Constitutional Hill

freedom of religion

Religion in schools: time to decolonise our education?

It is not always easy to hold an unpopular or minority view. It is even more difficult to hold a minority view on the emotive subject of religious belief and organised religion. When you happen to be a vulnerable and impressionable child, indoctrinated by parents and subjected to relentless peer pressure, it becomes even more difficult to hold any opinion of your own on the matter. It is for this reason that the right of children not to believe in a specific God or in specific religious dogma, must be jealously protected.

The Federation of Governing Bodies of South African Schools (Fedsas) contend in court papers that it was perfectly acceptable for schools to embody a Christian ethos and to promote “Christian values” (whatever this may mean) in public schools as long as the vast majority of parents desire it.

In its papers it quotes alleged “research” done among more than 7000 learners in the six schools being taken to court for promoting Christian values and practices in these schools which shows that only 3 percent of learners stated that it was unpleasant to be part of these Christian values that is embodied in the culture of each of these schools. According to the research 95% of the primary school children canvassed are perfectly happy when Christian prayer is conducted during assembly and other public events.

Of course, this survey really canvasses the beliefs of parents and not of primary school children because young children almost always believe what their parents tell them to believe. Given the relentless pressure from parents and society at large, the notion that young children in South Africa in fact have autonomy to decide for themselves whether they believe in a God and if so, what kind of God they believe in, is a laughable fiction.

The line or reasoning advanced by Fedsas is not only problematic because it wrongly assumes that almost all children have a free choice in the matter. It is also problematic because in South Africa the religious views of the majority cannot extinguish the rights to religious freedom of a minority.

Unless Fedsas can demonstrate that religious observance at schools (both in individual classes and during mass events like assembly) is completely voluntary and that various beliefs are treated equitably in the school, it will have difficulty convincing the Constitutional Court that the public schools being taken to court are not in breach of the Constitution and the relevant section of the Schools Act.

Some South Africans wrongly believe that ours is a Constitution that demands a complete separation between religion and the state. Unlike in the United States, where the US Supreme Court (interpreting the First Amendment and following the phrase first used by Thomas Jefferson) claims that religious freedom requires a “wall of separation between church and state”, the South African Constitution recognises a limited but significant role for religion in state institutions.

(I have always been struck by the fact that the popular US formulation of the rule requiring a separation of “church” and state is so exclusionary as it completely ignores religious traditions – such as Islam and Judaism – that are not dominant in US society. In these religions synagogues and mosques – and not churches – represent the formal consecrated public spaces where a particular version of God is worshipped, but the traditional formulation completely ignores this.)

In any event, the preamble to the 1996 South African Constitution explicitly refers to a “God”, and thus concludes as follows:

May God protect our people.

Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

Of course, the preamble to the Constitution has no legal effect and cannot be enforced, so these references to God are merely symbolic and of no legal consequence. Moreover, section 15(1) of the Constitution contains an expansive right protecting not only religious freedom, but also the freedom of conscience, thought, belief and opinion of everyone.

This means that section 15(1) equally protects the rights of those who are religious to hold their religious beliefs, to state such beliefs and to practice their religion than it protects atheists to hold their beliefs, to state that they do not believe in God and to arrange their lives accordingly.

But this is not the end of the matter. Section 15(2) of the Constitution explicitly rejects the notion that there should be a complete wall of separation between the state and religion, and thus accepts that:

[r]eligious observances may be conducted at state or state-aided institutions, provided that (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.

In the Constitutional Court judgment of S v Lawrence , S v Negal ; S v Solberg justice O’Regan emphasised that the section prohibits religious observance that would have the effect of coercing somebody (either directly or indirectly) to observe religious practices with which they do not agree or to coerce them into accepting certain religious beliefs, such as the belief that there is indeed an all-powerful God.

The requirement of free and voluntary attendance at religious ceremonies is an explicit recognition of the deep personal commitment that participation in religious ceremonies reflects and a recognition that the freedom of religion requires that the state may never require such attendance to be compulsory.

Coercion can be direct, but it can also be indirect. The state (or any state institution like a public school) cannot place its power, prestige and financial support behind a particular religious belief or behind religious belief vis-à-vis non-belief because it would result in indirect coercion on non-believers and on religious minorities to conform to the majority view.

Justice O’Regan further held that where a state institution like a school publicly observes religion “the observance of such practices must still be equitable”. Because our society possesses a rich and diverse range of religions the state (and state aided schools) cannot be permitted to act inequitably. The requirement of equity is something in addition to the requirement of voluntariness. What this requires is, at the very least, that the state (or state-aided school) act even-handedly in relation to different religions.

As O’Regan explained in her majority opinion:

The requirement of equity in the conception of freedom of religion as expressed in the … Constitution is a rejection of our history, in which Christianity was given favoured status by government in many areas of life regardless of the wide range of religions observed in our society.

This view has now explicitly been incorporated into our law as section 7 of the South African Schools Act states that:

Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.

Two important consequences flow from the legal regime in place in South Africa for the protection of freedom of religion and conscience.

First, it is illegal for a state school to directly or indirectly coerce learners into observing a specific religion or any form of religion, either at public events such as assembly or in individual classrooms.

Where a school observes religion at public events it needs to provide a clear alternative for children who wish not to participate. This alternative cannot be presented in such a manner that it indirectly places pressure on a vulnerable child sensitive to peer pressure to attend the religious observance.

Where a school observes religion in classes or wishes to embody teaching with “Christian values” it would have to provide two streams of education in the form of different classes – one class catering for teaching that accords with the Christian ethos and one class completely free from such views and values. A school that unashamedly promotes a Christian ethos and provides no clear and equitable alternative is acting unconstitutionally and illegally.

Second, even where a school has rules in place to ensure that children are neither directly or indirectly coerced into observing religion at public events or in classes, it would still have a duty to treat various forms of belief equitably. This does not mean such beliefs have to be treated in exactly the same manner, but it does mean that a school is prohibited from exclusively advancing the beliefs or teaching of one specific religion or of religion vis-à-vis non-religion.

I suspect very few state schools at present comply with the Constitution and the law because there has been no systematic attempt to dismantle the underlying Christian nationalist ethos that permeated the apartheid education system.

If we are going to decolonise not only our Universities but also our schools, it is time that schools and school governing bodies comply with the Constitution and the law.

Those intolerant of bigotry do not invite bigots to speak

One of the favourite mantras of some free speech fundamentalists is that “the cure for bad speech is more speech”. But sometimes it is counter-productive, even wicked, to continue debating an issue when such a debate serves to promote and legitimise beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people. Sometimes the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform.

When I was invited by the African Arts Institute to take part in a panel discussion on “Same sex love in Africa”, I reluctantly agreed. I find it somewhat tedious and politically problematic to be asked to talk about the African continent and its people as if it is a monolithic space inhabited by people who are identical in every way.

The manner in which “Africa” (as a colonial construct) is deployed in the Western imagination to erase the beauty, vibrancy, individuality, vitality, agency and multiplicity of vastly different individuals living in different parts of our continent is galling and arrogant.

(This habit of thinking and speaking of “Africa” as a gigantic, blank space inhabited by smiling people patiently waiting under acacia trees for Madonna or Brangelina to adopt their children while lions roar prettily in the distance is perfectly captured by the mocking title of the magnificent website called “Africa is a Country”.)

I nevertheless agreed to take part in the discussion at the Artscape Theatre in Cape Town because I believe it is important to engage critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs and dogmas about the sexuality of the previously colonised and the marginalised and oppressed in society.

I do not, in principle, have a problem to talk about the harms caused by religious dogma and how we can begin to address the corrosive effects of this dogma on people living in different societies, cultures, and in different towns, cities and countries.

A good place to start is to recognise that the colonial conquest of the African continent facilitated the spread of Christianity and Islam throughout the continent.

If you are thus the kind of person who likes to show your disproval of certain beliefs or practices that you do not know or that you fear by claiming that they are “un-African” you might well need to start by conceding that Christianity and Islam are “un-African”.

The colonisers (animated by racist fears) invoked beliefs and dogmas borrowed from these religions to stigmatise as dangerous and degenerate sexuality and desire that did not conform to problematic, idealised, Western, norms in order to justify the policing of sex and desire through the enforcement of Western style criminal law and through the enforcement of religious dogma.

Reactions to Brett Murray’s The Spear painting reminded us again of this shameful history and the problematic ways in which colonial conquest stigmatised sexuality and desire (and pathologised black bodies more generally) in many parts of our continent.

In the original email I received from the African Arts Institute I was told the discussion was aimed at gaining “a deeper understanding of perspectives on same sex love in relation to culture, tradition, identity politics and human rights”.

I assumed the discussion would occur in a relatively safe space in which my basic humanity, my right to exist and flourish as a human being and my right not to be killed would not be treated as subjects open to legitimate discussion and debate.

On Monday afternoon I received a call from one of the organisers and for the first time was alerted to the fact that I would share the podium not only with an artist and with a fellow academic but also with an Imam. The organiser told me that they foresaw sharp conflict as the Imam would argue that same sex love was un-African and against Islam.

Although irritated by what I perceived to be a dishonest ambush, I nevertheless agreed to continue with my participation out of politeness and out of respect for those who would go to the trouble of attending the event. I assumed that Mike van Graan, who chaired the panel, would not allow the event to degenerate and would create and defend a safe space in which rational and respectful discussion would remain possible.

This did not happen.

The Imam spoke about diseased fishes (what this had to do with the topic never became clear), quoted disapproving passages from the Koran and (as is often the case with men of the cloth) generally displayed a morbid obsession with the mechanics of sex.

A questioner stated as fact that Islam required homosexuals to be stoned to death and asked whether this was indeed what was required of Moslems in South Africa. The Imam said that this was indeed the majority view but that most South African Moslems would follow the minority view that holds that homosexuals should be re-educated to get us to turn away from our “perverted” practices.

At no point did the Imam explicitly condemn (as outrageous and criminal) the idea that men and women who engage in same sex sexual practices should be stoned to death. Instead, he suggested that there were two legitimate schools of thought (one in favour of murdering homosexuals, the other not) but, when pressed he did concede reluctantly that he belonged to the more “moderate” school of thought and do not personally endorse murder.

(As an aside, it is strange that there is not more outrage in society and from the state about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass? Is it because we have not entirely rejected the notion prevalent in European nations during the pre-Enlightenment theocratic era that religious rules trump the ordinary laws of the land?)

When a fellow panellist as well as other attendees objected to this line of discussion, they were told that they were being intolerant of the views of others who happened to disagree with them.

The Imam and one of his supporters even claimed to feel victimised because members of the audience expressed their distaste of his bigotry and his spectacular lack of basic decency and humanity. (This is not surprising as bullies often claim to be victims when they are called out on their intimidation and persecution of others.)

After the event I felt tarnished and degraded for being forced to defend my right to exist in South Africa without fearing that I will be murdered in the name of God.

It is unthinkable that in 2015 a body like the African Arts Institute would host a panel discussion which raised the question of whether men and women of different races who engage in sex should be stoned to death or whether they should rather be re-educated.

It is also unthinkable that the African Arts Institute would invite Dan Roodt to take part in a panel discussion on whether black people are inherently intellectually and morally inferior to white people.

Whether such speech constitutes hate speech or not (and as I have argued many times before, I am not convinced that hurtful speech is best countered by using hate speech legislation), it is not the kind of speech that belongs in a respected (supposedly progressive) public space.

This is so because the speech has no value. It does not enlighten. It does not help us to think critically about how better to live in the world. It does not educate or allow us to understand how to deal with oppression and bigotry.

It merely reinforces and perpetuates the most narrow-minded, and hateful types of fear mongering and persecution. It provides a platform for speech that directly threatens the well-being and survival of a vulnerable section of South African society.

By hosting such an event, an organisation such as the African Arts Institute further legitimises widely held hateful views that create the environment in which many people believe it is justified to assault, rape and murder those of us who choose to love members of the same sex.

It has potentially deadly consequences.

To say that these views should not be given a platform by the African Arts Institute is not to be intolerant of free speech. It is to be intolerant of hate, bigotry and dehumanising language used by those who claim to speak on behalf of a cruel and vengeful God. In any case, it is not speech on behalf of any God I recognise.

There is nothing wrong with being intolerant of the type of hatred and bigotry that may well have real and fatal consequences for some of our brothers and sisters, mothers and fathers and sons and daughters who happen to love differently from the colonial-cum-religiously imposed norm.

It is an entirely different question whether the law should prohibit such speech and allow for the prosecution and imprisonment of those who engage in such hateful bigotry. To support the legal prohibition of certain types of speech would, to some extent, be intolerant of free speech.

Except for the most extreme forms of hate speech, I am not in favour of such regulation because I am not sure it would achieve much and I fear regulation could be abused to limit speech which may well turn out to be of value.

However, who is allowed to speak on a specific platform speaks volumes about the ideology and political commitments of those who control the platform. When those who make such decisions believe it is entirely appropriate to host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated, it says just as much about their own lack of humanity and their moral failure as human beings and political actors than about those they invited onto the platform to spread their hatred.

It is for that reason that I will not, under present conditions, accept an invitation  to appear at an event organised by the African Arts Institute.

The law vs. religion: Let’s try that again

The debate sparked by Chief Justice Mogoeng Mogoeng after he stated in a speech in Stellenbosch that it would be a good thing if religion influenced “the laws that govern our daily lives starting with the Constitution”, has been both frustrating and misinformed. Instead of focusing on the veracity and desirability of the arguments advanced by Justice Mogoeng, most commentators focused on the irrelevant question of whether a Chief Justice should express his religious views in public at all.

Chief Justice Mogoeng Mogoeng was admirably honest and transparent about his personal convictions when he stated – quoting that great freedom fighter and anti-colonialist, Lord Denning – that he believed “without religion there can be no morality; and without morality there can be no law”.

Judges are not empty vessels, lacking any personal beliefs, values and opinions. Instead, the different life experiences of judges (often focused on their differences in sex, gender, sexual orientation, race, class, religious or non-religious beliefs and other circumstances) may well influence how they view the world and the legal problems they are confronted with and, to some degree, how they will interpret the often open ended provisions of the Constitution in order to solve those legal problems.

Similarly whether a judge is a Pentecostal Christian, an atheist, a cultural Anglican, a Rastafarian, an agnostic, a devout member of the Dutch Reformed Church or a member of the File Sharing Religion may well have some influence on the way in which that judge sees the world and how he or she will resolve the legal problems he or she is called upon to adjudicate on.

Of course, judges need to be impartial. But this does not and – conceptually – cannot mean that a judge is required to have no beliefs or value system on which he or she will inevitably draw to decide complicated constitutional questions raised before him or her.

It only means that a judge must not pre-judge a case and must hear all the arguments before him or her and must consider both the applicable legal text and the relevant binding case law before making a ruling on a specific matter.

I would think it is far better and more honest for a judge to admit to these personal beliefs and to declare them upfront, as the Chief Justice did in his speech. Where judges declare their views openly, it is far easier to engage with the judgments written by that judge and to construct an argument either in support of or critical of the approach taken by a specific judge.

For this reason I have come to the realisation (modifying my previous position) that I have no problem with Chief Justice Mogoeng Mogoeng stating his views on the desired role of religion in law-making and constitutional interpretation in public.

However, I do believe that judges are not beyond criticism and that citizens are entitled to engage critically with the stated beliefs and values of judges.

The far more productive debate about the speech delivered by the Chief Justice would confront the substance of his speech and would construct arguments either in defence of his views or critical of them.

I propose to do the latter. It would enhance democratic debate if others who disagree with me took the time to construct counter arguments.

In this regard I believe the views expressed by Chief Justice Mogoeng on the role of religion in law-making and constitutional interpretation are intellectually incoherent and shallow, nonsensical and (to the extent that one can make any sense out of them) socially and politically reactionary and hence in direct opposition to my own value system and the norms embedded in the Constitution.

It is of course highly controversial to argue – as the Chief Justice did – that religion can be the only source of morality in any society. This claim ignores (or is ignorant of) developments in both traditional African philosophy and Western philosophy of the past 150 years.

For example, for some of us, humanism is an attractive non-religious source of morality, given its emphasis on the value and agency of human beings, individually and collectively, and its focus on the value of critical thinking and evidence over established doctrine or faith.

Given the fact that the value of human dignity is one of the founding values of our Constitution and given, further, that dignity is closely associated with the moral agency of humans, it is easy to square humanism with South African constitutionalism.

However, it is conceptually difficult if not impossible to square the views of the Chief Justice about morality (as prohibiting human beings from engaging in forms of sexual behaviour outside of state recognised marriage – even when this does not harm others) with the demands of the constitution to protect the infinite human dignity of every human being.

If laws were put in place (as the Chief Justice suggest they should) to curtail the freedom of individuals to decide for themselves how they wish to live their lives and how they want to arrange their intimate affairs, such laws would curtail the inherent human dignity of everyone. This would be in direct conflict with one of the founding values of our Constitution, a value, which our Constitutional Court has said, runs like a golden thread throughout the Constitution.

Moreover, anyone familiar with Immanuel Kant’s attempts to formulate rules on how to determine right from wrong through the categorical imperative (the idea that actions can only be considered moral if they could be imitated by anyone else and produce good results) would also be hard-pressed to agree with the Chief Justice that religion is the only possible source of morality in society.

You might not agree with Kant, but at the very least his philosophy – which former Constitutional Court Justice Laurie Ackermann has argued forms the intellectual basis for any understanding of the Constitutional Court’s dignity jurisprudence – posits an alternative source of morality not associated with any religious doctrine.

Of course, this idea that religion is the only source of morality for a society is especially common among those who associate morality with sexual behaviour.

Although it is difficult to tell exactly what the Chief Justice means by “religion” (there are many different religious traditions and many conflicting moral beliefs even within the Christian tradition, a tradition which the Chief Justice claimed to source his views from) his speech does suggest that he associates religious values with a strand of Pentecostal Christianity that focuses on sex as the root of all evil in the world.

Thus Justice Mogoeng stated in his speech that:

a legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.

At a press conference called to “clarify” his views, he reiterated that he saw a clear link between “morality” (as he understands it) and sexual behaviour, stating that:

Concerns that cannot be left unattended relate to the effect of religious principles on the right to secure a divorce, the freedom to indulge in adultery and promiscuous fornication.

I am sure many South Africans will claim to agree with this view of morality as espoused by the Chief Justice (even as they fail to live their lives according to it). But in a pluralistic society the moral views of the majority cannot be used to infringe on the rights of others and to rob those who do not wish to adhere to the majority view of their dignity and freedom.

Be that as it may, personally I find the views of the Chief Justice on “promiscuous fornication” and the need for laws to force people to remain married even if they wish to divorce, deeply conservative and objectionable.

This is because religious rules relating to how and with whom we are allowed to have sex function to control and discipline citizens (especially their bodies) and rob them of the freedom to decide for themselves how they wish to live their lives. It imposes the view of some about how we are allowed to use our bodies for pleasure on all of us and robs people of their right to live according to their own beliefs about how to arrange their intimate affairs.

Suggesting that the law should ideally regulate consensual sexual activity and the freedom to enter into and terminate relationships that have little or no bearing on the material wellbeing of people is disrespectful of the freedom of those who do not share your very narrow religious view of morality. It has the potential to interfere with the private choices of individuals and requires the church or the state to have a decisive say over our bodies.

This is potentially devastatingly invasive of the right of everyone to bodily and psychological integrity, which includes the right to make decisions concerning reproduction and to security in and control over their body guaranteed by section 12(2) of the Constitution.

It is therefore difficult to see how the views of the Chief Justice can be accommodated within the current constitutional regime.

Moreover, the morality espoused by the Chief Justice, does not seem to focus on the need to respect the inherent human dignity of every person and the idea that each human possesses moral agency to decide for him or herself how to live their life – as long as this does not harm others.

Instead, it seems to lean towards the view that the law as well as the power and authority of the state should be deployed to inculcate a specific religiously inspired morality in citizens.

In this regard the argument put forward by the Chief Justice that principles sourced from all religions could be infused into a “national moral code that could be taught at home and school from a tender age all the way up to adulthood” is particularly worrying. It is also intellectually incoherent as it directly contradicts other statements made by the Chief Justice in his speech.

In Stellenbosch the Chief Justice referred to the fact that the Constitutional Court has embraced the notion of South Africa as a pluralistic society. He even quoted the Court’s judgment in Prince where it stated that: “The protection of diversity is the hallmark of a free and open society.”

But once you recognise that our Constitution demands protection of this diversity – including diversity related to religious and other beliefs such as the belief not to believe in any God – it is intellectually incoherent to then argue that a very narrow conception of religious morality should influence laws that regulate the private and intimate lives of citizens. It is also incoherent to argue that certain religious values should be infused in a national moral code, which should be used to indoctrinate vulnerable children.

A society that respects diversity cannot enforce or propagate a narrow religiously inspired moral code on society as a whole. Instead, a society that respects diversity will celebrate difference – also different attitudes about morality.

For example, for some a “moral” society will be a society which censors and regulates the sexual activities of citizens and emphasises the moral superiority of monogamous marriage between one man and one women (and maybe two and a half children and a dog) till death do them part.

For others a “moral” society may be a society in which individuals are free to decide for themselves (without interference from the state) how to arrange their consensual, private, intimate affairs and in which we all fight to eradicate social injustice and economic inequality.

Because of these vastly different conceptions of what is good and moral, a society in which diversity is respected cannot enforce or promote a uniform moral code as the Chief Justice suggested.

Moreover, the view that religious values should influence laws and the interpretation of the Constitution is also in direct conflict with the precedent developed by the Constitutional Court.

In the Fourie judgment (ironically, perhaps, dealing with the need to recognise same-sex marriage), the Constitutional Court in no uncertain terms rejected the argument that religious beliefs should form the basis of legal regulation, stating as follows:

It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.

It is exactly because there is no universally accepted set of moral norms – religious or otherwise – on which any court can rely that the South African Constitution (not any set of religious beliefs) serves as the source of our constitutional morality.

We have a choice: either we amend the Constitution in order to ensure that the religious beliefs of some become the moral loadstar for legislation and constitutional interpretation – thus rejecting any accommodation of diversity – or we stick with the constitutional values which celebrate religious and other forms of diversity and respect for human dignity and prohibit the law from enforcing the narrow religious morally inspired beliefs of some on the whole of society.

If you favour the first route, the Chief Justice is your man. If you favour the second, well, then his speech will make you extremely nervous.

Sparing the rod: what it really entails

It is a criminal offence in South Africa to assault a child – unless the assault is perpetrated by the parent of that child for disciplinary purposes and the assault is of a “moderate” nature (judged by considering the context). A government proposal to change the law to provide for criminal prosecution of parents who use “moderate” physical violence to punish their children has created a stir. What are the constitutional considerations at play in this debate?

A gathering of conservative religious leaders recently expressed grave concern about plans to outlaw the corporal punishment of children. Errol Naidoo, the leaders of the far right Family Policy Institute, recently warned that “feel-good legislation like this is usually driven by liberal ‘experts’, who often do not have children of their own”. He pointed out that the (Christian) Bible “warns parents not to withhold discipline from their children” and quoted from Proverbs 13:24 (the name of a chapter in the Christian Bible), which states: “He who spares his rod hates his son, but he who loves him disciplines him promptly”.

This view of corporal punishment of children is in conflict with well-established international law rules. South Africa has signed and ratified the Convention on the Rights of the Child (which creates international law obligations for our government). Article 19 of this Convention explicitly imposes a duty on States who have ratified this international treaty to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence….”

In General Comment no. 8, the Committee on the Rights of the Child pointed out that this section of the Convention (read with other sections in the Convention) place a duty on each State who has ratified the Convention to pass legislation to outlaw assault on children – even “moderate” forms of assault by parents aimed at disciplining children. The Committee wrote:

In addition, explicit prohibition of corporal punishment and other cruel or degrading forms of punishment, in their civil or criminal legislation, is required in order to make it absolutely clear that it is as unlawful to hit or “smack” or “spank” a child as to do so to an adult, and that the criminal law on assault does apply equally to such violence, regardless of whether it is termed “discipline” or “reasonable correction.

But it is not only international law that places a duty on the South African government to outlaw assault of children by their parents. The common law rule that allows parents to use “moderate” physical violence on children infringes on the rights of the child – in particular the rights protected by sections 12 and 28 of the Bill of Rights.

In this regard section 12(1)(c) states that everyone has the right to freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources”. Section 12(2)(b) also guarantees for everyone the right to bodily and psychological integrity which includes the right “to security in and control over their body”.

These sections must be interpreted with reference to South Africa’s international law obligations. This is so because section 39(1)(b) of the Constitution states that international law must be considered when interpreting the provisions of the Bill of Rights. Against this background there can be little doubt that the present legal regime infringes on the rights of children. Parliament therefore has a legal duty – based on its international law obligations and on its obligations to take steps to “respect, protect, promote and fulfil” all the rights in the Bill of Rights – to abolish corporal punishment of children.

The pivotal constitutional law question that will arise when Parliament passes legislation to provide for the criminal prosecution of parents who assault their children (also in cases where the violence used in the assault is “moderate” and aimed at disciplining a child), is whether such a law will infringe on other rights in the Constitution and if it does, whether the infringement will be justified in terms of the limitation clause. This question will arise if the new legislation fails to exempt from its ambit the actions of those parents whose cultural and religious beliefs and practices mandate corporal punishment of children.

It may well be argued that the legislation that imposes a criminal sanction on all forms of corporal punishment of children by their parents infringes on a cultural practice protected by section 31(1)(a) of the Constitution. But this argument won’t hold water as section 31(2) explicitly states that the rights in section 31(1) “may not be exercised in a manner inconsistent with any provision of the Bill of Rights”. This means that the rights protected in sections 12 and 28 trump the right to culture in section 31(1). The right to culture is therefore in many ways an illusory right as it is subservient to all other rights contained in the Bill of Rights.

The strongest argument against the constitutionality of legislation that places an absolute ban on the assault of children by their parents would be that this infringes on the right to freedom of religion protected in section 15 of the Constitution. As pointed out by Errol Naidoo, a literal interpretation of selected verses from the Christian Bible (for example) endorses corporal punishment of children by their parents. If legislation prohibits parents from punishing their children through the application of “moderate” forms of violence, this would infringe on the rights of parents to practice the tenets of their religion (as they understand these injunctions of their faith).

The Committee on the Rights of the Child has rejected this argument in as far as the Convention on the Rights of the Child is concerned, noting that:

Freedom of religious belief is upheld for everyone in the International Covenant on Civil and Political Rights (art. 18), but practice of a religion or belief must be consistent with respect for others’ human dignity and physical integrity. Freedom to practise one’s religion or belief may be legitimately limited in order to protect the fundamental rights and freedoms of others.

This principle is, I contend, clearly correct. This is so because in some cases the state can regulate the harmful religious practices of citizens. To use an extreme example, no South African court is going to find that a law criminalising the sacrificing of babies is unconstitutional because a religious group sacrifices babies to appease its gods and to prevent the gods from destroying the entire community.

The irony is that had the majority of South Africans believed in the religion that practiced baby sacrifice, the court may well have accepted that outlawing the practice unconstitutionally infringed on the rights of the members of (what would then have been) the dominant religion. This is so because the judges would have themselves more likely than not be infused with (what appears to us from the outside to be) an unfounded, harmful and destructive belief.

Because our attitude towards religion colours the way in which we see the world and play a large part in determining what we may consider to be harmful (and because dominant religious beliefs and practices also seep into the consciousness of wider society and often become part of what is considered “normal” or normative), the dominant religious beliefs and practices in society are seldom considered to be harmful at all – no matter what the evidence might suggest.

That is why many people would argue that cutting off part of a vulnerable baby’s penis shortly after birth does not constitute child abuse, and would view this practice as a harmless and valid form of circumcision. The same believers would probably argue that pulling out a baby’s fingernail would constitute child abuse – even though the fingernail (unlike the foreskin) will actually grow back.

That is also why many people who would otherwise support gender equality and would support the prohibition of discrimination on the basis of sex or gender, may condone discrimination against women if this discrimination is endorsed or required by the Catholic Church, the Orthodox Jewish tradition or some versions of Islam.

Because religion is such an emotional and intensely private issue (apart from also playing an important role in public life) and because so many people are so deeply committed to their religious beliefs, they may well ignore all the evidence regarding the harm suffered by children (or women, in the case of gender discrimination) and may argue that their own religious beliefs and practices should trump any rational concerns about the harm suffered by those on the receiving end of the specific religious practice or belief.

In fact, often some of those who are deeply religious suggest that it is impermissible for others to question their religious beliefs and practices. Perhaps because religious beliefs by their very nature do not easily conform to the demands of rationality and fact-based argument and because some religious believers live in a creative state of doubt about their beliefs, they can sometimes respond quite vehemently, even violently, to those who point out the possible logical flaws in their beliefs. (I never understood this: belief in a higher being is said to have value exactly because it is not based on evidence but on the beautiful mystery of faith – why then get upset if people point this out?)

The truth is, of course, that in a constitutional democracy religious beliefs are not protected from critique or questioning. Many religious believers themselves question aspects of the religious tradition they were brought up in or which they operate within. It is therefore not only permissible but, I would argue, in certain cases constitutionally required to ask whether certain religious beliefs and practices harm others and infringe on the rights of others. Is this not best done, not by invoking the unprovable beliefs under discussion, but rather by looking at proven or provable facts?

If this is correct, then the Constitutional Court will ultimately have to weigh up the various interests at stake here – based on as many facts that are presented to them. But this may appear impossible. On the one hand, the Court will have to look at the effects of the widespread culture of violence on children and the manner in which corporal punishment might help to perpetuate this culture. Given these insights it will have to answer the question of whether, and to what extent, the assault of children by their parents damage children and infringe on the rights of those children. On the other hand, the Court will have to ask whether the the infringement on religious beliefs is severe when adherents of a certain belief system are prohibited from assaulting their own children purportedly to give effect to the injunctions of their authoritatively regarded text.

Put differently, the Court will have the unenviably task of balancing the interest of children to be free from violence, against the immeasurable interests of parents to continue practicing their religious beliefs. Rational considerations will have to be weighed up against the authority and importance of the essentially non-rational beliefs of believers.

And which judge will be able to make the best call: one who is imbued with the same non-rational beliefs, or a judge who stands outside these beliefs but has a firm appreciation of international law?

Why Rastafarians can’t be fired for wearing dreadlocks

Seemingly neutral codes of conduct often discriminate against individuals or groups who do not belong to the dominant economic, religious or cultural group in a society or in an organisation. But because those who draft such Codes are often unaware that they are merely codifying assumptions, prejudices or beliefs that they themselves are steeped in, they often seem incapable of accepting this fact. A recent Supreme Court of Appeal (SCA) judgment, confirming that the dismissal of several Correctional Services officers for failing to adhere to the Department of Correctional Services Dress Code was unlawful, illustrates this point well.

When the Department of Correctional Services fired several warders for refusing to cut their dreadlocks, they must have thought that they had a watertight case. After all, the Departmental Dress Code clearly prohibits male (but not female) Correctional Services officers from dying their hair or cutting it “in any punk style, including a ‘Dreadlocks’ hairstyle”.

What they never realised is that even if you ignore the terminally unhip assumption that “dreadlocks” is a “punk” hairstyle (don’t these people watch Vuzu, MTV or Mzanzi Magic), the Code is highly problematic because it aims to impose a very distinct religious and cultural worldview on all employees. In fact it has the whiff of apartheid era conservatism about it.

For, example the Code declares that for Female Officials “[u]nnatural hair colours and styles, such as punk, are disallowed”. But what are “natural” and “unnatural” hairstyles? Is a weave “natural” or “unnatural”? If a blond officer colours her hair black is that “natural” or “unnatural”. If an African officer colours her hair blonde is that “natural” or “unnatural”? Who decides what is “natural” and “unnatural” hair and on what basis? Don’t the people who drafted this Code know that hair is a highly political issue, often implicating race, gender, sexuality, culture, ethnicity and – yes – religion?

The Code further instructs that men may not wear their hair “longer than the collar of the shirt when folded down or cover more than half of the ear”. (I am almost certain they lifted that rule from the hair rules applicable to boys at Pietersburg Hoërskool in the early eighties when I was a pupil there.)

In Department of Correctional Services and Another v Popcru and Others, the SCA (in a judgment authored by Maya JA) did not comment on the specific cultural, racial and religious assumptions underlying this Code. But it did uphold the decision of the Labour Appeal Court that the dismissals were automatically unfair on the basis that it discriminated against the officers on the basis of religion, culture and gender.

Some of the dismissed officers based their claim on the fact that they were members of the Rastafarian religion, asserting that they wore dreadlocks as an outward manifestation of their religion – much like wearing a headscarf or a cross would be an outward manifestation of the religion of some Muslims or Christians. Other officers gave cultural reasons for their hairstyle. One – Mr Ngqula – said he wore his dreadlocks to obey his ancestors’ call, given through dreams, to become a “sangoma”  in accordance with his Xhosa culture. Another – Mr Kamlana – said he was instructed to wear his dreadlocks by his ancestors and did so to overcome “intwasa”, a condition understood in African culture as an injunction from the ancestors to become a traditional healer, from which he had suffered since childhood.

The dismissed officers were relying on section 187(1)(f) of the Labour Relations Act which states that a dismissal is automatically unfair when it is based on either direct or indirect unfair discrimination. The Department originally argued that there had been no motive to discriminate against the dismissed officers and that they were dismissed, not because of their religion, culture or gender, but because of their failure to comply with a neutral policy and a lawful instruction to cut their hair.

This was obviously legal nonsense. Our law does not require you to prove a discriminatory motive before finding that discrimination had taken place as it focuses on the effects of the actions and not on the motives for it. Moreover, our law also prohibits indirect discrimination which occurs when a seemingly neutral rule or code disproportionately affect the members of a specific group. Clearly, a “neutral” rule prohibiting the wearing of “dreadlocks” will have a disproportionately negative effect on Rastafarians. Similarly, a “neutral” rule prohibiting anyone from wearing a “weave” would have a disproportionately negative effect on black women.

After dropping this patently silly argument, the Department proffered new reasons for the discrimination. First, it said that a prohibition of the wearing of “dreadlocks” by male (but not female) officers was:

critical for the enforcement and maintenance of discipline and security in a prison environment. Any deviations from uniformity to accommodate diversity would open the floodgates for exemption requests to the department’s detriment. Dreadlocks also posed a particular risk because they could easily be grabbed by an inmate to disarm an official.

Of course, this argument is often trotted out by the dominant group in the hope that it would make the discrimination invisible. But such an argument is highly problematic as it relies on the assumption that the dominant norm that the so called “neutral” rules are trying to impose on everyone would be invisible to all. I suspect that for many who devise these Codes and enforce them, the dominant norm is indeed invisible. Like fishes who spend their days in the sea and never get upset about being wet all the time because they have no idea how it must feel to be dry, most people steeped in the dominant culture do not realise that their views are a mere reflections of the assumptions, prejudices and beliefs of those who dominate the culture.

For example, I can’t imagine that in our macho culture a workplace Code of Conduct would ever prohibit male workers from wearing pants at work and would require them to wear skirts when they come to work. This is because the gender stereotypes about how men are “supposed” to dress are so deeply embedded in our culture that many people actually think it is “natural” or normal” without ever asking why or without ever thinking that some men might not like dressing up in pants.

The Department then came up with a new excuse for discriminating against officers because of their religion and their culture; that the real problem was not the dreadlocks, but the use of dagga that accompanies the wearing of dreadlocks. As the SCA explained:

The risk posed by dreadlocks, it was argued, is that they render Rastafari officials conspicuous and susceptible to manipulation by Rastafari and other inmates to smuggle dagga into correctional centres. This would negatively affect discipline and the rehabilitation of inmates.

This argument was also dismissed – for obvious reasons. Nothing in the Code actually link the wearing of “dreadlocks” with the use or smuggling of dagga and the point was only raised in the SCA. The obvious point not made by the SCA is that our prisons are awash in dagga – and not because there are a handful of Rastafarian warders in the Department of Correctional Services.

Lastly, it was argued that it was an inherent requirement of a job for warders to have short hair (well, at least if they are male warders – somehow it is never an inherent requirement for the job that a female warder should have short hair. This argument was also dismissed by the SCA who pointed out that:

Even assuming otherwise, no evidence was adduced to prove that the respondents’ hair, worn over many years before they were ordered to shave it, detracted in any way from the performance of their duties or rendered them vulnerable to manipulation and corruption. Therefore, it was not established that short hair, not worn in dreadlocks, was an inherent requirement of their jobs. A policy is not justified if it restricts a practice of religious belief – and by necessary extension, a cultural belief – that does not affect an employee’s ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense.

This is not the first (and neither will it be the last) case in which those who embody the dominant prejudices, beliefs and assumptions of a specific institution or of broader society discriminate against others who do not form part of the dominant group and do not share its values. Why they never seem to learn from the mistakes of others is beyond me.

Cardinal Napier, you have a moral and legal duty to report sexual abuse

The Catholic Church has rightly been criticised for its handling of the widespread sexual abuse of children by priests across the world. In order to protect the “good name” of the church, many abusers were never reported to the police but were sent for “treatment” and counselling before being “redeployed” by the church to other positions. Some of them then went on to abuse other children. Unfortunately Cardinal Wilfred Napier, who has dealt with such cases in South Africa, seems to be unaware that if he fails to report those priests to the police he is committing a criminal offence and exposing himself to a 5 year prison sentence.

In a controversial interview with a BBC radio journalist, Cardinal Napier indicated that when he dealt with cases in which priests have sexually abused children, he followed a protocol developed by the Church itself. He insisted that each case was referred to the Doctrine of the Faith office and the Pope. Cardinal Napier seems to believe that the Church is the victim of unfair publicity. In the interview  he complained:

I really would resent it if someone said to me you mishandled that case. Some of the priests went, according to the wisdom of the time, the best information that we had from psychologists, they went for treatment, came back and have been under – what we call it – personal surveillance and have functioned quite normally ever since. Others left the priesthood, they were laicised, but it depended on each case being handled differently because of the peoples conditions were different.

Nowhere in the interview does he say that he actually reported any priests who have confessed that he sexually abused children to the police. Instead, displaying an admirable understanding and compassion for abusers (an understanding and compassion not displayed towards others involved in consensual and often loving sexual behaviour), he argued that such priests act out of a defect in their own character and that they are not necessarily culpable for what they did.

In the interview Cardinal Napier explicitly states that he is not qualified himself to say whether such priests should be held criminally liable or not. They might be held criminally liable. They might not be criminally liable. But that is for others to decide and is not a concern of the Cardinal. He would rather not think about whether the criminal justice system should deal with such priests or not.

His certainty about sexual matters – including about the alleged “evils” of contraception, abortion and homosexuality – suddenly gives way for an admirable doubt. If only Cardinal Napier could conjure up the same doubt when pontificating about consensual adult sexual behaviour and about the right of women to make decisions about their own bodies and about reproduction – but priests can’t fall pregnant, so this is probably too much to ask.

When pushed by the BBC interviewer about whether there was a duty to report the sexual abuse of children by priests to the police, the Cardinal (rather shockingly) makes the following claim:

That depends on what country you were in. For instances in our country, in South Africa, there was no way I as bishop could have accused somebody and reported the case and made a case with the police. It would have to be the victim themselves who would have to make the case against the person and only then could the justice system kick in. I don’t see how you could say that if the victim then said we don’t want this thing to go to the police, how can you then say the Church is mishandling the thing by respecting the victim’s own request. I think we’ve got to be fair and not generalise.

This statement is patently false. In terms of section 42 of the Criminal Procedure Act any private person is legally entitled without a warrant to arrest any person “whom he reasonably suspects of having committed” a Schedule 1 offence. Schedule 1 offences include any sexual offence against a child. This means the Cardinal had the legal right to arrest any of the offending priests at the moment that he was told by that priest or anybody else about the abuse. To my knowledge no priest was ever arrested and handed over to the police in this manner. Why not? What kind of perverse moral worldview drives a Bishop or Cardinal to deal with allegations of sexual abuse against children without involving the police?

One of the big problems with child sexual abuse is that adults purporting to act in the interest of children (but often acting in their own interest) often put pressure on the child not to report sexual abuse. A child is by its very nature vulnerable and cannot always make an informed decision about such matters. On the other hand, a Bishop or a Cardinal (as well as the child’s parents who might very well be in awe of the Bishop or the Cardinal) serve in a position of great authority vis-à-vis the child. The Cardinal or the Bishop may also have an undue influence on the parents of an abused child as they might very well hold the revered Church leader in awe. In these circumstances a Bishop or a Cardinal who is required to deal with allegations of sexual abuse of a child by a Priest has an enormous responsibility to do so in the best interest of society and not in the interest of the Church.

The problem is that a Bishop or Cardinal dealing with such cases will invariably be conflicted. On the one hand, he will have a duty to protect the Church and the priests. On the one hand he will have a moral and legal duty to protect the child (and other children who might in future fall prey to an abusing priest). For any moral person, this should not be much of a conflict at all as the best way to protect children is to report the abuser to the police and to ensure that he is successfully prosecuted and sent to prison for the abuse. Where this is not done (often based on the claim that the disempowered and traumatised child did not want to press charges), the Bishop or Cardinal manages to protect the Church to the detriment of the abused child and to all other children who in future may potential fall victim to the abusing priest.

This is exactly why section 54 of the new Sexual Offenses Act (adopted in 2007) now requires anyone “who has knowledge that a sexual offence has been committed against a child” to “report such knowledge immediately to a police official”. A person who fails to report such knowledge, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

The Act cannot have any retrospective effect. But from the moment the Act came into force, the Cardinal had an obligation to report his knowledge of all cases of child sexual abuse by priests to the police – even those cases that occurred before the Act came into effect. If he had failed to do so, he would be guilty of a crime and could be arrested and prosecuted for failing to adhere to the law. It is unclear whether Cardinal Napier has indeed reported his knowledge of all cases of child sexual; abuse by priests to the police. Judging from his false statement above, he may very well not have done so. If this is true, it would mean that he has committed one or more criminal offenses and could be prosecuted.

In Smit v Van Niekerk the Appellate Division (as it then was) found that members of the clergy do not enjoy a special privilege not to divulge information given to them in the line of their duties. For technical reasons the Constitutional Court (in S v Bierman) declined to revisit this rule when it came before it. This means that in our law somebody like Cardinal Napier does not enjoy any special privilege regarding any confession made to him (either during the confessional or outside it as part of his administrative duties) and he cannot legally refuse to report serious allegations of child sexual abuse by any priest to the police on the basis that the allegations were made to a priest and are therefore privileged.

If the police was serious about the protection of children against child sexual abuse and about the prosecution of offenders, it would of course raid the Cardinal’s offices and take him in for questioning in an attempt to uncover all cases of child sexual abuse by priests in South Africa and then to prosecute those cases where a winnable case could be built. But this would not be necessary if Cardinal Napier fulfilled his legal duty and on his return to South Africa immediately reports his knowledge of all child sexual abuse cases by priests to the police.

Some religious beliefs are more equal than others

The South African Human Rights Commission and the Commission for Gender Equality have skirted the issue of whether a version of the Koran that allows men “lightly” to beat their wives propagates violence against women. But the news does not come as a surprise, as our courts have long struggled with the question of how to deal with issues of freedom of religion and conscience. 

According to one interpretation of the Koran, the relevant passage reads: “As to those women on whose part you fear disloyalty and ill conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly)…” The question, I would think, is whether this passage should be banned because it encourages domestic violence against women and whether those who promote it should be charged with incitement to violence.

Quite frankly, it is not entirely clear to me how the Constitutional Court would deal with a request to expunge or suppress this sentence from the Koran or to charge those who disseminate it with incitement.

There are of course many religious beliefs and practices, and many passages in various religious texts that will appear inexplicable, demonstrably false, deeply hurtful, offensive or harmful to any reasonably sane person not blinded by their own cultural and religious commitments. Some passages in the Bible and the Koran may be interpreted as containing hate speech against women and gay men and lesbians in contravention of the Equality Act, while other passages may be interpreted as inciting violence, either directly or indirectly, against women and gay men and lesbians.

For example, how should a court react to Leviticus 18:22 of the Christian Bible which states that homosexuality is an abomination which cannot be condoned under any circumstances? What about Leviticus 25:44, which states that one may possess slaves, both male and female, provided they are purchased from neighbouring nations? What about Exodus 35:2, which states that people working on Sundays should be put to death? What about Rastafarians who insist that partaking in the holy herb of cannabis brought them closer to God? And should a court not ban the widespread practice among Muslims and Jews to cut off a part of a baby boy’s penis shortly after birth?

Section 15(1) of the Constitution guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”. This means one has a right to believe what one wants to believe (no matter how bizarre, uninformed or harmful to others); to bring the good news of one’s beliefs to those around you by shouting it out from the rooftops; and by practicing the tenets of one’s religious beliefs.

However, several laws limit this seemingly expansive right to freedom of religion and conscience. For example, the South African Schools Act prohibits corporal punishment in schools – despite the fact that the Christian Bible says that if one spares the rod one spoils the child. The Drugs Act prohibits the possession and use of cannabis – even by practicing Rastafarians who believe they need to smoke dagga. The Domestic Violence Act prohibits domestic violence against women and children – despite the fact that some interpretations of the Koran permit light beatings of women by their husbands. The Equality Act prohibits anyone from discriminating against anyone on the basis of race, sex, gender, sexual orientation or marital status – despite the prohibition on the ordination of female priests by the Catholic Church and despite the widespread religiously sanctioned discrimination against women and gay men and lesbians.

When a court is called upon to make a decision on whether such limitations are reasonable and justifiable in terms of the limitation clause provided in section 36 of the Bill of Rights, it will have to balance the interests of the state and the community as a whole (including the interests of women and gay men and lesbians), on the one hand, against the interests of the religious community whose beliefs, teachings and practices are being limited, on the other. The more serious the harm being done by the religious beliefs, teachings or practices, in the court’s view, the quicker it will be to endorse the limitation of the religious freedom of those who engage in the harmful religious practices. The more important, believable or true the obnoxious beliefs, teachings or practices are, in the court’s view, the less likely it would be to endorse limitations on those beliefs, teachings or practices.

Courts have said that they will apply the principle of reasonable accommodation when balancing competing interests of the state and of religious communities. But the politics of religion invariably plays a role in making decisions about where to draw the line between accommodating obnoxious or harmful religious beliefs or practices, on the one hand, and endorsing a ban on those beliefs or practices, on the other.

The more powerful and influential a religion, the less likely it is that a court would dare to endorse fundamental restrictions on the major tenets of the religious beliefs, teachings and practices of its adherents. And if the majority of South Africans view the beliefs, teachings and practices of a small and unorganised religion as bizarre, fundamentally false and even dangerous, it is more likely that restrictions on such beliefs and practices would be endorsed by the courts.

Even if the religious beliefs, teachings, superstitions and practices of the majority of believers are sometimes also weird, bigoted and even dangerous, the widespread acceptance of these beliefs and practices by the majority of South Africans would make it difficult for a court to endorse the curtailment of these beliefs and practices – except in the most extreme cases.

As Justice Albie Sachs pointed out in a dissenting decision in Prince v President of the Law Society of the Cape of Good Hope, in which the majority endorsed the complete ban on the possession and use of cannabis, even though it infringed on the right to freedom of religion of Rastafarians:

One cannot imagine in South Africa today any legislative authority passing or sustaining laws which suppressed central beliefs and practices of Christianity, Islam, Hinduism and Judaism. These are well-organised religions, capable of mounting strong lobbies and in a position materially to affect the outcome of elections. They are not driven to seek constitutional protection from the courts. A threat to the freedom of one would be seen as a threat to the freedom of all. The Rastafari, on the other hand, are not only in conflict with the public authorities, they are isolated from mainstream religious groups… Indeed, the Rastafari might receive more tolerance from non-believers to whom all religions are equally strange, than from members of well-established confessions, who might have difficulty in taking the Rastafari belief system seriously as a religion at all.

I would guess it is exactly the politics of religion which caused the Human Rights Commission and the Gender Commission to shy away from a finding that the specific interpretation of the Koran was in conflict with the Domestic Violence Act. If they had endorsed the complaint, large sections of the Christian Bible – as well as practices such as the ban on the ordination of women priests and the widespread religiously mandated discrimination against gay men and lesbians – would have been open to challenge on the basis that it contravenes the Equality Act.

This raises an important question which has recently enjoyed attention in legal journals: to what extent should our law accommodate the bigoted, hurtful or even physically threatening beliefs, teachings and practices of religious groups? Given our Constitution’s commitment to non-discrimination and the protection of human dignity, should the harmful and bigoted beliefs, teachings and practices of some religious groups not yield before the constitutional imperative to protect the dignity of those being humiliated and whose bodily integrity and lives are being endangered by these beliefs, teaching and practices?

As much as I would answer yes to this question, I suspect that our courts would lean in the opposite direction and would accommodate most forms of discrimination, the infringement of human dignity and the promotion of bigotry and sexism – as long as these beliefs and practices are endorsed by one of the powerful and influential religions in our society.

PS: I could have added another consideration our courts would take into account to determine whether the religious belief or practice would be accommodated or not: The further removed the practice or activity from the core business of the religious group, the more likely that our courts would sanction the limitation on that practice or activity. So, while courts in South Africa will almost certainly find that the practice of the Catholic Church to ordain only male priest should be accommodated, despite the ban on unfair discrimination against women, they would be far less likely to do so if the Catholic Church refused to employ a female administrator or organist. Similarly, in the recent case of a fast food owner who prohibited his employees from bringing non-halaal food on the work premises, the court found this practice should not be accommodated and that the employee could bring his non-halaal food from home.

On freedom of expression and the censorship of magazines

When Chief Justice Mogoeng Mogoeng was nominated to that position, it was revealed that he happened to be a pastor in a Church that propagated hatred against certain segments of society and also espoused views that were so bizarre and so blatantly untrue that it would be difficult for a reasonable person of moderate intelligence not to conclude that the Church is run by a bunch of money-grabbing charlatans.

Although some questions were asked about his membership of this Church (whose doctrine might even be more bizarre than, say, the doctrine of the Dutch Reform Church, where a decision was recently taken that believing in the Devil was optional but that dominees had the right to drive out the very Devils their fellow dominees had a right not to believe in), the members of the Judicial Service Commission (JSC) hardly gave him a grilling on issues which really mattered: his judicial philosophy and his knowledge and understanding of the Constitution and the jurisprudence of the Constitutional Court.

No one asked the nominee whether he agreed with the Justice Moseneke or Justice Mokgoro judgments in the Van Heerden case (which dealt with affirmative action in marginally different ways); or whether he agreed with Justice Sachs and O’Reagan or with Justice Skweiya in the Volks v Robinson case (dealing with the rights of unmarried long term heterosexual partners); or whether he agreed with the reasoning of Sachs in the Fourie judgment (on same-sex marriage).

Neither did anyone ask Justice Mogoeng how he would explain the difference in approaches taken by the Constitutional Court in the Mazibuko case (dealing with  an unsuccessful challenge to the installation of pre-paid electricity meters) and the Joseph case (in which the court declared invalid the cutting off of electricity); or whether he believed that freedom of religion should always trump the right not to be discriminated against and if not, on what basis one should decide when the one right trumped the other; or whether he believed that the value of ubuntu (not actually found in the text of the 1996 Constitution) should sometimes trump the right of freedom of expression and if so according to what set of criteria.

(This is not a criticism of the Chief Justice. After all, he had no obvious choice in what members of the JSC would ask him and, for all I know, he might have answered all the proposed questions in an intelligent and enlightening manner. Rather it is a criticism of the members of the JSC, who has seldom asked informed and intelligent questions of candidates appearing before them.)

As a result, although we now know that our new Chief Justice does not take kindly to criticism, we have no clue whether he has the requisite knowledge of the constitutional jurisprudence of South Africa required to be a passable Chief Justice. Nor do we know whether he has the ability to analyse complex constitutional issues in a nuanced, intelligent and principled way.

Well, a test case will reach the Constitutional Court next year that might well reveal something about the values and legal abilities of our new Chief Justice (if – unlike in the Dey case – he decides to write a judgment in this case at all). Last week the South Gauteng High Court, in a judgment written by Judge R Mathopo, declared invalid recent amendments to the Film and Publications Act in the case of Print Media South Africa and Another v The Minister of Home Affairs and Another. The declaration will now have to be confirmed or rejected by the Constitutional Court.

The newly amended section 16(2) of the Film and Publications Act requires any publication – except newspapers who fall under the press ombudsman – to submit themselves to pre-publication censorship with the Film and Publication Board if their publication contains “sexual conduct” which, inter alia, violates or shows disrespect for the rights to human dignity of a person; degrades a person or advocates hatred. Sexual conduct is widely defined in the Act to include all kinds of depictions (and, seemingly, descriptions) of sexual situations. A failure to submit to pre-publication censorship would constitute a criminal offense in terms of section 24A of the Act.

Unfortunately the amendments to the Films and Publications Act were very badly drafted, to say the least, and there was some dispute between the parties about whether section 16(2) would apply to magazines and novels containing descriptions or allusions to sexual conduct or only to publications that contained actual visual depictions of said sexual conduct.

The applicants argued that it did refer to both types of depictions of sexual conduct and provided examples from various novels and magazines like Huisgenoot, Drum and You and foreign magazines like Vanity Fair, Time, and The New Yorker (only one of which I, admittedly, personally subscribe to) to demonstrate that these publications included descriptions of sexual conduct that complied with section 16(2). The High Court agreed with this view, suggesting that the publisher of widely read novels (such as Disgrace, say), and any number of other award winning works of fiction would be required to submit the work to the Film and Publication Board for pre-publication classification or censorship.  

The Minister argued that even if this was so, this did not constitute an infringement on freedom of expression because in most cases the magazines or novels would not be prohibited, but would only be properly classified, which would allow it to be sold in the correct venue under the right conditions. This would be done to protect children and to assist adults to make informed choices about what kind of depictions of sexual conduct they wished to be exposed to when they read smutty magazines like the New Yorker or smutty novels like Disgrace.

Although the judgment is not a model of clarity and coherence, it finds (as far as I can tell) that these sections would indeed impose a severe restriction on the right to freedom of expression of everyone in society. As there was no indication how long it would take before pre-publication classification would be concluded and as practical considerations might well force publishers to censor themselves before they even publish anything, the freedom of expression of everyone would be drastically interfered with by this section. This amounted to prior restraint, which was severely criticised by the Supreme Court of Appeal in the Midi Television judgment.

It is a constitutional imperative that society or public must receive current or fresh news as soon as possible. Any delay because of bureaucratic means amounts to a limitation on freedom of expression….. News is a perishable commodity and to delay even a shorter period may well deprive it of its value and interest.

Democracy cannot survive in the absence of freedom of expression and while the right is not absolute there are other, less restrictive, means that could have been used to achieve the goal of protecting children. For that reason these sections were declared unconstitutional.

The Constitutional Court will now have to decide whether the High Court was correct to give this broad interpretation to section 16(2) of the Act and whether the infringement on freedom of expression sanctioned by this section was justifiable in terms of the limitation clause.

I would imagine that for individuals and judges who strongly believed that God would judge one harshly if one allowed society to degenerate into a cesspit of pornography and gratuitous descriptions of sexual lust, this section would come as a godsend, so to speak.   For those who believed that sex was often a dirty thing, that sexual conduct should only happen between one man and one women who are married in the eyes of God and wanted to make babies for Jesus, and who believed that through prayers a baby could be brought into the world after the mother had been pregnant for five years and seven months, section 16(2) of the Act might appear rather benign. After all, one might argue that the limitation on freedom of expression imposed by this section could be justified in order to protect the broader society from the evil and disgusting depictions of sex in smutty magazines like The New Yorker.

But for individuals and judges – people like judge Mathopo and the long line of judges from the Constitutional Court – who embrace the notion that freedom of expression is at the heart of a vibrant democracy and that pre-censorship would only be justifiable in the most extreme cases, this section would clearly be overbroad and not justifiable.

It will therefore be interesting to see how the various judges of the Constitutional Court deal with this case.

Now angels can’t even have sexual feelings

The printed media in South Africa, under pressure from the government and the ruling party, has touted self-regulation via the Press Ombudsman as a model of how to deal with complaints from the public about unethical, untrue or sloppy journalism. But self-regulation is not always a success, especially where the code in terms of which such regulation is conducted is vague or where the code fails to embody the values associated with an open and democratic society in which freedom of expression is respected and the principle of diversity is celebrated.

A recent decision by the Advertising Standards Authority of South Africa (also known as the ASA) demonstrates this point rather starkly. ASA is an independent body set up and paid for by the marketing communication industry of South Africa tasked to regulate the advertising industry of South Africa.

Last week it ruled in favour of Mr Dawie Theron, who lodged a complaint against a television commercial for Axe deodorant. The commercial opens with a little boy witnessing a winged creature falling from the sky. Following this, many more of these creatures are shown falling to earth, ultimately getting up and approaching a man who is somewhat unsure of what is happening. The closing scene shows the man spraying the deodorant and a subsequent thud sound is heard. The voice over says, inter alia, “New Axe deodorant. Even angels will fall.” The text on screen states, “EVEN ANGELS WILL FALL.”

In essence, Mr Theron said that he was offended by the use of angels in the commercial. The fact that these winged creatures fall from the sky suggests that they are heavenly creatures. According to the Bible, angels are God’s messengers, and the suggestion that angels will fall for a man wearing this deodorant is incompatible with his belief as a Christian. (I am not sure whether Mr Theron was also perhaps uneasy because angels are usually depicted as men and that the advert could hence be seen to promote homosexuality if one was really paranoid and easily offended.)

ASA invoked the following rule to justify its decision:

No advertising may offend against good taste or decency or be offensive to public or sectoral values and sensitivities, unless the advertising is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

In its ruling ASA acknowledged that South Africa was a multi-cultural society and recognised that it is important to ensure that all religious faiths and beliefs, no matter how large or small the communities that practice them, are treated with the same consideration and respect. Noting that the “commercial is metaphorical and that the angels are meant to represent something more than simply beautiful women” (the power of deduction is quite impressive!), ASA found that “the commercial sets out to communicate that the new Axe fragrance is so irresistible that even angels will be enticed by it”. It then went on to provide the following reasons for banning the advert:

An angel, according to Christian beliefs is God’s heavenly messenger who obeys His commands. Angels also symbolise purity and goodness while “fallen angels” symbolise wickedness. Fallen angels are generally as angels that rebel against God, and are permanently banned from God’s glory and presence. The Directorate is also mindful of the fact that the angels are not simply coming to earth, or descending on earth, but falling, effectively crashing to earth, which supports the notion that they are fallen angels, presumably banished. When it becomes apparent that they are falling from heaven over a man who wears this deodorant would be considered disrespectful and offensive to the core beliefs of Christians, as angels are known to be celestial beings regarded as divine and pure. The commercial therefore communicates that saintly creatures would give up their heavenly status and fall from grace for a man… As such, the problem is not so much that angels are used in the commercial, but rather that the angels are seen to forfeit, or perhaps forego their heavenly status for mortal desires. This is something that would likely offend Christians in the same manner as it offended the complainant.

In coming to its decision ASA failed to take into account sub-clause 2 of the same part of the code which states:

Advertisements should contain nothing that is likely to cause serious or wide-spread or sectoral offence. The fact that a particular product, service or advertisement may be offensive to some is not in itself sufficient grounds for upholding an objection to an advertisement for that product or service. In considering whether an advertisement is offensive, consideration will be given, inter alia, to the context, medium, likely audience, the nature of the product or service, prevailing standards, degree of social concern, and public interest.

If it had taken this clause into account, it would at the very least have asked whether a reasonable Christian (of who, I am told, there are many) would have been offended by the advert. It would not have asked whether the particularly narrow-minded and easily offended segment of the Christian population would have found the advert offensive, but would have asked instead whether the advert would have caused serious and widespread offensive.

It also failed to interpret the code against the background of the South African Constitution as, I would argue, it was required to do. If it had been a bit more sober and informed, ASA might have known that the Constitutional Court in the Islamic Unity Convention case endorsed the idea that the right to freedom of expression is:

applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

Of course, the standard that should apply to advertisements flighted on television might be stricter than the standard applied to other kinds of speech in the public arena. Viewers cannot easily tune out of adverts they find offensive and it would therefore be permissible to restrict the kinds of themes that can be relied upon in adverts targeted at television audiences.

But this does not mean that it should cave in to the bizarrely thin-skinned viewers who are so easily offended when an advert contains any material with which he or she does not agree. A code regulating advertising cannot endorse close-mindedness or the unhinged personal feelings of some South African who demand that their personal beliefs are so precious yet so frail that these beliefs had to be protected at all cost.

The logic of this ruling would lead ASA to ban adverts for many churches and other religious organisations. Although I am personally not easily offended, I imagine that many atheists would feel deeply offended every time they have to watch an advert (talk about false advertising) that says one will burn in hell if one did not follow the Lord Jesus or states that only that religious group has the answer to what constitutes a meaningful life on earth.

In an open and democratic society based on human dignity, equality and freedom, it is impossible to protect every person from ever feeling offended — even by adverts. If we are going to prohibit adverts on the basis that it offends one or two religious crackpots, we will not have many adverts flighted on television or the radio.

Confronted by the “reasoning” of ASA, one cannot but suspect that the person who made this decision is himself a rather intolerant Christian who believes that the values of a narrow band of people should be enforced on all of us. This is not the kind of open society envisaged by our Constitution, but a society in which the beliefs and feelings of a few people dictate to the rest of us.

The difficult choices facing Chief Justice Mogoeng

The appointment of Chief Justice Mogoeng Mogoeng has elicited much comment, but conceptually the most difficult but also the most interesting aspect of the debate about his suitability for the office of Chief Justice, centres around his obviously sincerely but strongly held religious views. Justice Mogoeng belongs to a church (and is a lay preacher in that church) called Winners Chapel International, which condemns homosexuality as a disease that can be cured. During his interview Justice Mogoeng claimed that God wanted him appointed to the job. He said he prayed and got a sign that “it was the right thing to do”, after President Zuma nominated him.

Section 15 of the South African Constitution states that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion”. Should this, then, not mean that the justice Mogoeng’s involvement in his church as a lay preacher and the fact that his church espouses values that are in direct contraventions of Constitution (as the Constitution explicitly protects gay men and lesbians against unfair discrimination and guarantees respect for their inherent human dignity), should not disqualify him to be Chief Justice? After all, if justice Mogoeng cannot become the leader of the judiciary because he belongs to a church which holds deeply demeaning views about a  section of the population explicitly protected by the Constitution, large numbers of judges would be similarly disqualified.

For example, anyone belonging to the Catholic Church, an institution that has its own problems with dealing with child rape and explicitly discriminates against women, would be disbarred from being Chief Justice. And what about members of the Dutch Reformed Church (also known as the NG Kerk), an institution which not so long ago still claimed there was scriptural justification for the policy of apartheid and even today has not managed to unify with its sister churches created during the apartheid era for “coloured” and “african” worshippers? Surely members from these churches should then also be ineligible for the top spot on our judiciary?

Our Constitutional Court has always had difficulty with the matter of religious freedom in cases where it has been called upon to decide how to balance, on the one hand, respect for the religious views and practices of all against, on the other hand, the broader interest of society and the protection of the rights of everyone enshrined in the Constitution. In the Lawrence case, justice Chaskalson, once again borrowing from the Canadian case law, endorsed the view that:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

This right has both an individual and a collective aspect. As justice Sachs stated in the Christian Education case:

This broad approach highlights that freedom of religion includes both the right to have a belief and the right to express such belief in practice. It also brings out the fact that freedom of religion may be impaired by measures that coerce persons into acting or refraining from acting in a manner contrary to their beliefs. Just as it is difficult to postulate a firm divide between religious thought and action based on religious belief, so it is not easy to separate the individual religious conscience from the collective setting in which it is frequently expressed. Religious practice often involves interaction with fellow believers. It usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial.But this is not the end of the matter. As is the case with all rights, freedom of religion can be limited.

These passages seem to suggest that someone like Justice Mogoeng should be allowed to believe what he wishes and also to practice his religion by acting as a lay preacher in his church — no matter how homophobic or sexist (and hence in contravention of the Constitution) the doctrine of that church might be — and that he should not be forced to decide between his right to believe and practice his religion, on the one hand, and his job as Chief Justice, on the other hand. If he were to be forced to choose, so the argument goes, this would entail an attempt at coercing  a person not to believe or practice his religion — something not permitted by our Constitution.

But this is not the end of the matter. Like all other rights contained in the Bill of Rights, the right to freedom of religion is not absolute and can be limited. Thus the Constitution requires each judge to swear the following oath:

I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.

It therefore requires all religiously devoted judges who belong to any number of mainstream and not so mainstream churches to choose between being faithful to their religious beliefs or being faithful to the Constitution and the human rights enshrined in it. If an individual cannot promise that he would disobey and completely disregard his personal religious beliefs about, say, the perceived god given rights of the man to head the household or the belief that homosexuality is a perversion and a lifestyle choice that can and must be cured by prayer, that individual cannot — in all good conscience — become a judge at all. That is why justice Mogoeng’s failure to provide reasons for his “dissent” in the Dey case appears so troubling. By dissenting but not giving reasons he might well have tried to obey both his judicial oath and the injunctions of his faith — something that was clearly impossible and impermissible to do.

In the Christian Education case — as in many other cases dealing with questions about legislative limitations placed on religious beliefs and practices — the Constitutional Court reverted to the limitation clause to try and balance the interests of believers against the broader interest of society and against the rights contained in the Constitution. In that case a group of Christian schools challenged the provision in the Schools Act which prohibits corporal punishment at school, arguing that the Christian Bible commands teachers to assault learners when learners have broken the rules as the Bible states that if one spares the rod one spoils the child.

In a sensitive and carefully crafted judgment, justice Sachs found that the case required the court to apply the proportionality test as set out in the limitation clause and that the real question was whether the failure to accommodate the religious belief and practice of some by means of the exemption to the ban on corporal punishment in schools could be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. As Sachs pointed out, this balancing of interests will often be very difficult in freedom of religion cases and it is worth quoting Sachs’ judgment in this regard at length:

The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. To the extent that the two orders can be separated, with the religious being sovereign in its domain and the state sovereign in its domain, the need to balance one interest against the other is avoided. However religion is not always merely a matter of private individual conscience or communal sectarian practice. Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. Not only do they proselytise through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture.

The result is that religious and secular activities are, for purposes of balancing, frequently as difficult to disentangle from a conceptual point of view as they are to separate in day to day practice. While certain aspects may clearly be said to belong to the citizen’s Caesar and others to the believer’s God, there is a vast area of overlap and interpenetration between the two. It is in this area that balancing becomes doubly difficult, first because of the problems of weighing considerations of faith against those of reason, and secondly because of the problems of separating out what aspects of an activity are religious and protected by the Bill of Rights and what are secular and open to regulation in the ordinary way.

In the Christian Education case, the Constitutional Court found that given the fact that parents could still chastise their children at home, given — further — that the Constitution placed a positive duty on the state to try and create a society free from violence and to protect children from physical and emotional harm, and given the importance of the right of everyone to have their bodily integrity protected and respected, it was not unreasonable to limit the rights of freedom of religion in this limited way. Religious believers who wanted to impose corporal punishment could still do so at home, but the interest of the state to create violence free zones at schools allowed it to ban the practice of corporal punishment in these more public arenas.

I suspect much the same argument could be used regarding justice Mogoeng’s beliefs and his role as a lay preacher in a homophobic church. While he must surely have the right to believe what he wishes about women and homosexuals and why he has every right to be a lay preacher in a church that propagates hatred against homosexuals, he should surely not have a right both to be Chief Justice (requiring him to protect gay men and lesbians from discrimination, hatred and harm) and to remain a lay preacher in his church which does exactly the opposite.

I for one would therefore contend that it would be appropriate for Chief Justice Mogoeng to resign as a lay preacher from his church — at the very least. When it is impossible to serve two gods (the god of one’s religion on the one hand and the “god” that is the supreme Constitution on the other) one surely has an ethical — perhaps even a legal and constitutional — duty to choose the one or the other. If one refuses to choose, one’s integrity and honesty might well come under suspicion.

I am not claiming that such choices will always be easy to make. They will often not be easy at all. Given the sincerity of many people’s religious beliefs (including, clearly, that of Chief Justice Mogoeng), given — further — the often deeply personal and strongly held beliefs many people have about their religion and their church, and given the pull of ambition, status and power that might make contradictory demands on one’s conscience, these decisions might well (in certain cases) be agonising and seemingly impossible to make. But that does not mean that one should not make them if one wishes to live an ethical life.

Thus, if I were ever offered a lucrative position, say, to head a private University in the United States that is funded by the Catholic Church and professes to adhere to the teachings of that church, I will have no choice but to decline that offer — even if it would mean a much larger salary, far more status and more influence and power. Life is not always easy and it is seldom fair — especially to those with strong and inflexible principles and beliefs.

Justice Mogoeng has a difficult choice to make. I trust he will choose well.