By Michael Swain, Executive Director of FOR SA

In February this year, the COGTA Parliamentary Portfolio Committee issued its Report on the CRL Rights Commission’s Report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems.  In a nutshell, while COGTA commended the CRL for highlighting legitimate concerns in this area, they rejected the Report’s recommendation that the CRL (as an institution of State) should be given the power to license (and thereby control) religious practitioners and places of worship and to be the “final arbiter of religion” (page 48 of the CRL Report) with the “final decision powers” (page 47 of the CRL Report).  Instead, they recommended that religion should remain self-regulating and that a National Religious Consultation should take place where the religious community should address the issues raised in the CRL’s Report with a view to adopting a Code of Ethics to define acceptable religious practice. (A copy of COGTA’s final Report and recommendations can be viewed at www.forsa.org.za/document-library – click on folder “CRL Report on Commercialisation of Religion and Regulation of Religion”, and on file “COGTA’s Report on the CRL’s Report and Recommendations”).

The CRL was clearly unhappy with this decision, despite the fact that it was the result of an open and democratic process where both the CRL and a broad-based section of the religious community were given the opportunity to express their perspectives on the CRL’s Report and its recommendations.  Instead, the CRL has taken every opportunity to criticize Parliament, in particularly blaming them for the recent tragedy in Ngcobo.  The CRL claimed that they warned Parliament that the Seven Angels cult was a “ticking time bomb” and if they had been granted the powers they requested in their Report, this would have been avoided.  The CRL in turn was soundly criticized by Parliament for making “reckless” statements, with Parliament spokesperson Moloto Mothapo stating that the CRL Chair’s comments “demonstrated poor understanding of the constitutional mandate of Parliament and its relations with the Commission”.

A possible application to the Constitutional Court

During the CRL’s briefing to COGTA on 20 March in respect of the Ngcobo killings, the CRL repeated that they were considering applying to the Constitutional Court for a declaratory order on their powers and their mandate.  The CRL Chair, Ms Thoko Mkhwanazi-Xaluva, is evidently under the impression that the CRL enjoys similar executive powers to the Public Protector.  However, section 185(2) of the Constitution makes it clear that the CRL is an investigative and advisory body and that, unlike the Public Protector, its recommendations are to guide, rather than to direct or bind Parliament in its deliberations and legislative processes.  Freedom of Religion South Africa (FOR SA) is therefore of the opinion that even if the Constitutional Court agrees to hear the matter, it is highly unlikely to succeed.

That having been said, the CRL is far from toothless since section 5(1)(k) of the CRL Act, 2002 gives them the authority to “bring any relevant matter to the attention of the appropriate authority or organ of state, and, where appropriate, make recommendations to such authority of organ of state in dealing with such a matter.”  It is particularly concerning in the case of the Seven Angels cult that the CRL was made aware of its lawless activities in 2016 and the Chairperson herself is video recorded at a meeting with the cult leadership, telling them that they were in breach of several laws.  The CRL therefore had particular knowledge of this matter long before the tragic events in Ngcobo unfolded, and they had both the power and the duty to act.  They could have intervened, yet apparently chose not to.

Seeking to re-open the issue before COGTA

During the CRL’s briefing to COGTA on 20 March also, the CRL (after having consulted with the new Minister of Co-Operative Governance and Traditional Affairs, Dr Zweli Mkhize, who was present at the briefing) also sought to persuade COGTA that discussions around the regulation of religion should be re-opened. According to the CRL Chair, “we want to come back and say to COGTA why Parliament’s recommendations will not work.” However, this proposal did not find favour with COGTA who indicated that, while they are always open for discussion, there was no need to re-hash the same issues which had already been discussed at length with much public input.

FOR SA is fully supportive of the calls for a National Religious Consultation and understand that initiatives are already underway to move this process forward.  In particular, the SA Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF) is already in the final stages of releasing a draft Code of Ethics, which will be widely circulated for input, comment and discussion.  This Code of Ethics essentially proposes the responsibilities which are the flip side of the rights expounded in the SA Charter of Religious Rights and Freedoms, which has already been adopted and subscribed to by religious organisations representing over 22 million South Africans.  As such, it provides the ideal benchmark from which a Code of Ethics can be developed and which has the potential to be broadly adopted.  (A copy of the Charter can be viewed at www.forsa.org.za/document-library – click on folder “Miscellaneous”, and on file “Charter of Religious Rights and Freedoms”).

FOR SA encourages the broad-based religious community to engage fully in the next stage of this process. It has taken a concerted and unified effort to push back the very serious threat to religious freedom which the CRL’s recommendations contained.  Parliament has now given the religious community the mandate and the opportunity to get its house in order, and to remain truly self-regulating.  We therefore cannot afford to be dis-united on this matter, or we will be in danger of losing the ground we have gained and may well face the spectre of State regulation again in the near future.

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 25 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).

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