Lloyd Barnett | The perverse obeah act

It has recently been reported that a young man was convicted of the crime of practising obeah in the St James Parish Court and punished with a fine. The facts appear to be that the police executed a search warrant at his home and found it to have scented candles burning in his bedroom, and he was wearing four rings, which he described as offering him protection. This report is surprising and disturbing.

In the first place, the Obeah Act is aimed at persons who, to “effect any fraudulent or unlawful purpose, or for gain, or for the purpose of frightening any person, uses, or pretends to use any occult means, or pretends to possess any supernatural power or knowledge”. The essence of this offence is the propagation of these beliefs with a fraudulent motive. It does not appear from the reports that the accused was engaged in any of these prohibited activities.

However, Section 7 of the act states that where a search warrant is executed and any instrument of obeah is found, the person in whose possession it is found shall be deemed, unless and until the contrary is proved, to be a person practising obeah within the meaning of the act. This provision is in conflict with the common-law principle of the presumption of innocence and since the enactment in Jamaica of a modern Charter of Rights is no longer valid. Section 16(5) of the Charter of Right states:

“Every person charged with a criminal offence shall be presumed innocent until he is proved guilty or has pleaded guilty.”

INCOMPATIBILITY

The incompatibility of the obeah legislation with basic principles of justice has long been recognised. In the case of R v. Chambers (1901) Stephens’ Reports, 153, Mr Justice Charles Lumb stated with respect to the Obeah Acts of 1898 and 1899, which are retained as part of our laws:

“This astounding piece of legislation is a danger and a menace to the liberty of the subject, as under its sweeping provisions any person might be convicted. It is also opposed to the principle of English justice that a man is presumed to be innocent until his guilt is proved as it assumes his guilt unless and until he proves his innocence.”

Commenting on Dr Lumb’s judgment, The Gleaner of June 3, 1901, in its editorial, stated:

“We hail with the greatest satisfaction the admirable judgment of Mr. Justice Lumb … Not so much on account of the merits of the particular case as because of his general remarks on the Obeah Law and its administration.”

The editorial continued:

“However widespread obeah were and however hurtful to the country, we could not admit the justice or propriety of the present law. But as a matter of fact, is obeah such a curse in Jamaica as some people seek to make out. We doubt it very much.”

In the second place, apart from its conflict with the presumption of innocence and due process, the obeah legislation is rooted in racism and the evils of slavery. I will endeavour to state as concisely as possible its historical antecedents and putrid philosophy. In doing so, I acknowledge my indebtedness to the late Dr Adolph Edwards, an eminent scholar in the history of the criminal law of Jamaica, who wrote an unpublished paper on the history and motivations of the anti-obeah legislation.

ANXIETY OF WHITE SLAVE OWNERS

The obeah laws of the 16th and 17th centuries were maintained by the anxiety of the white slave owners to suppress any sentiment that may develop among the black slaves of hope in a supernatural deliverance. The anti-obeah legislation was justified on the basis that the slaves were a “heathenish, brutish, dangerous kinde of People”.

The resistance of the black population to slavery and their frequent rebellions were often attributed to their belief in supernatural powers and the related practices of obeah. When slavery was abolished, the white population was convinced that in order to retain their dominance, the customs and practices of the black population such as obeah had to be suppressed. The perpetuation of the criminalisation of obeah was criticised by the colonial governors in the post-emancipation period ,but the Imperial government would not intervene.

While the trend in England was towards making these activities minor offences, the white minority in Jamaica, who controlled the legislature, took the opposite course. As a result, the obeah legislation continued into the 20th and 21st centuries.

It was reported that the learned parish court judge advised the accused man to read some books of the Old Testament. This is surprising because one only has to get to Leviticus to learn of the practices of incensing, burnt sacrifices, the shedding of blood in the human search for peace and redemption. Abraham, one of the great figures of the Old Testament, came very close to sacrificing his innocent son because of these superstitions. It is a feature of humankind to seek solace in supernatural powers. Thus, there was witchcraft among the Romans as well as in England in the Middle Ages.

In 1993, David Coore described the 1902 Vagrancy Law, which included provisions for criminalising obeah and “duppy-catching” as a “disgrace to any civilised country” and a “very offensive piece of legislation”.

In 2019, Delroy Chuck, minister of justice, declared his intention to introduce legislation to repeal the Obeah Act. Some ministers of the then Government expressed their disagreement. The minister of justice, in response, Tweeted: “Amazing how strong, so-called sensible people, despise the belief and culture of others, however foolish and ridiculous these practices may be considered. Actually, I think the Obeah Act could be challenged as it may infringe the freedom of religion provision.”

In June 2019, a Gleaner editorial stated:

“Attitudes towards obeah are framed largely by holdover 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.”

These criticisms and appeals have been supported by civil society, including the Chamber of Commerce and human rights organisations.

Our modern Charter of Fundamental Rights and Freedoms guarantees the right to freedom of thought, conscience, and belief. The enjoyment of these rights cannot be legally abrogated, abridged, or infringed unless it can be demonstrably justified in a free and democratic society. It is clear that the present Obeah Act does not meet the required standards. It is incumbent on those responsible for maintaining our constitutional principles to take immediate steps to revoke this archaic and unprincipled enactment.

Dr Lloyd Barnett is an attorney-at-law and author. Send feedback to columns@gleanerjm.com.