Summary of the Current Status on the CRL's Report on the Commercialisation of Religion and the Abuse of People's Belief Systems

INTRODUCTION

On 5 December 2019, the CRL Rights Commission (“CRL”) briefed the newCooperative Governance and Traditional Affairs Parliamentary PortfolioCommittee (“COGTA PPC”), chaired by Minister Faith Muthambi, on its Reporton the Commercialisation of Religion and Abuse of People’s Belief Systems(“Report”). (In this regard, see Annexure “A1” below).

It should be noted that this Report has previously been subjected to extensive and intensive public input before the previous COGTA in 2018, which subsequently rejected the recommendations that it contained.  However, the CRL refused to accept these findings and subsequently lobbied and motivated relentlessly via media, public meetings, National Consultative Conference (“NCC”) resolutions etc. to find a way to revive and implement its proposed solutions.  This was the express purpose of its presentation to the “new” COGTA PPC, who has indicated that further hearings and inputs must take place at some future point.

Freedom of Religion South Africa NPC (“FOR SA”) attended a “Lawand Religious Communities in Africa” conference in Durban in January 2020,where there were a number of presentations from international delegates andacademics as well as from the COGTA PPC members and the CRL itself.

The overwhelming message from the international lawyers and academics was that Freedom of Religion and Belief (“FORB”) is a fundamental human right.  They warned of the danger of States registering Religious Organisations (“ROs”), which often leads to the repression of ROs and Religious Practitioners (“RPs”).  They said that any such registration should be minimal, with a process that is quick, transparent, fair, inclusive and non-discriminatory. 

• [EG] Nigeria put forward proposals to register and regulate religion, which has resulted in the USA putting it on a “Special Watch List” as a “Country of Particular Concern”.

• [EG] The military government in Ghana tried to establish a “Religious Affairs Commission” to register ROs, who had to provide their constitution, details of trustees, social/community work programmes, number of members, location of head office and worship venues and details of funding.  This was rejected by religious leaders and could not be implemented.

Prof. Mosoma (current Chair of the CRL) stated that freedom of religionrights would be respected and that religion cannot be regulated.  Using the analogy that religion is “the car”,he stated that RPs are “the drivers” of the car, who must be regulated so thatif they become “rogue” they can be sanctioned to “protect the human dignity” ofindividuals and the community.  

FOR SA respectfully points out that this analogy, while well-meaning,is misguided because driving a vehicle is not a fundamental human right but isinstead a privilege.  While privilegesmay be limited (for example, by specifying the minimum age to obtain a license)or even removed, freedom of religion is an inalienable human right whichattaches to an individual (merely because he/she is a human being) - not to anyparticular faith expression. 

FOR SA observed that there is often an emotional response frompoliticians to abuses that take place within the religious community.  This can make them less open to respectingthe sacrosanct nature of religious freedom rights.  We took the opportunity to discuss the CRL’sproposals (as contained in their Report) with certain academics and lawyers whoattended the Durban conference.  They wereunanimous and clear that a peer review mechanism, established and backed by an institutionof State (or the State itself), posed a severe threat to religious freedom andwould likely attract negative interest from the international community.

In conclusion, FOR SA believes that it is critically important that the religious community responds to COGTA and the CRL by proposing alternative solutions to the CRL’s recommendations.  The current status is that the CRL’s Report and its recommendations are the only solutions currently before Parliament. At the “Law and Religious Communities in Africa” conference, Minister Faith Muthambi indicated that the COGTA PPC intends to have another round of consultation with the religious sector in the 1^st term of this year. In the absence of alternatives for politicians to consider, it is likely that the CRL’s proposals will be presented as the sole solution to address abuses in the religious community.

Unfortunately, the Religious Leaders Summit Steering Committee (RLSSteering Committee) which was tasked by the religious sector to drive a processof finding alternative self-regulating solutions by the religiouscommunity for the religious community, has not found much traction. Nodate has been set for a further religious summit, and no meetings of the RLSSteering Committee have been set for the foreseeable future.

FOR SA has considered the legitimate concerns highlighted by the CRL’s Report and has put forward five alternative solutions which will allow the religious community to remain truly self-regulatory and require no further legislation or Constitutional amendment. We believe these alternative solutions will bring greater levels of accountability to the religious community as well as help to identify where “problem areas” may exist so that existing laws can be enforced and/or education and training opportunities be presented to remedy areas where there may be a lack of compliance. These solutions were presented by FOR SA to the CRL at a meeting at their offices on Tuesday, 28 January 2020.

We encourage and recommend that all faith groups, denominations,networks and fraternals consider these alternative solutions carefully.  While they are not intended to beprescriptive, FOR SA believes that they fully address all the “abuses”identified in the CRL’s Report.  Wetherefore strongly recommend that – with whatever appropriate amendments anyreligious organisation may choose to make – “alternative solutions” be formallysubmitted by every organisation to both COGTA and the CRL, so that they may begiven due consideration.

SUMMARY OF ALTERNATIVE SOLUTIONS TO THE CRL’s RECOMMENDATIONS

Solution #1:  We support the establishment of ministers’ “networks & fraternals” on a purely voluntary basis because this will:

• help ensure greater localaccountability by religious practitioners.
• encourage local communities toreport criminal activity being perpetrated in the name of religion to therelevant authorities.
• provide opportunity foreducation on issues such as legal compliance and other relevant areas.
• give the potential forintervention in the event of evident leadership failure in a memberorganization/entity.
• improve communication andrelationship between otherwise “independent” churches.

Solution #2:  We support the development (and subsequent voluntary adoption) of a “Code of Conduct” by the South African Council for Religious Rights and Freedoms (SACRRF) because this will:

• reflect the responsibilitiescorresponding to the rights in the SA Charter for Religious Rights andFreedoms, already adopted by +/- 22 million people from the religiouscommunity.
• provide an agreed benchmark anda standard for the ethics and conduct of the religious community.

Solution #3:  We encourage (on a voluntary basis) greater levels of training and education (both theological and practical management skills) for religious practitioners to support their calling.  To this end, we note that:

• being a religious practitioneris primarily an issue of calling/vocation, not as the result of an academicqualification (although supporting such a calling is certainly to beencouraged).
• problems of non-compliance canarise through ignorance of legal requirements – not willful lawlessness.
• religious practitioners needaccess to and/or education in the relevant information and knowledge so thatthey are empowered to run their churches properly.
• the CRL has a key educationalrole to play in the above since the CRL Act, 2002 already gives the CRL thepower to:
• conduct programmes to promoterespect for and further the protection of the rights of …. religiouscommunities (section 5(1)(b));
• assist in the development ofstrategies that facilitate the full and active participation of cultural, religiousand linguistic communities in nation-building in South Africa (section5(1)(c));
• educate, lobby, advise andreport on any issue concerning the rights of cultural, religious and linguisticcommunities (section 5(1)(e));

Solution #4:  We urge the CRL to improve its capacity to investigate possible “abuses” and to recommend appropriate remedial action. To this end, we note that:

• the CRL Act already gives theCRL the power to:
• monitor, investigate andresearch any issue concerning the rights of cultural, religious and linguisticcommunities (section 5(1)(e));
• bring any relevant matter tothe attention of the appropriate authority or organ of state, and, whereappropriate, make recommendations to such authority or organ of state indealing with such a matter (section 5(1)(k)).

Solution #5:  We support the activation/implementation of section 5(1)(j) of the CRL Act, which empowers the CRL to register (NOT regulate!) religious practitioners and organisations.  To this end, we note that:

• keeping a register does not inany way empower the CRL (or any other body) to examine doctrine or religiouspractice (assuming there is no infringement of law).
• information that couldlegitimately be required by the CRL in terms of its Act has the potential toreveal where there may be compliance issues (or even illegalities) takingplace.
• [EG] A church operating withouta bank account
• the CRL Act already gives theCRL the power to:
• “establish and maintaindatabases of …. religious organisations and institutions and experts…”(section 5(1)(e));
• keeping a database of religiousorganisations and institutions (with the senior official of such organizationas the point of contact) would enable the CRL to communicate and addresseffectively and efficiently any issue which may arise.

Contact details for COGTA and the CRL:

CRL Rights Commission
Attn: Edward Mafadza
Email:info@crlcommission.org.za

COGTA Parliamentary Portfolio Committee Secretary
Attn: Shereen Cassiem
Email: scassiem@parliament.gov.za 

COGTA Ministry
PA To Minister: Ms Mandisa Mbele
Email: MandisaMB@cogta.gov.za
Registry Clerk, Office of the Minister: Ms Ingrid Serithe
Email: ingrids@cogta.gov.za

Annexure “A1”:  SUMMARY OF CRL’s PRESENTATION TO PARLIAMENT ON DECEMBER 5^th, 2019

The CRL reminded FOR SA at our meeting with them on Tuesday 28January 2020, that the CRL Act empowers them to “lobby” for theirrecommendations to be adopted – hence their visit to Parliament to brief thenew COGTA Parliamentary Portfolio Committee on their “legacy” Report on the Commercialisationof Religion and the Abuse of People’s Belief Systems. 

At this briefing, the CRL not only outlined the “abuses” they hadidentified, but also tried to answer (and possibly discredit) the concernswhich have been expressed by FOR SA and many other religious organisations.   There follows a summary of the CRL’spresentation to COGTA on 5 December 2019:

CRL PRESENTATION SUMMARY

The CRL led its presentation with a summary of the “abuses” it hadidentified – including the following:

• Threats for non-payment oftithes
• Payment for prayer
• Demands by pastors for cuts insuccessful business deals
• Salary “blending” with ReligiousOrganisation’s (“RO”) funds
• Lack of effective financialmanagement and good governance structures
• Lack of participation of women
• Cult-like organisations (e.g.the Seven Angels’ cult)
• Unconventional preaching styles(grass-eating, snakes, Doom spraying etc.)
• Physical and sexual assaults onworshippers
• Lack of training andunderstanding of legal procedures for registration
• Lack of a Peer Review Mechanism(like for other professions)

The CRL then proposed the following recommendations and solutions:

• A database of every religiouspractitioner (“RP”) and places of worship for all religions.
• Vetting of all RPs against nationalregisters (sex offenders, criminal records etc.)
• Department of Home Affairs(“DHA”) to have a “quota” for foreign religious leaders applying for a workpermit and/or marriage license – only to be granted if CRL has given a priorletter of recommendation.
• NPO registration of all ROs byCRL to ensure adherence to all relevant laws and Municipal by-laws
• SARS and CRL to conduct jointinvestigations for possible tax evasion by RPs and ROs
• Department of Trade and Industry(“DTI”) to impose “severe action” against RPs and ROs for selling items forreligious/spiritual/traditional healing if advertising standards are notfollowed.
• SAPS to enforce laws whencomplaints are lodged against RPs.

The CRL then responded in detail to previous criticisms of theirreport and recommendations:

• The CRL stated that the ConstitutionalCourt judgement that a religious belief is protected even if it is “bizarre, illogical or irrational” istrumped by s 10 which guarantees that “everyonehas inherent dignity and the right to have their dignity respected andprotected”.  The CRL argues that itsrecommendations are in furtherance of the rights of all people under s 10.

• The CRL rejected the argumentthat potentially harmful/dangerous/unethical practices should be dealt with interms of existing laws. It says this is “ineffective” – as evidenced by thefact that FOR SA and others in the religious community have failed to laycharges and/or shown the CRL which laws to enforce – or the sanction is insufficient – [EG] SPCA animal cruelty for “snakepastor”.

• The CRL stated that they shouldnot be the ones to refer complaints to the relevant authorities, because:

(a) this is the role of Umbrella Organisations (“UOs”);

(b) it would not be “financially prudent” for the CRL tointerdict; and

(c) it is too easy for pastors to shift the issues.

• The CRL stated that there is noproper protection for the “poor and vulnerable” from “charlatans” and“con-artists”.  Section 4(a) of the CRLAct gives the CRL the responsibility and the mandate “to promote respect forand further the protection of the rights of … religious… communities”.  The CRL must, therefore, be empowered to actas per its recommendations or fail its Constitutional mandate.  The CRL recommends that its Peer ReviewMechanisms will undertake such interventions.

• The CRL rejected suggestions as“very contradictory” that it should assist ROs and RPs on issues like goodgovernance. They will delegate this responsibility to UOs.

• The CRL said it was “puzzled”by the allegation that its proposal to regulate religious practitioners has thepotential to infringe doctrine.  It referredto s 22 of the Constitution, which says that “the practice of any trade,occupation or profession may be regulated by law”.

• The CRL claimed that itsproposals will not amount to an over-reach of its legislative powers andprerogatives as a Chapter 9 institution since Parliament can amend the CRL Actto give it the powers it is requesting.

• The CRL acknowledged that it isat the top of the proposed regulatory structure, but says that it can be equallybe replaced by the State.

• The CRL denied – despite whatis stated in its Report – that it will be the “final arbiter”.  It said that this criteria has been removed andthat any decision it makes can in any event be challenged by a High Courtreview.

• The CRL stated that a“constitutional expert” has declared the CRL’s recommendations to be “constitutionallysound” and anyone who disagrees may “freely appeal to the Constitutional Court”.

• The CRL stated that the PeerReview Committee (PRC) is not dependent upon the CRL , nor under its control.It is simply an advisory body to the CRL, to whom it refers all resolutionsthat it takes. However, the CRL is willing to set up and fund different PeerReview Committees for different sectors of the church (“Mainline”,“Charismatic”, “Evangelical” etc.).

• The CRL stated that concernsthat it may interfere in issues of dogma and doctrine are “mere scare tactics”. 

• The CRL states that the role ofUOs – once approved by the relevant PRC will be:
• To ensure that dogma anddoctrine are adhered to (they may appeal to the relevant CRL-funded PRC in theevent of a dispute).
• To discipline their own members.The CRL blame the lack of such effective structures for situations like TimothyOmotoso, who is on trial for various criminal sexual offences. 
• To educate their members onrelevant legislation, policies etc.
• To “set minimum standards ofgood governance, ethics and acceptable religious practices as per theirreligious doctrine”.

• The CRL stated that RPs canexercise their freedom of association rights by joining a PRC-approved UO oftheir choice as the UOs will bring together people of the same doctrine.

• The CRL denied that theirinitial consultation and sampling of 85 ROs and RPs was inadequate and confirmedthat they have consulted with the religious sector.

• The CRL stated that they aredeveloping a draft “Code of Ethics” which – once completed – will undergo “aprocess of consultation”.

• The CRL declared that the religious community cannot be left in its current self-regulatory state, because “nobody seems to be doing anything about” the abuses they see/hear/read about; the religious community itself is not rectifying these things and it has failed to protect “vulnerable members of these very organisations”.

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