The Obeah Act, is it time for it to be repealed?

When one hears the word "obeah", one often connotes it with something negative- evil, foreboding, and black magic. However in Jamaica the practice of Obeah is one that is acknowledged as existing somewhat peacefully, and if one simply doesn’t believe in the power of Obeah it is ignored, similar to how other activity deemed illegal by the state is ignored- such as Prostitution on Back Road, paying representatives of government agencies “a ting” to speed up processes, or buying a drivers licence---We know it is practiced in Jamaica, but we choose to ignore the red flags when we drive pass the homes, and the ads in some of our less reputable print media.

According to the Obeah Act, Section 2-

“A person practicing obeah” means 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;

This definition alone presupposes that a person cannot possess any supernatural power or knowledge.

Jamaica is not a Theocracy,  and the manner in which the definitions and offences are couched gives the impression that an offence is not being committed  against man,  but against a supreme being- and only a Supreme Being would have certain powers.

Persons who believe in the power of Obeah treat it similar to a religion where there is a person who can be compared to a Pastor in the Christian faith who has a connection with a higher entity, and is able to intercede on their behalf.

Obeah men or women claim to be able to cure persons of different maladies, use concoctions to bring, wealth, happiness, success and prosperity to individuals, on the positive side, while they claim to be able to rain down fire and brimstone as punishment of the heads of unwitting individuals who have allegedly wronged their fellow man.

Belief kills and Belief cures, so why should one belief be given precedence over another due to Christianity being an established religion with centuries under its belt, vs Obeah which is relatively recent in comparison is good enough of a reason? Is it that one belief is so steeped in Afrocentric traditions, stemming from our history of slavery, and as such it is deemed inferior to Eurocentric religions and their traditions?

What is interesting is certain denominations in Christianity  engage in practices such as anointing with olive oil and other concoctions- healing water, different rituals, use of flowers and other things which are said to have powers.  Grape fruit and cream soda is said to work wonders for some of those practicing  the Christian faith. 

A person practicing obeah” means any person who, to effect any fraudulent or unlawful purpose, or for gain, or for the purpose of frightening any person

How can you prove intent????? How does a Judge determine a fraudulent purpose? I guess working a spell to aid in the commission of an offence once admitted , is straight forward. A person practicing Obeah for gain, can be akin to some Pastors asking for offering during their services and churches being registered as Private businesses. Not everyone ascribes to the Christian belief but does that make what Christians believe less real to them? I think the same leverage should be afforded to those who have alternate beliefs.

There are provisions in Jamaica's Charter of Fundamental Rights 2011 which guarantee religious freedom which includes the right to freedom of expression, thought, conscience and belief, and also the freedom to peaceful assembly and association.
The rights are designed to protect persons whether we agree with them or not, and as such I call for the repeal of the Obeah Act in 2017.

You find yourself arrested- Now What are your Rights?

Worst case scenario you find yourself arrested, there are a few key things that you keep in mind. Regardless of your social station they are certain rights that you have as your liberty or freedom is taken from you. Ghetto youth or not- The rights remain the same across the board.

In order to effect an arrest on anyone under the Constitution of Jamaica the police should have  a warrant, which would indicate that the person is wanted for a crime, or the police may have reasonable and probable cause that the person has committed an offence and even without the warrant can effect an arrest.

The Charter of Fundamental Rights and Freedoms(Constitutional Amendment) Act, 2010, which significantly changed Chapter III of the Constitution, confers rights that many persons do not know about so when the rights are violated it is accepted through ignorance and many stay in jail for longer periods than absolutely necessary.

Any person who is arrested or detained shall have the right­:

(a) "to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;"

The word “and” is instructive, as relatives don’t know that they have a right to visit their incarcerated loved one in order to ascertain their status. Information may be difficult to get from police stations, but this should not be. This is a right- detainees should not be begging for calls in order to communicate with loved ones.

(b) "at the time of his arrest or detention or as soon as is reasonably practicable, to be informed, in a language which he understands, of the reasons for his arrest or detention;"

The reason for being locked up, shouldn’t be a guessing game for the detainee, some as repeatedly what the reason is and can’t receive an answer. Once detained police may have reasonable suspicion in order to hold a person behind bars, however some persons are kept behind jail for weeks- months and the reason for detention changes like the wind before they are either charged or released.

(c) "where he is charged with an offence, to be informed forthwith, in a language which he understands, of the nature of the charge;"

English is our first language however patois is the main tongue for many. In describing the nature of the charge, officers should ensure the person understands, breaking it down where necessary. It is the person’s right. Literacy is so tricky in Jamaica. So many persons are functionally illiterate. They can spell their name and address or they really are not familiar with many “normal” or "everyday" words and have difficulty grasping the English Language.

(d) "to communicate with and retain an Attorney-at-law."

If you can’t afford a lawyer, Duty Counsel or a Legal Aid Lawyer should be appointed to you.  Where a Question and Answer session is conducted by the police or the giving a Caution Statement is to be done( where detained person gives a comprehensive statement of incident to police) INSIST THAT A LAWYER IS PRESENT. Police Officers will use 2 JP’s as permitted, however with no legal advice, this is a road that many regret walking when they eventually retain counsel. What a Lawyer may object to, may slide through in an interview without one.

The Constitution provides that a person should not be arrested without charge for  more than 24 hours, but the standard practice is 72 hours. ( It is said with so much authority that there must be precedent that I am not aware of which must trump the constitution-smh)

The waters become even more muddy where police say a detained person is scheduled to go an ID parade- weeks to months without charge is possible, as if an application for Habeus Corpus (order to release the detained person who has not been charged within a reasonable time) is made to the RM Court in lieu of the ID parade to get release- The attorney may be told that the parade should be conducted first. Attorneys instead of going to the RM Court may go to the Supreme Court in order to get the person released if not charged. So persons without Attorneys sometimes fall through the cracks and are incarcerated without charge way longer than they should be.

Chapter III of the Constitution states that someone detained and charged should be taken before the court without delay. It is also stipulated that the suspect shall be released if not tried within a reasonable time.

Please note that the Charter of Rights also state that you are entitled to

·        the right to equality before the law;

·        the right to equitable and humane treatment by any public authority in the exercise of any function;  (No box down from police is acceptable- The Charter speaks further to the right to protection from torture, or inhuman or degrading punishment )

·        the right to freedom from discrimination on the ground

o    being male or female;

o   race

o   place of origin- Tivoli vs. Beverley Hills. There should be no difference in treatment.

o   social class,

o   colour,

o    religion

o   political opinions- JLP or PNP it shouldn’t matter or even NDM

I would love to include sexual orientation as those charged with offences such as buggery, sometimes face  a warm time- as enough care may not be taken to ensure that the charge is not made accessible to other detainees.

Earlier I indicated police must have reasonable grounds to take a person into custody. Under the Charter please note:

No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances-­

(a) in consequence of his unfitness to plead to a criminal charge;

(b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted;

(c) in execution of an order of the Supreme Court or of the Court of Appeal or such other court as may be prescribed by Parliament on the grounds of his contempt of any such court or of another court or tribunal; The Charter of Fundamental Rights and [No.] 9 freedoms (Constitutional Amendment) Act. 20 II

(d) in execution of the order of a court made in order to secure the fulfillment of any obligation imposed on him by law;

(e) for the purpose of bringing him before a court in execution of the order of a court;

 (f) the arrest or detention of a person­

(i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or

(ii) where it is reasonably necessary to prevent his committing an offence;

(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his care and protection;

 (h) the detention of a person­

(i) for the prevention of the spreading of an infectious or contagious disease constituting a serious threat to public health; or

 (ii) suffering from mental disorder or addicted to drugs or alcohol where necessary for his care or treatment or for the prevention of harm to himself or others; or

(i) the arrest or detention of a person­

(i) who is not a citizen of Jamaica, to prevent his unauthorized entry into Jamaica; or

(ii) against whom action is being taken with a view to deportation or extradition or other lawful removal

KNOW YOUR RIGHTS!!