By Michael Swain, Executive Director of FOR SA

Freedom of Religion South Africa (FOR SA) and the South African Council for Religious Rights and Freedoms (SACRRF) were invited to a meeting with the CRL Rights Commission (CRL) at the end of August 2018.  We were given to understand that the CRL were in Cape Town primarily for a Parliamentary briefing to express their concern about the lack of police action when acts of sexual violence are committed against women under the guise of “freedom of religion”. FOR SA has always been clear that you cannot shelter a criminal act behind “freedom of religion”. We have commended the CRL for highlighting areas where abuse is taking place and encouraged them to use their powers to refer such matters to the relevant authorities so that the law can be properly enforced.

In February 2018, the COGTA Parliamentary Portfolio Committee released its report on the CRL’s Report on the “Commercialisation” of Religion and Abuse of People’s Belief Systems. This followed COGTA’s extensive consultation with a broad cross-spectrum of religious leaders, academics and legal experts.  While commending the CRL for highlighting some of the abuses of a fringe minority, COGTA declined to support the main recommendation of the Report, namely the regulation of religion under the overall auspices and authority of the CRL (which is a State institution).  This would have required an amendment to the CRL Act and possibly a change to the South African Constitution to give the CRL the executive powers they were requesting.  Instead, COGTA recommended that the CRL convenes a National Consultative Conference (NCC) to give a platform to discuss challenges in the religious sector, and to give the sector an opportunity to develop its own self-regulatory solutions along the lines of a Code of Ethics.

Pressing forward

At the recent meeting, the CRL highlighted incidents of abuse as the reason why they remain convinced that religious practitioners and places of worship should be licensed and regulated in South Africa and they are pressing forward with this agenda.  The CRL see themselves as the defenders of the reputation of Christianity, which they believe is being severely tarnished and undermined by incidents of blatant abuse in the name of religion.  Although the democratic and consultative process before COGTA did not achieve the result they wanted, they have decided to use their weight to instigate “civil action” to pressurise government to support their agenda. While they do not think that the government will take any unilateral action to regulate religion prior to the 2019 elections, they are confident that, unless solutions can be found, the State will respond to pressure to intervene in this matter in the future.

The CRL also said that they are in the process of preparing papers to file with the Constitutional Court, where they will ask for a ruling to confirm that, in the same way that the Traditional Health Practitioners Act regulates this area (including charging a license fee for every traditional practitioner and requiring an approved level of education and training), they should be empowered to implement this type of legislation for the religious sector.  The CRL believes that the Court will rule in their favour and confirm that they are already empowered to introduce legislation to unilaterally license and regulate the religious sector.

The CRL also invited FOR SA to consider how to amend legislation to enable the authorities to enforce sanctions against what they see as the category of “spiritual abuse”.  There is no doubt that this phenomena exists and that “bad” religious leaders can wield significant and very negative influence over peoples’ lives.  In fact, the CRL’s Report pointed to several examples where this has been the case.  However, this is a complex area because it is often very hard to define clear lines and then to be able to see when these lines have been crossed.  It is equally problematic to define and apply appropriate “sanctions”.  This is especially because if you use a type of “undue influence” test, how will this be decided and who will decide it?  And what if (as is often the case) the “victim” is a willing (even eager) participant?

FOR SA made it clear in our submission, which was widely echoed by the majority of the religious sector, that the principal problem is a lack of enforcement of existing laws and that unless/until this is rectified, passing additional laws and regulations will not solve the problem.  We did, however, recommend that an audit be conducted to look at existing legislation to see if there are “grey areas” which can be tightened to close up loopholes.  We also recommended that the CRL consider setting up (possibly in conjunction with the police) a special investigative unit who understand the laws and their application to the religious sector to ensure that swift action can be taken where laws are being broken. We also recommended that the CRL supports the training and education of religious leaders (particularly those who could be classified as “independent”) since it is evident that the problem is often an ignorance of legal requirements rather than a willful decision to break the law.  We will be responding formally to the CRL with our views in early October and will publish these on our website and Facebook page.

A National Consultative Conference, and appointment of CRL Commissioners

Significantly, the CRL also informed us that they have been meeting with senior religious leaders of various structures, including the SACC and the IFCC, with a view to convening a National Consultative Conference for the religious sector “before the end of the year”.  This will also include international guests who have been invited to give their perspectives.  At this event, the CRL will also be presenting the Code of Conduct which they have drafted and which they will expect the religious community to adopt and endorse.

This is an interesting development since the SACRRF was already been mandated at a meeting in May 2018, by a broad cross-section of senior religious leaders, to develop a Code of Conduct by (and for) the religious community.  This Code of Conduct is based upon the responsibilities which correlate to the rights set out in the Religious Freedom Charter (which the SACRRF developed in the 1990s and which is already endorsed by over 21 million people).  This Code is already in its third draft, following the wide ranging consultative process the SACRRF initiated to solicit input to inform this process.  The CRL have subsequently set up a meeting with the SACRRF to compare their Code with the one being drafted by the SACRRF.  FOR SA hopes that the CRL will use this opportunity to give their input into the Code of Conduct which the SACRRF is developing and supporting this as one of the stakeholders, as opposed to dictating their own version to the religious sector.

The CRL also informed us that although a new group of Commissioners will be appointed for a five year term in 2019, it is likely that 10 of the 12 current Commissioners will re-apply and that only two positions will be open.  The nomination process to put forward suitable candidates to serve as CRL Commissioners is currently open, with the deadline set for Friday 30th September, 2018.  Nomination forms may be downloaded from the FOR SA website.  Given that the composition of the Commission will likely be largely unchanged, it is likely that the CRL will continue to make the regulation of religion a high priority of their agenda over the next five years.

FOR SA will continue to watch this area closely for any further developments which may pose a danger of State regulation of religion.

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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