A critical analysis of the criminalization of aspects of traditional medicinal practice in Swaziland in relation to the right to freedom of religion

Abstract

Contemporary constitutional jurisprudence and the legal order have an historical deficit to fill in respect of the recognition of African traditional ‘religion’, particularly in the Swazi context. A combination of inherited colonial suppression, delegitimization and criminalization of certain indigenous religious customs and practices has robbed this area of critical legal recognition and legitimacy. These practices are of a medico-religious nature and propagated by indigenous medicinal practitioners who are at the vanguard of this form of belief system.

Traditional health practitioners are a marginalized group in Swaziland by the government, yet statistics indicate that up to 80% of the populace has recourse to their methods. Their religious activity is primarily expressed and demonstrated through a holistic therapeutic medicinal process which involves herbalism and African spirituality. This activity emphasizes a connected triangulation of life, medicine and religion in which physical, mental and material misfortune is diagnosed and treated through spiritual or supernatural means in order restore social equilibrium. Yet, aspects of their practice have been mischaracterized as criminal and denied constitutional protection.

This study seeks to decriminalize and demystify Swazi traditional medicine by investigating the possibility and circumstances of characterizing indigenous healing methods, habits and experiences as a form of cultural and religious expression. Despite the apparent novelty, raw material is provided for development in the notional journey to the assertion of a plausible claim for the constitutional protection of this medico-religious activity to a right to religious freedom.