When peo­ple’s be­liefs are abused

Hack­les are raised af­ter com­mis­sion’s re­port on the vi­o­la­tion and de­nial of cer­tain fun­da­men­tal rights and free­doms of con­gre­gants or fol­low­ers of some re­li­gious lead­ers, writes

CityPress - - Voices & Careers -

The Com­mis­sion for the Pro­mo­tion and Pro­tec­tion of the Rights of Cul­tural, Re­li­gious and Lin­guis­tic Com­mu­ni­ties (CRL) has of­fi­cially re­leased to the pub­lic its “re­port of the hear­ings on the com­mer­cial­i­sa­tion of re­li­gion and abuse of peo­ple’s be­lief sys­tems”, as well as its rec­om­men­da­tions for leg­isla­tive amend­ments. Pre­dictably, this has gen­er­ated ro­bust pub­lic de­bate.

On the eve of the re­port’s pre­sen­ta­tion to a par­lia­men­tary port­fo­lio com­mit­tee last month, it was pre­sented and dis­cussed with re­li­gious lead­ers in Cape Town. I at­tended both the dis­cus­sion with re­li­gious lead­ers and the par­lia­men­tary port­fo­lio com­mit­tee work­shop in an ad hoc ca­pac­ity as con­sti­tu­tional and le­gal ex­pert ad­viser to the CRL.

This com­men­tary is per­sonal and in­de­pen­dent, though it draws from the opin­ion I pre­sented at the two events and my ear­lier en­gage­ment with the com­mis­sion.

The en­try point in the de­bate on the re­port, es­pe­cially the rec­om­men­da­tions for im­ple­men­ta­tion by the CRL, ought to be based on the Con­sti­tu­tion and laws – in­clud­ing rel­e­vant in­ter­na­tional laws that are recog­nised by and are bind­ing on South Africa, such as the African Char­ter on Hu­man and Peo­ples’ Rights of 1981 and its pro­to­cols.

The CRL is an or­gan of state per­form­ing con­sti­tu­tional obli­ga­tions. The Con­sti­tu­tion re­quires that the per­for­mance of con­sti­tu­tional obli­ga­tions must be done “dili­gently and with­out de­lay”. The man­date of the CRL is broad – it in­cludes what are ex­pressly pro­vided for in sec­tion 185 of the Con­sti­tu­tion, in­clud­ing “to pro­mote re­spect for the rights of … re­li­gious … com­mu­ni­ties and the power to mon­i­tor, in­ves­ti­gate, re­search, ed­u­cate, lobby and ad­vise on is­sues con­cern­ing … re­li­gious com­mu­ni­ties”.

The CRL’s in­ves­tiga­tive power is also af­firmed in sec­tion 7 of the CRL Act of 2002, which gives it the power to sum­mon peo­ple to tes­tify and or­der them to pro­duce doc­u­ments in its in­ves­tiga­tive pro­cesses.

This in­cludes is­sues deal­ing with cul­tural and lin­guis­tic com­mu­ni­ties, which the CRL has in­di­cated it will fo­cus on sep­a­rately in the near fu­ture.

The out­cry from crit­ics of the re­port, par­tic­u­larly over its rec­om­men­da­tions, came be­cause the CRL in­di­cates that the state is en­croach­ing on the right to free­dom of re­li­gions en­shrined in sec­tion 15 of the Con­sti­tu­tion. In my con­sid­ered opin­ion, this is not well founded. What the re­port and its rec­om­men­da­tions is deal­ing with is fo­cus­ing on sec­tion 31, which pro­vides for the rights of peo­ple be­long­ing to a re­li­gious com­mu­nity to en­joy their re­li­gion and “to form, join and main­tain re­li­gious as­so­ci­a­tions”, but not “in a man­ner in­con­sis­tent with any pro­vi­sion of the Bill of Rights”.

First and fore­most, the re­port is about the vi­o­la­tion and de­nial of cer­tain fun­da­men­tal rights and free­doms of con­gre­gants or fol­low­ers by some – not all – re­li­gious lead­ers, whether they re­gard them­selves as preach­ers, pas­tors, bish­ops, arch­bish­ops, prophets, imams, rab­bis or African tra­di­tion spir­i­tu­al­ists.

Con­gre­gants or fol­low­ers are en­ti­tled to rights and free­doms of re­li­gion, be­lief, opin­ion, hu­man dig­nity, se­cu­rity of the per­son, equal­ity, ex­pres­sion, as­sem­bly, as­so­ci­a­tion, move­ment and res­i­dence, trade, health, labour, pro­fes­sion, ed­u­ca­tion, cul­ture, re­li­gion, ac­cess to in­for­ma­tion and just ad­min­is­tra­tive ac­tion. How­ever, they, as all other in­di­vid­u­als in the coun­try, must act within the Con­sti­tu­tion and laws of the coun­try.

The supremacy of the Con­sti­tu­tion is part of our found­ing val­ues. The idea that the words, rev­e­la­tions and in­struc­tions from the gods, what­ever they may be, are above the Con­sti­tu­tion and laws of the coun­try is pro­mo­tion of theoc­racy that, sooner or later, may turn into move­ments sim­i­lar to that of past cru­saders and present-day fun­da­men­tal­ist groups such as the Is­lamic State.

Chil­dren of re­li­gious fol­low­ers also have spe­cific rights un­der the Con­sti­tu­tion, as am­pli­fied in the Chil­dren’s Act. Par­ents, re­li­gious lead­ers, re­li­gious bod­ies and or­gan­i­sa­tions are ob­li­gated to re­spect these rights and free­doms.

Be­sides, the gen­eral over­ar­ch­ing lim­i­ta­tion to rights and free­doms in the Bill of Rights, which has safe­guards, ap­ply to re­li­gious rights and free­doms of peo­ple, and the rights of re­li­gious com­mu­ni­ties and their as­so­ci­a­tions or coun­cils.

No so­ci­ety or coun­try can func­tion mean­ing­fully in the 21st cen­tury with­out rev­enue from all sources of tax­a­tion. This re­quires every­one, in­clud­ing re­li­gious/spir­i­tual or­gan­i­sa­tions, to con­trib­ute. They must be open, re­spon­si­ble and ac­count­able.

Ul­ti­mately, the ques­tion is whether the amend­ments to the CRL leg­is­la­tion pro­posed by the com­mis­sion are within the con­sti­tu­tional and rel­e­vant leg­is­la­tion.

In my opin­ion, the sug­ges­tions and rec­om­men­da­tions are di­rected at lim­it­ing the over­ex­ploita­tion and abuse of the rights and free­doms of in­no­cent, vul­ner­a­ble and or­di­nary peo­ple, es­pe­cially the poor­est of the poor and chil­dren, and at en­sur­ing fi­nan­cial ac­count­abil­ity of re­li­gious bod­ies to the fol­low­ers/believ­ers, so­ci­ety and the state.

There can be no cred­i­bil­ity to re­li­gious bod­ies preach­ing to politi­cians and po­lit­i­cal bod­ies to be eth­i­cal and trans­par­ent when they them­selves are not.

Regis­tra­tion of re­li­gious lead­ers and as­so­ci­a­tions, ei­ther as trusts or non­profit bod­ies, is nec­es­sary. They ought to be sub­ject to in­ter­nal and, where nec­es­sary, in­de­pen­dent fi­nan­cial au­dits. This will con­trib­ute to their not be­ing sus­pected of en­gag­ing in money laun­der­ing, rack­e­teer­ing and fund­ing of po­lit­i­cal par­ties or such other hid­den il­le­gal ac­tiv­i­ties.

The fact that some re­li­gious lead­ers and or­gan­i­sa­tions are en­trepreneurs who have com­mer­cialised their trade for mone­tary rea­sons, with lit­tle or no real ma­te­rial ben­e­fits to their con­gre­gants or fol­low­ers – aside from ab­stract prom­ises that they will go to heaven by en­rich­ing the re­li­gious lead­ers and or­gan­i­sa­tions – is not new, but it has be­come a boom­ing in­dus­try.

Some preach­ers pre­tend that they are talk­ing to the gods on cell­phones while they preach. Even old peo­ple who live off mea­gre so­cial grants are preyed upon.

The SA Rev­enue Ser­vice (Sars), in col­lab­o­ra­tion with the CRL, should de­velop a mech­a­nism for mon­i­tor­ing and reg­u­lat­ing such preda­tory, non-tax­pay­ing prac­tices. The is­sue of how they can be taxed must in­volve Sars, which can pro­vide some of them with tax ex­emp­tion. The lat­ter is out­side the man­date of the CRL.

An­other ten­dency of abuse of re­li­gious fo­rums, which was not cov­ered in the re­port, its rec­om­men­da­tions and pro­posed leg­isla­tive amend­ments, is the use of re­li­gious be­liefs and fo­rums by politi­cians dur­ing elec­tion cam­paigns.

An ex­am­ple re­lates to when Pres­i­dent Ja­cob Zuma told peo­ple that those who did not vote for the ANC would not be al­lowed by God to en­ter heaven. Such an is­sue needs to be at­tended to, not only by the CRL, but by the com­mis­sion in col­lab­o­ra­tion with bod­ies such as the Elec­toral Com­mis­sion of SA.

Lastly, the CRL does not make laws, but it can pro­pose them based on its con­sti­tu­tional man­date and based on the ob­jects in the leg­is­la­tions that are rel­e­vant to its op­er­a­tions.

Those op­pos­ing the find­ings and rec­om­men­da­tions in the re­port, as well as the CRL’s proposals for leg­isla­tive amend­ments, are, of course, free to chal­lenge the fi­nal ac­tions in courts of law once Par­lia­ment has de­cided on them.

South Africa is build­ing a con­sti­tu­tional democ­racy based on the rule of law. This is a long and con­tin­u­ous jour­ney.

Emer­i­tus Pro­fes­sor Gutto heads the Cen­tre for African Re­nais­sance Stud­ies, College of Grad­u­ate stud­ies at the Uni­ver­sity of SA (Unisa). The views ex­pressed do not

nec­es­sar­ily re­flect the views of Unisa or the CRL

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LEAP OF FAITH The re­port has gen­er­ated ro­bust pub­lic de­bate

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