Refugees of witchcraft accusation and Traditional Courts
South Africa faces a growing refugee crisis as victims of witchcraft accusation who either survive assault or are expelled from their communities by community leaders, traditional leaders and traditional healers, after being tried in traditional courts and found guilty through divination, of alleged but still unproven accusations of witchcraft activity.
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.
SAPRA Objections against Traditional Courts Bill
SAPRA submission to National Council of Provinces on the Traditional Courts Bill (June 2012)
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.
South African Law Reform Commission Review of Witchcraft Suppression Act
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.
The South African government will not acknowledge the existence of informal refugee villages or refugees, and seeks instead to increase the authority and influence of traditional leaders and traditional courts.
Latest Traditional Courts Bill draft flouts constitutional rights even more disturbingly (13 September 2018)
Nyasha Karimakwenda and Ayesha Motala
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