"The aim of this paper is to highlight the human rights dimension in the protection of traditional healing practices (THP) in Malawi. At first glance there might not seem to be considerable human rights issues involved. However, the scourge of the HIV/AIDS pandemic entails that traditional health practitioners have a crucial role to play in ensuring the right to health. Furthermore, THP represent an important component of the cultural tapestry of Malawian life. It is this combined cultural and health import that prompts this study. ... This paper explores the relationship between THP and the progressive realisation of the right to health. An investigation is made of the extent to which suppression of THP impacts the right to health in an attempt to discern whether there is a need to regulate and protect these practices. There is some tension between THP, as a cultural right, and the right to health given that THP have the potential to infringe peoples' right to health. However, there is also an intersection between the two rights since health is integrally related to culture and to cultural practices. A person's place in their culture is an essential part of their self-identity, so that if a culture is at risk, that person's psychological and emotional health is also at risk. Consequently this paper will consider the meaning, content and role of the right to culture (is it a collective or individual right?) and whether THP are part of culture, deserving protection as such. ... This paper is divided into five chapters. The introductory chapter provides an overview of the objectives of the study and a definition of THP. The chapter also discusses the research methodology employed in the paper and reviews the main literary works consulted by the author. To establish that THP form an aspect of culture, it is necessary to examine the qualities of THP and compare those to the qualities of recognised forms of culture. The second chapter comprises of an investigation of the legal provisions relating to culture and the various concepts of culture in human rights law. An attempt is then made to place THP within the context of the right to culture. The relationship between THP and the right to health is discussed in the third chapter. In this study it is suggested that the core minimum content of the right to health includes the right to an accessible and acceptable primary health source, and that this implies a right to access THP. The chapter attempts to show that non-regulation impedes THP thus violating the state's obligation to respect the right to health. In the fourth chapter there is an evaluation of the South African Traditional Health Practitioners Act of 2004 (the TH Act). Essentially, the law in Malawi defines and licenses the 'practice of medicine' in terms that entrench the medical profession and that exclude all other forms of healing as the 'unauthorised' practice of medicine, a crime. This chapter considers whether the South African legislation is a model for the inclusion of THP. More specifically, whether the development of THP as a form of culture is captured by the TH Act and whether Malawi can draw guidance from this legislation. The fifth and final chapter concludes the paper. The chapter reverts to the original research questions, the concepts propounded in the paper and the various conclusions drawn to establish whether the original problems presented have been resolved. This concluding chapter also contains recommendations to the Government of Malawi ensuing from the study." -- Introduction.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005.
Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana