is criminalized as a barbaric violation of fundamental human rights as provided under chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), (notably the rights to dignity and life); the belief in witchcraft remains legally irrelevant to pleas of provocation or self-defense, except where such belief induces a clinically recognized state of insanity. Conclusively, the article argues for the continued primacy of objective legal standards over mystical traditionalism to safeguard the constitutional integrity of the Nigerian state.
INTRODUCTION
The Nigeria legal landscape, a product of common law and indigenous societal influences, often confronts matters arising from deep-seated cultural and spiritual beliefs. Among the most complex of these are the issues surrounding witchcraft and the anachronistic practice of trial by ordeal. Under the Penal Code, presiding over or being present at an unlawful trial by ordeal is punishable by up to ten years imprisonment, with the penalty escalating to death if the ordeal results in fatality. Furthermore, the act of accusing a person of witchcraft is itself a statutory misdemeanour, liable to imprisonment. A critical finding is the consistent judicial rejection of belief in witchcraft as a valid legal defense to violent crimes. The Supreme Court has ruled that fear or anger arising from alleged witchcraft does not constitute legal provocation sufficient to reduce murder to manslaughter. The only exception for such a belief to be considered is if it induced a state of insanity or delusion that meets the objective legal tests for those specific mental defenses. The courts’ stance protects societal integrity by ensuring objective legal standards prevail over subjective cultural beliefs as justifications for violence. Therefore, this article examines the juridical treatment of witchcraft and trial by ordeal in Nigerian jurisprudence, analysing key pronouncements from the courts. It establishes that the Nigerian legal system unequivocally prohibits and criminalises both practices, treating them as unlawful, barbaric, and unconstitutional violations of fundamental human rights.
Witchcraft is defined as the use of magic powers, especially evil ones.[i] According to the Black’s Law Dictionary, ‘witchcraft’ is defined as the ‘supposed intercourse with evil spirits.’[ii] Also, it is defined as a practice formerly punishable with death under early English statutes.[iii]
The Black’s Law Dictionary defines ‘trial by ordeal’ as ‘a primitive form of trial in which an accused person was subjected to a dangerous or painful physical test, the result being considered a divine revelation of the person’s guilt or innocence’.[iv]
Trial by ordeal is an ancient practice by which the guilt or innocence of an accused is determined by subjecting them to a painful, unpleasant, and often, dangerous experience, based on the belief that a higher power will protect the innocent. The Supreme Court has described it as an unlawful, wicked, malicious, inhuman, dehumanizing and barbaric practice which subjects people to physical and mental torture on the ground of wild and outrageous beliefs and allegations of possession of supernatural powers of witchcraft. It constitutes a gross violation and infringement of a person’s fundamental right to human dignity, personal liberty, and freedom of movement, making it completely unjust and totally unconstitutional.[v]
The legal stance on trial by ordeal in Nigeria is unequivocally one of prohibition and criminalization under both the Criminal Code and the Penal Code. This practice is viewed as unlawful, barbaric and a gross violation of fundamental human rights.
Under the Criminal Code Law (Eastern Nigeria, 1963 – now replicated/domesticated into laws by various states in the Eastern part of Nigeria like the Criminal Code Law of Abia State.[vi]
Section 207(1) explicitly prohibits specific forms of trial by ordeal as follows:[vii] “The trial by ordeal of sasswood, esere-bean, or other poison, boiling oil, fire, immersion in water or exposure to attacks by crocodiles or wild animals, or by any ordeal which is likely to result in death of or bodily injury to any party to the proceeding is unlawful.”
Section 208 stipulates severe penalties for those who direct, control, or preside over an unlawful trial by ordeal.[viii] If the trial results in the death of any party, the punishment is death. In every other case, the punishment is imprisonment for ten years (a felony).[ix] Section 209[x] makes it an offense, liable to imprisonment for one year, for: Taking part or being present in an unlawful trial by ordeal. Having in one’s possession anything intended for the purpose of any such trial.[xi]
Section 211[xii] singles out Traditional Rulers (Chiefs), making them guilty of a felony (liable to imprisonment for three years) if they: Directly or indirectly permit, promote, encourage, or facilitate any unlawful trial by ordeal. Knowing of such a trial, or intended trial, do not report the same to the administrative officer.
b. Under the Penal Code Law
Section 214[xiii] provides the punishment for the offense: “Whoever presides or is present at any unlawful trial by ordeal shall be punished – (a) With imprisonment which may extend to ten years or with fine or with both; and (b) If such trial results in the death of any party to the proceeding, shall be punished with death.”
The Penal Code clarifies that a trial by ordeal is unlawful if it:”…is likely to result in the death of or bodily injury to any party to the proceedings…”
To secure a conviction for the offense of trial by ordeal, punishable with death under Section 214(b) of the Penal Code, the prosecution is required to establish the following ingredients:
Trial by Ordeal is a practice very known for violating human rights. This practice has been criminalized, and the statutory provisions are carved out from deep consideration of the rights of Nigerian citizens that must be preserved. For instance, Chapter 1V, of the Constitution of Federal Republic of Nigeria, 1999 (as altered),[xv] provides the fundamental human rights of Nigerians, among which include, the right to life, the right to freedom of speech, the rich to movement, the right to dignity, the right to freedom from discrimination, the right to fair hearing etc. But trial by Ordeal in its all forms without exception have successfully violated human rights one way or the other particularly right to human dignity[xvi], personal liberty[xvii] right to freedom from discrimination[xviii] and freedom of movement.[xix]
Here are few instances:
Scenario A
One Cecilia Akugo-Onwus, a widow, testified about her experiences going through various trials. Cecilia Akugo-Onwus describes her experience following her husband’s death as follows: “I had to sit close to my husband’s body until dawn. I was made to consume the kola-nut that they (his relatives) had placed on his chest. They made it mandatory for me to eat for several market days, or one calendar month, without brushing my teeth or washing my hands.
Every market day at around three in the morning, an elderly widow accompanied me to a nearby river to take a bath while carrying a lamp. They said that if I killed my husband, he would emerge from the river and exact revenge.
This widow’s right to human dignity was violated.[xx] For the equivalent of a month, she was made to adhere to a dehumanizing routine. She was unable to move freely. She was still alive, but can that be considered life after experiencing such cruel and humiliating treatment? By no means.
Scenario B
Deborah Emmanuel, a student at Shehu Shagari College of Education, Sokoto, was killed by her peers for allegedly committing blasphemy. It is appealing that her classmates denied her the opportunity to live.[xxi] [xxii]
Scenario C
Another example is Okolie Arinze, a student at Obafemi Awolowo University (OAU), Ile Ife, who was beaten to death in the University residence hall by fellow students after being accused of stealing a phone without having a chance to be heard.[xxiii]
They violated his right to life by ending his life in a terrible manner, disregarding the presumption of innocence and denying him a fair trial because he was never given the opportunity to speak for himself.
In the light of the foregoing (scenario c) which is a gross violation of section 36(1) of the constitution of the Federal Republic of Nigeria provides. It provides thus:
“In the determination of his civil rights and obligations, including any
Any question or determination by or against any government or
Authority, a person shall be entitled to a fair hearing within a reasonable
Time by a court or tribunal established by law and constituted in such a
Manner as to secure its independence and impartiality.”
Equally important, the foregoing provision of the constitution received judicial blessings in the most recent case of ELEM v. STATE.[xxiv] In the instant case, the apex court held as follows:
“Fair hearing is a right guaranteed to all persons standing trial before our courts by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The right to fair hearing forms the bedrock of any proceedings, both civil and criminal, in our courts. That right is rooted in the twin pillars of natural justice couched in latin maxim as ‘audi alteram partem’, and ‘nemo judex in casua sua’. It is the foundation of the concept of the rule of law and therefore postulates that every person has the right to be heard before any court and also that the judge should be an impartial umpire.
There are still more situations like the ones mentioned above, but in the end, it must be acknowledged that all forms of trial by ordeal should be eliminated, and the government including the enforcement agencies must make sure that compliance is guaranteed at the lowest levels of society. The nation’s development and future are safeguarded when the rule of law is upheld, criminal concerns are appropriately handled, human rights are respected, and customs like trial by ordeal are eliminated.
4.0 THE OFFENCE OF ACCUSATION OF WITCHCRAFT
Beyond the ordeal itself, the act of levying an accusation of witchcraft is also a statutory offense, recognizing the profound social harm and potential violence such accusations incite.
In UKOH & ANOR v. STATE,[xxv] the Court of Appeal cited the relevant statutory provision of the Criminal Code of Akwa Ibom State.
Thus, section 211 (b) of the Criminal Code of Akwa Ibom State provides that “any person who accuses or threatens to accuse any person with being a witch or with having the power of witchcraft is guilty of a misdemeanor and is liable to imprisonment for two years.”[xxvi]
Elements of the Offence
The Court in UKOH & ANOR v. STATE (supra) further clarified the nature of the offence and the burden of proof on the prosecution. It was defined as ‘a religious practice involving magic and affinity with nature, usually within a pagan tradition.’ For a conviction under Section 211(b) of the Criminal Code (Akwa Ibom State), the prosecution must prove:
(a) The making of the accusation of witchcraft.
(b) The accused person directed the accusation to a particular person.
Rejection of Witchcraft as a Foundation for Provocation
The Supreme Court has maintained that the emotional distress, fear, or anger arising from an alleged act of witchcraft does not constitute legal provocation sufficient to reduce the crime of murder to manslaughter.
In NJOKWU v. STATE,[xxvii] the Court ruled: ‘It is, however, settled law that a plea of provocation founded upon witchcraft cannot stand.’ (Citing Konkomba v. R (1952) 14 WACA 236 and Gadam v. R (1954) 14 WACA 442).
Rejection of Witchcraft as a General Defense
A recurring theme in Nigerian criminal law is the attempt by defendants in murder or grievous bodily harm cases to use belief in or provocation by witchcraft as a mitigating factor or a full defense. The superior courts have consistently and unequivocally rejected this line of argument.
The judiciary has adopted a salutary rule of rejecting defenses founded on witchcraft, regardless of the accused person’s genuine, subjective belief.
In ARUM v. STATE,[xxviii] the court held that: ‘Killing because of a delusion that he was bewitched by a native doctor cannot also be justified; this is because a defense founded on witchcraft has always been rejected in murder cases.’
Furthermore, in the recent case of ILU v. STATE.[xxix] In the instant case, the apex court held as follows:
“In our opinion, the confession in this case is voluntary from the legal point of view and was promptly admitted…To find otherwise would be getting perilously near to the fallacious theory that a genuine belief in witchcraft might be a possible defense to a charge of murder.” I think the jurisprudence upon which that decision is based is well grounded in law. Believing in witchcraft is a metaphysical issue which courts of law lack the instruments to determine. It is not based on concrete facts capable of being seen, touched, observed or perceived by our earthly or mundane senses. Decisions of courts are founded on objective requirements of the law and not subject believe of the offender. That is why this court held in Alabi v State (supra) per Oputa, JSC (of blessed memory), that: “No man’s belief is on trial in a murder case …. What is on trial is the act or omission of the accused. Whether or not the accused believes in witchcraft seems quite irrelevant to the inquiry… Therefore, a defense founded on belief in witchcraft or juju is a defense founded on the subjective belief of the accused rather than on the objective requirements of the law relating to the relevant defense. Such defenses are untenable. But if the belief in witchcraft or juju produces a state of insanity or delusion, then the criminal responsibility of the accused will be measured not by the tenets of his belief but by the objective standard of the law relating to such defenses, viz insanity, Delusion or Provocation as the case may be. Believe in witchcraft or juju per se is no defense….”
The most comprehensive explanation for the courts’ attitude was provided in the monumental judgment of IHONRE v. STATE,[xxx] where Justice Oputa, JSC, meticulously distinguished between subjective belief and objective legal standards.
No man’s belief is on trial in a murder case… What is on trial is the act or omission of the accused. Whether or not the accused believes in witchcraft seems quite irrelevant to the inquiry…’ Defenses based on witchcraft or juju are founded on the subjective belief of the accused, which “has no objective standard against which it may be judged.’ Belief in witchcraft or juju per se is no defense…”
The Exception
It is pertinent to note that Justice Oputa, JSC, in Ihonre (supra), carved out the only pathway for such belief to become legally relevant ‘But if the belief in witchcraft or juju produces a state of insanity or delusion then the criminal responsibility of the accused will be measured not by the tenets of his belief but by the objective standard of the law relating to such defenses- viz Insanity, Delusion or Provocation as the case may be.’ The focus shifts from the belief itself to its resulting effect on the accused’s mental state, which must meet the objective legal tests for insanity or delusion.
5.0 CONCLUSION
Nigerian jurisprudence stands firmly against the practices of trial by ordeal and the use of witchcraft as an excuse for criminal conduct. The law is clear that trial by ordeal is an illegal and highly punishable felony, especially if death results. Also, accusation of witchcraft is a statutory misdemeanor punishable by two years’ imprisonment. Belief in witchcraft is not a valid defense against murder or other violent crimes, nor can it generally constitute legal provocation. The only avenue for such a belief to be relevant is if it can be proven to have induced a state of insanity or delusion that meets the objective legal requirements for those defenses. The courts’ consistent rejection of these defenses serves the crucial purpose of protecting society and maintaining the objective integrity of the criminal justice system against culturally complex but legally untenable justifications for violence.
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BIBLIOGRAPHY
Statutes
Nigeria
United Kingdom
Cases
Books
Newspapers & Online Media
[i] Musa v State (2025) 14 NWLR (Pt. 2005) 207 S.C.
[ii] Black’s Law Dictionary (2nd edn, 1910).
[iii] Witchcraft Act 1541 (33 Hen VIII c 8).
[iv] Bryan A Garner (ed), Black’s Law Dictionary (11th edn, Thomson Reuters 2019) 1548.
[v] Musa v. State (2025) LPELR-81818 (S C).
[vi] Criminal Code Law of Abia State 2005, Cap 80, Vol 3.
[vii] ibid s 207(1).
[viii] ibid s 208.
[ix] Ahuruonye & Anor v Ikonne & Ors (2015) LPELR-25609 (CA).
[x] Criminal Code Law of Abia State (n 6) s 209.
[xi] Ahuruonye & Anor v Ikonne & Ors (2015) LPELR-25609 (CA)
[xii] Criminal Code Law of Abia State (n 6) s 211.
[xiii] Penal Code Act, Cap 53 Laws of the federation of Nigeria, 2004.
[xiv] Musa v. State (2025) LPELR-81818 (SC).
[xv] Constitution of the Federal Republic of Nigeria 1999 (as amended).
[xvi] ibid s 34.
[xvii] ibid s 35.
[xviii] ibid s 42.
[xix] ibid s 41.
[xx] In the case of EZE v. I.G.P (2017) 4 NWLR (PT. 1554) 44 C.A., it was held that by virtue of section 34(1)(a) of the 1999 Constitution, every individual is entitled to respect for the dignity of his person, and no person shall be subjected to torture or to inhuman or degrading treatment
[xxi] TVC News, “UPDATE: Deborah Emmanuel Murdered by Angry Mobs for Alleged Blasphemy,” TVC NEWS, May 15, 2022, https://www.tvc.tv>deborah-samuel-sokoto-student… accessed on 10th December, 2025
[xxii] In the case of ESABUNOR v. FAWEYA (2008) 12 NWLR (PT. 1102) 794 C.A., the court held that by virtue of section 33(1) of the 1999 constitution, every person has a right to life and no one shall be deprived intentionally of his life, save in the execution of a sentence of a court of a criminal offence of which he has been found guilty in Nigeria.
[xxiii] Adeniyi Odukoya, “More than 15 arrested after Nigerian student beaten to death by mob on campus,” The Guardian, April 27, 2023, https://www.theguardian.com/global-development/2023/apr/27/more-than-15-arrested-after-nigerian-student-beaten-to-death-by-mob-on-campus. accessed 10th December, 2025.
[xxiv] (2025) LPELR-80578 (SC)
[xxv] (2022) LPELR-56711 (CA)
[xxvi] Criminal Code Law of Akwa Ibom State, s 211 (b).
[xxvii] (2013) LPELR-19890 (SC)
[xxviii] (1979) LPELR-567 (SC)
[xxix] (2025) LPELR-80702 (SC)
[xxx] (1987) LPELR-1462 (SC)
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