How the law fails refugees from a world with witches
In many countries, fear of witchcraft is very real and leads to people fleeing for safety. But how is this persecution viewed when determining refugee status?
Raised eyebrows and a curious laugh is the most common response Jenni Millbank gets when she tells people that she researches witchcraft. It’s not on the radar for most of us, yet there are about 1000 cases of witchcraft-related violence reported by human rights agencies each year. In fact, one in five people across 19 African nations believe in witchcraft. As do many others in Nepal, India, Indonesia, New Guinea and some Central American countries.
Jenni says, “While witchcraft abuses overwhelmingly target women and children, they also impact a broad spectrum of people – including gender non-conforming people, gay people, intersex children and their mothers, the elderly, widowers, women who refuse forced marriages, homeless children and children with disabilities. I find it shocking that such a prevalent form of violence knits together all these diverse but marginalised people.”
What do you mean by ‘witchcraft’?
According to Jenni, witchcraft can look quite different in different places. And while human rights organisations are increasingly concerned about witchcraft-related violence, that awareness doesn’t necessarily translate into a successful refugee status for those fleeing abuse.
When a person seeks asylum from their home country, their refugee claim is determined using the 1951 Refugee Convention grounds. One of the grounds is religion, but as there is no clear definition of what constitutes ‘religion’, witchcraft is often excluded. That means claims usually fail.
“While the United Nations High Commissioner for Refugees (UNHCR) has issued guidance on the definition of religion under the convention, clearly covering a broad range of spiritual beliefs and practices including non-belief, these broad guidelines have simply been ignored in the witchcraft cases,” explains Jenni. “There’s nothing wrong with the law as such, the issues are with the decision-makers who interpret and apply these laws.”
The Western view
“Western decision-makers fail to understand witchcraft as a belief system or social practice. It’s alien to them, they regard it as a form of pre-modern superstition. So instead of reviewing evidence to better understand each case, more often than not they simply dismiss it.” Jenni adds, “Claims solely resting on witchcraft will almost certainly fail”.
An example of such failure is the 2012 case of Fatoyinbo* from Nigeria. She made an application for refugee status in Canada after her son-in-law accused her of a being a witch, which led her to fear she would be killed by her community. But the Immigration and Refugee Board of Canada’s response to her application was that “there was no credible or rational explanation for this scenario. While the agent of harm may accuse the claimant of witchcraft, there is no reliable evidence before me that witchcraft exists or that the claimant is a witch.”
Because the panel didn’t themselves believe in witchcraft, they couldn’t imagine how the accusation could threaten Fatoyinbo’s safety. They characterised the situation as a vendetta by the son-in-law, which as a ‘personalised risk’ doesn’t allow protection under the refugee convention. Fatoyinbo’s case was denied by both the Canadian Tribunal and Canadian Federal Court. Jenni says this outcome highlights a profound failure to properly understand the practice of witchcraft accusation and gender-related persecution. Occurring in the private realm, the accusation may have mixed motivations and create a danger that Western decision makers fail to see.
Western decision makers fail to understand witchcraft as a belief system or social practice. It’s alien to them, they regard it as a form of pre-modern superstition.
Distinguished Professor Faculty of Law, Director of the Law Health Justice Research Centre
More than a ‘woman’s issue’
Jenni’s research has also shone a spotlight on cases with children at the centre of the accusations, such as the case of Shitta* from Nigeria. Shitta is a child with autism, and her mother sought asylum in the UK for them both.
Shitta’s mother claimed her daughter’s symptoms, including a lack of speech and hyperactivity, signified to her husband’s family that the child was a witch, and that their extended family had tried to harm her.
In rejecting the claim, the Tribunal judge emphasised organisations existed to care for people with autism in Nigeria, and that although autistic children may be ‘unkindly treated’, ‘that is not the whole picture’. This highlights another judgment where the specific danger in relation to a witchcraft accusation was not understood by decision-makers.
It’s bigger than you think
It’s estimated that for every published case there are another 50 to 100 cases we don’t hear about, including here in Australia. That’s because most countries only publish a small percentage of their cases to protect candidates’ anonymity. Jenni herself only discovered the prevalence of witchcraft accusations concerning intersex children and their mothers during a discussion with colleagues at a UNHCR event nine years ago.
“I was shocked to learn about this realm of cases that were not apparent in the public domain,” Jenni recalls. “They clearly highlight the use of religious practice to persecute and exercise social power and control, overwhelmingly against gender non-confirming people as well as women and children. This is a live issue that the public should know about.”
While Jenni feels the UNHCR has done tremendous work in this area, supported by non-profit and non-government organisations documenting this issue, the understanding of witchcraft-related violence and persecution will only be changed and challenged through the work of local communities across the world.
“An outsider like myself, for example, who doesn’t live in a world of witches, can work on my own community, which is refugee decision-makers, to get them to better understand the beliefs they’re dealing with.”
Jenni hopes her ongoing research, alongside the work of others, will help to fully lift the veil on this issue in countries making decisions on asylum claims. “Nobody is talking about this, because the cultures which practice these beliefs seem very distant to us. Witchcraft practices make sense to those that believe in them, even if they don’t make sense to those of us that live outside them.
“While progress is slow, I think the drawing together of researchers and activists looking at violence generated by disability, sexuality and gender is really important, as these things have often been regarded as separate. But witchcraft cases clearly show that they’re related.”
*Names changed for confidentiality
Jenni Millbank is a Distinguished Professor in the UTS Faculty of Law and Director of the Law Health Justice Research Centre.