Editorial | Repeal unconstitutional obeah law
Leadership sometimes demands bold assertiveness – just doing what’s right. Which should be the case with repealing Jamaica’s Obeah Act. Instead, there is vacillation and wind-testing by the Government, probably fearing that crossing people who are hostile to a change will cost it votes.
That, though, isn’t how they couch the argument. Prime Minister Andrew Holness, although he didn’t say so directly, seems to have lumped obeah, or a defence against it, with family values such as the traditional concepts of marriage, which his administration will uphold.
“I have been following all the discussions, and if you put them together,” Mr Holness said recently, “it could very well seem to be an assault on the traditional values of the society and how we see our traditional institutions. This Government that I lead is committed to preserving the institution of the family as we have understood it, and our parents have understood it.”
If, indeed, obeah was among the issues in the PM’s cross hairs, the Government is on shaky moral and constitutional grounds, a view shared by Justice Minister Delroy Chuck.
Obeah, which includes belief in the medium’s ability to communicate with the afterlife and to call on spirits to perform good or evil, is among the African retentions in the Caribbean. Its practice was outlawed in Jamaica in 1898, but belief in it, although muted, never died.
This latent belief, and fear, was underlined recently when the 1898 law was among several that came up for review because of the inadequacy of their penalties. Amendment to it, however, was shelved, pending its repeal and replacement, as Mr Chuck subsequently explained, by legislation to prevent the fleecing of individuals by fraudulently exploiting their beliefs.
Having distanced himself from an embrace of obeah, Mr Chuck, nonetheless, made clear in an interview on Nationwide News that “you can’t punish belief”. That’s precisely what the Obeah Act does – and in a fashion that flies in the face of the precepts of natural justice and raises fundamental constitutional questions.
First, the Obeah Act is not primarily about preventing the fraudulent exploitation of someone’s belief – which can be addressed by many other laws – but any practice of obeah itself. “Every person practising obeah shall be liable to imprisonment, with or without hard labour, for a period not exceeding twelve months,” the law says at Clause Three.
Moreover, a person in possession of any instruments of obeah ”is guilty of an offence”. There is, however, no definition of what comprises such an instrument. That rests largely on the suspicion that the person is engaged in obeah and possesses the things with which to do so.
Further, “until and unless the contrary is proved”, a person found with an “instrument of obeah” is deemed to be a “person practising obeah at the time at which the instrument of obeah is found”. In other words, it is not for the accused to be proven guilty, but for him to prove himself innocent. That is contrary to the normal presumptions in our form of justice.
More fundamentally, the law infringes upon the right to “freedom of thought” at Section 13 (3)(b) of the Constitution; “freedom of expression” at 13(3)(c); the right to “freedom of peaceful assembly and association” at 13(3)(e); and the right to “freedom from discrimination on the ground of … race, place of origin, social class, colour, religion, or political opinions”, 13(3)(f)(ii).
Attitudes towards obeah are framed, largely, by holdovers from Jamaica’s history of slavery such as class and race. Mr Chuck believes that the law, at least on religious beliefs, is antithetical to the Constitution. As a responsible legislator, he shouldn’t wait for someone to challenge the legislation. He should repeal it forthwith.