OP-ED: A law does not have to mention religion to restrict it

OP-ED: A law does not have to mention religion to restrict it

By FOR SA

Courts in the United Kingdom, Finland and Nigeria are working out how much room the law leaves people to hold, express and live out their beliefs. South Africans have good reason to pay attention, and a practical way to act.

A woman stands silently in a public space in Birmingham. A judge says that standing is not a crime. She still faces five criminal charges.

On 7 October, charity volunteer Isabel Vaughan-Spruce pleaded not guilty to five fresh charges. The allegation is that she stood and prayed silently inside a 150-metre buffer zone outside an abortion facility. The judge said that mere presence is not enough and that the focus should be on intent to influence or harass others. He also allowed the prosecution to replace an improperly drafted charge. She was acquitted in 2023 after an earlier arrest in the same area and received a settlement from the police in 2024. Her trial is set down for late January 2027. While protecting people from harassment is legitimate, the question is whether the law serves that aim without reaching peaceful religious expression.

Hers is one of four cases, in three countries, that ask a question every constitutional democracy must answer: how much room does the law leave people to hold, express and live out their beliefs?

Three more cases

In Finland, Päivi Räsänen, a member of parliament and former Interior Minister, was convicted by the Supreme Court in March, with Lutheran Bishop Juhana Pohjola and the Luther Foundation Finland, of insulting a group over a 2004 church booklet on marriage and sexuality. She was acquitted on a separate charge over a Bible verse in a tweet. ADF International, which represents them, records that the court accepted the booklet contained no incitement to violence, yet ordered the statements removed from public access and destroyed. They applied to the European Court of Human Rights in July.  

Räsänen’s UK travel authorisation, approved in June, was cancelled in July. The authorities said only that her application showed she was not eligible. She and her lawyers link the decision to her conviction. She had been invited to give the keynote at a religious freedom conference in Belfast in August, where she intended to speak on free expression, and ADF reported that she would have to address it by video instead. In our view, there is an uncomfortable irony in that.

In Nigeria, Yahaya Sharif-Aminu, a Sufi Muslim musician from Kano State, was arrested in March 2020 after sharing song lyrics allegedly praising a revered Sufi imam in a WhatsApp group. The lyrics were deemed blasphemous; a mob burned down his family’s home, and a Sharia court sentenced him to death. The conviction was set aside on procedural grounds and a retrial ordered, but he has remained in prison for more than six and a half years. His appeal, challenging the constitutionality of Nigeria’s blasphemy laws, has been before the Supreme Court since 2022. A 25 June hearing meant to fix a date for argument was cancelled, and in September his lawyers asked the Chief Justice for an urgent date. The regional ECOWAS (Economic Community of West African States) Court has held that these laws should be repealed.

Nigerian journalist Luka Binniyat reports on violence against Christian communities in southern Kaduna. In 2021, he quoted a legislator who accused others of covering up what the legislator described as a genocide against Christians. He was arrested and charged with criminal defamation, and spent close to five years fighting the charge. In May, the court found no evidence to prove the essential elements of the offence, and he was cleared. Religious freedom depends on people being free to report, to quote and to ask uncomfortable questions. A free press is essential to both.  

What the cases share

First, apart from the blasphemy laws, none of the laws involved was written as a law about religion. They are public order rules, hate speech provisions and defamation law, and their outer limits (what you may say or express, even silently) are being settled by courts case by case, rather than clearly fixed by lawmakers.

Second, the process becomes the punishment. One person has faced nearly seven years of proceedings, another close to five years under charge, and a third more than six and a half years in a jail cell. One was acquitted on one charge but convicted on another, one has been cleared, and another is still waiting for an appeal to be heard. Even if acquitted (and in some cases, compensated), nobody can give those years back or undo what has happened.

Third, none of it depends on which faith you hold. A law that lets the State decide which religious expression is acceptable can, over time, be turned against whoever is out of favour or lacks resources to defend themselves.

Why this matters here

South Africa has the same building blocks. Our Constitution protects freedom of religion and freedom of expression (sections 15 and 16). Rights may be limited only by a law of general application, and only to the extent that is reasonable and justifiable, including whether less restrictive means could achieve the purpose (section 36). The aim is to maximise the enjoyment of constitutional rights, even though that demands careful balancing. In our view, vague hate speech and public order provisions that allow for legal uncertainty, subjective interpretation and arbitrary application are hard to justify under that test.

A law does not have to mention religion to end up restricting it. Broad laws tend to be stretched over time, and each stretch erodes freedom a little further. The cost lands on ordinary people long before any court rules. By the time a court draws the line, the years have already been spent. Complacency is a real risk. Faith and freedom are safest when they are defended early, openly and by many voices.