Adv Nadene Badenhorst, Legal Counselof Freedom of Religion South Africa
HonourableChair, Programme Director and esteemed members of AfriPAHR.
Thankyou for the opportunity to, for a few minutes, address you on the work ofFreedom of Religion South Africa (FOR SA), a legal advocacy organisation thatworks to protect and promote the constitutional right to freedom of religionand belief in South Africa. My name is Adv Nadene Badenhorst (Legal Counsel ofFOR SA), and I am here with my colleague, attorney Daniela Ellerbeck.
Asan organisation, we work mainly in two arenas: before government and Parliamentwhere we screen and make submissions on policies and Bills that pose a threatto religious freedom, and before government commissions (like the Human RightsCommission and others) and the courts (including the Constitutional Court)where we get involved in cases where religious freedom issues are at stake.
Freedom of Religion and Belief (FORB)
FORBgenerally forms part of the broader right to freedom of conscience, religion,belief, thought and opinion – and entails the right to not only believe in ourhearts whatever we want to believe (or not believe), but the right to say what we believe and to live out our beliefs free frominterference / punishment by the State or anyone else.
FORBis a human right that (like other human rights e.g. the right to human dignity,equality etc.) belongs to every human being simply because they are human.Although guaranteed by international, regional and national instruments (includingthe UN Declaration of Human Rights, the African Charter of Human and People’sRights, and the Constitutions of many countries), it is important to understandthat, as a human right, its origin pre-dates those instruments and is derivedfrom natural law rather than international or State law. As such, it is not theState who, in the first place, gives its citizens the right or privilege ofreligious freedom. On the flipside therefore, the State cannot simply remove orlimit the right to religious freedom for any reason – least not because theState does not like, agree with, or even finds certain religious convictions orbeliefs “offensive” or “politically incorrect”.
Yet,that is exactly what we find happening in so many countries, including inAfrica, today. Increasingly, the message is “believe in your heart whatever youwant to believe, but don’t say it and don’t act on it”. The problem with thisis, that freedom is not freedom unless you are able to say what you believe,and live it out.
A serious threat to democracy
Weneed to understand that this erosion of FORB is a serious threat not only tobelievers (of whatever faith), but to democracy. As we know, democracy, insimplest terms, is “the rule of the people”. But how can the people rule ifthey are not able to decide for themselves, based on their moral / religious /political convictions, what is right and wrong, what is true and false, what isgood and bad; and unless they are able to speak it (in the press or otherwise),and give effect to it by associating with like-minded people, voting, etc? Andso FORB is arguably the most important freedom to democracy, because it isreally a basket of human rights - and when FORB goes, many other hard-wondemocratic rights go with it.
Forthis reason, we cannot afford not to be informed of the serious threats toreligious freedom around the world and in our own countries today, and not tobe actively engaged in the protection of this fundamental right on a regional,but also national scale.
South Africa
InSouth Africa itself, FORB is at a critical point with a number of threats toour freedom to say what we believe, and to live our lives according to ourbeliefs.
Oneof the most imminent threats to our freedom to say what we believe, is the “Hate Crimes and Hate Speech Bill”.This Bill makes certain forms of speech a crime (punishable by a fine, or up to3 years’ imprisonment) and as such, poses a major threat to freedom of speechin general (and freedom of religious expression in particular).
Aroundthe world, hate speech laws are typically used to silence controversial oranti-establishment ideas, and so the net effect is a stifling of free speech aspeople simply stop speaking out what they feel or think about issues for fearthat they’ll be arrested, charged and prosecuted for “hate speech”. It goeswithout saying that this is very serious threat to democracy in general.
Likewise,our freedom to live out our innerconvictions, are threatened on multiple fronts: as parents, to raise their children according to their religiousconvictions; as business owners, to run their businesses according to theirreligious convictions; as professional people (doctors, lawyers, etc) andemployees, to live out their faith in their workplaces; as religiousorganisations, to determine their own doctrines and regulate their own affairsfree from interference by the State / anybody else.
Oneof the most imminent threats we are facing right now, is the proposedregulation of religion. According to recommendations made by the CRL Rights Commission,an institution of State established in terms of our Constitution, our lawshould be amended such that religious organisations and practitioners cannotoperate without having a licence to do so, which licence can also be revokedshould they step out of line. Again, while this may sound like a good idea, if -in principle - religious freedom is a human right (rather than a right orprivilege granted by the State depending on whether the State agrees ordisagrees with the organisation’s particular doctrine and practices), it isquestionable whether the State has the power to limit religious freedom in thisway.
FORSA indeed successfully argued before COGTA Parliamentary Portfolio Committeelast year that the CRL’s recommendations (which effectively amount to Stateregulation of religion) is unconstitutional, unnecessary (in light of existinglaws) and unworkable. If anything, what is already happening across our bordersin countries where religion is regulated in this way, should be a warning to usnot to go down this route. In Angola, at the end of lastyear, the government passed legislation in terms whereof only pastors who havea theological degree will be recognised as religious practitioners, andchurches with fewer than 100,000 members will be shut down. The samehappened in Rwanda, reportedly resulting in the shutdown of 6,000 churches.
Thisshould make us all sit up. When the State starts capturing religiousinstitutions, who have always had a degree of institutional autonomy todetermine their own doctrines and regulate their own affairs free from interferenceby the State, it is the end of democracy and the advent of totalitarianism andcomplete State control over not only public life, but the inner sanctum ofprivate life.
Conclusion
Toconclude, religious freedom is important not only for those of us who callourselves believers (many of whom, in persecuted countries in Africa today, areprepared to lose their lives for this rather than give up their religiousconvictions and beliefs), but for everyone who believes in protecting andpreserving democracy. If we do not protect religious freedom, democracy willsuffer and the people (religious and non-religious) will pay the price.
And so I want to thank you for your consideration of, and willingness to engage in, what is really a battle for the soul of our nation/s – and as FOR SA, working also with other international allies like Advocates Africa (where I serve as a member of the Next Generation Board), we would welcome the opportunity to collaborate with you in this regard. Contact us or follow us on Facebook at “Freedom of Religion SA”.
Ithank you for your time, and wish you all the best with your furtherdeliberations over the next two days.
[author] [author_info]Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.[/author_info] [/author]
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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 freedom of religion 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:
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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.
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