Legal Scoop | Why the minister has done the right thing

A bunch of black people walking around with lightened pigmentation, broad hats, long sleeves and gloves to protect our skin from the sun. A people with varying shades of ‘pretty hair’ and ‘high colour’.

When asked about our ancestry, we immediately spout the percentage of Jewish, German, Scottish bloods our great-grandmothers and great-grandfathers possessed. A self-hating bunch of people, brainwashed by centuries of physical and mental abuse, that’s us Jamaicans. Slavery did a fine number on us, tabula rasa, identity erased. Four hundred years later, we’re still groping in the dark.

Legal Scoop commends Justice Minister Delroy Chuck for his recently announced intention to shortly commence the process of having the Obeah Act repealed and, in the interim, removing it from the Schedule of Acts to have their fines increased. Here is why we should hastily proceed with the repealing of the Obeah Act:

- The definition of obeah.

- The constitutionality of the act.

- For the next generation.

DEFINITION OF OBEAH

This past week, Legal Scoop heard a radio host defining obeah by referencing the definition for “a person practising obeah”:

“Any person 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 host then went on to arrive at the ludicrous conclusion that if you are not defrauding anyone, if you are doing good, you have nothing to worry about. She failed to realise that even mere ‘gain’ was a breach. Further, her approach was wrong, as she had overlooked the definition of ‘obeah’, and instead used the definition for ‘a person practising obeah’, which did not assist her, as it contained the very word she was seeking to define.

The definition of obeah is to be found in Section 2 of the act as follows:

“Obeah shall be deemed to be of one and the same meaning as myalism.”

At the heart of the act, therefore, is not the use of supernatural powers to defraud or frighten persons or for mere gain, but rather it is achieving those means through myalism. The act has no beef with similar ends being achieved through the means of Christianity, observation of the Islamic or Bahai faiths, Buddhism, Sikhism, Hinduism or Judaism. The beef is purely with myalism. So what does myalism mean?

MYALISM

The Oxford Dictionary defines ‘myalism’ as “the earliest documented Jamaican religion with African roots ... a Jamaican folk religion focused on the power of ancestors, typically involving drumming, dancing, spirit possession, ritual sacrifice, and herbalism”. The purpose of the act, therefore, is clearly to suppress and stymie an African religious form retained by the displaced Africans, forcibly taken to Jamaica. The aim of the act in 1898, and in the intervening years, was not to stymie the religious practices of the slave owners and pseudo-slave owners, but to suppress a religious form peculiar to the slaves and former slaves.

PENALTIES FOR PRACTIsING OBEAH

The act imposes a mandatory sentence of 12 months for the practice of myalism and even makes it an offence to compose, print, sell, or distribute any pamphlet, or printed matter calculated to promote obeah. By contrast, the Indian mystical ads that frequently appear in the media are not under the same legal impediments. This is because the definition of obeah in the act is so closely pegged to ‘myalism’.

CONSTITUTIONALITY

Another reason why this is a good move by the minister is because the constitutionality of the act is suspect, having regard to Section 17 (1), which provides that every person shall have the right to freedom of religion, including the freedom to change his religion either alone or in conformity with others, and both in public and in private to manifest and propagate his religion in worship, teaching, practice and observance. The Obeah Act, by criminalising the practice of myalism, is, in my view, clearly unconstitutional.

CONCLUSION

The said radio host said that if Parliament, in its wisdom, saw the need to criminalise obeah in 1898, why should we disturb their determination today? What arrant nonsense! Was it not Parliaments of ‘well-thinking’ men who legalised slavery and made it lawful to kill the Africans they had enslaved? Was it not a Parliament of ‘well-thinking’ men who criminalised the possession of one spliff and turned generations of Jamaican men into criminals? And Legal Scoop could go on and on.

The Obeah Act is a relic of an era that strived to suppress African identity. All well-thinking Afro-Jamaicans should be happy to see the back of this legislation. Legal Scoop welcomes a legislative framework that focuses on the ends and not the means. It cannot be that in a country of largely African descent, a religious form with African origins is the only one criminalised, while those with Caucasian, Indian or Chinese origin are allowed to go by undisturbed, albeit often mirroring similar practices.

Our generation may well be a lost cause, but we must help to restore the dignity of Africans and Africanism for the next generation of Afro-Jamaicans.

n Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Email feedback to columns@gleanerjm.com and shena.stubbs@gleanerjm.com, or tweet @shenastubbs. This column is printed every other week.