Op-ed: The Real Choice Is Not Code or No Code, But Whose Code

Op-ed: The real choice is Not Code or No Code, but whose Code

By Michael Swain | Executive Director, Freedom of Religion South Africa (FOR SA)

The debate about the CRL Rights Commission’s Section 22 process is often wrongly framed as a choice between supporting and opposing a Code of Conduct for religious leaders and organisations. FOR SA’s consistent recommendation is that a Code of Conduct is a key element of the solution to the very real challenges and concerns the CRL has highlighted. Recent remarks by both the COGTA PC Chair Dr Zweli Mkhize and the CRL Chair makes it crystal clear that a Code of Conduct is firmly on the table. The question facing South Africa’s religious leaders is not whether there will be a code, but which code they will choose to live by.

There are two options. In February 2018, Parliament’s Portfolio Committee on Cooperative Governance and Traditional Affairs (COGTA PC) declined to support the CRL’s call for State regulation of religion. Instead, COGTA PC proposed that the faith sector develop a Code of Conduct by and for itself, which was duly drafted in 2019. This Code sets out the responsibilities corresponding to the rights defined in the South African Charter of Religious Rights and Freedoms (the Charter), which was previously signed and adopted in 2010 by multiple faith communities representing an estimated 20 million or more South Africans. The CRL Rights Commission is itself a signatory.

This Code of Conduct exists and can be adopted and endorsed today. Importantly, it is not a soft document. Those who adopt it commit to:

• protect children from abuse;
• refrain from coercion and manipulation;
• obey the law and report crime where there is a legal duty to do so;
• follow natural justice in internal discipline;
• have their finances independently audited every year;
• never pressure anyone into giving beyond their means.

The alternative will be whatever Code of Conduct will result from the CRL’s Section 22 Committee process.  This is part of its so-called “self-regulatory framework” for the Christian sector, which provides for “the development of the legislative framework” for a Religious Practice Council, the registration of religious institutions and practitioners, and a code of conduct for all practitioners. This framework also provides for a “Seal of Good Standing”, a public register and sanctions extending to “deregistration and public notification”.  However, any Code of Conduct enforced by a body with power to register, certify and sanction is not self-regulation in any ordinary sense, even if religious leaders are appointed to sit on that body.

The difference between these two Codes is also constitutional. Sections 15, 18 and 31 of the Constitution protect freedom of religion and association, as well as the right of religious communities to practise their faith and maintain their own associations. A Code of Conduct that a community chooses for itself is an exercise of those rights. A code imposed through a State-backed body is clearly a limitation of them.

It must be noted that these rights are not absolute. However, Section 36 of the Constitution sets out the test for any limitation, which must be reasonable and justifiable in an open and democratic society. This test weighs the importance of the purpose, the extent of the intrusion, whether the measure serves its purpose, and whether less restrictive means are available. A Code of Conduct developed by and for the faith communities and adopted voluntarily by them is clearly less restrictive than one developed and imposed by the State through an Act of Parliament.

Voluntary adoption of a Code of Conduct by the faith sector is at the heart of the matter. On 28 October 2026, the COGTA PC Chairperson, Dr Zweli Mkhize, told religious leaders in Durban that a code of ethical conduct is “in the hands of the religious leaders, not in the hands of government”. Each church, network and denomination that adopts the code strengthens the case that State regulation is unnecessary. Each one that does not leaves room for the claim that the sector has done nothing to resolve its own problems – and that, in turn, opens the door for the State to impose its own code. For the faith community to adopt its own Code of Conduct is the opposite of resisting accountability. It is the response Parliament invited.

The recommendation is therefore that the Christian sector settles on a single version of a Code of Conduct through a collective process. This would eliminate confusion for congregations, the public and Parliament. From this baseline, churches, denominations and networks could then add and tailor this with provisions specific to their own traditions. National umbrella bodies, such as the South African Community of Faith-Based Fraternals (SACOFF), could adopt the Charter and the Code for themselves and recommend, but never require, that their members do the same.

To implement this effectively, churches and networks could then write both these documents into their own governing documents, thereby demonstrating their willingness to be voluntarily accountable. However, every adoption should state expressly that it does not give any State organ, or body created through a State process, any authority to monitor, certify, register or sanction it.  Voluntary adoption must not become a stepping stone to statutory enforcement.

One qualification remains. A voluntary code will not bind those who refuse it. That is why the criminal and other general law, properly enforced, remain the answer to abuses or other misconduct. The Code of Conduct does a different job: it makes the mainstream standard visible, gives members a clear benchmark, and identifies and isolates those who will not commit to it.

Religious leaders are therefore not being asked whether they support accountability. They are being asked which code they will be accountable to: one their communities have chosen, or one enforced through structures backed by the State. The faith community has already written its answer. The choice now is to adopt it, visibly and in numbers.