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Submission on the National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance
Submitted by:The South African Pagan Rights Alliance (SAPRA)
referred to herein as ‘The Alliance’
Contact: Mr. Gary Thomas (Damon) Leff (Director)
E-mail:
Telephone: 044850 1297
On behalf of: The South African Pagan Rights Alliance
Director: Mr. Gary Thomas (Damon)Leff ∙ Chief Executive Officer: Ms. MorgauseFonteleve ∙ Marriage Officer Registrar: Dr.Retha van Niekerk ∙ General Secretary: Ms. GittaSeyfert ∙ Treasurer: Ms. Nidhi Chaitow ∙ Executive Committee: Mrs. SonetJordaan, Ms. Christina Engela, and Mr. Francisco Fumarola, and members of The Alliance.
Submitted to:Ms.DanalineFranzman, Chief Director: Social Justice and Participatory Democracy, Department of Justice and Constitutional Development
E-mail:
The South African Pagan Rights Alliance wishes to thank the Department of Justice and Constitutional Development for the opportunity provided to submit comment on the proposed National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance.
Introduction
The South African Pagan Rights Alliance is a community based non-governmental organization representing the rights of South African citizens who self-identify as Pagans and Witches. This Alliance also engages in human rights advocacy against human rights abuses that affect non-Pagan religious minorities and other vulnerable groups of persons.
Since 2007, under the advocacy banner of Touchstone Advocacy, this Alliance has advocated publicly against accusations of witchcraft and witch-hunts; hate crimes that primarily affect other vulnerable groups of persons namely women, that result in multiple human rights abuses against identified innocent victims of societal, cultural and religious prejudice.
Between 2007 and 2015, this Alliance has annually submitted motivated appeals for urgent intervention and remedy against ongoing witchcraft accusations and brutally violent witch-hunts, during its public campaign entitled '30 days of advocacy against witch-hunts' which takes place between 29 March and 27 April.
Motivated appeals have been submitted to various South African government departments and Chapter Nine institutions, including:
a) the South African Police Services,
b) the Department of Justice & Constitutional Development,
c) the Department of Cooperative Governance & Traditional Affairs,
d) the Department of Women, Children and People with Disabilities,
e) the South African Human Rights Commission,
f) the Commission for Gender Equality,
g) the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and
h) the South African National Assembly and the South African Council of Provinces.
In 2012 this Alliance contributed a Stakeholder Submission on accusations of witchcraft and witch-hunts in South Africa, to the United Nations OHCHR Universal Periodic Review – Thirteenth Session of the Working Group on the UPR (21 May – 4 June 2012).
What is an accusation of witchcraft?
An accusation of witchcraft may be defined as: an untested accusation of malice and /or malicious behaviour, allegedly committed through the employment of some magical ritual or as the result of the action of some supernatural agency, usually at the behest of the accused, in order to bring alleged harm against another person.
For definitions of Paganism and Witchcraft as religious expressions, kindly review appendix A. page 13.
Historical background
In 1998 the South African Commission for Gender Equality (CGE) convened a ‘National Conference on Witchcraft Violence’ in Thohoyandou, Venda. In response to the findings of the Conference the CGE launched its ‘Action Plan for the Eradication of Witchcraft Violence’ by committing itself to monitoring the progress of “legislative reform, victim support, the reintegration of victims into communities, and reconciliation and public education programmes” aimed at eradicating ‘witchcraft violence’.
Since 1998 however, no concrete action has been taken by CGE, or any other organ of state, or any Chapter Nine institution established in terms of Chapter 9 of the South African Constitution to promote and protect the Bill of Rights and constitution of the Republic, to prevent further incidences of witchcraft accusations and violent attacks against accused persons. No victim support strategy was ever implemented by CGE, the Department of Justice, or the South African Police Services.
Current victims of witchcraft accusation and attack are not reintegrated into their communities but rather removed from their homes, families and communities into police custody, and no reconciliation programmes have been established by this government to challenge the motivations for witchcraft accusations, nor promote the eradication of violence against those accused of witchcraft.
In April 2010, this Alliance was informed by Advocate KamrajAnirudhra, then Parliamentary Officer for the CGE, that said institution has destroyed all documentation relating to the ‘National Conference on Witchcraft Violence’, and that CGE is not pursuing any current or past programme related to the then promoted ‘Action Plan for the Eradication of Witchcraft Violence’ as promoted by CGE in 1998.
Witch-hunts since 1998
Since 1998, accusations of witchcraft and violent witch-hunts have become epidemic throughout Africa, and continue to occur in South Africa with alarming frequency.
Although witch-hunts have historically been viewed as gender specific, with a large percentage of victims still identified as elderly and solitary women, recent reports show that victims of witch-hunts include both women and men of all ages. [1]
Published media reports[2] highlight tragic human rights abuses arising as a result of witchcraft accusations. The true extent of witch-hunts in Africa (and elsewhere in the world) however has yet to be determined. Many incidences of witch-hunts go unreported and very few governments actually keep detailed statistics of such incidents.
Witch-hunts are largely perpetrated by individuals and groups who believe that misfortune is enabled through the agency of ‘a witch’. Such accusations are sometimes motivated through localized forms of religious extremism by practitioners of traditional African religions who believe that witchcraft is always the cause of misfortune, traditional healers (including diviners, herbalists, ‘witch-doctors’) who use various forms of divination to point out suspected witches, and charismatic revivalist Christian religious leaders (pastors and prophets) who use their prejudicial notions of witchcraft as a manifest form of satanic evil to encourage their followers to find (accuse) and convert suspected witches.
The words ‘witch’ and ‘witchcraft’ are used predominantly as an accusation throughout Africa, either to describe a number of clearly defined traditional religious practices that do not self-identify as witchcraft, as well as a number of variable urban legends perpetuated by religious leaders and traditional healers to identify women, children and men who are not actual Witches.
In rare instances where alleged confessions of being a witch or practicing witchcraft are made by the accused, reported testimony is either irrational or coerced through torture or threat.
The ‘witchcraft’ most often referred to through accusation, allegation and harmful superstition, exists only in the minds of those who believe that witchcraft is the embodiment of evil and that "witches" are responsible for misfortune, disease, accident, natural disaster and death.
This Alliance has argued that:
a) The victims of witchcraft accusation do not identify themselves as Witches,
b) Beliefs about alleged malevolent witches and alleged harmful witchcraft practices do not constitute evidence of actual criminal harm,
c) Accusations of harmful witchcraft practices made against victims of accusation do not constitute proof of anything other than prejudice based on irrational fear, and
d) Victims of witchcraft accusation have the legal right to be presumed innocent of the accusations made against them.
Human rights abuses experienced by victims of accusation
The vast majority of victims of accusation of witchcraft in South Africa, both deceased and still surviving, are essentially being denied their legal right to most if not all of the Constitutional provisions and rights enshrined for all South African citizens in Chapter Two of the Constitution of the Republic of South Africa.
Victims of witchcraft accusation, as a result of the particular nature and character of the fiction they stand accused of, are denied:
1. Equality,
2. Human dignity,
3. Life,
4. Freedom and security,
5. Freedom of residence,
6. Freedom of trade, occupation and profession,
7. Freedom to own a home and maintain property,
8. Access to immediate and restorative justice,
9. The right to just administrative action,
10. The right to access to courts
11. The right not to be unfairly arrested, detained and accused, and
12. The right to the enjoyment of the full rights of citizenship.
Accusations of witchcraft are not condoned under the constitutional rights to freedom of religion, belief and opinion, or expression, as incitement to propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender or religion, 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 defence 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 counselling 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.
Accusations of witchcraft are hate crimes
According to the discussion paper of the National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 'hate crimes' are defined as:
"Acts motivated by bias based on the identity (with reference to race, religion, and national origin, sexual orientation, gender, or gender identity) of the victim are forms of bias-motivated violence, more commonly referred to domestically and internationally as “hate crimes”. Hate crimes are “message” crimes that send a message of fear to an entire community that identifies with the victim. Hate crimes, particularly when they do not meet an adequate response from theState, violate fundamental principles of equality and non-discrimination and can lead to social unrest."
In addition, the discussion document acknowledged what it terms "New forms of intolerance", and these are defined as:
"Forms of racial or religious intolerance and violence, including Islamophobia, anti-Semitism, Christianophobia and anti-Arabism manifested in particular by the derogatory stereotyping and stigmatization of persons based on their religion or belief."
This Alliance would argue that, whilst accusations of witchcraft may be characterised as 'hate crimes', the definition of "New forms of intolerance" must be broadened and amended to include 'forms of religious intolerance and violence manifested as a result of the derogatory stereotyping and stigmatization of persons based on the prejudicial beliefs of others'.
Required interventions
The South African Constitution does make provision for "legislative and other measures designed to protect or advancepersons, or categories of persons, disadvantaged by unfair discrimination."
This Alliance has consistently called on this government to:
a) halt the persecution of suspected or accused witches,
b) uphold and strengthen a culture of human rights for all equally,
c) respond appropriately and humanely to incidences of witchcraft-related violence and accusations of witchcraft,
d) make the eradication of violence against suspected witches a national priority,
e) train local police to manage witchcraft-related violence in a way that affirms the dignity and humanity of those accused of practicing witchcraft,
f) create victim support units to facilitate reintegration and conciliation of those accused,
g) adopt comprehensive public education and awareness programmes aimed at eradicating the real causes of witchcraft accusations, and
h) reform legislation that currently seeks to suppress witchcraft or criminalize accused witches, namely, the Witchcraft Suppression Act of 1957.
This Alliance would like to add to this list of required interventions g) the necessity to record accurate statistics of accusations of witchcraft, in order to give effect to the above-mentioned interventions.
Regarding h) above, this Alliance initiated a request for a review of the Witchcraft Suppression Act in February 2007. This review is currently at an advanced stage. Since "witchcraft" (undefined by the Act in question) remains criminalized under Act 3 of 1957 (Witchcraft Suppression Act), the burden of guilt is still automatically placed on the shoulders of the victims of accusation, irrespective of whether or not actual criminal action has or can be proven against the accused.
Even if Act 3. of 1957 is repealed entirely (as has been extensively motivated by this Alliance and its partners in its formal request to the South African Law Reform Commission for the repeal of Act. 3 in 2007) in order to give effect to the right of citizens to freedom of belief and religion (including the right to practice divinations and Witchcraft), the making of accusations of witchcraft must remain a criminal offence.
Whilst both the belief in and practice of Witchcraft may no longer be considered a crime (given the constitutional protection of the right to freedom of belief and religion), no person may use their belief or religion to advocate or incite propaganda for war; imminent violence; or advocacy of hatred that constitutes incitement to cause harm.
Witchcraft is protected under the Constitutional guarantee to religious freedom for all South African citizens.
Section 15. of Chapter Two of the South African Constitution guarantees “Freedom of religion, belief and opinion” reads…
“1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
2. Religious observances may be conducted at state or state-aided institutions, provided that
a. those observances follow rules made by the appropriate public authorities;
b. they are conducted on an equitable basis; and
c. attendance at them is free and voluntary.”
Whilst the Bill of Rights does not actually mention Witchcraft, it actually mentions no religion. The implication is then intended to mean that no religion is excluded from this right.
A recent Issue Paper (Paper 139, Project 135) released by the South African Law Reform Commission on the review of the Witchcraft Suppression Act 53 of 1957, specifically noted that:
1. Witchcraft as a religion is protected by Section 15 of the Constitution.
2. Witches have the right to practice their religion.
By logical extension, this means that every other right which flows from the Bill of Rights equally applies to citizens who self-identify as Witches.
Find a copy of the South African Law Reform Commission's Discussion Paper 139, Project 135, and subsequent submission in comment and objection thereto, in appendix B. from page 14 (i) and (ii).
Conclusion
Accusations of witchcraft occur in South Africa frequently. Such accusations affect already marginalised groups of persons, especially elderly women. The victims of accusation are also victims of gross human rights abuses. Victims of accusation are victims of hate crimes, as defined by both law and accepted government policy.
This Alliance respectfully appeals to the Department of Justice and Constitutional Development to acknowledge that accusations of witchcraft result in human rights abuses that are not specifically targeted by any existing governmental action plan. This Alliance appeals specifically to the Minister of Justice and Correctional Services, Minister T.M. Masutha, and the Deputy Minister for Justice and Constitutional Development, Minister J. Jeffery, to give meaning and effect to the human rights enshrined in the Bill of Rights of the Constitution of South Africa, for the long-suffering and ignored victims of witchcraft accusation.
Appendix A.
Definitions:
Paganism – ‘Paganism’refers to the modern revival and reconstruction of ancient religious, spiritual and ritual practices of pre-Christian peoples. Modern Pagans have reclaimed the term ‘Paganism’ as an over-arching definition for reconstructed pre-Christian European religions (also referred to as Ethnic European Religions) and post-Christian neo-Pagan syncretic religions, including Wicca and traditional folk Witchcraft. Pagan academics refer to Paganism as a modern religious movement containing several distinct and separate religions. Modern Paganism is characterized by a diversity of spirituality, belief and religious practice, and by tolerance of religious and theological diversity.[3]
Witchcraft – 'Witchcraft' is a religio-magical belief system that employs the use of divination, herbalism, sympathetic magic, ritual, and the religious worship of pre-Christian Gods and Goddesses. Witchcraft as practiced by South African Pagans is identified as a religion falling within modern Paganism.
Appendix B.
(i) Update: Review of Witchcraft Suppression Act (SALRC)
SAPRA has received an update from the South African Law Reform Commission, on the review of the Witchcraft Suppression Act.See:
All stakeholders (existing or new) are invited to submit comment on the new draft PROHIBITION OF HARMFUL PRACTICES ASSOCIATED WITH WITCHCRAFT BELIEFS BILL.
For a copy of the Bill and Discussion Paper 139 THE REVIEW OF THE WITCHCRAFT SUPPRESSION ACT 3 OF 1957 Project 135, contact Ms Jennifer Joni, State Law Advisor, SA Law Reform Commission at Joni Jennifer <> or telephone (012) 622-6336.
Or download here:
Media Statement- Discussion Paper-Review of witchcraft legislation Jan 2016-FINAL
DP- Witchcraft Suppression Act- FINAL 19 Jan 2016
Please note that the closing date for submission of comments is 30 April 2016.
(ii) SAPRA comment on SA Law Reform Commission Discussion Paper 139, Project 135. (Feb 1, 2016)
South African Law Reform Commission
Private Bag X 668
PRETORIA, 0001
For attention: State Law AdvisorMs Jennifer Joni
Professor Marita Carnelley
Professor David Bilchitz
Dr SibusisoMasondo
Ms LikhapaMbatha
Prof PitikaNtuli
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.