Witchcraft and statecraft: Liberal democracy in Africa

Georgetown Law Journal

Volumn 96, Issue 1, 2007, Pages 183-236

  Tebbe, Nelson ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 37149028109     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (503)

1. S. AFR. CONST. 1996 §§1, 3.
2. See ADAM ASHFORTH, WITCHCRAFT, VIOLENCE, AND DEMOCRACY 150, 285-86 (2005) (discussing the African Renaissance in particular and the legal accommodation of traditionalism in general);
3. John L. Comaroff & Jean Comaroff, Criminal Justice, Cultural Justice, 31 AM. ETHNOLOGIST 188, 189 (2004) (discussing African jurisprudence);
4. Johannes Harnischfeger, Witchcraft and the State in South Africa, in WITCHCRAFT, VIOLENCE AND THE LAW IN SOUTH AFRICA 40, 66 (John Hund ed., 2003) (discussing Africanization);
5. Khaukanani N. Mavhungu, Heroes, Villains and the State in South Africa's Witchcraft Zone, 7 AFR. ANTHROPOLOGIST 114, 117 (2000) (referencing "calls for a strong Africa . . . and [for an] African Renaissance").
6. Jean Comaroff & John Comaroff, Reflections on Liberalism, Policulturalism, and ID-ology: Citizenship and Difference in South Africa, 9 Soc. IDENTITIES 445, 449 (2003) [hereinafter Comaroff & Comaroff, Reflections on Liberalism] (noting that these leaders have begun to "revise the 'post-ethnic' universalism to which most of the [ANC leadership] was once fervently committed");
7. John Comaroff & Jean Comaroff, Policing Culture, Cultural Policing: Law and Social Order in Postcolonial South Africa, 29 LAW & SOC. INQUIRY 513, 522 (2004) [hereinafter Comaroff & Comaroff, Policing Culture].
8. John Hund, Witchcraft and Accusations of Witchcraft in South Africa: Ontological Denial and the Suppression of African Justice, 33 CILSA 366, 385 (2000);
9. Isak Niehaus, Witchcraft in the New South Africa: A Critical Overview of the Ralushai Commission Report, in WITCHCRAFT, VIOLENCE AND THE LAW IN SOUTH AFRICA, supra note 2, at 93, 103.
10. MARTIN CHANOCK, THE MAKING OF SOUTH AFRICAN LEGAL CULTURE 1902-1936: FEAR, FAVOUR AND PREJUDICE 321 (2001) (internal quotation marks and citations omitted).
11. Throughout, I use the noun "occult" to mean the realm of the supernatural, specifically of witchcraft and traditional healing. The adjective "occult," similarly, means of or pertaining to the supernatural power involved in witchcraft or traditional healing.
12. Comaroff & Comaroff, Policing Culture, supra note 3, at 514;
13. Isak Niehaus, Witches and Zombies of the South African Lowveld: Discourse, Accusations, and Subjective Reality, 11 J. ROYAL ANTHROPOLOGICAL INST. 191, 199 (2005) ("Discourses about witches and zombies have remained prominent, even in recent times. . . .") (citation omitted).
14. Comaroff & Comaroff, Policing Culture, supra note 3, at 513;
15. Comaroff & Comaroff, Reflections on Liberalism, supra note 3, at 448 & 467 n.7;
16. Witchcraft in South Africa, ECONOMIST, Dec. 9, 1995, at 85.
17. See Adam Ashforth, An Epidemic of Witchcraft? The Implications of AIDS for the Post-Apartheid State, 61 AFR. STUD. 121, 122 (2002);
18. Jean Comaroff & John Comaroff, Alien-Nation: Zombies, Immigrants, and Millennial Capitalism, 101 S. ATLANTIC Q. 779, 779 (2002) (noting that belief in zombies had reached "epic, epidemic proportions").
19. See, e.g., Prega Govender, Witch-Hunting Youths Burn Dozens of Homes After Sportsmen Die, SUNDAY TIMES (South Africa), Feb. 27, 2005, at 8 (reporting on an attack on scores of suspected witches);
20. Suspected Witch Dies After Mob Attack, INDEP. ONLINE (South Africa), Oct. 15, 2006 (describing the death of a woman accused of witchcraft and stoned by a mob in the Eastern Cape).
21. See ASHFORTH, supra note 2, at 17-18 (discussing vulnerability in the city);
22. Comaroff & Comaroff, Policing Culture, supra note 3, at 514 (discussing vulnerability in the country).
23. The Zulu terms inyanga and sangoma are the most widespread, but the Sotho ngaka and Xhosa igqirha are also common. Although academic and elite discourse distinguishes between the two terms-inyanga meaning an herbalist who does not possess clairvoyant powers and sangoma referring to a diviner who is able to communicate with ancestors-everyday discourse uses the two terms interchangeably. Many inyangas also claim spiritual authority for their medicinal powers and often sangomas will use traditional medicine or muthi. ASHFORTH, supra note 2, at 52-53, 54.
24. Id. at 295;
25. Jasper Raats, People's Medicine, MAIL & GUARDIAN (South Africa), Apr. 26, 2005 (estimating 200,000 traditional healers in South Africa).
26. Claire Keeton, Sangomas to Join Formal Medical Fraternity, SUNDAY TIMES (South Africa), May 9, 2004, at 4. This figure, commonly repeated, has been questioned.
27. See ASHFORTH, supra note 2, at 51.
28. PETER GESCHIERE, THE MODERNITY OF WITCHCRAFT: POLITICS AND THE OCCULT IN POSTCOLONIAL AFRICA 22 (1997) ("[I]t is . . . a basic tenor to these discourses that they explain each and any event by referring to human agency.").
29. ASHFORTH, supra note 2, at 10, 17.
30. Id. at 18;
31. Comaroff & Comaroff, Policing Culture, supra note 3, at 541.
32. Witchcraft Suppression Act 3 of 1957, as amended by Act 50 of 1970. On the colonial roots of the statute, see CHANOCK, supra note 5, at 326.
33. See also Cape of Good Hope Act 24 of 1886; Witchcraft Suppression Act of 1895.
34. Hund, supra note 4, at 368 ("Anyone brought before the courts for practising witchcraft is set free for lack of concrete evidence.").
35. See ASHFORTH, supra note 2 at 265;
36. Niehaus, supra note 4, at 107;
37. N.V. Ralushai, Summary of the Ralushai Commission Report, in WITCHCRAFT VIOLENCE AND THE LAW IN SOUTH AFRICA, supra note 2, at 124, 127.
38. See Traditional Health Practitioners Act 35 of 2004 s. 4(1). In 2006, the Constitutional Court invalidated the Act, along with three other statutes, on the ground that certain legislators had not followed adequate procedures for facilitating public involvement.
39. See Doctors for Life Int'l v. Speaker of the Nat'l Assembly and Others, 2006 (12) BCLR 1399, at *169-70, 177, 189 (CC);
40. see also id. at *175 (noting that the Traditional Health Practitioners Bill had generated "huge interest"). The court gave Parliament eighteen months to re-enact the legislation, during which time the Act would remain in place.
41. Id. at 189, 196.
42. Recently, Parliament introduced a new Bill, the text of which is identical to that of the 2004 Act. Traditional Health Practitioners Bill, 20-2007; see also id. Memorandum on the Objects of the Traditional Health Practitioners Bill s (1)(b)(iii) (resolving that the text of the 2004 Act would serve as the text for the 2007 Bill);
43. Wendy Jasson da Costa, SA Consults China, India on Traditional Medicines, CAPE TIMES (South Africa), July 5, 2007. Passage appears likely.
44. N. V. RALUSHAI ET AL., REPORT OF THE COMMISSION OF INQUIRY INTO WITCHCRAFT VIOLENCE AND RITUAL MURDERS IN THE NORTHERN PROVINCE OF THE REPUBLIC OF SOUTH AFRICA 1 (1996); see also Comaroff & Comaroff, Policing Culture, supra note 3, at 514.
45. RALUSHAI ET AL., supra note 22, at 54-55, 61 (recommending the criminalization of witchcraft);
46. Niehaus, supra note 4, at 108 (describing the Ralushai Commission's recommendation).
47. Harnischfeger, supra note 2, at 61. The Hund volume purports to be a collection of papers first read at the 1998 conference.
48. John Hund, Preface to WITCHCRAFT VIOLENCE AND THE LAW IN SOUTH AFRICA, supra note 2, at 7-8;
49. cf. COMMISSION ON GENDER EQUALITY, THE THOHOYANDOU DECLARATION ON ENDING WITCHCRAFT VIOLENCE (Sept. 10, 1998), available at http://70.84.171.10/etools/newsbrief/1999/news0325, at 2, 3-4 [hereinafter THOHOYANDOU DECLARATION] (endorsing the recommendations of the Ralushai Commission while not explicitly urging criminalization of occult attacks).
50. The South African Police Force formed an Occult-Related Crimes Unit to train officers who handle forensics at witchcraft-related crime scenes. Devil Busters Go Bust?, MAIL & GUARDIAN (South Africa), Mar. 19, 1999. Although the unit mainly investigates attacks on suspected witches, some police officers have investigated allegations of witchcraft. Niehaus, supra note 4, at 99.
51. Criminal Law Codification and Reform Act 23 of 2004 §§97-102 (Zimbabwe) (effective July 1, 2006); see also Steve Vickers, Witchcraft Ban Ends in Zimbabwe, BBC NEWS, July 2, 2006.
52. Criminal Law Codification and Reform Act 23 of 2004 §98(1) (Zimbabwe).
53. Id. § 98(4).
54. See Traditional Medical Practitioners Act 38 of 1981 (Zimbabwe);
55. Traditional Medical Practitioners Act 14 of 2002 (Zimbabwe).
56. Vickers, supra note 26.
57. I owe the phrase "the limits of liberalism" and similar formulations to conversations with John Comaroff.
58. Cf. Ashforth, supra note 9, at 126 ("Witchcraft in the South African context typically means the manipulation by malicious individuals of powers inherent in persons, spiritual entities and substances to cause harm to others.");
59. ASHFORTH, supra note 2, at 12;
60. E.E. EVANS-PRITCHARD, WITCHCRAFT, MAGIC, AND ORACLES AMONG THE AZANDE 1 (1976). Not only does this definition resonate with the academic literature, both classical and contemporary, but it also reflects my personal experience of common usage in South Africa.
61. GESCHIERE, supra note 15, at 22 ("By definition, witchcraft is practiced in secret . . . .").
62. RALUSHAI ET AL., supra note 22, at 57 ("The most vexing problem surrounding witchcraft is that the activities of a witch cannot be witnessed by naked eyes.").
63. ISAK NIEHAUS, WITCHCRAFT, POWER, AND POLITICS: EXPLORING THE OCCULT IN THE SOUTH AFRICAN LOWVFELD 111 (2001).
64. RALUSHAI ET AL., supra note 22, at 4;
65. cf. CHANOCK, supra note 5, at 324 (discussing findings of an expert who was uncertain whether witches were "conscious of their doings as witches." (citing HENRI JUNOD, THE LIFE OF A SOUTH AFRICAN TRIBE (1912));
66. EVANS-PRITCHARD, supra note 32, at 58 (assuming "a possessor of bad teeth [considered similar, but not identical, to witches] injures people's possessions without malice and perhaps also without intent").
67. GESCHIERE, supra note 15, at 78;
68. see also EVANS-PRITCHARD, supra note 32, at 61 (noting that in certain circumstances "a man might well be a witch and yet not know that he is one").
69. See, e.g., ASHFORTH, supra note 2, at 259 ("Nothing satisfies the demand for justice in cases of witchcraft as much as confession.");
70. NIEHAUS, supra note 35, at 116 ("Confessions . . . were the most authoritative evidence of witchcraft.");
71. RALUSHAI ET AL., supra note 22, at 19 (recounting a case of confession). A complex relationship exists between confession and the belief that people may practice witchcraft without knowing it. Evans-Pritchard surmised that people unaware of their guilt may nevertheless perform a ritual confession, perhaps in order to soothe social tension or because they doubt their own innocence.
72. EVANS-PRITCHARD, supra note 32, at 59-60.
73. ASHFORTH, supra note 2, at 70.
74. GESCHIERE, supra note 15, at 22 ("[I]t is . . . a basic tenor to these discourses that they explain each and any event by referring to human agency.").
75. ASHFORTH, supra note 2, at 139.
76. There is an interesting tension between the universal belief that witchcraft is the product of human volition and the more occasional idea that it is practiced subconsciously. Evans-Pritchard, in a classic discussion, remarked that the behefs of the Azande in this regard were simply "inconsistent. " EVANS-PRITCHARD, supra note 32, at 57. People in that society firmly believed that witches were conscious agents. Yet when accused sorcerers were unable to recall performing the acts of which they are charged, sometimes they would conclude that they had acted without awareness.
77. Id.
78. According to Ralushai, a witch is "a person who is believed to be endowed with powers of causing illness or ill luck or death to the person that he wants to destroy." TRUTH AND RECONCILIATION COMMISSION, 6 TRUTH AND RECONCDJATION COMMISSION OF SOUTH AFRICA REPORT, § 1, ch. 3, at 333 (2003), available at http://www.info.gov.za/otherdocs/2003/trc/ [hereinafter TRC REPORT] (quoting Ralushai testimony);
79. see also EVANS-PRITCHARD, supra note 32, at 1, 18;
80. Monica Hunter Wilson, Witch Beliefs and Social Structure, 61 AM. J. SOC 307, 307-08 (1951).
81. EVANS-PRITCHARD, supra note 32, at 13-14 (defining moloi as someone who "destroys property, brings disease, or misfortune, and causes death, often entirely without provocation, to satisfy his inherent craving for evil doing"). Evans-Pritchard's account, which observes that witches often strike randomly out of inherent evilness, contrasts with some others, which stress instead that although witches always act wrongly or illegally, they do not attack without cause. A classic study found that witches attacked those with whom they had quarreled. Those who were on good terms with their neighbors would have no reason to fear witches.
82. Wilson, supra note 43, at 308.
83. See ASHFORTH, supra note 2, at 70-71.
84. RALUSHAI ET AL., supra note 22, at 15, 18-21.
85. Id. at 23.
86. Anthropologists working elsewhere in Africa have warned against too easily associating witchcraft with immorality. GESCHIERE, supra note 15, at 12-13.
87. English and French terms for witchcraft, according to this scholar, carry a moralizing connotation that is not present in corresponding African words. Id. at 194-95.
88. Occult forces, they say, can be used for good as well as for evil - for instance, to protect oneself from danger or else to succeed in work or love. Id. at 13.
89. Two responses should dispel these concerns. First, Western terms like witchcraft and sorcellerie, along with whatever moralistic connotations they may carry, are commonly used by Africans themselves. Id. at 14.
90. For that reason, virtually every serious writer on the subject employs the Western terms as well. Second, the English term witchcraft does in fact seem to refer exclusively to nefarious uses of occult power (at least in southern Africa if not elsewhere on the continent). Now admittedly occult forces can work both to harm people and also to heal them, and so ambiguity does pervade this discourse. Whether protecting one's wife against seducers by giving her a medicine that will purportedly cause any adulterer to waste away constitutes healing or sorcery may depend on one's perspective. See David Simmons, African Witch-craft at the Millenium: Musings on a Modern Phenomenon in Zimbabwe, 7 J. INT'L INST. 1, 2 (2000), available at http://www.umich.edu/iinet/journal/vol7no2/simmons.htm. Nevertheless, a fairly clear analytic distinction separates the evil manipulation of those forces, called witchcraft, from their use for healing or defense, which is referred to as traditional healing.
91. See also NIEHAUS, supra note 35, at 17, 26, 31 (suggesting that before 1960 the term witchcraft was morally ambiguous in South Africa, but that today there are only two discrete categories: evil witches and good healers).
92. African terms for witch can correspond imperfectly with the English word in other ways as well. In northern provinces, for instance, "witch" translates to several non-Western terms, including muloyi (Venda), moloi (Northern and Southern Sotho, Setswana), and noyi (Tsonga). See RALUSHAI ET AL., supra note 22, at 4;
93. see also Niehaus, supra note 7, at 191 (defining the Northern Sotho term moloi). Some of these signify only people who inherit occult ability from their mothers and not those who acquire it, while others include both.
94. Niehaus, supra note 7, at 191;
95. RALUSHAI ET AL., supra note 22, at 14-15.
96. Yet again although the equivalence is not perfect, the English term witch is commonly used by Africans alongside African terms. Finally, this Article's definition blurs a classic distinction between witches and sorcerers. E.E. Evans-Pritchard first drew this distinction, which was meant to separate out those who have inherited supernatural powers, or witches, from those who actively learn forms of magic and potion-making, namely sorcerers. See EVANS-PRITCHARD, supra note 32, at 1;
97. Wilson, supra note 43, at 307. Although the difference between these two has some currency among academics and intellectuals, it does not appear to be common in everyday discourse in contemporary South Africa and therefore it is not observed here.
98. Cf. GESCHIERE, supra note 15, at 225 n.1 (using terms "witchcraft" and "sorcery" interchangeably).
99. RALUSHAI ET AL., supra note 22, at 14, 58.
100. Niehaus, supra note 4, at 113-14.
101. ASHFORTH, supra note 2, at 97-100 (recounting the story of Moleboheng, whose mother was accused of using witchcraft to obtain a house that actually was built with money supplied by Moleboheng);
102. GESCHIERE, supra note 15, at 5. Jean and John Comaroff resolve the tension by saying that suspects are often "people of conspicuous, unshared wealth and undue influence" but that "it is old, defenseless females who tend to be attacked" because the rich and powerful are difficult to reach.
103. Comaroff & Comaroff, Policing Culture, supra note 3, at 525.
104. RALUSHAI ET AL., supra note 22, at 23-24.
105. But see Simmons, supra note 48, at 3 (reporting one case of a white victim of alleged bewitchment in Zimbabwe).
106. See South African Government Information, The Land and Its People, available at http://www.info.gov.za/aboutsa/landpeople.htm#population.
107. See Bishops Warn Priests Against Witchcraft, INDEP. ONLINE (South Africa), Aug. 16, 2006 (reporting that the South African Catholic Bishops Conference had warned priests against combating witchcraft by calling on ancestors);
108. Worshipping the African Way, INDEP. ONLINE (South Africa), Dec. 21, 2006 (describing one instance of blending of beliefs in Christianity and in witchcraft).
109. RALUSHAI ET AL., supra note 22, at 57;
110. see also Gordon L. Chavunduka, Notes on African Witchcraft, in WITCHCRAFT VIOLENCE AND THE LAW IN SOUTH AFRICA, supra note 2, at 136, 137 (confessing his own belief in witchcraft);
111. Leo Igwe, A Skeptical Look at African Witchcraft and Religion, 11 SKEPTIC 72, 72 (2004).
112. Niehaus, supra note 4, at 94-95.
113. See JEAN COMAROFF & JOHN COMAROFF, MODERNITY AND ITS MALCONTENTS: RITUAL AND POWER IN POSTCOLONIAL AFRICA XXV (1993);
114. Hund, supra note 4, at 384 (concluding from admittedly unscientific research that about eighty percent of southern African students believe in witchcraft, regardless of sex, age, ethnicity, or level of formal education).
115. See COMAROFF & COMAROFF, supra note 57, at xxv;
116. GESCHIERE, supra note 15, at 2.
117. See Comaroff & Comaroff, Reflections on Liberalism, supra note 3, at 467 n.7 (citing Northern Province Targets "Witch" Killers, MAIL & GUARDIAN (South Africa), Sept. 27, 1996).
118. Witchcraft in South Africa, supra note 8. Another source indicates that at least 389 suspects were killed between 1985 and 1995 but that figure is likely to be vastly understated.
119. See Niehaus, supra note 4, at 105.
120. See Ashforth, supra note 9, at 122;
121. see also ASHFORTH, supra note 2, at 255 ("Hardly a week passes in South Africa without press reports of witches being killed or of mutilated bodies being found with organs removed for purposes of sorcery.");
122. Comaroff & Comaroff, supra note 9, at 779 (noting that belief in zombies had reached "epic, epidemic proportions").
123. ASHFORTH, supra note 2, at 66 (describing how, although public action against witches is rare, accusations nevertheless circulate through everyday types of discourse such as gossip).
124. Like witchcraft, however, traditional healing carries some moral ambiguity. See supra note 48 (discussing the moral quality associated with witchcraft).
125. See ASHFORTH, supra note 2, at 138-39;
126. Jerome Cartillier, Sangomas Revel in New Status, MAIL & GUARDIAN (South Africa), Sept 10, 2004.
127. See ASHFORTH, supra note 2, at 59, 296 (describing "the general innovation featured by successful healers").
128. See id. at 295;
129. Hund, supra note 4, at 386 ("In order to cure people it is necessary to enter the world of the ancestors.") (internal quotation marks and citation omitted).
130. See ASHFORTH, supra note 2, at 52-53;
131. Parliament of the Republic of South Africa, National Council of Provinces, Report of the Select Committee on Social Services on Traditional Healers 6 (1998) [hereinafter Report of the Select Committee on Social Services]. Other African terms are the Sotho ngaka and Xhosa igqirha, though inyanga and sangoma are the most commonly heard in national media and politics. See ASHFORTH, supra note 2, at 52.
132. See generally Madhavi Sunder, The Invention of Traditional Knowledge (Feb. 24, 2006) (unpublished manuscript), available at http://ssrn.com/abstract=890657.
133. Anthony Minnaar et al., Witch Killing with Specific Reference to the Northern Province of South Africa, in VIOLENCE IN SOUTH AFRICA: A VARIETY OF PERSPECTIVES 175, 182-83 (Elirea Bornman et al., eds., 1998).
134. "The powers underpinning virtually every kind of nonmedical healing in South Africa derive from personal relationships with ancestors and other spiritual beings." ASHFORTH, supra note 2, at 294. Even fees are often decided according to relationships with invisible beings.
135. See id. at 297.
136. See ASHFORTH, supra note 2, at 55-56, 292.
137. Terms in Sotho carry no distinction between herbalists and diviners. NIEHAUS, supra note 35, at xiii.
138. These drumming rituals are central to the ngoma cult. See ASHFORTH, supra note 2, at 55-56.
139. Report of the Select Committee on Social Services, supra note 67, at 3;
140. see also Keeton, supra note 14.
141. This figure, commonly repeated, has been questioned. See ASHFORTH, supra note 2, at 51.
142. Niehaus, supra note 4, at 106 (quoting RALUSHAI ET AL., supra note 22, at 48-49).
143. Report of the Select Committee on Social Services, supra note 67, at 3.
144. Id.
145. Raats, supra note 13 (discussing the findings of NINA T. MARSHALL, SEARCHING FOR A CURE: CONSERVATION OF MEDICINAL WILDLIFE RESOURCES IN EAST AND SOUTHERN AFRICA (NGO Traffic 1998)).
146. Id.
147. See Ashforth, supra note 9, at 127;
148. EVANS-PRITCHARD, supra note 32, at 18 ("[T]he concept of witchcraft provides [Azande people] with a natural philosophy by which the relations between men and unfortunate events are explained . . . .").
149. ASHFORTH, supra note 2, at 10;
150. EVANS-PRITCHARD, supra note 32, at 1.
151. See RALUSHAI ET AL., supra note 22, at 58.
152. Steffen Jensen & Lars Buur, Everyday Policing and the Occult: Notions of Witchcraft, Crime, and "the People," 63 AFR. STUD. 193, 193 (2004) ("The occult is, in other words, a moral language, as well as a practical ideology . . . ."). For a classic account of witchcraft discourse as a language of values,
153. see Wilson, supra note 43, at 309;
154. see also EVANS-PRITCHARD, supra note 32, at 18.
155. See Igwe, supra note 55, at 74;
156. see also Minnaar et al., supra note 69, at 180.
157. ASHFORTH, supra note 2, at 313.
158. Witchcraft Suppression Act 3 of 1957, as amended by Act 50 of 1970.
159. Id.
160. RALUSHAI ET AL., supra note 22, at 136. The accusers were ultimately acquitted.
161. Hund, supra note 4, at 387.
162. See ASHFORTH, supra note 2, at 314.
163. See Niehaus, supra note 4, at 99.
164. See, e.g., RALUSHAI ET AL, supra note 22, at 54 ("This Act is regarded by the traditional courts as a very unjust piece of legislation, because its aim is not to punish witches, but those individuals who name others as witches.");
165. see also Ralushai, supra note 20, at 127.
166. See TRC REPORT, supra note 43, at 41.
167. See Truth and Reconciliation Commission, Amnesty Committee Decision, Application in Terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995, In re: Nndwamato Amos Muhadi and 39 Others 6 (2000), available at http://www.doj.gov.za/trc/decisions/2000/ac20094.htm [hereinafter TRC Amnesty Committee Decision];
168. see also TRC REPORT, supra note 43, § 1, ch. 3.
169. See Promotion of National Unity and Reconciliation Act 34 of 1995, § 20(1)(b) (requiring, inter alia, that a TRC amnesty application concern a crime that was "associated with a political objective committed in the course of the conflicts of the past").
170. TRC REPORT, supra note 43, at 40. The TRC conclusion that these witch hunts were politically motivated is contestable. Much of the evidence shows only that the killers used vague political language and that they associated their victims with the apartheid regime in some way or another while also claiming that they had been involved in witchcraft At the very least, their motives were complex.
171. TRC Amnesty Committee Decision, supra note 93, at 4;
172. see also TRC REPORT, supra note 43, at 333 ("Apartheid legislation had largely transformed traditional leaders into political functionaries who were seen not only as corrupt and self-serving but also as lackeys of the apartheid regime.").
173. TRC Amnesty Committee Decision, supra note 93, at 4-5.
174. See, e.g., id. at 6 (describing a case where the suspected witch came from a prominent family that was affiliated with the apartheid regime - the man had repeatedly interfered with meetings of supporters of the liberation movement). In the Magoro case, however, the Committee indicated only that the suspected witch had some sort of government affiliation.
175. Id. at 15 ("The deceased held a leadership position connected to government").
176. Id. at 41.
177. Id. at 4-5. The TRC seemed to think that this was a finding of the Ralushai Commission. Presumably it received that impression from Prof. Ralushai's testimony. It wrote: "It seems that it was one of the findings of the [Ralushai] commission that the chiefs in general did believe in witchcraft. Coupled with this, was the bona fide belief in the area that the chiefs were associated with ritual murders which flowed from witchcraft."
178. Id. at 5.
179. However, the claim that chiefs were seen to use witchcraft to bolster their political authority does not appear in the final version of the Ralushai Commission Report. Only one short paragraph addresses the role of traditional leaders in witchcraft activity, and it only finds that chiefs were associated with the apartheid state and that they therefore "became a target of the now politicized youth." See RALUSHAI ET AL., supra note 22, at 49;
180. see also TRC REPORT, supra note 43, at 40 (relying on a similar passage in the Ralushai Commission's interim report). It does not support the assertion that chiefs were seen to bolster their political power by occult means.
181. TRC REPORT, supra note 43, at 41.
182. Govender, supra note 10, at 8.
183. Police Arrest 90 After Limpopo "Witch-Hunt," MAIL & GUARDIAN (South Africa), Feb. 25, 2005.
184. Govender, supra note 10, at 8.
185. See ASHFORTH, supra note 2, at 243-48 (recounting a mob killing of a suspected witch in Soweto).
186. See NIEHAUS, supra note 35, at 151-52.
187. See RALUSHAI ET AL., supra note 22, at 15, 30, 51.
188. On the role of the church in combating witchcraft, see Worshipping the African Way, supra note 54.
189. Take the case of Elisa Boloka, who went to the police after a woman and her daughter came to Boloka's home and accused her of bewitching the daughter. A prosecutor investigated and, having decided not to pursue the case, referred Elisa Boloka to a tribal court. RALUSHAI ET AL., supra note 22, at 129 (citing magistrate court records from 1995 and also noting that the prosecutor did not possess the authority to refer the case to a tribal court). In another case dating from 1994, a woman accused two other villagers, Annah Sebola and Annah Lhaka, of being witches and threatened to take them to a witch doctor to prove the charge.
190. Id. at 144.
191. When community members assembled to discuss the situation, they decided that there was no evidence of witchcraft and that the accusers should be reported to the police. However, the prosecutor declined to pursue the matter, which he instead referred to a tribal court. Id. at 145 (again reiterating that the prosecutor lacked the power to do so).
192. For instance, Wilheminah Mokgawa allegedly accused another person of going to a witchdoctor to learn how to bewitch others. When the accused complained to the local headman, the headman directed her to the police. Subsequently, Wilheminah Mokgawa was arrested, tried, and ultimately acquitted of leveling an accusation of witchcraft in violation of the Witchcraft Suppression Act. Id. at 126 (relying on judicial records from 1993).
193. One new chief bolstered his authority by joining the Zion Christian Church (ZCC), the most powerful Christian sect in the area and one of the largest and fastest-growing in the nation. He held revivalist meetings at his residence and appointed senior members of the ZCC as advisors in his court. In this way, he succeeded in shoring up his newfound authority to the degree that he was able to take stronger positions against accusations of witchcraft and to establish his court as the primary forum for adjudicating conflicts over occult activity. See ASHFORTH, supra note 2, at 186.
194. See Comaroff & Comaroff, supra note 2, at 197-98 (describing ways in which state officials have increasingly accommodated occult beliefs and practices).
195. I owe this point to participants at the New York Junior Faculty Colloquium at Fordham Law School, where I presented this Article in draft form. See also Mavhungu, supra note 2, at 116-17 (citing examples of witchcraft denials).
196. I am grateful to Brian Tamanaha for raising this possible perspective in a private conversation.
197. My thanks for this point go to John Comaroff, who raised it in an e-mail message.
198. See 21 U.S.C. § 812(c) (2000).
199. See National Prohibition Act, ch. 85, Title JJ, § 6, 41 Stat. 305, 311 (1919).
200. Michael McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 5 (2000) (including both state and federal statutes in the 2,000 figure).
201. Hund, supra note 4, at 388 ("There is . . . reason to believe . . . that African witchcraft is something real and not just imaginary. State enforcement of a Western world view which denies the reality of African witchcraft has not worked, and is not the answer.").
202. RALUSHAI ET AL., supra note 22, at 61 ("The reason for bringing any of these practitioners within the scope of the criminal law is that the practice of witchcraft, and of witch-finding, do actually cause death or injury.");
203. id. at 56 ("[N]o one can now argue that witchcraft is a myth . . . .");
204. Chavunduka, supra note 55, at 137 ("[I]t is . . . true that some people become sick or die as a result of witchcraft . . . ."). I describe these views in detail below in Part V.
205. JACOB T. LEVY, THE MULTICULTURALISM OF FEAR 30-31 (2000).
206. See, e.g., Nelson Tebbe, Religion, Culture, and Liberal Democracy in South Africa 196 (2006) (unpublished Ph.D. dissertation, University of Chicago) (on file with author) (describing how the religious freedom provision borrowed from such sources).
207. S. AFR. CONST. 1996 pmbl.
208. Id. § 1.
209. I owe much in this paragraph to a conversation with Robert Tsai.
210. Again, I am indebted to Robert Tsai for this insight.
211. JOHN RAWLS, POLITICAL LIBERALISM xxxvii (expanded ed. 2005).
212. Id. at 216-17, 441.
213. KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS 120 (1995).
214. RAWLS, supra note 127, at 135.
215. Id. at 223, 452-53;
216. see also Martha C. Nussbaum, A Plea for Difficulty, in IS MULTICULTURALISM BAD FOR WOMEN? 105, 110-11 (Joshua Cohen et al., eds., 1999).
217. RAWLS, supra note 127, at xxxvii, xl, 486.
218. Robert B. Talisse, Rawls on Pluralism and Stability, 15 CRITICAL REV. 173, 174-75 (2003). Enlightenment liberalism was secular, too, whereas political liberalism does not mandate secularism or take any position on fundamental questions of religion.
219. RAWLS, supra note 127, at xxxviii, 486.
220. RAWLS, supra note 127, at 486.
221. Id. at xlvi, 223, 450.
222. Id. at xlv.
223. Rawls recognizes that there will also be many reasonable political conceptions of justice - many liberalisms-but these various liberalisms will be united by the need to satisfy the criterion of reciprocity. Id. at 450;
224. see infra note 274 and accompanying text. Justice as fairness is only one of these possible liberalisms. Id.
225. Id. at xli. Rawls defines "basic structure" to mean "a society's main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next."
226. Id. at 11. Elsewhere he uses somewhat different formulations, saying for instance that limitations on comprehensive doctrines should apply only to constitutional essentials, and to matters of basic justice.
227. Id. at 214, 227, 229 n.10. Apparently these phrases are equivalent.
228. Id. at 134.
229. See id. at 482 ("[I]t is central to political liberalism that free and equal citizens affirm both a comprehensive doctrine and a political conception.") (emphasis added).
230. Rawls was deeply concerned with unity and stability in his later work. See, e.g., id. at xxxvii, xlvii.
231. Id. at 218, 147-48;
232. Talisse, supra note 133, at 187-88.
233. See, e.g., John Rawls, The Idea of Public Reason Revisited, in RAWLS, supra note 127, at 440-90.
234. See RAWLS, supra note 127, at xlviii, 253, 446.
235. Id. at xlii;
236. see also id. at 446.
237. A comprehensive doctrine without a reasonable political conception, by contrast, is itself not reasonable. Id. at 59.
238. See id. at xlviii (in the introduction to the paperback edition, written in 1995); id. at 223 (in Lecture VI, The Idea of Public Reason § 4, first delivered in 1990); id. at 440 (in the essay The Idea of Public Reason Revisited (1997)).
239. Id. at 215, 220;
240. see also GREENAWALT, supra note 129, at 108. Rawls avoided the term private reason because he believed that political conceptions of justice could apply also to the so-called "private." True, public reason applies only to what he called "the public political forum," and not to background culture or civil society.
241. RAWLS, supra note 127, at 443. So obviously, public reason should govern in legislatures, political campaigns, and judicial reasoning. But also, less obviously, public reasons should guide citizens' voting.
242. Id. at 215.
243. Therefore Rawls is concerned not simply about public or open reasoning, but also about quite intimate decisionmaking. Id. at xlviii, liii, 444-45;
244. GREENAWALT, supra note 129, at 111. He therefore rejects the distinction between public and private, at least as that differentiation is conventionally understood.
245. See RAWLS, supra note 127, at 220 n.7 (no private reasoning);
246. id. at 470-71 (no private sphere).
247. See RAWLS, supra note 127, at 223, 224-25.
248. He referred to this exception as "the proviso." Id. at xlix-1, 453.
249. Id. at xliv, 217, 446-47;
250. see also JEFFREY STOUT, DEMOCRACY AND TRADITION 65 (2005).
251. RAWLS, supra note 127, at 217.
252. Id. at 460.
253. Id. at 226.
254. Id.
255. STOUT, supra note 151, at 66-67.
256. Id. at 67.
257. Id. at 67-68.
258. Id.
259. Id. at 68.
260. Id. at 75.
261. GREENAWALT, supra note 129, at 120. However, he does think that public political discourse with those that hold different comprehensive commitments can and should not rest on religious reasons. KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE 216-17 (1988).
262. GREENAWALT, supra note 129, at 114-15.
263. Id. at 117.
264. For a related critique that addresses not just religious comprehensive doctrines, but utilitarianism as well, see Talisse, supra note 133, at 239.
265. See Jacob T. Levy, Contextualism, Constitutionalism and Modus Vivendi, in MULTICULTURALISM AND POLITICAL THEORY 19 (Anthony Laden & David Owens eds., forthcoming Oct. 2007), available at http://ssrn.com/abstract=851906;
266. see also WILL KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE 4 (1991) [hereinafter KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE]; WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 3-4 (1995) [hereinafter KYMLICKA, M ULTICULTURAL CITIZENSHIP] (stating that liberals believed in a "separation] of state and ethnicity"). I rely heavily on Jacob Levy's thoughtful work on multiculturalism throughout the remainder of this section.
267. Levy, supra note 166, at 19.
268. Id. at 1.
269. KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE, supra note 166, at 137-52;
270. see also KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 128-29, 158-63.
271. KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 160-61.
272. Id. at 231 n.8.
273. Id. at 164 ("The fact that Rawls's theory is less comprehensive does not make his theory more sympathetic to the demands of non-liberal minorities.").
274. See id. at 165 ("I believe that the most defensible liberal theory is based on the value of autonomy, and that any form of group-differentiated rights that restricts the civil rights of group members is therefore inconsistent with liberal principles of freedom and equality.").
275. Joseph A. Carens, A Contextual Approach to Political Theory, 7 ETHICAL THEORY & MORAL PRAC. 117, 130-31 (2004) (explaining why the institutionalization of normativity is not necessarily desirable in culturally variegated societies);
276. Bernard P. Dauenhauer, A Good Word for Modus Vivendi, in THE IDEA OF A POLITICAL LIBERALISM 204 (Victoria Davison & Clark Wolf eds., 2000);
277. Levy, supra note 166, at 26;
278. Claudia Mills, Not a Mere Modus Vivendi, in THE IDEA OF A POLITICAL LIBERALISM 190 (Victoria Davison & Clark Wolf eds., 2000) (criticizing Rawls's narrow view of modus vivendi solutions as temporary and suggesting the possibility of more permanent modus vivendi solutions);
279. Talisse, supra note 133.
280. Levy, supra note 166, at 1-2, 20. Of course someone might object that ideal political liberalism is not workable in practice anywhere - not even in Western democracies - because it is designed to solve problems on the level of philosophy rather than of practical politics. Whatever the truth of this claim, it is nonetheless compatible with the approach here, which only highlights the degree of difficulty satisfying Rawlsian conditions in an African context.
281. By "first-best" I mean ideal from the perspective of political philosophy, untroubled by practical circumstances such as the existence of actual divisions within a given society. Cf. Comaroff & Comaroff, Policing Culture, supra note 3, at 540 ("[P]ostcolonial nation-states cannot but live with both sides of an unresolvable equation ... .");
282. ASHFORTH, supra note 2, at 17 (describing a similar conundrum).
283. Cf. RAWLS, supra note 127, at lix (explaining that his theory is meant to address philosophical questions of the more general kind).
284. See S v Phama 1997 (1) SACR 485 (EC) at 487 (S. Afr.) (describing a long history in South Africa of mitigating sentences when the accused came from a "primitive society steeped in superstition");
285. ASHFORTH, supra note 2, at 259;
286. RALUSHAI ET AL., supra note 22, at 57 ("Whereas the witchcraft motive was previously concealed in evidence as far as possible, as an aggravation in the eyes of the law bent on stamping it out, it has now become advantageous to rely on it, or even to pretend to believe in it in order to obtain a more lenient sentence.");
287. Comaroff & Comaroff, Policing Culture, supra note 3, at 5 3 3 ;
288. Hallie Ludsin, Cultural Denial: What South Africa's Treatment of Witchcraft Says for the Future of Its Customary Law, 21 BERKELEY J. INT'L L. 62, 92 (2003) (noting that courts are willing to mitigate if the accused "honestly believes the deceased intended to use witchcraft to harm the defendant or his relations");
289. Niehaus, supra note 4, at 100 ("Judges often treated the belief in witchcraft as an extenuating circumstance [in sentencing]."). This common law practice has now been legitimated by statute in Zimbabwe.
290. See Criminal Law (Codification and Reform) Act 23 of 2004, § 101 (effective July 1, 2006).
291. Historically, courts have oscillated between twin desires to civilize indigenous Africans by severely punishing witchcraft-motivated murders, on the one hand, and to ease punishments for defendants who sincerely believed either that they had not killed a human being or that they had committed murder in order to protect themselves, their families, or their communities from occult assault, on the other hand. CHANOCK, supra note 5, at 326-27.
292. See LEVY, supra note 121, at 188.
293. For a treatment of this distinction, see Lawrence G. Sager, The Free Exercise of Culture: Some Doubts and Distinctions, 129 DAEDELUS 193, 204 (2000).
294. See LEVY, supra note 121, at 188.
295. See State v Netshiavha 1990 (3) SACR 331 (A) (S. Afr.). The facts of the case are also reported - with some differences and in somewhat greater detail - in RALUSHAI ET AL., supra note 22, at 191-92.
296. For other accounts of Netshiavha, see Comaroff & Comaroff, supra note 2, at 188, 193-95;
297. Niehaus, supra note 4, at 100.
298. Netshiavha, 1990 (3) SACR at 332.
299. RALUSHAI ET AL., supra note 22, at 191.
300. Netshiavha, 1990 (3) SACR at 332.
301. Id. at 333.
302. RALUSHAI ET AL., supra note 22, at 191.
303. Gideon Netshiavha was "shocked" to see that the body had transformed into a normal adult. Netshiavha, 1990 (3) SACR at 333.
304. RALUSHAI ET AL., supra note 22, at 192.
305. Netshiavha, 1990 (3) SACR at 332.
306. Id. (In support of that plea, he submitted a written statement which read in part: "I deny that I unlawfully and intentionally caused the death of the said John Nephalama Gumani [sic]. ... I plead guilty to culpable homicide in that I unlawfully and negligently caused the death of the said deceased. I had mistaken the deceased to be a bat and it was only later that I realized that what I had struck was a human being.").
307. Niehaus, supra note 4, at 100.
308. Netshiavha, 1990 (3) SACR at 332.
309. Id. at 333.
310. Id.
311. Id.
312. Id. The full passage reads: Objectively speaking, the reasonable man so often postulated in our law does not belief in witchcraft. However, a subjective belief in witchcraft may be a factor which may, depending on the circumstances, have a material bearing upon the accused's blameworthiness. As such it may be a relevant mitigating factor to be taken into account in the determination of an appropriate sentence.
313. Id. (internal citations omitted).
314. Id.
315. Niehaus, supra note 4, at 100.
316. Comaroff & Comaroff, supra note 2, at 195 ("In recollecting the case, Justice Goldstone said to us, 'I let him go.'").
317. See, e.g., Rex v Mbombela 1933 A.D. 269 at 275 (S. Afr.) (holding that defendant should not have been convicted of murder because he was operating under a mistake of fact - namely, that the victim was an evil spirit - and therefore replacing the murder conviction with a conviction of culpable homicide, and altering the sentence from death to twelve months' imprisonment);
318. Rex v Fundakubi 1948 (3) SA 810, 821 (A) (S. Afr.) (treating a belief in witchcraft as an extenuating circumstance);
319. S v Nxele 1973 (3) SA 743, 757 (A) (S. Afr.) (recognizing that sentences for witchcraft-related crimes may be eased under the general rule of "blameworthiness");
320. see also Niehaus, supra note 4, at 102 (discussing Rex v. Mbombela).
321. See, e.g., S v Lukhwa en n' Ander 1994 (1) SACR 53 (A) (S. Afr.) (English headnote) (overturning a death sentence imposed for deterrence reasons). In Lukhwa, the judge observed that witch hunts had been frequent in the homeland of Venda during 1990-1991 but had since abated. Based partly on the fact that the crisis had passed and deterrence was no longer as critical, the court commuted a death sentence for the killing of a suspected sorcerer to life imprisonment.
322. Id. at 54;
323. see also TRC REPORT, supra note 43, at 333-34. However, the Ralushai Commission Report does not mention any reduction in witch killings since that period anywhere in the Northern Province. On the contrary, it stresses the continuing need to combat anti-occult violence.
324. RALUSHAI ET AL., supra note 22, at i ("The government was also under pressure to release the report within this short period of time as the Province continued to burn. Something had to be done, and very fast") (characterizing the situation around 1995). One possible interpretation of Netshiavha is that the court of appeal heard the case later than the trial court and after the crisis in Venda had eased. But the timing of the appellate decision does not seem to support that theory, since it was handed down in 1990, when the situation in Venda was near its worst. Also, the Ralushai Commission did not attribute the trial court's severe judgment to deterrence. Rather, the Commission argued that the trial judge in Naledzani "did not understand the facts before him ... and simply came to the conclusion that Naledzani should have realized that [the bat-like creature] was a human being."
325. RALUSHAI ET AL., supra note 22, at 192. What happened on appeal may have as much to do with the fact that it was heard in Bloemfontein, at some distance from violent witch hunts that had reached crisis proportions in the former Venda.
326. See Comaroff & Comaroff, supra note 2, at 196-97.
327. See id. at 184 (reporting data collected from interviews and court records).
328. Id. The defendants were each sentenced to twenty years' imprisonment.
329. See Niehaus, supra note 4, at 103. But see Ingrid Oellermann, Five Life Terms for Witchcraft "Massacre," MERCURY (S. Afr.), Nov. 16, 2006, at 4 (reporting that a court had imposed a heavy sentence despite claims that defendants had acted out of a belief in witchcraft).
330. Charles Taylor, The Politics of Recognition, in MULTICULTURALISM AND 'THE POLITICS OF RECOGNITION" 25, 43 (Amy Gutmann ed., 1992);
331. see also Chandran Kukathas, Are There Any Cultural Rights?, 20 POL. THEORY 105, 109 (1992).
332. For a contemporary proponent of something close to neutralism, see generally BRIAN BARRY, CULTURE & EQUALITY (2001). For a position close to neutralism with respect to free exercise doctrine,
333. see Christopher L. Eisgruber & Lawrence G. Sager, Equal Regard, in LAW AND RELIGION: A CRITICAL ANTHOLOGY 203-04 (Stephen M. Feldman ed., 2000). Sager has extended aspects of this argument beyond religious freedom to cultural rights as well.
334. See Sager, supra note 181, at 205-07.
335. KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 3.
336. See Kukathas, supra note 208, at 107.
337. See KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 107.
338. Taylor, supra note 208, at 55.
339. S. AFR. CONST. 1996 § 1. Non-racialism is a central commitment of the democracy.
340. See John Sharp, "Non-racialism" and Its Discontents: A Post-apartheid Paradox, 50 INT'L SOC. SCI. J. 243, 243 (1998) (describing non-racialism as "the official credo of the South African state");
341. see also Comaroff & Comaroff, Policing Culture, supra note 3, at 522 ("The dominant ideological trope in the fight against the old regime ... was 'nonracialism."').
342. See Comaroff & Comaroff, supra note 2, at 189;
343. Comaroff & Comaroff, Policing Culture, supra note 3, at 540.
344. LEVY, supra note 121, at 187.
345. Bhe v. Magistrate Khayelitsha 2005 (1) BCLR 1 (CC) at 86-87 (S. Afr.).
346. See Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495 (2001).
347. See ASHFORTH, supra note 2, at 17-18.
348. See KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 192 (pointing out that refusal to accommodate traditional beliefs can be destabilizing to a liberal society because it fosters resentment toward the state). Levy makes a similar argument with respect to the incorporation of indigenous law: Common law recognition ... may well not satisfy the feeling among indigenous peoples that they ought to be recognized as distinct peoples. It may leave many members of indigenous communities feeling alienated and distant from a state that does not grant them their due. Perhaps they will never feel like full citizens in a state which does not fully acknowledge their distinctive status.
349. LEVY, supra note 121, at 185-86.
350. See Traditional Health Practitioners Act 35 of 2004 (effective 2005) (S. Afr.).
351. CHANOCK, supra note 5, at 323-24.
352. ASHFORTH, supra note 2, at 54, 57, 286.
353. For instance, the Health Professions Act 56 of 1974 § 36(d) criminalized the practice of traditional healing. See ASHFORTH, supra note 2, at 286, 298;
354. REPORT OF THE SELECT COMMITTEE ON SOCIAL SERVICES, supra note 67, at 3, 14.
355. The Homeopaths, Naturopaths, Osteopaths, and Herbalists Act 52 of 1974 did the same. See REPORT OF THE SELECT COMMITTEE ON SOCIAL SERVICES, supra note 67, at 14. Finally, the South African Medicines and Medical Devices Regulatory Act 132 of 1998 requires registration and regulation of all "traditional medicines."
356. See REPORT OF THE SELECT COMMITTEE ON SOCIAL SERVICES, supra note 67, at 3;
357. see also ASHFORTH, supra note 2, at 286 (noting that traditional healers have seldom if ever been prosecuted for practicing their trade).
358. See, e.g., Cartillier, supra note 64 (describing the perceptions of healers).
359. REPORT OF THE SELECT COMMITTEE ON SOCIAL SERVICES, supra note 67, at 3.
360. Cf. ASHFORTH, supra note 2, at 286-87 (describing the sentiments of clients and political elite about the laws).
361. See Comaroff & Comaroff, Policing Culture, supra note 3, at 530 (noting a perception that the "state ha[s] failed to protect its citizenry from a clear and present danger").
362. Id. at 522.
363. See Traditional Health Practitioners Act 35 of 2004 (effective 2005) (S. Afr.).
364. AFRICAN NAT'L CONG., A NATIONAL HEALTH PLAN FOR SOUTH AFRICA (1994), available at http://www.anc.org.za/ancdocs/policy/health.htm [hereinafter A NATIONAL HEALTH PLAN].
365. ASHFORTH, supra note 2, at 287-88.
366. A NATIONAL HEALTH PLAN, supra note 231.
367. Id.
368. ASHFORTH, supra note 2, at 289.
369. S. AFR. (Interim) CONST. 1993 § 1.
370. See NAT'L PROGRESSIVE PRIMARY HEALTH CARE NETWORK, SUMMARY BRIEF: PUBLIC HEARINGS ON TRADITIONAL HEALERS (1997), available at http://www.healthlink.org.za/pphc/Phila/summary/ vol3_no23.htm [hereinafter SUMMARY BRIEF].
371. ASHFORTH, supra note 2, at 291.
372. Id. at 195 n.7;
373. Kanya Ndaki, Law Catches Up with Traditional Medicine, MAIL & GUARDIAN (S. Afr.), Aug. 30, 2004 ("Currently traditional healers are organised and 'licensed' by up to 100 organisations .... Although their members subscribe to a certain code of ethics, these associations cannot enforce this code.").
374. Traditional Health Practitioners Act 35 of 2004 (effective 2005).
375. Id. s. 4(1).
376. Id. s. 19(c). The Council's purposes are, inter alia, to "ensure the quality of health services within the traditional health practice" and to "protect and serve the interests of members of the public who use or are affected by the services of traditional health practitioners."
377. Id. s. 5(b)-(c).
378. Id. s. 1.
379. Id. (emphases added). In addition to herbalists and diviners, the law regulates traditional surgeons, birth attendants, and tutors.
380. Id.
381. See ASHFORTH, supra note 2, at 54. Ashforth elaborates: Virtually all healers communicate with and utilize the power of ancestors or other invisible beings in some way. Indeed, healing in Africa generally is inconceivable without the healer invoking spiritual beings of some variety as part of the healing practice, either as the source of diagnosis and prescription or as the origin of medicinal remedies.
382. Id. (internal quotations and citations omitted).
383. Traditional Health Practitioners Act 35 of 2004 s. 1. The Act gives the agency little guidance on the substance of its regulations. For instance, it prohibits those not registered as traditional healers from diagnosing or treating cancer, AIDS, or any other terminal disease but it says nothing about whether registered healers may do so, leaving that contentious issue to the Council. Id. s. 49(g).
384. See Cartillier, supra note 64 ("The body will also act as a watchdog against quacks.");
385. see also Keeton, supra note 14 ("Traditional doctors have long been recognised by the World Health Organisation (WHO) and in other countries in Africa, but we were called names like witchdoctors under apartheid. This Bill will be a revolution.'") (quoting a traditional healer).
386. Cartillier, supra note 64.
387. Ndaki, supra note 239.
388. Traditional Health Practitioners Act 35 of 2004 s. 21(1).
389. Id. s. 49(1)(a)-(f), (4). Whether traditional healers will in fact obey any regulations is far from clear. Healers have ignored a similar 1998 law that requires the registration and regulation of all traditional medicines.
390. See ASHFORTH, supra note 2, at 299 (describing noncompliance with the South African Medicines and Medical Devices Regulatory Authority Act 132 of 1998).
391. REPORT OF THE SELECT COMMITTEE ON SOCIAL SERVICES, supra note 67, at 3.
392. Id. at 10-11. The Select Committee noted some weaknesses of the Zimbabwe approach, but concluded that the law had significant strengths, particularly in the treatment of psychiatric patients.
393. Id. at 11.
394. See Levy, supra note 166, at 19-20 (describing the development of "multicultural theorizing").
395. KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 108;
396. Taylor, supra note 208, at 43.
397. I avoid the term multiculturalism as a name for this theoretical position because that term has been used in many different and conflicting ways. In what follows, I use the term culturalism to refer to a specific type of liberal theory that I define. Multiculturalism, for me, describes an empirical social situation in many countries where multiple cultures or nations share a single country or state.
398. KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 129. Cultaralism has at least three varieties: cultaralism of rights, of fear, and of recognition. Cultaralists of rights, promoted most effectively by Will Kymlicka, argue that traditional communities are valuable to liberalism because they provide individuals with the sense of dignity and meaningfulness that is necessary for the exercise of rational choice among competing ends.
399. See id. at 83;
400. Will Kymlicka, Liberal Complacencies, in IS MULTICULTURALISM BAD FOR WOMEN? 31, 33 (Joshua Cohen et al. eds., 1999).
401. Because Kymlicka's approach results in certain privileges against the state that are guaranteed as a matter of justice, it is a cultaralism of rights. Second, Jacob Levy has developed a culturalism of fear. LEVY, supra note 121, at 12. He focuses not on a theory of justice, but instead on a pragmatic liberal fear of violence and humiliation toward groups. Religion and culture should be important to liberal democracies not as a matter of justice or right, but instead because they form the basis of group membership that can lead to horrifying evils such as cruelty and terror.
402. Id.
403. Third, Charles Taylor has endorsed (part of) a culturalism of recognition. Here, religio-cultural groups think that they deserve not just certain rights against the government, but also state recognition of their tradition's value and worth. Taylor himself has a difficult time saying a priori that every culture is worthy of equal respect, but he allows that every such group deserves at least a presumption of worthiness. Taylor, supra note 208, at 66.
404. S. AFR. CONST. 1996 § 10.
405. REPORT OF THE SELECT COMMITTEE ON SOCIAL SERVICES, supra note 67, at 4.
406. S. AFR. CONST. 1996 § 12 ("Everyone has the right to freedom and security of the person, which includes the right... to be free from all forms of violence from either public or private sources ....").
407. The exact form of justice that traditional healing guarantees is unclear. Ashforth has remarked that "[t]raditional healing promises a limited form of justice akin to revenge: in treating a victim of witchcraft, healers promise that the evil forces will be returned to their source to kill the witch who dispatched them." ASHFORTH, supra note 2, at 313.
408. See id. at 16 ("I focus upon these problems of insecurity from the conviction, grown out of years living in Soweto, that it is only when the forces threatening harm are either mastered or kept at bay that there is any possibility of freedom and autonomy.").
409. Cf. Hund, supra note 4, at 385, 389 n.99 (advocating the regulation of traditional healers, along with criminalization of witchcraft itself, and warning that "many people fear that if new legislation is not adopted soon the problem of witchcraft-related violence will spiral out of control").
410. S. AFR. CONST. 1996 § 235 (protecting "the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation").
411. See Traditional Health Practitioners Act 35 of 2004 s. 22, 47 (S. Afr.) (delegating authority to develop criteria).
412. See ASHFORTH, supra note 2, at 293, 294 n.6.
413. See id. at 54, 294.
414. Id. at 297.
415. See GESCHIERE, supra note 15, at 197.
416. Such determinations also surely implicate constitutional essentials. Whether a practitioner of traditional medicine will be prohibited from exercising his or her beliefs by the criminal law surely implicates basic rights to the freedom of conscience and to the enjoyment of culture. See S. AFR. CONST. 1996 §§15, 31 (§ 15 (freedom of conscience), § 31 (enjoyment of culture)).
417. BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 93-94, 119 (2004) (discussing this conception of the rule of law).
418. As one prominent theorist puts it, "to live under the rule of law is not to be subject to the unpredictable vagaries of other individuals." Id. at 122;
419. see also id. at 95;
420. RONALD DWORKIN, A MATTER OF PRINCIPLE 11 (1985);
421. JOSEPH RAZ, THE AUTHORITY OF LAW 214 (1979);
422. JUDITH N. SHKLAR, POLITICAL THOUGHT AND POLITICAL THINKERS 22, 25 (Stanley Hoffman ed., 1998).
423. RAZ, supra note 272, at 219, 224;
424. see also MICHAEL OAKESHOTT, ON HISTORY AND OTHER ESSAYS 137(1983).
425. For example, Rawls remarks at one point that: [T]hose who believe that fundamental political questions should be decided by what they regard as the best reasons according to their own idea of the whole truth - including their religious or secular comprehensive doctrine - and not by reasons that might be shared by all citizens as free and equal, will of course reject the idea of public reason. RAWLS, supra note 127, at 447.
426. At another point he says, "There is no reason why any citizen ... should have the right to use state power to decide constitutional essentials as that person's, or that association's, comprehensive doctrine suggests." Id. at 226.
427. The criterion of reciprocity embodies for Rawls the basic concept behind anti-establishment: A particular religious or cultural group should not be able to impose rules that outsiders could not reasonably endorse. Id. at xliv, 446-47. Rawls's criterion of reciprocity also connects to the rule of law as non-arbitrariness. The criterion of reciprocity is the key concept that embodies non-arbitrariness: Citizens must be able to reasonably accept the reasons given for the exercise of coercive government power, but they will be unable to do so if those reasons hold only within a particular tradition but appear arbitrary outside it.
428. See ASHFORTH, supra note 2, at 295.
429. Id.
430. See id. at 295-96.
431. I owe this hypothetical to a conversation with Noah Feldman.
432. Reification may be one consequence of legalizing beliefs around traditional practices. See KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, ch.3 (discussing what he calls "internal restrictions");
433. LEVY, supra note 121, at 189-90.
434. Rawls argues that although private associations can be internally illiberal, the state cannot enforce apostasy or heresy. RAWLS, supra note 127, at 468-69;
435. see also LEVY, supra note 121, at 191 ("Although Kymlicka and Chandran Kukathas disagree to a certain extent about the validity of conservative rules within a minority group when exit is possible, they certainly unite in condemning such rules when it is not.");
436. Sunder, supra note 217, at 505 ("[L]iberals have argued that cultural rights wrongly place the autonomy of the group over the autonomy of the individual.... Building on these critiques ... I seek to present a sustained polemic for legal recognition of autonomy and plurality within cultural identity - that is, cultural dissent").
437. See, e.g., Kukathas, supra note 208, at 116 (arguing that indigenous groups should be left alone to govern their own affairs but insisting that "[i]f there are any fundamental rights, then there is at least one right which is of crucial importance: the right of the individual to leave a community or association by the terms of which he or she no longer wishes to live"); Avishai Margalit & Moshe Halbertal, Liberalism and the Right to Culture, 61 SOC RES. 491, 491-92 (2004) (arguing that the state must sometimes abandon its neutrality and actively assist cultural groups, even illiberal ones, but insisting on a right to exit).
438. Will Kymlicka takes this view, which has been influential in the literature. See, e.g., Kukathas, supra note 208, at 116.
439. Traditional Health Practitioners Act 35 of 2004 s. 1.
440. Amending the Act in this way may hamper its effectiveness, admittedly, because it will weaken Parliament's claim to be doing something to address the problem of witchcraft, but that cost must be borne in order to protect critical rights.
441. This proposal is analogous in certain ways to an administrative mechanism whereby agencies, instead of prohibiting harmful conduct, recommend best practices. See David Zaring, Best Practices, 81 N.Y.U. L. REV. 294 (2005).
442. South African Medicines and Medical Devices Regulatory Act 132 of 1998.
443. Amending the law may also aid enforcement. Ashforth questions the Act's workability, calling it "pure fantasy" to think that traditional healers will voluntarily submit to regulatory control. ASHFORTH, supra note 2, at 288, 298. He points out that traditional healers have made no move to submit their medicines to regulatory review by the Medicines Control Council as required by the Medicines Act.
444. Id. at 299. Making the 2004 Act permissive rather than mandatory might give healers a market-based incentive to seek accreditation. Because clients may prefer a licensed healer to an unlicensed one, healers may attract more business if they obtain government approval. There is a critical theoretical distinction between requiring conformity to certain cultural rules and incentivizing it in this way.
445. Hund, supra note 4, at 385;
446. see also id. at 389 n.99 ("Pressure is building on the Department of Justice. The South African Law Commission is also under pressure to draft new legislation to replace the 1957 Act").
447. RALUSHAI ET AL., supra note 22, at 55;
448. see also ASHFORTH, supra note 2, at 262-63.
449. The Ralushai proposal is based on a belief in the reality of witchcraft. See supra Part II.E.
450. Proceedings from the 1998 conference were published in a volume titled Witchcraft Violence and the Law in South Africa. See Hund, supra note 24, at 7-8;
451. see also Hund, supra note 4, at 385;
452. ASHFORTH, supra note 2, at 264-65.
453. Seth A. Nthai, Witchcraft Violence and the Need for New Legislation, in WITCHCRAFT VIOLENCE AND THE LAW IN SOUTH AFRICA, supra note 2, at 131, 135.
454. Id.
455. THOHOYANDOU DECLARATION, supra note 24, 3-4, reprinted in ASHFORTH, supra note 2, at 325.
456. Some have reported that conference delegates did indeed recommend that witchcraft itself be outlawed. Harnischfeger, supra note 2, at 61;
457. Hund, supra note 4, at 369. According to another source, the "conference rejected outlawing witchcraft."
458. Gilbert A. Lewthwaite, South Africans Go on Witch Hunts, BALT. SUN, Sept. 27, 1998, at 1A.
459. These would not be traditional African courts, but rather specialized government tribunals. See John Hund, African Witchcraft and Western Law, in WITCHCRAFT VIOLENCE AND THE LAW IN SOUTH AFRICA, supra note 2, at 9, 34-35.
460. In addition to Nthai and members of the Ralushai Commission, John Hund discourages the use of traditional courts, which he says "are no longer held in high esteem by most African people" and in any case "have all but collapsed." Id. at 34;
461. see also Hund, supra note 4, at 387.
462. Traditional healers would have a central role in state-court trials, serving as expert witnesses that could identify sorcerers. Hund, supra note 294, at 35.
463. GESCHIERE, supra note 15, at 169.
464. See, e.g., Hund, supra note 4, at 385.
465. See generally Cyprian F. Fisiy, Containing Occult Practices: Witchcraft Trials in Cameroon, 41 AFR. STUD. REV. 143 (1998).
466. Section 251 of Cameroon's 1967 Penal Code reads in pertinent part: Whoever commits any act of witchcraft, magic or divination liable to disturb public order or tranquility, or to harm another person, property or substance, whether by taking a reward or otherwise, shall be punished with imprisonment for from two to ten years and with a fine of five thousand to one hundred thousand francs. Id. at 144.
467. Other literature on witchcraft trials in Cameroon includes GESCHIERE, supra note 15, at 169-97;
468. Diane Ciekawy & Peter Geschiere, Containing Witchcraft: Conflicting Scenarios in Postcolonial Africa, 41 AFR. STUD. REV. 1 (1998);
469. Cyprian F. Fisiy & Peter Geschiere, Judges and Witches, or How is the State to Deal with Witchcraft?: Examples from Southeast Cameroon, 118 CAHIERS D'ÉTUDES AFRICAINES 135 (1990);
470. Cyprian F. Fisiy & Michael Rowlands, Sorcery and Law in Modem Cameroon, 6 CULTURE & HIST. 63 (1989);
471. Peter Geschiere & Cyprian Fisiy, Domesticating Personal Violence: Witchcraft, Courts and Confessions in Cameroon, 64 AFR. 323 (1994);
472. Harnischfeger, supra note 2, at 48-50.
473. See GESCHIERE, supra note 15, at 169.
474. Id. at 5-6.
475. Id.
476. Id. at 6;
477. see also Geschiere & Fisiy, supra note 298, at 329.
478. See Fisiy, supra note 298, at 151 ("The new elite implicitly recognize the existence of witchcraft in the sociocultural context in which they live, but they have sought to sanitize it by incriminating such practices.").
479. GESCHIERE, supra note 15, at 184, 186 (describing some local variation in the frequency of witchcraft trials).
480. Fisiy, supra note 298, at 160.
481. GESCHIERE, supra note 15, at 185.
482. Id.
483. Fisiy, supra note 298, at 157.
484. See, e.g., id.;
485. GESCHIERE, supra note 15, at 195.
486. See GESCHIERE, supra note 15, at 169, 177-79;
487. Fisiy, supra note 298, at 161.
488. See Fisiy, supra note 298, at 160.
489. Id. at 156 (quoting Ministere Public & Mvondo c/ N. Jacqueline, Arret No. 355/COR of March 22, 1984, Bertoua Court of Appeal). Reportedly the use of traditional healers as expert witnesses is more prevalent in the Francophone part of the country, which uses an inquisitorial procedure for gathering evidence, than in the Anglophone region, where common law rules of evidence are much less likely to tolerate the use of a "witch-doctor" as an expert witness.
490. Id. at 160.
491. S. AFR. CONST. 1996 § 235 (protecting "the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation").
492. See id. § 12 ("Everyone has the right to freedom and security of the person, which includes the right... to be free from all forms of violence from either public or private sources ....").
493. At least one theorist argues that the state has no business strengthening feelings of belonging among religious or cultural groups. See Chandran Kukathas, Cultural Toleration, in ETHNICITY AND GROUP RIGHTS: NOMOS XXXIX 69 (Ian Shapiro & Will Kymlicka eds., 1997);
494. Chandran Kukathas, Liberalism, Communitarianism, and Political Community, 13 SOC. PHIL. & POL'Y 80-104 (1996). My sense is that bolstering equal citizenship may well be appropriate in a liberal democracy - for instance, that is one chief benefit of the Traditional Health Practitioners Act.
495. See KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 166, at 192;
496. LEVY, supra note 121, at 185-86.
497. S. AFR. CONST. 1996 § 31 (protecting the right to culture).
498. S. AFR. CONST. 1996 § 3.
499. Id. § 1.
500. Id.
501. See KYMLICKA, supra note 166, at 192;
502. LEVY, supra note 121, at 185.
503. See LEVY, supra note 121, at 186.