24 November 2011

Legal Pluralism

'Witchcraft and the Constitution' by Nelson Tebbe in Traditional African Religions in South African Law (University of Cape Town Press 2011) edited by T.W. Bennett argues that -
Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume ... I focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbors. More constitutionally problematic are calls for educational campaigns that would "demystify" witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.
Tebbe comments that -
policymaking on witchcraft beliefs and practices raises questions for the modern constitutional order, questions that so far have not figured prominently in public discussion. My aim here is to frame and foreground those questions. At the most general level, they arise out of a tension within the Constitution. On the one hand, government policy has long disapproved of witchcraft practices that cause harm and threaten individual rights. Arguably, that disapproval now has constitutional significance, at least to the extent that the victims of witchcraft-related violence tend to be members of vulnerable groups, such as women, children, the aged, or the disabled. On the other hand, officials are bound by a constitutional commitment to protect the many citizens who fear the occult. various provisions of the Constitution embody that commitment, including sections concerning religious liberty, equal citizenship, freedom of culture, customary law, and traditional leadership. In other words, officials may wish to denounce and deter witchcraft practices, and to some degree they can, should, and must. At the same time, the Constitution also prevents them from ignoring the freedom and equality of people who believe that they are the ones being harmed by enemies wielding occult forces.

Some of the constitutional issues are easy – perhaps easier than commonly acknowledged. For example, it is uncontroverted that society cannot tolerate practices, even constitutionally protected religious practices, when they result in human deaths. Government decisions to punish killings associated with witchcraft or muthi, or to impose especially severe punishments for such murders, are unlikely to raise legal difficulty. Proposals for improved police reporting or plans for education campaigns that emphasise the illegality of witch hunts are equally innocuous.

Other questions are somewhat more intriguing. Does current statutory law – which dates from the apartheid era and outlaws the identification and denunciation of supposed witches – implicate constitutional principles of religious liberty, cultural freedom, free speech or equal citizenship? What about proposals that would require chiefs and headmen to discourage gatherings where diviners may identify people as witches? Would education campaigns designed to ‘demystify the beliefs around witchcraft and sorcery’ impermissibly entangle the state in religious questions? Regardless of the answers, these constitutional issues deserve a place in the debate.

notice that the tensions I am addressing are internal to constitutional discourse. Setting up an opposition between so-called ‘traditional’ religion and ‘modern’ constitutionalism distorts more than it clarifies, given the fact that beliefs and practices concerning the occult have long thrived within the contemporary political economy. Witchcraft and related phenomena raise questions for South African constitutionalism, but it is not useful or accurate to say that the underlying conflict is between primordial customs and modern legality.