The State of Religious Freedom in South Africa: A Reflection on International Religious Freedom Day

Introduction

As we mark International Religious Freedom Day on 27 October, it is worth reflecting on the current state of religious freedom in South Africa. Our Constitution robustly protects the right to religious freedom, allowing individuals and groups to practise their faith openly without fear of interference. The Constitutional Court has affirmed that religious freedom is vital to human dignity, free speech, and the foundation of a democratic society. However, there are growing challenges to religious freedom, particularly in areas like parental rights, freedom of expression, religious autonomy, and conscience rights. Let’s take a closer look at some of these key issues:

Parental Rights and Education

The right of parents to raise their children according to their religious and moral values is inseparable from religious freedom. This right is especially crucial in early childhood education, where parents are recognised as the primary educators. However, recent actions by the Department of Basic Education (DBE) raise concerns about the erosion of these parental rights.

One alarming example is the Gender-Responsive Pedagogy for Early Childhood Education (ECE) Toolkit, which introduces transgender ideology to children nine years (and younger!) without proper parental consultation. Many religious communities see this as a direct challenge to their beliefs about gender and sexuality and their “inalienable right” to pass these on to their children.  Even more troubling is the potential disruption of the traditional relationship between parents and their young children through this ECE Toolkit, which has already been rolled out in some provinces.

Faith leaders and organisations like FOR SA (Freedom of Religion South Africa) are actively engaging with the DBE to address these concerns. Most recently, a Coalition met with the new Minister of Basic Education, who received our recommendations and promised a considered response and a further meeting.  We remain committed to finding a solution to the real challenges faced by the DBE which also protect and respect parental rights and include a diversity of views rather than a single ideology.

Another issue to watch is the Basic Education Laws Amendment (BELA) Act. While it does not pose immediate religious freedom concerns, the DBE’s push to reduce the powers of School Governing Bodies (which represent parents’ voices in schools) could weaken parental influence in public education. In addition, policies like the Comprehensive Sexuality Education (CSE) and other materials promoted by the DBE risk enforcing a single, ideologically-driven narrative that excludes or marginalises religious perspectives.

Freedom of Religious Expression

The right to express one’s religious beliefs freely is essential, but this right is under threat worldwide, including in South Africa. Increasingly, we see the silencing of religious expression that does not align with dominant political views. This is particularly worrying for people of faith who simply want to live according to their beliefs, without infringing on others.

In South Africa, the greatest legal threat to religious expression is the recently passed Hate Speech Act. This law, which has yet to be implemented, could result in imprisonment for up to five years for speech deemed "hate speech," even if it involves expressing legitimate religious beliefs. The Act’s vague definitions risk criminalising constitutionally protected speech, which will cause many to self-censor (out of fear) on “controversial” issues like marriage, gender, and sexuality.

Similarly, the draft Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, which is still with the Department of Justice, could limit religious expression by broadening definitions of "discrimination" and "equality".  This in turn could open the door to abuse and frivolous accusations by activists against persons of faith or religious groups.

Religious Autonomy Under Threat

South Africa has seen attempts to regulate religious institutions, most notably by the Cultural, Religious, and Linguistic Rights Commission (CRL) in 2015. If successful, these efforts would have given the state control over religious organisations. Fortunately, strong opposition from religious groups and lobbying efforts by organisations like FOR SA led Parliament to reject the CRL’s proposals in 2019.

While this victory was significant, vigilance is still needed. Recent legislation in the form of the “Spy Bill” (General Intelligence Laws Amendment Act), had the potential to reopen the door to state interference in religious affairs. The Spy Bill, if passed in its original form, would have allowed intelligence agencies to vet religious leaders, potentially shutting down churches or mosques based on the outcome of security screenings. Fortunately, after public outcry and thousands of submissions to Parliament, the bill was significantly amended and no longer poses a threat to religious freedom.

Another positive development in religious autonomy is the new Marriage Bill, which includes protections for religious marriage officers. These officers cannot be forced to solemnise marriages that go against their religious beliefs. This protection was a direct result of FOR SA’s advocacy and ensures that religious institutions can maintain their doctrinal integrity.

Conscience Rights and Civil Marriage Officers

In general, South Africa’s laws protect contentious objectors, allowing individuals to refuse certain actions that conflict with their religious beliefs. However, there is a notable exception: civil marriage officers employed by the Department of Home Affairs and magistrates. In 2020, the Civil Union Act was amended, removing the right of civil officers to refuse to solemnise same-sex marriages based on their religious convictions.

The new Marriage Bill still fails to reinstate this protection for civil marriage officers. While the state must provide services equally to all, including marriage services, it is equally important to protect the rights of persons of faith within their civil service roles. A solution would be to limit civil officers’ roles to the legal and administrative aspects of marriage, allowing them to abstain from officiating marriages that conflict with their beliefs.

The Road Ahead

South Africa remains a country where religious freedom is generally respected and upheld, but this freedom should never be taken for granted. History shows us that religious freedom is often the exception rather than the rule. As global trends move towards greater state interference in religious matters, including the criminalisation of religious speech, South Africans must stay vigilant.

The success of the public in defanging the Spy Bill and the rejection of the CRL’s overreach provide hope that our democratic values still hold strong. As we continue to engage with government officials and work towards practical solutions, we must protect our religious freedoms against state overreach, ensuring that South Africa remains a free and peaceful country for all.

In conclusion, while there are reasons to be concerned, there are also reasons to be hopeful. With continued advocacy, engagement, collaboration, and vigilance, we can safeguard the right to religious freedom in South Africa.

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