A comparative study of the criminalisation of the violation of a corpse in context of traditional medicine in subequatorial Africa including consideration of customary law

Abstract

This discourse is a comparative study of the criminalisation of the violation of a corpse in context of traditional medicine in subequatorial Africa, including consideration of customary law and seeks specifically to examine whether the use of body parts for medicine falls within the paradigm of traditional medicine as opposed to professed any use in witchcraft. The question of any possible cultural defence for the violation of a corpse in traditional medicine is also examined. Regard has been given to relevant legislative precepts in subequatorial Africa including any common-law position, any statutory legislative precepts, including constitutional law, for the Democratic Republic of the Congo, the Gabonese Republic, the Kingdoms of Lesotho and Swaziland, the Republic of the Congo, the Republics of Angola, Botswana, Burundi, Kenya, Madagascar, Malawi, Mozambique, Namibia, Rwanda, South Africa, Uganda, Zambia, Zimbabwe, and the United Republic of Tanzania. In the Republic of South Africa, the violation of a corpse is a common-law crime, which sees its origins historically in Roman law and Roman-Dutch law. It has been found that the penal codes of the Democratic Republic of the Congo, the Gabonese Republic, the Republics of Angola, Botswana, Burundi, Kenya, Malawi, Rwanda, Uganda and the United Republic of Tanzania criminalise acts of violation on any corpse, but are applicable only to perpetrators and not to end-users, except for the Republic of Rwanda and the possessors of body parts for the Republic of Burundi. In the Republic of South Africa any removal of or trade in any body part in contravention of any law is also a criminal offence. Research has not found any specific reference to the violation of a corpse for the Kingdoms of Lesotho and Swaziland, the Republic of the Congo, the Republics of Madagascar, Mozambique, Namibia, Zambia and Zimbabwe in extant legislative precepts, but all subequatorial African constitutions provide for the right to life. Case law relating to the violation of a corpse for traditional medicine purposes has been found only for the Republic of South Africa, for the then-Rhodesia and the Republic of Botswana. In most of the subequatorial African countries, customary law is valid only insofar as it does not conflict with the constitutions of the majority of countries, with the exceptions of the constitutions of the Gabonese Republic, the Republic of Congo and the United Republic of Tanzania for which no provision for customary law in the constitutions of these countries has been found. In the Republic of South Africa, customary law, or a cultural defence is not condoned in instances of murder for body parts according to case law. Since research has discovered only a paucity of case law relating to the crime of violating a corpse in traditional medicine circumstances, it has not been possible to ascertain whether such use is widespread within traditional medicine, or confined to specific instances only. This discourse concludes that the legal position of the crime of violating a corpse for the use of body parts in traditional medicine in the Republic of South Africa should not be reviewed to accommodate such use, but that all relevant legal precepts should be reviewed and changed purposefully to provide for clarification for the specificity of this crime and to oppose any perception of such practices and beliefs in traditional medicine as being justified in any manner.