OP-ED: Two rooms, one day: FOR SA reports back from Seychelles and Durban

OP-ED: Two rooms, one day: FOR SA reports back from Seychelles and Durban

By Freedom of Religion South Africa (FOR SA)

On Wednesday 28 October, Freedom of Religion South Africa (FOR SA) spoke in two different rooms. One, in Seychelles, looked across Africa; the other, in Durban, at a process unfolding at home. Both deserve a full account.

The African Freedom of Religion or Belief Observatory (AFORBO), launched that day, is an independent, non-partisan, Pan-African body registered in Seychelles. On its first panel, our Executive Director, Michael Swain, described religious freedom as a basket of rights, from conscience and expression to the freedom of religious communities to manage their own affairs. Governments do not grant it; they must protect it. Yet States increasingly treat it as a privilege they confer and can withdraw.

Nor is the right absolute. Laws against fraud, assault and abuse rightly apply to religious people as to everyone else. Laws deciding who may lead a religious community, what it may teach or whether it may exist are another matter. The first regulates conduct. The second tries to regulate faith.

He identified three rising threats. The first, in his view the greatest, is State regulation of religion. A draft bill in Kenya proposed theological qualifications for religious leaders, and in Angola and Rwanda thousands of places of worship have reportedly closed. The abuses cited are real and abhorrent, but they are crimes, and religious freedom has never been a defence to crime. The gap is often enforcement, not law.

The second is to religious expression, through hate speech laws so broad they risk protecting subjective feelings rather than sanctioning measurable harm. He cited South Africa’s Prevention and Combating of Hate Crimes and Hate Speech Act, passed but not yet in force, and cases in Finland and England where the process became the punishment.

The third concerns parents, whose role in their children’s religious upbringing is recognised in international and African human rights instruments. Yet South African law allows children to access termination of pregnancy, and from twelve, contraceptives without parental consent. Parents, he argued, should be partners, not obstacles, though respecting majority convictions never licenses mistreatment of a minority.

He urged faith communities to stand together, engage early and put their own house in order, as South Africa’s did with the South African Charter of Religious Rights and Freedoms in 2010 and the Code of Conduct for Religions in South Africa in 2019. He asked AFORBO to give early warning of draft laws, promote voluntary codes, and ensure the Seychelles Declaration affirms that abuse is addressed through ordinary law, not by licensing faith.

That same day, the African Religious and Traditional Leaders Council (ARTLC), convened by Bishop Templeton Mbekwa, hosted the Religious Freedom Imbizo in Durban, following one in Cape Town on 3 October. Dr Zweli Mkhize, Chairperson of Parliament’s Portfolio Committee on Cooperative Governance and Traditional Affairs (PC COGTA), gave the keynote. Rev Prof Musa Xulu, former chair of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) Section 22 Committee for the Christian sector, also spoke.

FOR SA Legal Advisor, Lisa Parsee, began with what FOR SA supports: accountability for abuse, met with the full force of the law, and a voluntary code of conduct written by the faith community, for the faith community. She then asked why the Section 22 process continues.

The political ground has moved. On 13 October the African National Congress said it has neither called for nor advocated State regulation or control of churches. All seven parties that answered FOR SA’s questions on its stance on and understanding of regulation of religion (the ACDP, ActionSA, ATM, BOSA, DA, FF Plus and UDM) reject State regulation of religion. During the Cape Town Imbizo, Dr Mkhize said his Committee had given the CRL Rights Commission no mandate to create legislation.

The process has not moved. On 11 August, PC COGTA undertook to obtain a legal opinion on sections 22 and 36 of the CRL Act and to take no further substantive action until it arrived. It is still awaited; Parliament’s legal advisers needed further documentation. Yet the Section 22 Committee held hearings in Limpopo and is in Mpumalanga this week. The Portfolio Committee is waiting. The Section 22 Committee is not.

That matters. The Terms of Reference of 23 June 2025 direct the Committee to facilitate a legislative framework for a Religious Practice Council, and the Final Draft Christian Sector Self-Regulatory Framework of December 2025 provides for registration and sanctions up to deregistration. The CRL Chairperson has called for a council empowered by an Act of Parliament. In FOR SA’s view, a body created, empowered or enforced by legislation to register, license or sanction religious leaders is State regulation, whatever it is called.

Christian, Muslim, Hindu and Jewish voices have been raised in opposition to the Section 22 process. Cost is a further concern: FOR SA estimates that committees for every major tradition could cost well over R20 million.

FOR SA asked the PC COGTA to recommend a pause until the legal opinion is delivered and references to legislation, a statutory council and registration are removed from the governing documents. We also asked it to set a date for the opinion, require a full costing, and test the hearing record before relying on any Section 22 report while the South African Church Defenders’ High Court challenge to the Committee’s lawfulness is pending.

Dr Mkhize said churches must be free to govern their own affairs, nobody is above the law where abuse is concerned, and there is no intention to control the church. A code of ethical conduct, he said, is “in the hands of the religious leaders not in the hands of government”. He did not take a position on whether such a code could come from a different process.

Together, the two engagements carried one message: abuse must be met with the law, applied to everyone, and accountability is most credible when faith communities own it. Section 36 of the Constitution requires any limitation of religious freedom to be justified, including by asking whether less restrictive means exist. In both rooms, those means were on the table.

Michael closed in Seychelles with Ubuntu: I am because we are. Applied to religious freedom, it means my freedom is only as secure as yours, in Durban and across the continent.