Speech to African Parliamentarians Association for Human Rights (AfriPAHR) in Cape Town on 7 September 2019

by Daniela Ellerbeck
10 September 2019

Adv Nadene Badenhorst, Legal Counsel of Freedom of Religion South Africa

Honourable Chair, Programme Director and esteemed members of AfriPAHR.

Thank you for the opportunity to, for a few minutes, address you on the work of Freedom of Religion South Africa (FOR SA), a legal advocacy organisation that works to protect and promote the constitutional right to freedom of religion and belief in South Africa. My name is Adv Nadene Badenhorst (Legal Counsel of FOR SA), and I am here with my colleague, attorney Daniela Ellerbeck.

As an organisation, we work mainly in two arenas: before government and Parliament where we screen and make submissions on policies and Bills that pose a threat to religious freedom, and before government commissions (like the Human Rights Commission and others) and the courts (including the Constitutional Court) where we get involved in cases where religious freedom issues are at stake.

Freedom of Religion and Belief (FORB)

FORB generally forms part of the broader right to freedom of conscience, religion, belief, thought and opinion – and entails the right to not only believe in our hearts whatever we want to believe (or not believe), but the right to say what we believe and to live out our beliefs free from interference / punishment by the State or anyone else.

FORB is a human right that (like other human rights e.g. the right to human dignity, equality etc.) belongs to every human being simply because they are human. Although guaranteed by international, regional and national instruments (including the UN Declaration of Human Rights, the African Charter of Human and People’s Rights, and the Constitutions of many countries), it is important to understand that, as a human right, its origin pre-dates those instruments and is derived from natural law rather than international or State law. As such, it is not the State who, in the first place, gives its citizens the right or privilege of religious freedom. On the flipside therefore, the State cannot simply remove or limit the right to religious freedom for any reason – least not because the State does not like, agree with, or even finds certain religious convictions or beliefs “offensive” or “politically incorrect”.

Yet, that is exactly what we find happening in so many countries, including in Africa, today. Increasingly, the message is “believe in your heart whatever you want to believe, but don’t say it and don’t act on it”. The problem with this is, that freedom is not freedom unless you are able to say what you believe, and live it out.

A serious threat to democracy

We need to understand that this erosion of FORB is a serious threat not only to believers (of whatever faith), but to democracy. As we know, democracy, in simplest terms, is “the rule of the people”. But how can the people rule if they are not able to decide for themselves, based on their moral / religious / political convictions, what is right and wrong, what is true and false, what is good and bad; and unless they are able to speak it (in the press or otherwise), and give effect to it by associating with like-minded people, voting, etc? And so FORB is arguably the most important freedom to democracy, because it is really a basket of human rights – and when FORB goes, many other hard-won democratic rights go with it.

For this reason, we cannot afford not to be informed of the serious threats to religious freedom around the world and in our own countries today, and not to be actively engaged in the protection of this fundamental right on a regional, but also national scale.

South Africa

In South Africa itself, FORB is at a critical point with a number of threats to our freedom to say what we believe, and to live our lives according to our beliefs.

One of the most imminent threats to our freedom to say what we believe, is the “Hate Crimes and Hate Speech Bill”. This Bill makes certain forms of speech a crime (punishable by a fine, or up to 3 years’ imprisonment) and as such, poses a major threat to freedom of speech in general (and freedom of religious expression in particular).

Around the world, hate speech laws are typically used to silence controversial or anti-establishment ideas, and so the net effect is a stifling of free speech as people simply stop speaking out what they feel or think about issues for fear that they’ll be arrested, charged and prosecuted for “hate speech”. It goes without saying that this is very serious threat to democracy in general.

Likewise, our freedom to live out our inner convictions, are threatened on multiple fronts:  as parents, to raise their children according to their religious convictions; as business owners, to run their businesses according to their religious convictions; as professional people (doctors, lawyers, etc) and employees, to live out their faith in their workplaces; as religious organisations, to determine their own doctrines and regulate their own affairs free from interference by the State / anybody else.

One of the most imminent threats we are facing right now, is the proposed regulation of religion. According to recommendations made by the CRL Rights Commission, an institution of State established in terms of our Constitution, our law should be amended such that religious organisations and practitioners cannot operate without having a licence to do so, which licence can also be revoked should they step out of line. Again, while this may sound like a good idea, if – in principle – religious freedom is a human right (rather than a right or privilege granted by the State depending on whether the State agrees or disagrees with the organisation’s particular doctrine and practices), it is questionable whether the State has the power to limit religious freedom in this way.

FOR SA indeed successfully argued before COGTA Parliamentary Portfolio Committee last year that the CRL’s recommendations (which effectively amount to State regulation of religion) is unconstitutional, unnecessary (in light of existing laws) and unworkable. If anything, what is already happening across our borders in countries where religion is regulated in this way, should be a warning to us not to go down this route. In Angola, at the end of last year, the government passed legislation in terms whereof only pastors who have a theological degree will be recognised as religious practitioners, and churches with fewer than 100,000 members will be shut down. The same happened in Rwanda, reportedly resulting in the shutdown of 6,000 churches. 

This should make us all sit up. When the State starts capturing religious institutions, who have always had a degree of institutional autonomy to determine their own doctrines and regulate their own affairs free from interference by the State, it is the end of democracy and the advent of totalitarianism and complete State control over not only public life, but the inner sanctum of private life.


To conclude, religious freedom is important not only for those of us who call ourselves believers (many of whom, in persecuted countries in Africa today, are prepared to lose their lives for this rather than give up their religious convictions and beliefs), but for everyone who believes in protecting and preserving democracy. If we do not protect religious freedom, democracy will suffer and the people (religious and non-religious) will pay the price.

And so I want to thank you for your consideration of, and willingness to engage in, what is really a battle for the soul of our nation/s – and as FOR SA, working also with other international allies like Advocates Africa (where I serve as a member of the Next Generation Board), we would welcome the opportunity to collaborate with you in this regard. Contact us or follow us on Facebook at “Freedom of Religion SA”.

I thank you for your time, and wish you all the best with your further deliberations over the next two days.

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.

Support FOR SA

Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy freedom of religion by:

  • Making a financial contribution to FOR SA at https://forsa.org.za/donate/ As a non-profit organisation, we are entirely dependent upon God’s grace for finances. Your generosity will help make a significant difference as we work to fulfil our mission to keep the Gospel free by advocating for religious freedom. We appreciate every gift, big or small!
  • Signing up (at no cost) to FOR SA at https://forsa.org.za/contact-us/join-us/ and subscribing to our Newsletter.
  • Praying for us as we defend this precious freedom before government and courts of law.
  • Following us, and sharing our posts, on Facebook  at “Freedom of Religion SA”.
  • Informing us, should you become aware of any case in which religious freedom is threatened.
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