Objections against Traditional Courts Bill

SAPRA submission to National Council of Provinces on the Traditional Courts Bill

 

The South African Pagan Rights Alliance would like to place the following objections to the proposed Traditional Courts Bill, and to Traditional Courts in general, on public record.

1. The South African Pagan Rights Alliance represents South African citizens who identify publicly and privately as Witches and who identify Witchcraft as their religion.

The South African Pagan Rights Alliance (SAPRA) is a designated faith-based human rights advocacy organization founded in 2004. The Alliance is a ‘not for profit’ voluntary association, constituted to a) Promote the guaranteed liberties and freedoms enshrined for all South African Pagans in the Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa (Act 108 of 1996), and to b) Assist South African Pagans, whose constitutionally guaranteed rights and freedoms have been infringed due to unfair discrimination, to obtain appropriate redress.

In 2008 the Department of Home Affairs approved an application submitted by SAPRA for designation as a religious (‘Pagan’) organization in terms of and in accordance with section 5 (1) and (2) of the Civil Union Act (Act 17 of 2006). According to section 5 of the Civil Union Act SAPRA may solemnize marriages and civil partnerships between both heterosexual and same-sex partners.

Contemporary Paganism is identified by academics internationally as a New Religious Movement, under which several distinctly different, new or resurgent pre-Christian European religions, have formed or reformed respectively since the early 1900′s. Witchcraft is one of these religions.

The English word ‘Witch’ comes from the Anglo-Saxon words ‘wicca’ (meaning a male Witch) and ‘wicce’ (meaning a female Witch), and these originated from an Old High German word ‘witega’, which means ‘seer’ (diviner, prophet). [The word 'sorcerer' (male) and 'sorceress' (female) are derived from French words for 'Witch'.]

Contemporary Witchcraft, as a religious belief system, originates from the folklores and mythologies of pre-Christian civilizations of Europe (particularly from the Greeks, Romans, Celtic- and Germanic-speaking peoples of Britain and continental Europe respectively), and diverse international post-Christian spiritual philosophies and religious practices.

Internationally, Witchcraft is regarded as a neo-Pagan spirituality; a religion of modern Paganism. In South Africa, most Pagans identify their personal Pagan religion as Witchcraft. With few exceptions, the members of SAPRA identify Witchcraft as our personal religion and identify ourselves as Witches, or ‘Pagan Witches’.

In South Africa the number of self-identified Pagans is conservatively estimated at 5000. No official or definitive South African census on the number of self-defined Pagans exists.

2. Under existing traditional customary law, Traditional Courts currently adjudicate on matters relating to accusations of witchcraft. Existing customary laws and beliefs concerning Witchcraft, however, remain prejudicial to citizens who may actually identify as Witches and who practice Witchcraft as a religion.

Traditional Courts within sub-Saharan Africa share a commonly held belief that Witchcraft
is not a faith that people openly profess, and do not recognize Witchcraft as a constitutionally protected religion.

Customary beliefs about Witchcraft remain wholly prejudicial to actual Witches, where Witches are viewed as being responsible for misfortune, illness or untimely death. Traditional beliefs do not assume that a Witch may be innocent of such accusation because it is believed that such criminal acts are in keeping with the nature of the practice of Witchcraft.

Within traditional courts, Witchcraft is viewed as a malevolent magical act, one punishable under customary African laws. Accusations of Witchcraft, though illegal under the 1957 Witchcraft Suppression Act, are frequently heard by traditional courts. Accusations are always based on suspicion, rumor, or gossip.

3. This Alliance seeks to ensure that Traditional Courts may no longer hear accusations of Witchcraft, and that customary laws and beliefs concerning Witchcraft be brought in line with acceptable constitutional norms and standards, especially with regard to the constitutional protection and promotion of religious freedom.

Article 27 of the ‘International Covenant on Civil and Political Rights’ states “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.

Article 5 of the ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ obliges all governments to consider the legitimate interests of minorities in developing national policies and programmes. These minority rights are not subject to official recognition of a minority by a government.

According to both international and South African law the South African government is legally obligated to consider the legitimate interests of South African Witches in developing national policies to correct inequalities to which Witches are currently subjected as a result of institutionalized prejudice by the state and traditional law.

In this instance, with special regard to ensuring that Witches in this country are able to benefit equally from every other right enshrined in the Bill of Rights including the right to safety and security, and are not unfairly prejudiced by either customary law or traditional courts.

4. Since the protection and promotion of freedom to religion must be regarded as a constitutional matter, we believe that accusations of witchcraft must not be heard or determined by any traditional court.

SAPRA is opposed to the automatic criminalization of Witchcraft and Witches by Traditional Courts and South African legislation (1957 Witchcraft Suppression Act). This Alliance wishes to assert that accusations of Witchcraft do not constitute any evidence of complicity in criminal activity.

Citizens accused of Witchcraft and tried within traditional courts are not provided with legal counsel and evidence presented in such courts, including formal consultations with diviners in determining or alleging guilt, does not qualify as proper evidence in any other court of law. Accusations of Witchcraft discriminate against those accused, and marginalize an already existing religious minority that identifies Witchcraft as its religion.

This Alliance wishes to reassert the constitutionally guaranteed freedom of religion and belief of its members, as citizens of the Republic of South Africa. South African Witches must retain and advocate for their right not to be discriminated against.

5. This Alliance wishes to ensure that where such matters are currently being heard under traditional customary law by traditional courts, that those who have been accused of witchcraft be afforded representation by a legal representative, and that their rights to a fair trial be guaranteed by the State.

SAPRA believes that the current practice of hearing matters relating to accusations of witchcraft by traditional courts is prejudicial to the legal, constitutional and human rights of the accused. We are firmly convinced that such matters must be presented in a court of law that demonstrates no existing institutional or cultural bias against Witchcraft or Witches.

This Alliance trusts that the National Council of Provinces and the South African National Assembly will address these concerns without bias or prejudice.