21 November 2017

Zambia: Freedom of Religion Trumps Culture

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In an extraordinary example of a clash between religion and culture, the Zambian High Court has been asked to declare that a prominent traditional leader was engaged in a 'vicious onslaught' on the free conscience rights of a group of his villagers.

Eight petitioners told Judge Gertrude Chawatama this story: their local leader, Lackson Muntanga, sued in the case as 'His Royal Highness Chief Nyawa IV of the Tonga-speaking people of Kazungula district', had 'dissolved' the village where they lived and expelled them from the later reconstituted village and from his chiefdom - all because they would not take part in the traditional 'Lwiindi' ceremony due to their religious views.

The petitioners, who are Jehovah's Witnesses, say the Lwiindi ceremony is equivalent to the 'worship of small gods' and they cannot participate in it. They say Lackson's decision to disband Musuba, the village where they lived, and force them out, was a 'vicious onslaught upon (their) constitutional rights to freedom of conscience, thought and religion'.

Kelvin Fungwe and seven other petitioners said they also acted for others who shared their religious beliefs who had lived in the village.

Lackson however, despite repeated attempts by both the applicants and the court, refused to have anything to do with the matter: he did not attend the case, file any answering papers or have lawyers representing him in court.

The applicants told the court that Lackson disbanded the village because the Jehovah's Witnesses in the village did not want to take part in the traditional Lwiindi ceremony. They described this ceremony as 'one where people are called upon to worship other gods' and 'to communicate with the dead'. As both were against their beliefs they could not participate.

Lwiindi is a kind of thanksgiving and harvest ceremony. Local beer is brewed and, in years where the rain has been plentiful, 'beer is poured on (graves) to thank the dead for giving them a good harvest'.

After the chief disbanded the village, he gave it other names. They then had to agree to follow new rules and pay whatever contributions were decided on for the Lwiindi ceremony before they would be allowed to live in the 'new' villages.

Forced out of their home village, they suffered a great deal. Their land was 'grabbed', their children were not allowed to take part in any school activities and the teachers wanted nothing to do with them.

Another of the applicants, once a headman at the now disbanded village, said he was called in by Lackson and told he wanted to disband the village because of the people who refused to participate in the ceremony or contribute financially to it.

The chief said while they refused to participate because of their religious beliefs he still had to disband the village; if he did not do so, even more people would stop contributing financially. In any case, he said, 'he was just following tradition'.

The former headman described how he and his fellow believers took part in community works. They moulded 3 000 bricks for the chief's house in 2008, donated towards the building of the house and the chief's court, contributed to the roof of the court and helped mould bricks for a clinic.

The consequences of no longer 'belonging' to a village were severe: not only had they lost their land for growing crops, but the register of villagers was removed by the chief. Now there is no register in which they appear - a serious problem because this is tied to the national registration card, and to passport and licences.

In its decision, the court said the right to believe or not believe and to act according to those beliefs 'is one of the key ingredients of any person's dignity which even God the Creator of heaven and earth respects'.

Judge Gertrude Chawatama said the applicants 'were hindered in the enjoyment of their freedom of thought and religion in community'. The chief had no authority to force them to participate in the Lwiindi ceremony or to make participation a precondition for living in his area.

He was 'wrong to inflict hardship on the petitioners by disbanding their village, making it difficult to obtain documents such as licences, national registration cards and passports which require an address, the name of the chief and the village'.

They were also made to suffer severe hardship because they had lost their land; they were effectively forced out of their community and were shunned.

The petitioners did not ask that the Lwiindi ceremony be banned - merely that they should not be made to participate in it. There was no doubt that the chief had no right to limit their freedom of religion and conscience.

Chawatama said some traditional cultural practices impacted negatively on the fundamental human rights of certain groups, women and children in particular.

In addition, Zambia had a series of legal obligations arising from international covenants and had to ensure that no one was subject to coercion impacting on freedom of religion. There could be no doubt that the chief's actions were in conflict with Zambia's international human rights obligations.

She thus declared that the chief's decision to dissolve the village and expel the Jehovah's Witnesses because of their stance on the Lwiindi ceremony was indeed a 'vicious onslaught' on their constitutional rights. And his decision only to allow them back to the new village if they supported the ceremony was unconstitutional.

The actions of 'His Royal Highness' in expelling the petitioners from his chiefdom was an unconstitutional infringement of their civil, political and citizenship rights as citizens of Zambia, she concluded.

· A preview to this year's Lwiindi ceremony held in chief Nyawa's area and ending earlier this month, noted that he was the 'chief priest or intermediary with the ancestral spirits' and that the people 'poured libation on the grave of the very first Chief Nyawa'. The chief 'will pray to the ancestors thanking them for a good harvest, rains and protection from diseases and enemies. Thereafter he will pour the Lwiindi beer on the grave while saying incantations to ancestral spirits', according to the announcement.

· This is far from the first time that Jehovah's Witnesses have fought significant freedom of religion battles in court. One of the most far-reaching was a series of US cases over the flag salute and pledge of allegiance in the 1930s and 1940s, while judgment was reserved earlier this month in another major case involving Jehovah's Witnesses, this time heard by the Supreme Court of Canada.

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