The power of constructive engagement in the democratic law-making process by both individuals and religious organisations, was clearly and substantively demonstrated in the unprecedented response to the PEPUDA Amendment Bill. While FOR SA fully supports Government’s efforts to promote equality and to prevent unfair discrimination, our legal analysis of this Bill made it clear that it would have devastating and negative consequences for all people and organisations of faith.
FOR SA raised the alarm and identified the issues of concern in a series of short videos and articles, because we were convinced that the Bill – if passed in its current form –would be the death knell of religious freedom. We were grateful for the support of the DearSA’s neutral platform, which enabled people quickly and simply to make individual submissions on the Bill. The result was that well over 150,000 submissions and comments (through the DearSA platform, and also submissions made directly to the Department) were received by the Department of Justice, the vast majority of which requested the Bill to be scrapped in its entirety.
Thanks to this exceptional level of public support for religious freedom rights, FOR SA requested (and was granted) an opportunity to attend a virtual meeting with the Deputy Minister of Justice, John Jeffery MP, on 7 July 2021. This was a constructive and fruitful engagement during which FOR SA and various senior religious leaders, representing a cross-spectrum of denominations, churches and faith groups, were able to relay to the Deputy Minister – with reference to faith-specific examples – their serious concerns regarding the Bill, and its potentially negative impact on their organisations and faith adherents. FOR SA appealed to the Deputy Minister to reconsider the Bill in its entirety, because we do not believe that it will pass constitutional muster and it is evidently not acceptable to a major sector of the faith community of South Africa.
In response to our submissions, the Deputy Minister stated that “it is not the intention of Government to regulate or to interfere with religious institutions, what they believe and how they put it forward”, but that this was nonetheless something that the Department could “look at making clearer” in the Bill. In this regard, the Deputy Minister referred to FOR SA’s previous interaction with the Department in relation to the so-called Hate Speech Bill, which initially had the potential to criminalise the preaching, teaching and expression of the tenets of many faiths. Again – and as a consequence of significant opposition and the active engagement of the religious community – this resulted in the inclusion of a “religious exemption clause” in the Bill.
The Deputy Minister’s verbal assurance (reiterated in the Media Statement released by the Ministry of Justice on 8 July 2021) that Government does not intend to interfere with the religious sphere, certainly does bring a level of comfort. However, the reality is that, unless these intentions are specifically written into the Bill, it leaves the door wide open for the State (or activists pushing an anti-religion agenda) to target and enforce the Bill (once adopted) against persons and organisations of faith. Ultimately, the Courts have to enforce and/or interpret the law as it is written, so it is therefore critically important that Government clarify whatever their intentions are within the legislation itself.
FOR SA subsequently wrote (at his invitation) to the Deputy Minister to summarise the key issues discussed at the above-mentioned meeting, and to highlight FOR SA’s recommendation in our submission on the Bill that – similar to the existing prohibitions of unfair discrimination on grounds of race and gender (in sections 7 and 8 of the existing Act respectively) – a clause to specifically to prohibit unfair discrimination on grounds of conscience, religion and belief be included in the next draft of the Bill. We affirmed that the inclusion of such a clause would go a long way to instil a sense of confidence in the good faith of Government towards the religious community of South Africa. It would be tangible evidence of the sincerity of its commitment to respect, protect, promote and fulfil the constitutional rights of people and organisations of faith, as it is obliged to do in terms of section 7(2) of the Constitution.
In so far as the process and anticipated timeframe are concerned, the Department indicated that they will now have to consider all the comments received on the Bill, as well as make possible amendments to ensure the Bill is constitutional. In all likelihood, the Bill will only be tabled before Parliament next year. As an example, the Deputy Minister referred to the three Gender-Based Violence Bills that were “priority Bills”, yet took six months before being passed by the National Assembly and which are only now before the National Council of Provinces (NCOP). FOR SA will continue to monitor the situation and keep the religious community informed of any developments on the Bill.