Christa Rautenbach, Some Comments on a New Legislative Framework for Female Traditional Healers in South Africa

• Citation: Vol. 22 No. 1
• Publication year: 2008
• topic: Constitutional Law,Health Law

SOME COMMENTS ON A NEW LEGISLATIVE FRAMEWORK FOR FEMALE TRADITIONAL HEALERS IN SOUTH AFRICA

Christa Rautenbach^*

Everyone has the right to have access to health care services, including reproductive health care.

-Constitution of the Republic of South Africa¹

INTRODUCTION

On estimation, there are more than 200,000 traditional healers in South Africa, and approximately 70-80% of the population consults them.²Although official figures are not available, it is estimated that the majority of traditional healers are female.³In the absence of official recognition, they currently operate without licenses. Nevertheless, they work under a pseudo-structure: some under the auspices of the Traditional Healers Organisation,⁴others under unofficial organizations, yet others totally independently.⁵

Over the years, both popular South African and international media have- at times quite justifiably-criticized the methods traditional healers employ in their art and the very concept of traditional healing.⁶The media have often brought to light the malpractice of traditional healers and its horrendous consequences, including the immense suffering victims of malpractice have had to endure.⁷Not all media reports have been negative, however. Some reports affirm the undoubtedly constructive role traditional healers have played and continue to play in creating a just society based on human dignity, equality, and freedom.⁸

Although traditional and Western health systems have operated concurrently since early times,⁹Western healing has enjoyed far greater official acceptance. Successive governments have had more confidence in the Western health system because it is based on scientific knowledge, while traditional healing is perceived to be based on religious belief.¹⁰As a result, the greater part of state and private funding has been invested in developing Western healing as opposed to its traditional counterpart. These investments have made the Western health system more expensive. This, in turn, has led to evident societal divisions where those who can afford it enjoy among the best medical services one can find, while those who cannot afford it, particularly those in rural areas,¹¹are serviced by poorly resourced health institutions. Currently, Western healing is too expensive for the majority of the South

See also HEIDI HOLLAND, AFRICAN MAGIC: TRADITIONAL IDEAS THAT HEAL A CONTINENT 12 (2001); Anthony Minnaar, Legislative and Legal Challenges to Combating Witch Purging and Muti Murder in South Africa, in WITCHCRAFT VIOLENCE AND THE LAW IN SOUTH AFRICA 73, 86-91 (John Hund ed., 2003) [hereinafter WITCHCRAFT VIOLENCE].

African rural population;¹²consequently, this majority still finds the traditional healing system more appealing.¹³

For the majority of the rural population, traditional healing is popular. Western healing is cost-prohibitive, and the more holistic approach of the traditional healers¹⁴contributes to its popularity.¹⁵Traditional healers are often the first health care providers to be consulted in traditional communities.

Government officials have realized that traditional healing is so deeply interwoven with the fabric of cultural and spiritual life of many South Africans that they have enacted legislation to recognize and regulate traditional health care services.¹⁶However, the aspirations of government have been met with resistance from certain sectors of the health community, and after months of legal battles the "new" legal framework for traditional healers is far from clear.

In this paper, I comment on the events leading to the enactment of the Traditional Health Practitioners Act (THP Act), as well as its contents and its implications for the traditional health care services.¹⁷Secondly, I refer to the judgment of the Constitutional Court in Doctors for Life International v. Speaker of the National Assembly¹⁸and its influence on the THP Act.¹⁹

Thirdly, I remark on the legal processes following the judgment of the

Constitutional Court, and I conclude with brief comments on the legal position of traditional healers in South Africa.²⁰South Africa's effort to recognize and regulate traditional healers may serve as an example to the rest of the world, thereby contributing to the existing debates pertaining to world law and world health.

I. REGULATORY OVERVIEW: THE POSITION BEFORE THE THP ACT

It is not the purpose of this paper to give a lengthy regulatory overview of the system of traditional healing preceding the enactment of the THP Act.²¹

Suffice to say that traditional healers and medicine have been part of South Africa's history for a very long time. Historically, their position has been unregulated and free of legislative interference. Over the years, there have been calls for the recognition and regulation of traditional healers and medicines, but to date such recognition and regulation has been sporadic, insufficient, and controversial.

Existing national health legislation does not provide a legal framework for traditional healers. The Allied Health Professions Act sets up a registration and licensing scheme to control the practice of allied health professions.²²

Traditional healers are clearly not included in the definition of the "allied health profession."²³Furthermore, under Section 17 of the Allied Health Professions Act, registration is a prerequisite for practicing as a medical practitioner.²⁴Registration is allowed only under the Nursing Act,²⁵the Chiropractors, Homeopaths and Allied Health Service Professions Act,²⁶and the Pharmacy Act.²⁷A concurrent reading of these Acts makes clear that traditional healers cannot register as medical practitioners and are thus unable to serve as medical practitioners under these Acts.²⁸

One exception, however, is the Code of Zulu Law,²⁹which applies only to the KwaZulu-Natal Province.³⁰Chapter 11 of the legislation provides for the registration of traditional healers (medicine men or women, herbalists, and midwives) and makes it a criminal offense for anyone to practice as such without a valid license.³¹It is also a criminal offense if any person fails to comply with the provisions dealing with traditional healers.³²

Another Act that relates indirectly to traditional healers is the Witchcraft Suppression Act.³³The Act makes provision for the suppression of practices related to witchcraft and has been subject to severe criticism.³⁴One of the main objections to the Act is that it contributed to unfounded accusations of witchcraft with dire results.³⁵In the early 1990s, witchcraft-related crimes escalated considerably in the Northern Province.³⁶As a result, the Executive Council of the Northern Province appointed a Commission of Inquiry, later known as the Ralushai Commission,³⁷which "recommended that the

Witchcraft Suppression Act No. 3 of 1957 be repealed and that new legislation for the control of traditional healers be adopted."³⁸To date, the Act has been neither repealed nor amended by the THP Act dealing with the regulation of traditional healers.³⁹

Although the traditional healing system has escaped absolute governmental regulation for a very long time, it has not been completely free of regulation of some kind or another. Various unofficial organizations dealing with the education and registration of traditional healers exist. One example is the Traditional Healers Organisation, an umbrella body representing more than

180,000 traditional healers in South Africa and neighboring countries.⁴⁰To qualify as a traditional healer, one must fulfill certain requirements, including the completion of an apprenticeship of between one and five years.⁴¹After obtaining the required qualification as a traditional healer, it is possible to become a registered member of the organization.⁴²Another organization is the African Herbal Doctor's Association. Although a number of organizations dealing with issues related to traditional healers are in existence, no common code of conduct or standards for training has been set; each organization has its own code of conduct and training methods.⁴³

The existence of organizations of traditional healers may hamper the efforts of government to regulate the affairs of traditional healers. There are conflicting interests and issues that have the potential for causing a tug-of-war between the government and the traditional healer organizations. It is of the utmost importance that these institutions be included in future deliberations on the THP Act and other legislation dealing with traditional healers.

II. NEW LEGISLATIVE FRAMEWORK: THE THP ACT

A. Background

Recent years have seen a world-wide surge of interest in traditional healers and medicines. The World Health Organization has called for the recognition of traditional healers and medicine.⁴⁴

At the local level, the Department of Health's White Paper for the Transformation of the Health System in South Africa⁴⁵recognized the importance of traditional healers in the broader primary health care scheme, but indicated that they should not form part of the public health service at that stage.⁴⁶However, the policy document emphasized that their "regulation and control should be investigated for their legal empowerment" and that it was important to develop "standards of practice and an ethical code of conduct . . . to facilitate their registration."⁴⁷In circumstances where traditional birth attendants are utilized, the attendants "should be educated and supported by the public health sector."⁴⁸

The White Paper was followed by a request that public hearings pertaining to traditional healers take place in the various provinces.⁴⁹The hearings were organized by the provincial legislatures with the purpose of receiving comments on a Statutory Council for traditional healers, traditional healers' issuance of medical certificates, and coverage of traditional healers' care.⁵⁰

The National Council of Provinces (NCOP) received reports from seven of the nine provinces and submitted a summary report to the...