Shakahola convictions good, but we need to go a step further

Shakahola convictions secured, but questions over state failures and accountability remain. [File, Standard]

The conviction of Paul Mackenzie and his co-accused in the Shakahola case, presided over by Justice Diana Kavedza, marks an epochal moment in our constitutional and criminal jurisprudence. Beyond the immediate question of individual culpability, the judgment invites reflection on religious liberty, the limits of judicial authority and the troubling failures of the institutions entrusted with protecting life. Its significance lies in the constitutional questions it leaves behind.

First, Shakahola represents a grim reminder that constitutional freedoms, however sacred, cannot become sanctuaries for criminality. The right to freedom of religion under Article 32 of the Constitution protects belief, conscience, worship and religious practice. These guarantees are indispensable in a democratic society whose constitutional order embraces pluralism and diversity. At the same time, no constitutional freedom exists in a vacuum. The Constitution protects human dignity, life and liberty alongside religious freedom.

Where religious practices facilitate criminal conduct, the law must intervene, not to police belief, but to protect the people whose rights are threatened in its name. This is the story of the Shakahola massacre. The distinction is fundamental. A person may believe in fasting, spiritual purification or divine revelation; the criminal law does not ordinarily concern itself with the sincerity or theological soundness of such beliefs. Its concern begins when conduct crosses the boundary into an offence, violates another person’s rights or creates a legally cognisable danger of harm. Religion is never meant to be a constitutional alibi for conduct that the law prohibits.

Article 32 must therefore be read alongside Article 24, which establishes the criteria and rubric for limiting rights. The question shifts from whether a religious practice appears strange, offensive or irrational to the majority, to whether a limitation is justified under the Constitution and whether the conduct in question falls within a valid legal prohibition.

Second, the judgment raises an important question about the proper boundaries of judicial pronouncements on religious doctrine, which is a different sphere. The court did not need to pronounce authoritatively on the validity of particular scriptures or determine the theological legitimacy of the Book of Maccabees. That book forms part of the biblical canon in several Christian traditions, including Catholic and Orthodox traditions. Its status is therefore not a matter on which a criminal court should casually purport to settle universal religious truth. The distinction between law and theology must remain as is.

Courts determine legal rights, obligations and culpability; they are not and cannot be arbitrators of divine revelation. A court may examine religious material where necessary to establish motive, intention, context or the circumstances surrounding alleged criminal conduct. But that evidential inquiry is different from declaring a scripture or a book and its ‘interpretation’ in the Bible valid or invalid. The former is a judicial function; the latter risks drawing the court into theological territory beyond the necessities of adjudication.

Any pronouncement on the theological validity of scripture that was unnecessary to determine the criminal charges would, to that extent, be obiter dictum (mere comments of persuasion) rather than a necessary foundation of the decision otherwise called ratio of the judgment.

Its persuasive force must consequently be assessed with care. The accused could have been convicted or acquitted by applying the relevant criminal law to the evidence, without determining whether the movement was a cult or resolving contested questions of biblical authenticity.  Indeed, the cult question is fundamentally a moral and religious classification, not an independent legal test of criminal responsibility. What matters is whether particular acts satisfy the elements of an offence, contravene a valid law, or threaten legally protected interests. Article 24 provides the constitutional lens through which restrictions on religious exercise should be examined. This approach avoids the dangerous implication that unconventional religion is inherently unlawful while ensuring that invoking religion cannot immunise criminal acts from prosecution.

Third, Shakahola demands accountability beyond the judgment. Thousands of acres reportedly became the setting for mass migration, isolation, deprivation and starvation. How could so many people gather and remain in such circumstances without effective intervention by local security structures, regional security teams or the National Intelligence Service? Where were the chiefs, police officers, intelligence officers and other public authorities whose mandates include detecting danger and protecting life? This question is a constitutional one.

The State bears positive obligations to protect life and must exercise reasonable diligence where credible threats emerge. Institutional failure on this scale demands an independent, transparent examination of what was known, when it was known, who acted, and who failed to act. Accountability must reach beyond the immediate perpetrators to any officials whose negligence, complicity or deliberate inaction enabled the tragedy.

Finally, the scale and duration of the events make it difficult to accept that every relevant security institution was simply unaware. There is no proof that the security architecture benefited from the illegalities; of course, such a conclusion requires evidence. Nevertheless, the possibility of institutional complicity, protection or willful blindness must be investigated rigorously. An architecture established to protect citizens cannot credibly disclaim responsibility when human beings disappear into a landscape of death.

Shakahola must therefore become more than a moment of convictions. It must mark the point at which religious liberty is defended without surrendering the rule of law and institutional responsibility is pursued without fear or favour. Justice for the dead requires punishment where guilt is proved, but it also requires answers from the living institutions that failed to prevent the tragedy. Otherwise, the courtroom may close one chapter while the constitutional failure that made it possible remains painfully open. And I do think the victims, in light of the deliberate failures of the security systems and the positive duty of the State to protect them, can approach the High Court for appropriate redress. Never again!