SAPRA comment on SA Law Reform Commission Discussion Paper 139, Project 135.

South African Law Reform Commission
Private Bag X 668
PRETORIA, 0001
 
For attention:  State Law Advisor
Ms Jennifer Joni
 
Professor Marita Carnelley
Professor David Bilchitz 
Dr Sibusiso Masondo
Ms Likhapa Mbatha
Prof Pitika Ntuli
Prof Theodore Petrus
 
 
Comment by The South African Pagan Rights Alliance (SAPRA) on Discussion Paper 139, Review of the Witchcraft Suppression Act 3 of 1957, Project 135.
 
Objection to proposed draft Prohibition of Harmful Practices Associated with Witchcraft Beliefs Bill.
 
 
The South African Pagan Rights Alliance (SAPRA) herewith submits formal objection against the South African Law Reform Commission’s proposed ‘Prohibition of Harmful Practices Associated with Witchcraft Beliefs Bill’.
 
Part One – alleged ‘harmful witchcraft’
 
It must be noted firstly that the SALRC has received numerous submissions which confirm that a) existing legislation has failed to curb violence against victims of accusation of witchcraft, and b) new legislation will merely reflect already existing laws against crimes identified throughout the SALRC’s Issue Paper.
 
Despite this, The Commission has argued that a need arises to define “harmful witchcraft” practices, and has defined this as:
 
” ‘Harmful witchcraft’ means the intentional or purported use of non-natural or supernatural means (whether that involves the use of physical elements or not) to threaten, or to cause, (i) Death or injury to or disease or disability to any person; or  (ii) Destruction or loss of or damage to property of any description; or (iii) Utilises belief and particular practices associated with harmful witchcraft to instil psychological distress or terror. “
 
SAPRA must argue that this definition, and the Commission’s expressed need to define such, constitutes prejudicial bias against practitioners of Witchcraft.
 
Whilst certain crimes may indeed be motivated by belief, those crimes identified in the Commission’s definition of alleged “harmful witchcraft” practices, specifically, intimidation with the intent to cause psychological distress or terror, may be committed by a member of any (or no) religious faith. Indeed, there is sufficient evidence to show that some Christians and Traditional Healers have in the past attempted to justify their criminal acts by appealing to their beliefs as motivation for such acts.
 
Courts have generally given little or no weight to such professed religious motivations for the commission of criminal acts, as the SALRC’s Issue Paper itself has already confirmed.
 
In the absence of leading physical evidence of criminal acts, evidence interpretation when dealing with “witchcraft”, is usually if not always based on beliefs about, rather than actual demonstrable evidence of actual provable harm.
 
The Commission must therefore show why legislation is only required to punish alleged harmful “witchcraft” practices, but not alleged harmful Christian of African religion practices.
 
The Commission further seeks to define “harmful witchcraft” as involving the “intentional or purported use of non-natural or supernatural means”.
 
It must be noted that beliefs, or purported beliefs, about non-natural or supernatural means do not constitute demonstrable evidence of such means, and at best, amount to untested fantasy in terms of the law of evidence. Beliefs about supernatural malevolence cannot be tested by evidentiary rules.
 
By giving weight to fundamentally unprovable beliefs about alleged supernatural means, the Commission is inadvertently confirming to those who make accusations of witchcraft against others, that “death, injury, disease, disability, and destruction to property”  can indeed be caused by Witches, without Witches having to employ actual provable criminal acts. 
 
This effectively contradicts the intent of the Commission to seek to prevent accusations of witchcraft and violent witch-hunts.
 
If the Commission seeks to reinforce unprovable beliefs about alleged supernaturally created harm, it is also in effect, seeking to legally enshrine unprovable prejudicial beliefs and harmful stereotypes about Witches and Witchcraft.
 
This would contradict the Commission’s stated intent to respect the right of Witches to practice their faith without prejudice by the State.
 
The Commission has already confirmed that the application of the terms witchcraft and witch in Act 3 to traditional African religion and its practitioners by the drafters of said Act, constitutes an historically inaccurate misnomer. Traditional African religion is not Witchcraft, and traditional practitioners (including those found guilty of crimes) do not self-identify as Witches.
 
It would therefore be inaccurate to identify alleged harmful practices which originate from practitioners of traditional African religion, as “witchcraft” practices.
 
SAPRA is of the opinion that new legislation is not required in order to prohibit intangible and unprovable allegations.
 
Ample laws already exist to deal with provable criminal acts (irrespective of religious motive) which may lead to death, injury, disease, disability, destruction to property, psychological distress or terror.
 
Part Two – human mutilation, ritual murder and the illegal trade in human body parts (muthi murder)
 
The Commission has argued that African cultural belief ascribes human mutilation, ritual murder and the illegal trade in human body parts (called muthi murders), as harmful “witchcraft” practices.
 
SAPRA must argue that since the perpetrators of such practices, specifically those who trade in human body parts, do not self-identify as Witches or as practitioners of Witchcraft, but have in the past been identified as traditional healers or as practitioners of traditional African religion (who do not self-identify as Witches), the application of the term “witchcraft” to such practices constitutes an equally inaccurate (and prejudicial) misnomer.
 
Muthi murders have nothing to do with Witchcraft, because actual Witches are not the perpetrators of such crimes. Those found guilty of trading in and obtaining human body parts have never self-identified as Witches or as having practiced Witchcraft.
 
Ascribing such heinous crimes to the practice of “witchcraft”(as a harmful witchcraft practice) merely serves to reinforce inaccurate historical misnomer, and further prejudices actual Witches by once more unfairly institutionalizing prejudicial bias against Witches who practice Witchcraft as religion.
 
SAPRA must argue that muthi murder, including associated human mutilation, ritual murder and the illegal trade in human body parts, be placed under the ambit of the existing Human Tissues Act, and not be associated in any way with Witchcraft through any new legislation.
 
Part Three – witchcraft accusations
 
Since 2008 SAPRA has actively campaigned against human rights abuses committed as a result of accusations of witchcraft and violent witch-hunts in South Africa.
 
The ’30 days of advocacy against witch-hunts campaign’ was launched in March 2008 under the banner of Touchstone Advocacy, by SAPRA, in response to ongoing accusations of witchcraft and brutal witch-hunts in this country.
 
 
In ‘Reflections on Spiritual Insecurity in a Modern African City (Soweto)’, Adam Ashforth examines the question of spiritual insecurity amongst people who sincerely believe that ‘witches’ really are responsible for misfortune. He does so within the context of poverty and violence. Ashforth echo’s many earlier academics in searching for the sociological causes of accusations of witchcraft and the inevitable human rights violations which accompany them. Unfortunately a multitude of such studies have failed to resolve the underlying motivations for often brutal hate crimes against completely innocent civilians caught in the crossfire of paranoid fantasy and delusion.
 
Whilst material poverty may certainly add to one’s sense of insecurity about one’s survival, accusations of witchcraft are not limited to the poor and destitute, any more than irrational beliefs about witches are held only by the uneducated. A purely academic understanding of the perceived mechanism of accusation does not even begin to address the real causes of witch-hunts, namely, the irrational beliefs people hold about ‘witchcraft’. In some sense, the search for purely sociological causes for witch-hunts past and present has avoided challenging these beliefs directly as irrational, indefensible, scientifically implausible, and dangerous.
 
In ‘AIDS, Witchcraft, and the Problem of Power in Post-Apartheid South Africa’ Ashforth writes “Witchcraft in the South African context typically means the manipulation by malicious individuals or powers inherent in persons, spiritual entities, and substances to cause harm to others… the motive of witchcraft is typically said to be jealousy.” In the 1995 Report of the Ralushai Commission of Inquiry into Witchcraft Violence and Ritual Murder in the Northern Province, Professor N. V. Ralushai records “All kinds of misfortune, including matters as varied as financial problems, illness, drought or lightening strikes, are blamed on witchcraft.” The Ralushai Commission’s report defined the term ‘witch’ to mean a person who “…through sheer malice, either consciously or subconsciously, employs magical means to inflict all manner of evil on their fellow human beings. They destroy property, bring disease or misfortune and cause death, often entirely without provocation to satisfy their inherent craving for evil doing.” Testifying before a Truth and Reconciliation Commission Amnesty Hearing in 1999, Ralushai confirmed his Commission’s definition of a witch when he was asked by attorney Patrick Ndou to define what a witch was. Ralushai stated “A witch is supposed to be a person who is endowed with powers of causing illness or ill luck or death to the person that he wants to destroy.”
 
Such wholly false and prejudicial beliefs about a mythical witchcraft and imaginary witches, left unchallenged or unchecked by rational fact and demonstrable evidence, only serve to feed hysteria and paranoia and encourage further accusations and witch-hunts.
 
Legislation aught not to further entrench such prejudicial beliefs.
 
Every citizen of the Republic is constitutionally and legally entitled to equality, human dignity, life, security, the right to access to justice, just administrative action, access to courts and the right not to be unfairly arrested, detained and accused. The vast majority of victims of accusation of witchcraft, both deceased and still living, in South Africa have been and are being denied their legal right to all of these constitutional rights.
 
Accusations of witchcraft are not condoned under the constitutional rights to freedom of religion, belief and opinion, or expression. The incitement to propaganda and incitement of imminent violence; or advocacy of hatred that constitutes incitement to cause harm, is not protected under South African law.
 
Accusations of witchcraft and resulting witch-hunts constitute a series of clearly identified crimes under both international and national law.
 
In almost all cases of accusation of witchcraft, the accused will:
 
a. not be offered access to legal defense against the accusations,
b. not be considered innocent until proven guilty in a court of law,
c. be driven from their communities,
d. lose their homes as a result of arson,
e. be forcibly separated from their families, loved ones and friends,
f. be placed in custody by the South African Police Services, ostensibly for their own safety, spending at least one night in a prison cell to avoid being attacked by members of their own community,
g. may never return to their homes and communities of birth, and
h. be forced into unwilling exile in unofficial and unacknowledged refugee camps.
By being denied access to counseling and restorative justice, the living victims of accusation – refugees of incitement, hatred and violence – are currently not afforded any assistance or protection by the South African government.
 
SAPRA is of the opinion that if any legislation must be drafted to replace Act 3, a ‘Prohibition of Accusations of Witchcraft Bill’ would not unfairly prejudice actual Witches. Such a Bill must however not merely prohibit accusations of witchcraft and punish those who do make accusations of witchcraft which lead to harm against the accused, it must also provide the victims of accusation, including surviving refugees of accusation, with access and means to victim support and restorative justice.
 
 
This Alliance looks forward to continued engagement with the South African Law Reform Commission on this matter.
 
Yours Sincerely
 
Mr Damon Leff
Founding Director: South African Pagan Rights Alliance
 

​Acting Director: Mrs Retha van Niekerk ∙ Chief Executive Officer: Ms Morgause Fonteleve ∙ Treasurer: Ms Nidhi Chaitow ∙ Executive Committee: Ms Christina Engela, Mr Francisco Fumarola