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Trial By Ordeal In Liberia

While considering a post on Trial by Ordeal (TBO) in Liberia, the first thought that came to my mind was to define the term.  The first online source (not particularly authoritative or official) I could find defined it as “a primitive method of determining a person’s guilt or innocence by subjecting the accused person to dangerous or painful tests believed to be under divine control.”

This, however, does not fully capture TBO in Liberia.  In Liberia, TBO is not always used as a means to determine guilt or innocence.  It is also not always a painful or dangerous exercise.

The Liberian version of TBO takes different forms depending on the circumstances.  It may be used on a person suspected of a crime to induce confession; on a suspect or witness to make sure that the person tells the truth (much like testifying under oath); or on a person suspected of being a witch as an interrogation technique or as a cure if he/she has already admitted to being one.  The types of TBO carried out in Liberia include harmless acts (including drinking regular water or performing a simple task); painful exercises (for instance, dipping a hand in boiling oil or putting a hot metal object against the skin); and deadly acts (such as consuming dangerous poison).

It is premised on the idea that a supernatural power will protect the innocent and punish the guilty.  Thus, as the belief goes, consuming harmless food would be poisonous to a guilty person; ingesting poison would prove harmless to the innocent; a simple task would prove utterly impossible if the person attempting to carry it out is guilty; and a wound inflicted on an innocent person would heal quickly while it would take longer or not heal at all if the person is anything but.

TBO has been outlawed in Liberia for close to a century.  The Supreme Court first outlawed the practice in 1916 in a case in which a number of individuals accused of being witches refused to submit to sassywood (a form of TBO that involves drinking a poison brew that often results in death) and the matter was brought before the Court on appeal.  The court annulled TBO on the basis that it violated a suspect’s right against self-incrimination (a right protected under the Liberian 1847 Constitution) by holding:

While it is provided that the native and district courts shall administer the native customary law, we cannot admit the legality of a proceeding which is evidently intended to extort a confession from the accused, and which is in conflict with the organic law of the state, which declares that “no person shall be compelled to give evidence against himself.” … Any custom, which panders to the superstition of the natives of the country is, in our opinion, contrary to the genius of our institutions and should therefore be discouraged. (Jedah v Horace (1916) 2 LLR 63)

In 1940, in an appeal by five individuals convicted by a circuit court of murdering a person suspected of stealing a goat, the Court again upheld the ban; it held that TBO was “unconstitutional and illegal.” (Tenteah v Republic of Liberia (1940) 7 LLR 63).  The Court noted:

It would appear that the decedent died as a result of the doing of the appellants of an illegal act; for, decedent having being accused of having stolen a goat, no effort was made to ascertain the truthfulness or falsity of the action by any legal evidence, but rather resort was had to the illegal and abominable method of trial by ordeal which this court has repeatedly held to be unconstitutional and therefore illegal.

Yet TBO remains common-place in Liberia today.

The prevalence of TBO has been attributed to the unwillingness of the executive body to enforce the ban and its active participation in its routine violation.  The typical example cited to support this indictment is the fact that the Hinterland Regulations which permit some forms of TBO to be sanctioned remain in force in violation of the ban on TBO.  Under these Regulations, the Ministry of Internal Affairs routinely licenses “Ordeal Doctors” to carry out TBO.  Although  forms of TBO that pose danger to life are said to have been banned by the executive body (in other words, the executive body decided to start enforcing an already existing ban partially), a recent United Nations report showed that Liberian authorities have continued to encourage their use.  For example, Liberian President Ellen Johnson-Sirleaf’s recent decision to grant presidential clemency to 14 individuals convicted of murder for a death they caused in the course of a TBO.

Its prevalence is also undoubtedly attributable to other factors.   One such factor is cultural: it is widely believed that TBO is a fair and quick method for dispensing justice in which both the administrators of the trial and the tools used are deemed to possess divine powers for which there is no substitute.  This is particularly true in cases of witchcraft. Another reason why the practice endures despite a long-standing ban is a practical one; formal institutions of justice are inaccessible in most parts of the country and for most people TBO is the only available means of resolving conflict.

The Law Library of Congress has a wide collection of Liberian materials including numerous volumes of the Liberian Law Reports and consolidated materials, Liberian Codes Revised.  You can locate other materials on Liberia through searches at the Library of Congress online catalog.

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