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THE RIGHT TO RITUAL SLAUGHTER IN AFRICA: A COMPARATIVE CONSTITUTIONAL ANALYSIS

Published online by Cambridge University Press:  12 April 2018

Enyinna S. Nwauche
Enyinna S. Nwauche*
Affiliation:
Professor, University of Fort Hare
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Abstract

Using examples of ritual slaughter recognized by different religions in Africa, this paper examines the regulated and unregulated exercise of the right to ritual slaughter as a manifestation of the right to freedom of religion in three constitutional traditions in Africa.

This article commences with an evaluation of the existence of the right to ritual slaughter either as a freestanding right or a derivative right from the right to freedom of religion in the bills of rights of African constitutions. The article argues that the ritual slaughter at this stage of constitutional development in Africa is at best a derivative right partly anchored on the communal dimensions of the right to freedom of religion. The article closely examines the bearers and content of the right to ritual slaughter through a brief overview of the practices of ritual slaughter recognized by African traditional religion and Islam. In addition, the syncretic nature of religious practice in Africa identified as the multiple or concurrent witness to different faiths is also considered to provide a realistic account of ritual slaughter in Africa.

Since the right to ritual slaughter is identified as a derivative right from the right to freedom of religion, the article examines different constitutional traditions in Africa to determine how religion is conceived in constitutional governance that in turn affects the feasibility of the right to ritual slaughter within constitutional designs and capacity of other public interests such as animal welfare to limit the exercise of the right to ritual slaughter.

Three constitutional designs of the role of religion in constitutional governance are identified in this regard. The article concludes on a number of points, including the recognition of the importance of the articulation of the human rights that underpin animal welfare concerns and the fact that a regulated right to ritual slaughter appears feasible in a number of African countries.

Keywords

ritual slaughterAfricaright to freedom of religionanimalconstitutional law
Type
Research Article
Information
Journal of Law and Religion , Volume 32 , Issue 3 , November 2017 , pp. 470 - 490
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2018 

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References

1 While there appears to be no case in which religious slaughter has been directly recognized as a manifestation of the freedom of religion in Africa, there are many decisions across the world that have recognized ritual slaughter as a manifestation of the right to freedom of religion. See, for example, the Grand Chamber of the European Court of Human Rights in Jewish Liturgical Association of Cha'are Shalom Ve Tsedek v. France (App. No 27417/95), and the German Federal Constitutional Court in BVerfGE, I BvR 1783/99, Jan. 15, 2002.

2 Examples include practices that have developed to address environmental concerns, such as the use of slaughterhouses and the protection of commons, such as rivers, streams, and other sources of water. Culinary practices specifying appropriate animals for recipes and the anatomical dissection of animals would also qualify as cultural slaughter. Also part of cultural slaughter are gendered assumptions about the killing of animals. In this regard, see, for example, Parry, Jovian, “Gender and Slaughter in Popular Gastronomy,” Feminism and Popular Psychology 20, no. 3 (2010): 381–96CrossRefGoogle Scholar.

3 2008 (1) SA 474 (CC) (South Africa) (hereafter Pillay).

4 Amoah, Jewel and Bennett, Tom, “The Freedoms of Religion and Culture under the South African Constitution: Do Traditional African Religions Enjoy Equal Treatment?” African Human Rights Law Journal 8, no. 2 (2008): 357–76Google Scholar, at 358.

5 O'Regan in Pillay states that “it does seem to me that our Constitution recognises that culture is not the same as religion, and should not always be treated as if it is.” Pillay, 2008 (1) SA 474 (CC), para. 143.

6 Amoah and Bennett, 358.

7 See Pew Forum on Religion and Public Life, Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa, Pew Research Center, April 2010, 4 (Access full report at http://assets.pewresearch.org/wp-content/uploads/sites/11/2010/04/sub-saharan-africa-full-report.pdf).

8 Ibid.

9 See Edmund Ilogu “Irọ Mmuọ and Ikpu Ala,” in Traditional Religion in West Africa, ed. E. A. Ade Adegbola (Ibadan: Sefer Books, 1998), 138–40, at 139 (“Occasional public worship includes sacrifice and atonement. After epidemics of any kind the diviners are consulted to know what had ‘spoiled the land.’ If no particular individual is accused as being responsible all the village then becomes guilty. Sacrificial animal, sheep and sometimes a ram or male goat is bought with money collected from adult men”).

10 See generally Blakley, Pamela A. R. and Blakely, Thomas D., “Ancestors, ‘Witchcraft,’ and Foregrounding the Poetic: Men's Oratory and Women's Song-Dance in Hêmbá Funerary Performance,” in Religion in Africa: Experience and Expression, ed. Blakely, Thomas D., van Beek, Wouter E. A., and Thomson, Dennis L. (Portsmouth: Heinemann, 1994), 398–442Google Scholar.

11 See generally Bae, Choon Sup and Van der Merwe, P., “Ancestor Worship—Is It Biblical?,” Teologiese Studies/Theological Studies 64, no. 3 (2008): 1299–1325Google Scholar; Mbiti, John S. African Religions and Philosophy (London: Heinemann, 1969), 178Google Scholar.

12 Female genital mutilation is widely condemned in many African countries that have enacted legislation banning such practice. See, for example, the Sexual Offences Special Provisions Act (Act No. 4/1998) (Tanzania).

13 Mdende, Nokuzola, “Spiritual Reality in South Africa,” in Secular Spirituality as a Contextual Critique of Religion, ed. Du, Cornel Toit and Cedric P. Mayson (Pretoria: University of South Africa, 2006), 153–73Google Scholar, at 153.

14 David Chidester would seem to recognize ancestral rituals in organized forms where diviners or traditional healers would participate. See Religions of South Africa (London: Routledge, 1992), 9Google Scholar.

15 See J. A. Adedeji, “The Egúngún in the Religious Concept of the Yoruba,” in Adegbola, Traditional Religion in West Africa, 117–27, at 117 (“The worship of the ancestor is based on a firm belief that the ‘spirit’ of a human being never dies: It will continue to influence the life of a community from another sphere after it has left the physical body, if at his death the necessary obsequial rites are undertaken”).

16 See Snedegar, Keith, “First Fruits Celebrations among the Nguni Peoples of Southern Africa: An Ethnoastronomical Interpretation,” Journal for the History of Astronomy, Archaeastronomy Supplement 23, no. 29 (1998): S31–38CrossRefGoogle Scholar.

17 See Rautenbach, Christa, “Umkhosi Ukweshama: Revival of Zulu Festival in Celebration of the Universe's Rites of Passage,” in Traditional African Religions in South African Law, ed. Bennett, T. W. (Cape Town: University of Cape Town, 2011), 63–89Google Scholar.

18 See Stephanus Smit NO and Others v. King Goodwill Zwelithni Kabhekuzulu and Others [2009] ZAKZPHC 75 (South Africa) (hereafter Smit NO).

19 See, for example, Alistair Boddy-Evans, “The Lovedu Rain Queen,” Rain Queens of Africa, March 9, 2011, http://www.rainqueensofafrica.com/2011/03/the-lovedu-rain-queen.

20 See Olajubu, Oyeronke, Women in the Yoruba Religious Sphere (Albany: State University of New York Press, 2003), 29Google Scholar; Zulu Sofola, “Edi: The Carrier as a Saviour among the Ife,” in Adegbola, Traditional Religion in West Africa, 141–46.

21 Interim National Constitution of the Republic of Sudan (2005), art. 6.

22 Section 38 of the Interim National Constitution of the Republic of Sudan, 2005 provides that “Every person shall have the right to the freedom of religious creed and worship, and to declare his/her religion or creed and manifest the same, by way of worship, education, practice or performance of rites or ceremonies, subject to requirements of law and public order; no person shall be coerced to adopt such faith, that he/she does not believe in, nor to practice rites or services to which he/she does not voluntarily consent.” Interim National Constitution of the Republic of Sudan (2005), § 38.

23 See “Sudan 2014 International Religious Freedom Report,” Bureau of Democracy, Human Rights, and Labor, United States Department of State, 2014, 2, http://www.state.gov/documents/organization/238478.pdf.

24 Interim National Constitution of the Republic of Sudan (2005), art. 11.

25 See “Egypt to Put Critic of Muslim Ritual of Slaughtering Sheep on Trial,” Ahram Online, December 27, 2014, http://english.ahram.org.eg/NewsContent/1/64/118911/Egypt/Politics-/Egypt-to-put-critic-of-Muslim-ritual-of-slaughteri.aspx.

26 See, for example, World Organisation for Animal Health, “Compatibility between the OIE Standards and the Requirements of Islamic Law with Special Reference to the Prevention of Cruelty to Animals during Transport and Slaughter,” 2011, http://www.oie.int/fileadmin/Home/eng/Animal_Welfare/docs/pdf/Others/Religious_Slaughter/A_Religious_slaughter.pdf; Hassan Aidaros, “Proper Application of Halal Slaughter,” OIE [World Organisation for Animal Health], 2013, http://www.oie.int/doc/ged/D13883.pdf.

27 Guidance for such legislation would include a fatwa issued by Dr. Muhammad Sayyid Tantawy, the shaikh of Azhar, one of Islam's most revered institutions, in response to an inquiry from Ahmed El Sherbiny, chairperson of the Egyptian Society of Animal Friends, as to the position of animals in Islam. Society for the Protection of Animal Rights in Egypt, “The Fatwa for Animals,” August 15, 2008, http://www.sparelives.org/index.pl/the_fatwa_for_animals.

28 Constitution of the Arab Republic of Egypt (2014), art. 3.

29 See generally Sourou, Jean-Baptiste, “10 January: Political Calculation or Response to a Socio-Anthropological Requirement in Benin,” in Religious Pluralism, Heritage and Social Development, ed. Green, M. Christian et al. (Stellenbosch: Sun Media, 2017): 91–97CrossRefGoogle Scholar.

30 Section 10 of the Constitution of the Federal Republic of Nigeria declares that the government of the federation or of a state shall not adopt any religion as state religion. Constitution of Nigeria (1999), §10.

31 Constitution of the Democratic Republic of the Congo (2005), ch. 2, art. 22.

32 Constitution of the Republic of Liberia (1984), art. 14.

33 Constitution of the Republic of Uganda (1995), sec. 7.

34 See Peters, Rudd, Islamic Criminal Law in Nigeria (Ibadan: Spectrum Books, 2003), 33Google Scholar (“[I]t is generally understood to mean that neither the legislative power nor the executive may in any way be used to aid, advance, foster promote or sponsor a religion”).

35 See Benson, Iain T., “Notes towards a (Re)Definition of the ‘Secular,’” University of British Columbia Law Review 33, no. 3 (2000): 519–49Google Scholar.

36 The Constitution of the United Republic of Tanzania (1977) (as amended), art. 30(1)(b).

37 See Ugochukwu, Basil, “Balancing, Proportionality, and Human Rights Adjudication in Comparative Context: Lessons for Nigeria,” Transnational Human Rights Review, no. 1 (2014): 1–58Google Scholar.

38 See Okonkwor, R. Chude, “The Legal Basis of Freedom of Expression in Nigeria,” California Western International Law Journal 8, no. 2 (1979): 256–73Google Scholar.

39 [1961] 1 All NLR (Pt. 2), 186 (Nigeria).

40 [2005] 8 NWLR (Pt. 927), 278 (Nigeria).

41 [2007] 18 NWLR (Pt. 1066), 457 (Nigeria).

42 [2001] FWLR (Pt. 44), 542. See also Osawe v. Registrar of Trade Unions [1985] 1 NWLR 755 (Nigeria).

43 Ibid.

44 Kukutia Ole Pumpun and Another v. Attorney General and Another [1993] TLR 159 (Court of Appeal) (citing Director of Public Prosecution v. Daudi Pete [1993] TLR 22 (Court of Appeal)).

45 Animal Welfare Act, Tanzania 2008, sec. 29(1).

46 Ibid., sec. 30.

47 These include cruelly beating, kicking, overloading, infuriating, or terrifying an animal, as described in 495(1)(a). Section 495(1)(b) creates an offense of failure to act, prohibiting wantonly or unreasonably doing or omitting to do any act that causes unnecessary suffering (or as the owner, permitting an act that causes unnecessary suffering). Also prohibited are the transportation of animals in a manner that causes unnecessary suffering, administration of poison, operations performed without due care, and actions associated with animal fighting.

48 See Terdiman, Moshe, “Slaughtering of Animals: A Bone of Contention between Muslims and Christians in Tanzania,” RIMA Occasional Papers 1, no. 8 (2013)Google Scholar, https://muslimsinafrica.wordpress.com/2013/03/27/slaughtering-of-animals-a-bone-of-contention-between-muslims-and-christians-in-tanzania-dr-moshe-terdiman/. Other attacks were reported in June 2015. See “Tanzanian Christians Unlawfully Arrested Attacked and Killed for Their Faith,” The Barnabas Fund, August 20, 2015, http://www.barnabasfund.org/news/tanzanian-christians-unlawfully-arrested-attacked-and-killed-for-their-faith.

49 See “Can Christians Be Butchers? Tanzania's Islamist Tensions Continue,” WorldWatch Monitor, May 23, 2016, http://www.worldwatchmonitor.org/2016/05/can-christians-be-butchers-tanzanias-islamist-tensions-continue/.

50 It would appear that ritual slaughter and associated practices are not seriously contested in Nigeria. For example, there is little or no regulation of Halal certification in Nigeria. See Annabi, Carrie Amani and Ahmed, Jinadu Lolade, “Halal Beef Handling in Nigeria: The Abattoir Workers’ Perspective,” Journal of Emerging Economies and Islamic Research 3, no. 2 (2015)Google Scholar, http://www.jeeir.com/v2/images/Vol3No22015/CarrieAmani.pdf.

51 These would include the desecration of the Qu'ran that often results in vigilante killing. An example is the recent case of Mrs. Bridget Agbahwe, who was killed for blasphemy against Prophet Mohammed on June 2, 2016. See Danielle Ogbeche, “Muslims Allegedly Behead Woman Who ‘Blasphemed’ against Prophet Mohammed in Kano,” Daily Post, June 3, 2016, http://dailypost.ng/2016/06/03/muslims-allegedly-behead-woman-who-blasphemed-against-prophet-mohammed-in-kano/.

52 The Constitution of South Africa, 1996, sec. 15(1). The text reads as follows:

  1. (1)

    (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

  2. (2)

    (2) Religious observances may be conducted at state or state-aided institutions, provided that—

    1. (a)

      (a) those observances follow rules made by the appropriate public authorities;

    2. (b)

      (b) they are conducted on an equitable basis; and

    3. (c)

      (c) attendance at them is free and voluntary.

  3. (3)
    1. (a)

      (a) This section does not prevent legislation recognising—

      1. (i)

        (i) marriages concluded under any tradition, or a system of religious, personal or family law; or

      2. (ii)

        (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

    2. (b)

      (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

53 See, generally, Farlam, Paul, “Freedom of Religion, Belief, and Opinion,” in Constitutional Law of South Africa, ed. Woolman, Stu and Bishop, Matthew, 2nd ed., 5 vols. (Cape Town: Juta, 2002)Google Scholar 3:41-i–41–55; Lourens du Plessis, “The Constitutional Framework for the Protection of Religious and Related Rights in South Africa,” in Bennett, Traditional African Religions in South African Law, 90–111; Bilchitz, David and Williams, Alistair, “Religion and the Public Sphere: Towards a Model that Positively Recognises Diversity,” South African Journal of Human Rights 28, no. 2 (2012): 146–175CrossRefGoogle Scholar.

54 See Sachs J in Christian Education South Africa v. Minister of Education 2000 (4) SA 757 (CC) para. 37; Prince v. President Cape Society 2002 (2) SA 794 (CC).

55 As established by the Societies for the Prevention of Cruelty to Animals Act 169 of 1993 § 3, the council is endowed with the following objectives:

  1. (a)

    (a) to determine, control and co-ordinate the policies and standards of societies, in order to promote uniformity;

  2. (b)

    (b) to promote co-operation among societies;

  3. (c)

    (c) to prevent the ill-treatment of animals by promoting their good treatment by man;

  4. (d)

    (d) to promote the interests of societies;

  5. (e)

    (e) to take cognizance of the application of laws affecting animals and societies and to make representations in connection therewith to the appropriate authority;

  6. (f)

    (f) to do all things reasonably necessary for or incidental to the achievement of [its objectives].

In National Council of Societies for the Prevention of Cruelty to Animals v. Openshaw 2008 (5) SA 339 (SCA) para. 40, Cameron JA recognized the council as the guardian and voice of animals.

56 See Bilchitz, David, “When Is Animal Suffering Necessary?” Southern Africa Public Law 27, no. 1 (2012): 3–27Google Scholar. Bilchitz demonstrates how unnecessary suffering is a key principle of the South African Animal Protection Act, and how this can be reinterpreted in an inquiry toward establishing when animal suffering is necessary and animals can lawfully be subjected to suffering. His excellent analysis identifies two broad concepts, the first of which is the objective for which suffering is sought weighed against the harm to the animal; the second is a means-end test that considers different alternatives in realizing the objective of animal suffering and the least harmful manner through which the objective can be achieved. Ibid.

57 Smit NO, [2009] ZAKZPHC 75

58 Commission for the Promotion and Protection of the Rights of Cultural Religious and Linguistic Communities, Guidelines Report on the African Ritual of Animal Slaughter (2009) (hereafter Ritual Slaughter Report). The objects of the commission are found in the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2002 § 4 (South Africa) as

  1. (a)

    (a) to promote respect for and further the protection of the rights of cultural, religious and linguistic communities;

  2. (b)

    (b) to promote and develop peace, friendship, humanity, tolerance and national unity among and within cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association;

  3. (c)

    (c) to foster mutual respect among cultural, religious and linguistic communities;

  4. (d)

    (d) to promote the right of communities to develop their historically diminished heritage; and

  5. (e)

    (e) to recommend the establishment or recognition of community councils.

59 Smit NO [2009] ZAKZPHC 75, at 12.

60 Rautenbach, “Umkhosi Ukweshama,” 75.

61 Ibid.

62 See Ritual Slaughter Report, 6.

63 Ibid., 13.

64 These bylaws include the City of Johannesburg Metropolitan Municipality Public Health By-Law GN 830 of GG 179 (21 May 2004) (South Africa). The policies include the Internal Tshwane Policy on Environmental Health Department 2.5b of 2006.

65 Constitution of the Republic of South Africa, 1996, sec. 36(1).

66 Farlam, “Freedom of Religion, Belief, and Opinion,” 13.

67 2008 (5) SA 339 (SCA).

68 Ibid., para. 38. See Couzens, Ed and Bellengere, Adrian, “The Sacrificial Blesbok: Towards Greater Understanding of Animal Welfare Law in South Africa: Openshaw; Natal Zoological Gardens (Pty) Ltd and Others v. Ezemvelo KZN Wildlife and Others,” South African Journal of Environmental Law and Policy 17, no. 2 (2010): 125–37Google Scholar.

69 Openshaw, para. 39.

70 See Bilchitz, David, “Does Transformative Constitutionalism Require the Recognition of Animal Rights?” in Is this Seat Taken? Conversations at the Bar, the Bench and the Academy about the South African Constitution, ed. Woolman, Stu and Bilchitz, David (Pretoria: Pretoria University Law Press, 2012), 173–208Google Scholar.

71 Ibid., 198.

72 Ibid., 200.

73 Thaddeus Metz argues that South Africa's apartheid past demands compensatory justice for blacks, which can be fulfilled by ensuring that there are no limitations to ritual slaughter. See Thaddeus Metz, “Animal Rights and the Interpretation of the South African Constitution,” in Woolman and Bilchitz, Is this Seat Taken?, 209–19, at 209n62.

74 See, for example, Ahmed Laher, “Question Posed at SANHA,” Al Islam (blog), accessed January 20, 2018, http:// www.alislam.co.za/qna/question-posed-at-sanha; see also Shaheed Tayob, “The South African Halal Industry: A Case of Cultural Intermediaries,” Annual Review of Islam in Africa, no. 11 (2012): 49, 49–54.

75 Hofmeyr, Izak, “Official Slaughtering Methods in South Africa: Farmlink,” Stockfarm 4, no. 6 (2014): 64–65Google Scholar, at 65.

76 The preponderance of academic opinion in the wake of Smit NO reveal interesting insights into the nature of the ritual slaughter practiced in African Traditional Religions. Many commentators would not dignify ritual slaughter as a religious practice. See, generally, Peté, Stephen Allister and Crocker, Angela Diane, “Ancient Rituals and Their Place in the Modern World: Culture, Masculinity and the Killing of the Bulls—Part One,” Obiter 33, no. 2 (2012): 278–96Google Scholar; Peté, Stephen Allister and Crocker, Angela Diane, “Ancient Rituals and Their Place in the Modern World: Culture Masculinity and the Killing of Bulls—Part Two,” Obiter 33, no. 3 (2012): 580–99Google Scholar.

77 See Metz, Thaddeus, “Animal Rights and the Interpretation of the South African Constitution,” South African Public Law 25, no. 2 (2010): 301–11Google Scholar. Metz argues that apartheid policies of denigrating African religion and tradition require some form of compensatory justice that recognizes practices such as ritual slaughter.

78 See, for example, Olajubu, Women in the Yoruba Religious Sphere, 29; Sofola, “Edi: The Carrier as a Saviour among the Ife,” 141.

79 See, for example, Qur'an 6:38 (Yusuf Ali, Saudi Rev. 1985) (“There is not an animal that lives on earth, not a being that flies on its wings, but they form communities like you. Nothing have we omitted from the book and they all shall be gathered to their Lord in the end.”); Qur'an 55:10 (Yusuf Ali, Saudi Rev. 1985) (“It is He who has spread out the earth for (His) creatures.”).

80 See, for example, Leviticus 1:2 (King James Version) (“Speak unto the children of Israel, and say unto them, If any man of you bring an offering unto the Lord, ye shall bring your offering of cattle, even of the herd, and of the flock.”).

81 See, for example, Proverbs 12:10 (King James Version) (“A righteous man regardeth the life of his beast: but the tender mercies of the wicked are cruel.”).

82 The court's stinging rebuke of the application is evident in this phrase: “I am only too deeply aware of the consequences of vilifying the cultural and religious beliefs of communities and the polarization it causes.” Smit NO.