By Michael Swain, FOR SA Executive Director

Introduction and background

As many will be aware, the Parliamentary Portfolio Committee for Cooperative Governance and Traditional Affairs (COGTA) decided to hold a two-day “Indaba” at Parliament on 10 – 11 March 2020, to hear the views and inputs from the (largely) Christian faith community on harmful religious practices and what the religious sector was doing to combat “social ills”.  This “Indaba” was supposed to be followed by a “Colloquium” with the leaders of other faiths and structures on 17 – 18 March 2020, which has subsequently – due to the COVID-19 health crisis – been postponed to a date still to be determined.

This Indaba followed on from a previous process in October 2017, when the previous COGTA Committee (under the 5th Parliament) invited hearings to consider the CRL Rights Commission’s (CRL) report on The Commercialisation of Religion and Abuse of People’s Belief Systems (the Report).  These hearings focused on serious concerns expressed by the vast majority of the religious community that the CRL’s recommended “peer review” mechanisms were unconstitutional (they infringe and erode both the constitutional rights to freedom of religion and freedom of association); unnecessary (the problem is a lack of enforcement of existing laws which sufficiently cover every abuse contained in the Report); and unworkable (they require a vast new bureaucracy to enforce compliance). After these 2017 hearings, the previous COGTA Committee issued a report, effectively recognising the CRL’s concerns but rejecting its recommendations. Instead, the Committee recommended that the religious community be given an opportunity to convene and discuss truly self-regulatory solutions by the religious community for the religious community. 

Purpose of “Indaba” and “Colloquium”

The purpose of these new Parliamentary meetings – according to COGTA Chairlady, Honourable Faith Muthambi – is to find solutions for harmful religious practices because COGTA is highly concerned about the “moral ills” in South Africa.  In furtherance of this objective, COGTA used the CRL’s database to invite certain religious structures and leaders to present at this event, while at the same time recognising that not everyone would have the opportunity to have their say. 

FOR SA has actively encouraged participation in this new process, because it presents a critical opportunity for the religious community to confirm the reasons for its objections to the CRL’s proposed “peer review” mechanisms, as well as to put forward alternative solutions and perspectives on the challenges and issues within the faith community.  It quickly became clear that the vast majority of the presentations at this month’s Indaba, again rejected the CRL’s recommendations for the reasons outlined above, while at the same time giving broad-based support and endorsement for “alternative solutions” to help resolve the problems.

Context and framework of freedom of religion rights

Several of the presentations emphasised that the human right of freedom of religion or belief (FORB) vests in individuals and the organisations and associations formed to express them – not in religions per se.  Thus, there is a fundamental difference between pre-existent, inalienable rights which the State simply recognises (such as FORB), and those which the State grants (such as the right to housing). 

It was further emphasized that it is a primary duty of the State to protect FORB rights, and to facilitate the enjoyment of these rights to the fullest among all people under its jurisdiction – not to attempt to control them.  COGTA was further called upon to recognise that religious communities are the strongest voices and forces for moral reconstruction and to acknowledge the many reports (past and current) that it has received regarding the positive contribution and beneficial activities of religious communities for the wellbeing of their communities.

Summary of “Indaba” hearings and presentations

On the first day of the Indaba, presentations were made by the South African Religious Forum (SARF), the South African Council of Churches (SACC), the South African Union Council of Independent Churches (SAUCIC), the South African Council for the Protection of Religious Rights and Freedoms (SACRRF), the International Institute for Religious Freedom (IIRF), the Council Of Charismatic Churches (COCC), Rev. Sibanda on behalf of the Pentecostal and Charismatic Churches, and the Anti-Regulation of Religion Summit. On the second day of the Indaba, presentations were made by the South African Institute for Professional Pastors, Reverends and Ministers (SAIPPREM), the African Christian Democratic Party (ACDP), the Inkululeko Yesizwe Association, the Baptist Union of South Africa (BUSA), and the CRL Rights Commission (CRL).

At the close of the day, Prof Christof Sauer (from the IRRF) and Prof Rassie Malherbe (from the SACRRF) were invited by Honourable Gordon Mpumza (Acting Chair of COGTA, in the absence of Hon. Muthambi who was unable to attend the second day) to sum up the main points made in the 30+ presentations by various religious organisations. He expressed his appreciation to COGTA for the interaction, and then highlighted the alternative solutions as per the submissions made, namely:

  • The (voluntary) Code of Conduct for self-regulation by the religious community;
  • (Voluntary) networks of religious practitioners to self-regulate;
  • (Voluntary) training and education for religious practitioners;
  • Investigation and dealing with matters by the CRL to improve capacity;
  • Information register which supports the CRL’s database implementation plan;
  • Enforcement of existing laws to hold exploiters accountable;
  • Law enforcement by State organs for further investigations;
  • Freedom of religion and belief (FORB);
  • Permissible limitations for FORB;
  • Social ills and moral decay;
  • Further engagements, which included the acknowledgement of the diversity of religious communities and awareness of the complaints of the religious community;
  • Public relations.

While neither the participants at the meeting, nor COGTA itself, formally accepted these positions or made any decisions on a way forward, it was generally agreed that the discussions and alternatives presented were well summarised.

Networks of religious practitioners

The religious community clearly expressed its view that it must be allowed to continue to regulate itself as it has always done.  While there was a sense expressed by both COGTA and the CRL that government has an interest in the “well-being” of the religious community, it was pointed out that there is not (nor should ever be) any legal obligation to report or account to the government about this.

There was also a recognition that certain sections of the religious community had made significant steps to self-organise and self-regulate on a truly voluntary basis, with the formation of multiple new and additional networks on a national, regional and local level. There was a call for both COGTA and the CRL to include such networks of religious practitioners in future discussions and interactions.

Code of Conduct

One of the key recommendations of the previous COGTA Committee was for the development of a Code of Conduct as a benchmark of the ethics and behaviours that can be reasonably expected from the religious community.  The SACRRF presented a draft “Code of Conduct for Religions in South Africa” as one means of self-regulation by religious communities.  This was initiated by the religious community and is based upon the responsibilities which correspond to the rights contained in the “SA Charter on Religious Rights and Freedoms”, which has previously been endorsed by over 22 million people from multiple faiths.

The SACRRF encouraged religious communities to consider this Code of Conduct as a proposal for voluntary adoption, in addition to codes and rules already applicable in individual communities and institutions.  The SACRRF also made clear that this Code of Conduct could be adjusted or amended by any faith community to tailor it for their context or needs, in line with the values and principles set out in the draft Code.

COGTA asked the CRL to explain why it had chosen to draft its own Code with little or no reference to the religious community, rather than to support the initiative in this regard from a broad cross-section of senior religious leaders.

Education and training

There was a recognition that there is a need for greater levels of training and education (both in religious reflection, and practical management skills) for religious practitioners (which should be encouraged on a voluntary basis) to support their calling.  This could not only happen as a result of increased collaboration among religious communities and educational groups who have developed materials (and even SAQA-recognized qualifications) for this purpose, but that the CRL also has a key educational role to play in this regard.

Investigation and enforcement

The CRL (in particular) was urged to improve its capacity to investigate possible “abuses” and to recommend appropriate remedial action to the responsible organs of state when problems are uncovered. 

Given that a common observation is that there has been inefficient and ineffective application and enforcement of existing laws, COGTA indicated that it would further investigate this matter as soon as possible.  This would likely entail consulting with various state agencies and departments to ascertain why they are not enforcing existing laws concerning the problems at hand and what they need to do/have to rectify this in their capacity.

Register of religious practitioners

As part of its presentation, the CRL announced that intends to proceed with issuing a call by 20 March, 2020, to religious organisations “to register with the CRL database”.  While it is recognised that this is within the powers given to the CRL by section 5(1)(j) of the CRL Act of 2002, and that such a database is certainly useful for the implementation of their mandate, there is a need for more detail and clarity on what will be required and how this will be implemented and rolled out.  

This clarity is particularly necessary because the CRL has not yet officially back-tracked on its proposal for an elaborate, centralised system for the regulation of religious practitioners.  This, in turn, has caused a high level of mistrust among large parts of religious communities, who may be opposed to providing the information requested by the CRL for fear that this might be misused.  The CRL Chair in his announcement appeared to claim that “all” religious organisations “must” register with CRL. “The issue of registration will cover each and every church of South Africa.”

However – and while FOR SA has also supported the CRL’s statutory power to keep (an information) register of religious organisations to bring greater levels of compliance and accountability – there is a difference between the right of the CRL to maintain such a database to facilitate its work, and a duty for all to register and where failure to comply could be sanctioned. 

We, therefore, believe that it is important for the CRL to answer the following questions:

  • What information exactly will the CRL request?
  • How will this process be communicated and explained to the religious communities?
  • Will registration only apply to religious communities, or will it apply equally to cultural and linguistic communities? If yes, how are religious communities distinguished from the former?
  • What does CRL intend to do with the data?
  • What will be done to ensure compliance with data protection guidelines and to preserve the confidentiality of the data collected?

Conclusion

FOR SA is of the view that the “Indaba” meetings achieved a positive outcome, inasmuch as it enabled a significant representation of the faith community to reinforce its position that State-backed “peer review” mechanisms are not the solution to the issues identified in the CRL’s Report and in subsequent media.  It also provided a platform where Government was presented with viable and existing “alternative solutions”.  It also gave momentum for the broader faith community to again consider the challenges and to develop responses and recommendations. 

Although the focus of many religious leaders has understandably shifted as a result of the COVID-19 health crisis and Government has implemented exceptional measures in an attempt to mitigate the worst impact, we expect that our society will return to “normality” at some point in the (hopefully!) near future.  At that point, it will be important to be prepared to re-engage in this matter to ensure that the religious community of South Africa remains truly self-regulatory and free from unnecessary and undue State interference, with its Constitutional rights to enjoy religious liberty un-curtailed.

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 30 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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