Constitutional Hill

freedom of religion

On the “snake pastor” and limitations on freedom of religion

Last week the Commission-With-The-Long-Name (also known as the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities) announced it will investigate the financial affairs of churches, mosques, synagogues and other houses of religion and spirituality. The investigation is reportedly aimed at formulating “sweeping regulations” of religious institutions to protect individuals against money-making charlatans. It is, however, unclear whether such regulation aimed at protecting believers will be constitutionally valid.

On a recent visit to Rome I dutifully visited the Vatican museums where I was struck by the opulence and wealth displayed there. (I was also struck by the display of the many priceless artworks of very young naked and half-naked men). Although it is estimated that in recent years the church has paid out more than $3 billion in compensation to victims in sexual abuse cases in the United States alone, the church remains a wealthy institution.

The Economist estimates that annual spending by the church and entities owned by the church was around $170 billion in 2010. The vast majority of this money is now spent on laudable causes. The Economist estimates that the church spends 57% of this on health-care networks, 28% on colleges, and only 6% on parish and diocesan day-to-day operations.

While the Catholic Church is one of the oldest and most powerful religious organisations on the planet, it is by far not the only religious institution that has amassed enormous wealth, at least partly by extracting money from ordinary believers made to believe that donating money to the religious institution will be well rewarded in this or in the “afterlife”.

From time to time the media criticises religious institutions that are not socially dominant or politically powerful (the various revelations about the Scientology Church and the recent ruckus about the pastor who convinced his congregants to eat snakes, come to mind). But more traditional and established religious institutions often get a free pass and are seldom subjected to criticism by either the media or politicians. (To be fair, after turning a blind eye for the previous 300 years the media has in recent years exposed many cases of child sexual abuse by Catholic Priests.)

But even non-mainstream religious institutions are almost never held to the same standards than non-religious institutions. When the creator of a pyramid scheme convinces people to hand over their money by making promises that cannot be kept, he or she may be prosecuted for fraud. However, at present it is unthinkable that any religious institution inducing believers to give it money by promising them a better life on earth or an eternal life in “heaven” will ever be criminally prosecuted in South Africa.

There is, of course, no evidence that a person will prosper on earth or gain entrance to “heaven” for giving money to a religious institution. While many people may believe this to be true (as is their right), there is no factual basis for this belief. Some would say that this belief in something that cannot be proven is at the heart of many peoples’ religious faith.

When a religious institution or leader makes such a promise in exchange for donations (without believing it to be true) this may amount to fraud. But because religious institutions still often get a free pass (and because it will be difficult to prove that a religious leader does not believe the promises he or she makes), it is at present unthinkable that a police officer will investigate allegations of fraud against a religious institution or that a prosecutor will prosecute an institution who makes fraudulent promises to religious believers.

The reason for this reluctance to look more closely at the financial affairs of religious institutions is clear: it would require the state to make an assessment about whether the claims or professed beliefs of a religious institution are true and whether those who make the claims believe them to be true.

Some argue that when we decide to regulate even the most harmful religious beliefs and practices because we do not ourselves believe these beliefs or practices to be valid, true or sincerely held, we strike at the heart of the right of religious freedom.

When the state tells a religious institution that eating snakes is harmful and cannot possibly be a valid religious practice, it in effect tells that institution that the practice is not a “real” religious practice or that the pastor who propagates it cannot truly be said to believe it is a valid religious practice.

If we truly believed that eating snakes would get us into heaven, we would never think of prohibiting a religious group from eating snakes. Similarly if we did not believe it ourselves, but thought a pastor truly believed that eating snakes would get you into heaven we would be cautious about limiting the right of that pastor to advocate the eating of snakes.

When we consider the limits of religious freedom, we are forced to make difficult choices about whether a specific belief or practice is harmful or not. But it will be far easier to agree that a belief or practice is harmful if we do not believe it to be true.

But who decides that this belief or practice is untrue and invalid? Who decides that only a charlatan would get his congregants to eat snakes or to donate pots of money to the church? Who decides that the homophobia of a preacher is not sincerely based on religious belief? Do we use the average atheist; the average believer of the religion being scrutinised; or the reasonable religious believer as a yardstick?

When a decision is made that a certain belief or practice is not religiously based or false, the state in effect claims for itself the power to limit the rights of believers to believe whatever they wish – no matter how bizarre or idiotic these beliefs and practices might seem to some of us or how harmful they may be to believers or to those targeted.

Confronted with his problem, our courts have not always been entirely consistent. In Prince v President of the Law Society of the Cape of Good Hope the majority had no problem in endorsing limitations imposed on the Rastafari religion, despite that this, in effect, turned most Rastafarians into potential criminals merely because of their faith. Mr Prince challenged the law that regulates the possession and use of cannabis because it failed to provide Rastafarians with an exemption to such laws.

All the judges accepted that Rastafari was a religion. After all the difference between a religion and a sect is often no more than the difference between a socially acceptable religion and a marginalised religion. In dealing with arguments made by the state that the use and possession of cannabis was not a central aspect of the Rastafari religion and hence not important to Rastafarians judge Ngcobo (for the minority) declined to judge the beliefs and practices of Rastafari and stated:

[A]s a general matter, the Court should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is central to the religion. Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet, that their beliefs are bizarre, illogical or irrational to others or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of the practice.

If we follow this view expressed by the minority in Prince the state would seldom be allowed to place limits on money driven religious practices at religious institutions. Nor would it easily be allowed to regulate the propagation of beliefs aimed at harming black people, women or gays and lesbians. If we allow religious institutions a wide discretion to practice their religion, we will have to allow them to discriminate against black people, women and gays and lesbians in conformity of their religious beliefs.

But should the state not protect individuals against charlatans in both mainstream and marginal religious institutions? Should it not stop religious groups from propagating hatred that may cause tremendous emotional and physical harm – especially if these beliefs merely mirror the widely held but damaging prejudices in society at large?

For example, if donations from congregants are used to finance the lavish lifestyles of church leaders, should the state not be permitted to regulate the religious institution to prevent gullible people from being exploited? If religious beliefs and practices fuel racism, sexism or homophobia, should the state not be allowed to limit the propagation of such beliefs and to prohibit discrimination in order to protect the human dignity of all?

These are not easy questions to answer. This is because beliefs are inherently contested and not easily evaluated by using the tools of rationality and logic. In South Africa, for example, the drafters of our Constitution decided to prohibit discrimination against gay men and lesbians. But many religious groups believe that gays and lesbians are not fully human and deserve to be discriminated against. These beliefs are neither logical nor rational, but they are often very passionately held.

Interestingly, the majority of judges in the Prince case found that it was permissible for the state to prohibit Rastafari from smoking cannabis. This means that the Constitutional Court has already endorsed the imposition of dramatic limits on the right to freedom of religion on the basis that this was needed to protect individuals in society against the perceived harm of cannabis use.

But Rastafarians do not believe the smoking of cannabis is harmful as it allows the user to get closer to God. The judges in effect rejected this belief. Because the majority of judges accepted that the smoking of cannabis was harmful, it chose not to endorse a basic religious practice of the Rastafarian faith. Instead, it said that the practice was harmful and could be prohibited.

Using the harm principle the court made a value judgment about a specific religious practice and endorsed legislation which fundamentally limits the ability of the specific religion from engaging in practices which the court found to be harmful.

If the majority of judges on the Constitutional Court had also believed that the smoking of cannabis was not truly harmful and brought one closer to God, it is surely unthinkable that they would have endorsed the criminal prohibition on the use of cannabis.

Does this mean courts will in future rely on the harm principle to sanction drastic limitations on the propagation of religious beliefs and on practices that harm believers themselves or that harm those branded as perverts or sinners?

If there is a degree of consensus that extorting money from believers to finance the lifestyle of religious leaders harm many believers, would it not be permissible to regulate the finances of religious institutions and to prohibit such institutions from making false promises to believers in order to extract money from them? If our Constitution promotes the achievement of a non-racist, non-sexist and homophobic free society, should religious institutions not be prohibited from spreading hatred based on race, sex and sexual orientation?

Until now the court has only sanctioned limitations on religious beliefs and on practices deemed harmful of small, relatively powerless, religious groups. Will the day arrive when our courts rely on the harm principle to sanction the protection of marginalised and vulnerable people from the harm caused by some of the religious beliefs and practices of the more powerful and socially dominant religions in our society?

Why do dominant religions so often get a free pass from courts?

Why do religious beliefs and practices – especially the religious beliefs and practices of powerful and dominant religious groups – so often get a free pass from society and the courts? Should certain religious beliefs and practices not be evaluated in the same manner that all other beliefs and practices are evaluated to determine whether they are true and whether they infringe on the rights of others?

Pope Francis, the “infallible” head of the Catholic Church, has been getting some great press recently. Because he has made statements that seem to reflect a sincere and pressing concern for the plight of poor and vulnerable people, because he has embraced the issue of climate change, and because he seems genuinely humble and down to earth, he has received much praise in the mainstream media.

Yet, he heads a church that institutionalises discrimination against women and against gay men, lesbians and transgender people. It is unthinkable at present that a woman, an (openly) gay man or lesbian or a transgender person could become the Pope or could serve in any other role in the top leadership of the Catholic Church.

If the Catholic Church was not a religious organisation but another influential cultural institution (think of Afriforum or the FAK), there would have been widespread condemnation of its catastrophic denial of the basic human dignity of fellow citizens. Its leaders would have been vilified, instead of lauded as progressive visionaries.

Moreover, there would have been little doubt that (in South Africa at least) the Constitutional Court would have declared these practices in breach of the equality clause and would have ordered the institution to stop discriminating against people on the basis of their sex, gender and sexual orientation.

(The Catholic Church and Pope Francis are not alone in this and I do not wish to pick on the institution and its leader – I am merely using it as a handy example. In fact, compared to his predecessor Pope Francis has indeed expressed views on some matters that will warm the heart of any person concerned about social and economic justice.)

Of course, not all religious beliefs and practices get such a free pass. If you happen to be a member of a small and relatively powerless religion, the law is likely to take a much harsher view of your beliefs and practices.

For example, Rastafarians are automatically turned into criminals in South Africa for practicing their religion (even though this harms no one else) as the law prohibits Rastafarians from using and possessing cannabis as prescribed by their religion. But because Rastafarianism is a small, unorganised religion and because it is not politically powerful, the criminalisation of these religious practices has remained largely uncontroversial.

But some religious beliefs and practices do get a free pass – both from society and from courts who have to enforce the sometimes conflicting rights contained in the Bill of Rights.

First, this may be the case because many of these religious beliefs and practices mirror the deeply embedded beliefs and practices of the economically and politically powerful in society. For example, in a patriarchal society like South Africa, one in which the lives and feelings of women, gay men, lesbians and transgendered people are not valued to the same degree that the lives and feelings of heterosexual men are valued, it is perhaps not surprising that many religious institutions endorse discrimination against members of the former groups.

It is not possible to disentangle religious beliefs and practices from the political and cultural beliefs and practices dominant in the larger society. Religion and the activities associated with it remains a cultural phenomenon and are entangled with the broader societal culture. It would be naïve to think that religious beliefs do not inform cultural beliefs and practices and vice versa.

As societies change and as the balance of power in a society shifts, these religious beliefs and practices are likely to shift as well.

Thus, before 1994 the Dutch Reformed Church argued that apartheid was necessitated by scripture, until the transition to democracy occurred and the church suddenly changed its mind on these supposedly timeless religious beliefs. Similarly, in societies in which homophobia has decreased drastically many religious institutions have softened its bigotry towards gay men, lesbians and transgender people – what was viewed as an abomination suddenly becomes a challenge to be dealt with in the spirit of love and compassion.

It is for the same reason that sections of the Christian Bible are now ignored by all Christian churches. Leviticus 25:44 comes to mind. This section states: “As for your male and female slaves whom you may have – you may acquire male and female slaves from the pagan nations that are around you.” Yet, no Christian church today would argue in favour of slavery.

From a human rights perspective there is a more important reason for giving religious institutions a free pass – even when their beliefs and practices harm members of vulnerable and marginalised groups. The reason is that almost every general human rights instrument contains a provision that guarantees freedom of religion – which includes the right to express religious beliefs and to practice your religion.

The inclusion of such a right has its origins in the view that the religious beliefs and practices of different people should be protected to avoid the oppression or persecution of those whose beliefs do not accord with the majority view. It is also often said that such a right prevents violent conflict and even war as it accommodates religious diversity and serves to defuse tension between people who passionately (and sometimes irrationally) hold on to their religious beliefs and wish to enforce them on others.

Difficult questions arise when there is a direct clash between this right to freedom of religion, on the one hand, and any of the other rights in the Constitution, on the other. Often those who exercise their religious freedom will do so in ways that will infringe on the rights of others by discriminating against others or by failing to respect the inherent human dignity of others. Although different rights that are in tension can sometimes be accommodated, in some cases the one set of rights will have to yield to the other. In such cases the religious rights of some will either trump or have to yield to the rights of others.

Clearly not all religious beliefs and practices will automatically trump the rights of others. It is unthinkable that a religion which advocates the sacrifice of babies in order to placate the gods will today be allowed to sacrifice babies in the name of freedom of religion.

But why do we assume this as a given? I would guess it is because most of us would assume that the right to life trumps the right to freedom of religion in such a case. The severity of the infringement of the rights of others (nothing can be more severe than being killed) renders the baby-killing unconscionable. But it will also be because most of us believe that the belief that baby-killing is mandated by god is bizarre and wrong. We would dismiss the value of the belief and would have no qualm in choosing the rights of babies above the rights of what we would think of as a crazy religious belief.

But what happens when the religious beliefs and practices of a religious institution discriminate against individuals based on their sex, gender or sexual orientation? Or when religious people utter hate speech in the name of freely expressing their religious beliefs?

The reason why there is no general agreement on how to answer this question is, first, that individuals do not agree on how severe the impact of a specific religious belief or practice will be on those affected.

If you believe homosexuality is an evil sin, you are probably going to argue that gay men, lesbians and transgender people are not seriously affected by your bigoted religious beliefs and practices and even if they are that this is justified by the greater importance of upholding your religious beliefs.

You are also not going to view said religious beliefs or practices as bizarre, wrong or untrue. Instead, you will probably feel that it is extremely important to uphold such beliefs and practices – to the detriment of homosexuals.

If, however, you do not hold such religious beliefs you will acknowledge the severe impact that the words and deeds of members of a dominant religion could have on a vulnerable and marginalised sexual minority. You are also probably going to view the particular religious belief or practice as toxic, illogical, bizarre and hence completely untrue and of no value and will have no problem with outlawing the practice and the expression of the belief.

Our courts – just like courts in other constitutional democracies – have tended to side with the members of dominant and powerful religions against members of vulnerable and marginalised groups. It is for this reason that it seems unlikely that a South African court at present will order a church to stop discriminating against women if that church claims that the gender discrimination is authorised by their God. It is also for this reason that a court may think twice before labelling homophobic speech as hate speech – despite the fact that the hate speech provision in the Equality Act does not provide for a religious exception to hate speech.

The interesting conceptual question to ask is whether courts are not better suited to protect the vulnerable against the powerful than to protect the powerful who act to the detriment of the vulnerable? Should our courts not move away from their bias in favour of religious beliefs and practices in order better to protect those who really need their protection? Should courts not make such beliefs and practices subject to the discipline of other constitutional rights in order to help protect the most vulnerable and marginalised members of society?

However, anybody who has studied the phenomenon of white privilege will know that a privileged group (in this case those who are members of a powerful and dominant religious group) seldom admit to their privilege and are seldom prepared to give up that privilege voluntarily. This means, in the short term, the debate about whether our courts should continue to give an array of religious beliefs and practices a free pass (to the extreme detriment of women and gays, lesbians and transgender people), is not likely to lead to the more robust legal protection of those on the receiving end of religious prejudice.

This state of affairs is clearly immoral, but until enough people are prepared to challenge the inherent immorality of the beliefs espoused by some religious institutions, there is little likelihood that this injustice will end.

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.