LAW CANNOT BE SILENT IF IT IS TO BE RESPECTED BY PHILLIP DARKIE MBANYANA
The communities we inhabit are defined by a massive and diverse forms of cultural beliefs which overtime have been left to exist with no monitoring as to the positives they bring to the social structure as well as the contending negatives. The absence of monitoring or neglect of such, is something which borders on dereliction of duty by those entrusted with a duty to ensure that the social structure of a society is kept strengthened to manage and resist all social ills identified as harmful and undesirable.
There are certain beliefs which invites attention because of the potential of harm they present to the society and the effects of such if they were to be left untouched, such as the practice of traditional healing which is regulated under the Traditional Health Practitioners of 2007. This Act and the one preceding it of 2004, were instruments structured to give expression to the provisions of section 15 of the Bill of Rights which states that; “Everyone has the right to freedom of conscience, religion, thought, belief and opinion”. The promulgation of the Traditional Health Practitioners Act therefore should be understood as confirming the recognition of Abangoma and Izinyanga amongst other health practitioners and their rights to practice traditional healing with due consideration to other legislations and the constitution.
Mere recognition would be relative if such recognition did exclude rights and duties. It is thus that the THP Act directs that all traditional health practitioners and those who wishes to practice as such as well as their students, must be registered with the registrar and that failure to comply with the registration requirement, would amount to a punishable offence. This progression eventually addressed the dichotomy which existed between what was referred to as western medicine vis-à-vis traditional medicine and practice in that while the Health Professions Act of 1974 together with its related regulations, directed for the registration of health practitioners and their inters, similarly the Traditional Health Practitioners directs for same when it comes to traditional healing practice.
The nature of the registration is a matter of human rights given that the exercise of health practice is linked to both physical and mental health of their patients. The constitution as the supreme law of the country is therefore the guardian of rights of all citizens. As the supreme law of the country, it is trite that those who treats and prescribes any form of medicine for healing should be known and registered.
The question in so far as these two categories are concerned is; to which extent has the monitoring of unregistered health and traditional health practitioners been given attention. Secondly and in respect of both, what instruments or processes have been introduced to safeguard and uncover contraventions of the prescripts as cited?
Townships boasts a number of traditional health practitioners (Abangoma) as well as a sizable number of students (Amathwasa). In the absence of instruments or processes to monitor compliance, it is likely that a number of traditional health practitioners and their students (Amathwasa) are daily engaged in traditional health practices without being registered with the relevant public authorities. This neglect if it does exist in the absence of monitoring, would feed on the stereotype of “nothing is wrong in becoming Isangoma” notwithstanding the legal requirements which may have drafted to regulate such.
This leads me to recall the painful and yet dangerous path undertaken by the Mancoba Seven Angels of eNgcobo. The seven brothers had inherited and operated a church which was not registered for a number of years leading to the creation of a cult. By the time the activities of the church were brought to the attention of CRL Commission, a lot of harm had resulted to families involving adults and the young. During the portfolio committee on Cogta in 2018, the Chairperson of the CRL had a raised a concern about the absence law in South Africa “to assist people at risk, even if their actions were voluntary because of the complex nature of the constitutionality where there is a conflict between the right to religious freedom and the rights to life and dignity”. This quagmire also finds itself in the situation of unregistered health and traditional health practitioners in so far as their registration is concerned, the admission of students as well as the matters related to the actual practice without any form of acknowledgement.
The constitutional recognition of traditional healing remains a critical gain in the programme of transformation and is a gain which requires protection particularly by those who practice it and who believes in traditional healing. This brings me to the second concern where the constitution is deliberately being weakened. The recognition of traditional healing follows the acceptance of the importance of this discipline in matters of physical and mental health. Traditional Health Practitioners in pursuance of the dignity of the discipline, should at all material times strive to provide the necessary support to those who require their services. In the process, the constitution through different prescripts directs that in the execution of those services, traditional health practitioners should discharge their services in a manner not inconsistent with the constitution and the rights contained therein.
Taking from the words of Albert Einstein when he posited that “The strength of the Constitution lies entirely in the determination of each citizen defend it”. Recently through social media and certain podcasts did we come to listen to traditional health practitioners making admissions about how they bewitched certain individuals and going to the extent of even sharing information on how to practice witchcraft. Of course these behaviours may have been strengthened by or guised under the right to freedom of speech. This is a scenario that brings fame to the interviewee and at the same time, creates an impression of a society that has embraced witchcraft and is willing to learn the trades of the craft of witches.
In as much as witchcraft was criminalised pre the democratic dispensation, post 1994 criminalising Act which is the Suppression of Witchcraft Act 3 of 1957 had remained in the statute books. The Act makes it an offence for anyone to invoke supernatural powers to injure, cause harm, cause death or advise another on how to practice witchcraft. The acts mentioned as having been criminalised are those though normal reading can be found to in conflict with the letter of the constitution particularly where it states that the constitution was adopted “to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”.
The notion of the right to freedom of speech, belief or religion in an instance where another boasts of his or her powers to have caused another to suffer through the use of muti is a matter not only harmful to the victim, but to the society at large and should be treated as a crime in line with Act 3 of 1957. When such statements with recordings as proof happen to reach the public domain, the effect is that the criminalised act or statement will proceed to create a narrative which suggest that existing laws do not apply to some. It cannot be that lawmakers do not have access to the circulation of such information. It cannot be that law enforcement agencies do not have access to these. If the constitution cannot be protected, it goes therefore that it cannot protect us.
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