By Michael Swain, FOR SA Executive Director
Introduction and background
Asmany will be aware, the Parliamentary Portfolio Committee for CooperativeGovernance and Traditional Affairs (COGTA) decided to hold a two-day “Indaba”at Parliament on 10 – 11 March 2020, to hear the views and inputs from the(largely) Christian faith community on harmful religious practices and what thereligious sector was doing to combat “social ills”. This “Indaba” was supposed to be followed bya “Colloquium” with the leaders of other faiths and structures on 17 – 18 March2020, which has subsequently - due to the COVID-19 health crisis - beenpostponed to a date still to be determined.
This Indaba followed on from a previous process in October 2017, when the previous COGTA Committee (under the 5th Parliament) invited hearings to consider the CRL Rights Commission’s (CRL) report on The Commercialisation of Religion and Abuse of People’s Belief Systems (the Report). These hearings focused on serious concerns expressed by the vast majority of the religious community that the CRL’s recommended “peer review” mechanisms were unconstitutional (they infringe and erode both the constitutional rights to freedom of religion and freedom of association); unnecessary (the problem is a lack of enforcement of existing laws which sufficiently cover every abuse contained in the Report); and unworkable (they require a vast new bureaucracy to enforce compliance). After these 2017 hearings, the previous COGTA Committee issued a report, effectively recognising the CRL’s concerns but rejecting its recommendations. Instead, the Committee recommended that the religious community be given an opportunity to convene and discuss truly self-regulatory solutions by the religious community for the religious community.
Purpose of “Indaba” and “Colloquium”
Thepurpose of these new Parliamentary meetings – according to COGTA Chairlady,Honourable Faith Muthambi – is to find solutions for harmful religiouspractices because COGTA is highly concerned about the “moral ills” in SouthAfrica. In furtherance of thisobjective, COGTA used the CRL’s database to invite certain religious structuresand leaders to present at this event, while at the same time recognising thatnot everyone would have the opportunity to have their say.
FOR SA has actively encouraged participation in this new process, because it presents a critical opportunity for the religious community to confirm the reasons for its objections to the CRL’s proposed “peer review” mechanisms, as well as to put forward alternative solutions and perspectives on the challenges and issues within the faith community. It quickly became clear that the vast majority of the presentations at this month’s Indaba, again rejected the CRL’s recommendations for the reasons outlined above, while at the same time giving broad-based support and endorsement for “alternative solutions” to help resolve the problems.
Context and framework of freedom of religion rights
Several of the presentations emphasised that the human right of freedom of religion or belief (FORB) vests in individuals and the organisations and associations formed to express them - not in religions per se. Thus, there is a fundamental difference between pre-existent, inalienable rights which the State simply recognises (such as FORB), and those which the State grants (such as the right to housing).
It was further emphasized that it is a primary duty of the State to protect FORB rights, and to facilitate the enjoyment of these rights to the fullest among all people under its jurisdiction – not to attempt to control them. COGTA was further called upon to recognise that religious communities are the strongest voices and forces for moral reconstruction and to acknowledge the many reports (past and current) that it has received regarding the positive contribution and beneficial activities of religious communities for the wellbeing of their communities.
Summary of “Indaba” hearings and presentations
Onthe first day of the Indaba, presentations were made by the South AfricanReligious Forum (SARF), the South African Council of Churches (SACC), the SouthAfrican Union Council of Independent Churches (SAUCIC), the South AfricanCouncil for the Protection of Religious Rights and Freedoms (SACRRF), theInternational Institute for Religious Freedom (IIRF), the Council OfCharismatic Churches (COCC), Rev. Sibanda on behalf of the Pentecostal andCharismatic Churches, and the Anti-Regulation of Religion Summit. On the secondday of the Indaba, presentations were made by the South African Institute forProfessional Pastors, Reverends and Ministers (SAIPPREM), the African ChristianDemocratic Party (ACDP), the Inkululeko Yesizwe Association, the Baptist Unionof South Africa (BUSA), and the CRL Rights Commission (CRL).
Atthe close of the day, Prof Christof Sauer (from the IRRF) and Prof RassieMalherbe (from the SACRRF) were invited by Honourable Gordon Mpumza (ActingChair of COGTA, in the absence of Hon. Muthambi who was unable to attend thesecond day) to sum up the main points made in the 30+ presentations by variousreligious organisations. He expressed his appreciation to COGTA for the interaction,and then highlighted the alternative solutions as per the submissions made,namely:
Whileneither the participants at the meeting, nor COGTA itself, formally acceptedthese positions or made any decisions on a way forward, it was generally agreedthat the discussions and alternatives presented were well summarised.
Networks of religious practitioners
Thereligious community clearly expressed its view that it must be allowed tocontinue to regulate itself as it has always done. While there was a sense expressed by bothCOGTA and the CRL that government has an interest in the “well-being” of thereligious community, it was pointed out that there is not (nor should ever be)any legal obligation to report or account to the government about this.
Therewas also a recognition that certain sections of the religious community hadmade significant steps to self-organise and self-regulate on a truly voluntarybasis, with the formation of multiple new and additional networks on anational, regional and local level. There was a call for both COGTA and the CRLto include such networks of religious practitioners in future discussions andinteractions.
Code of Conduct
Oneof the key recommendations of the previous COGTA Committee was for thedevelopment of a Code of Conduct as a benchmark of the ethics and behaviours thatcan be reasonably expected from the religious community. The SACRRF presented a draft “Code of Conductfor Religions in South Africa” as one means of self-regulation by religiouscommunities. This was initiated by thereligious community and is based upon the responsibilities which correspond tothe rights contained in the “SA Charter on Religious Rights and Freedoms”,which has previously been endorsed by over 22 million people from multiplefaiths.
TheSACRRF encouraged religious communities to consider this Code of Conduct as aproposal for voluntary adoption, in addition to codes and rules alreadyapplicable in individual communities and institutions. The SACRRF also made clear that this Code ofConduct could be adjusted or amended by any faith community to tailor it fortheir context or needs, in line with the values and principles set out in thedraft Code.
COGTAasked the CRL to explain why it had chosen to draft its own Code with little orno reference to the religious community, rather than to support the initiativein this regard from a broad cross-section of senior religious leaders.
Education and training
Therewas a recognition that there is a need for greater levels of training andeducation (both in religious reflection, and practical management skills) forreligious practitioners (which should be encouraged on a voluntary basis) tosupport their calling. This could notonly happen as a result of increased collaboration among religious communitiesand educational groups who have developed materials (and even SAQA-recognizedqualifications) for this purpose, but that the CRL also has a key educationalrole to play in this regard.
Investigation and enforcement
TheCRL (in particular) was urged to improve its capacity to investigate possible“abuses” and to recommend appropriate remedial action to the responsible organsof state when problems are uncovered.
Giventhat a common observation is that there has been inefficient and ineffectiveapplication and enforcement of existing laws, COGTA indicated that it wouldfurther investigate this matter as soon as possible. This would likely entail consulting withvarious state agencies and departments to ascertain why they are not enforcingexisting laws concerning the problems at hand and what they need to do/have torectify this in their capacity.
Register of religious practitioners
As part of its presentation, the CRL announcedthat intends to proceed with issuing a call by20 March, 2020, to religious organisations “to register with the CRLdatabase”. While it is recognised thatthis is within the powers given to the CRL by section 5(1)(j) of the CRL Act of2002, and that such a database is certainly useful for the implementation oftheir mandate, there is a need for more detail and clarity on what will berequired and how this will be implemented and rolled out.
This clarity isparticularly necessary because the CRL has not yet officially back-tracked onits proposal for an elaborate, centralised system for the regulation ofreligious practitioners. This, in turn,has caused a high level of mistrust among large parts of religious communities,who may be opposed to providing the information requested by the CRL for fearthat this might be misused. The CRLChair in his announcement appeared to claim that “all” religious organisations“must” register with CRL. “The issue of registration will cover each andevery church of South Africa.”
However – and whileFOR SA has also supported the CRL’s statutory power to keep (an information)register of religious organisations to bring greater levels of compliance andaccountability – there is a difference between the right of the CRL to maintainsuch a database to facilitate its work, and a duty for all to registerand where failure to comply could be sanctioned.
We, therefore, believe that it is important for theCRL to answer the following questions:
Conclusion
FOR SA is of the view that the “Indaba” meetings achieved a positiveoutcome, inasmuch as it enabled a significant representation of the faithcommunity to reinforce its position that State-backed “peer review” mechanismsare not the solution to the issues identified in the CRL’s Report and in subsequentmedia. It also provided a platform whereGovernment was presented with viable and existing “alternative solutions”. It also gave momentum for the broader faithcommunity to again consider the challenges and to develop responses andrecommendations.
Although the focus of many religious leaders has understandably shiftedas a result of the COVID-19 health crisis and Government has implementedexceptional measures in an attempt to mitigate the worst impact, we expect thatour society will return to “normality” at some point in the (hopefully!) nearfuture. At that point, it will beimportant to be prepared to re-engage in this matter to ensure that thereligious community of South Africa remains truly self-regulatory and free fromunnecessary and undue State interference, with its Constitutional rights toenjoy religious liberty un-curtailed.
[author][author_info]Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).[/author_info] [/author]
Support FOR SA
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. You can help FOR SA protect our freedom by:
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
Vision & mission
Join us
Company details
Are you in trouble?
Enquiries
Privacy Policy
Terms & conditions
Cookie Policy
Donate Now
NOTE & DISCLAIMER
FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
FOR SA is not registered as a law firm and therefore cannot (and does not) give legal advice for which we can attract any legal liability; neither can we charge legal fees for our services.
