Traditional Courts Bill
“Traditional leaders do not satisfy the criteria for independence or impartiality exactly because they often make the law, interpret, adjudicate, enforce it, and may often benefit from the penalties they imposed.” DA parliamentary leader Lindiwe Mazibuko
The proposed Traditional Courts Bill seeks to “affirm the recognition of the traditional justice system and its values, based on restorative justice and reconciliation; to provide for the structure and functioning of traditional courts in line with constitutional imperatives and values; to enhance customary law and the customs of communities observing a system of customary law; and to provide for matters connected therewith.” But as so many have argued since its first introduction in 2008, the Bill in its current form remains contentiously unconstitutional.
As far as South African Witches are concerned existing traditional justice values regarding witchcraft, legitimized by the state, pose a threat to both freedom of religion and fair jurisprudence. Witches are opposed to the automatic criminalization of Witchcraft and Witches by Traditional Courts and South African legislation (1957 Witchcraft Suppression Act).
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.
Whilst 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 always discriminate against those accused, and they further marginalize an already existing religious minority that identifies Witchcraft as its religion.
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 because such courts demonstrate cultural bias against Witchcraft and Witches. Where such matters are currently being heard under traditional customary law by traditional courts, those who have been accused of witchcraft must be afforded representation by a legal representative and their rights to a fair trial must be guaranteed by the State.