Constitutional Hill

freedom of religion

Is the reasonable person a homophobic prude?

Is it reasonable to be a prude who thinks of sex as always being somewhat dirty and depraved, as something that must remain hidden and covered up at all cost? More pertinently, is it reasonable not to have a sense of humour? In the Laugh it Off case, dealing with the Black Labour/White Guilt T-shirt, Justice Albie Sachs famously asked: “Does the law have a sense of humour?” In that case the Constitutional Court seemed to have agreed that the law can have a sense of humour.

But things seem to have changed up on Constitution Hill and this week the majority of judges of the Constitutional Court found that three schoolboys who played a prank on a deputy headmaster could be successfully sued by that deputy headmaster for defamation. In the case of Le Roux and Others v Dey the majority (per Brand AJ) argued that it was per se defamatory for schoolboys to publish a manipulated picture, described in the following – laughably prudish – manner by Brand AJ:

What the picture explicitly shows is a frontal image of two men, both naked, sitting very close together on a couch. Their legs are wide open and the leg of the one is resting across the leg of the other. The hands of both are obviously in the region of their own genitals, but both the hands and the genitals are covered by an image of the school crest. The position of the hands behind the crest is suggestive of sexual stimulation or some other sexual activity. In short, the vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which would be embarrassing and disgraceful to the ordinary members of society. The faces of the two men are electronically cut out and replaced by those of the school principal, on the one figure, and that of Dr Dey, on the other. The manipulation of the picture in this way is obvious and crude. No reasonable person could ever think that the bodies on which the faces are pasted were actually those of the principal and Dr Dey.

I find this description of the picture rather extraordinary. It reveals perhaps more about the moral universe inhabited by the author of the Constitutional Court judgment than he might have realised when he wrote the passage quoted above. The majority seems to assume that two men who have a photograph taken of themselves while they engage in sexual acts are necessarily and always promiscuous and that they are therefore engaged in sexually immoral acts.

While the majority judgment seems to suggest that the fact that the picture depicts two men (as opposed to one man and one woman – the deputy headmaster with Pamela Anderson, say) was irrelevant, it is not so clear from the passage quoted above that this logic is adhered to throughout the judgment. The idea that when two men are depicted as engaging in sexual acts one can reasonably assume that they are promiscuous, defies logic. While many South Africans will have this view, the meaning of the pictures cannot be judged according to how excessively prudish and homophobic members of the public will interpret the picture.

As Brand points out, when deciding whether a statement was defamatory one must ascribe to it the ordinary meaning given to the picture in its context by a reasonable person.  The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the picture in its context and that he or she would have had regard not only to what is expressly conveyed but also to what is implied. 

This leads one to pose the following set of questions: who is this reasonable viewer conjured up by the court and what are the values according to which such a reasonable viewer will judge the meaning of a picture? Will such an ordinary reasonable viewer have a sense of humour? Will he or she take into account the fact that the picture was produced by school children and that the faces on the picture clearly did not belong to the bodies on the picture but were added to them by school children?

Would such a reasonable viewer “instinctively” jump to the conclusion that where two men are depicted as engaging in sexual activity they are promiscuous and are engaged in immoral acts? Will  the reasonable person be imbued with the values enshrined in the Constitution or will he or she (like the majority of South Africans) harbour explicit or latent prejudices about gay men and jump “instinctively” to conclusions based on the stereotypes and prejudices that many South Africans (and perhaps also some judges?) hold about gay men?

The construct of the reasonable person is of course a legal fiction. The reasonable person is a fictitious person created by the judge to provide a lens through which to evaluate the picture or publication. Where a judge constructs the reasonable person as someone who is prudish beyond belief and jumps to the conclusion that where two men are depicted as engaging in sexual activity that reasonable person would believe that they are promiscuous and engaged in immoral activity, what the judge in effect is doing is telescoping his or her own beliefs, sexual anxieties, feelings of moral superiority and other prejudices on to the legal construct of the reasonable person to justify his or her own judgment and to provide that judgment with the veneer of objectivity.  

That is why I would argue that the judgment of Brand AJ may perhaps be read as an essay on the homophobic stereotypes that are still deeply embedded in the minds of a majority of South Africans. That is also why the judgment may be saying more about the impossibility of judges constructing and applying a truly “objective” standard of the “reasonable person”, than it may be saying about the defamatory nature of the image under discussion. 

As far as I can see, the reasonable person constructed by the majority of the Constitutional Court is a person who “instinctively” assumes that men depicted as engaging in sexual acts are promiscuous and that what they are doing is immoral – without ever having to engage with concepts such as promiscuity and immorality. The reasonable person cannot define these concepts, but he or she knows it when he sees it because of a gut feeling of revulsion experienced at seeing such a picture.

It is unclear why the majority of the court did not provide a cogent argument to justify its conclusion that sexual immorality was at stake here. Neither is it clear why the court did not fully explain how it came to the conclusion that the two men depicted in the picture were promiscuous.

As far as it is possible to answer these questions based on the reasoning of the court, one might conclude that the Constitutional Court came to the conclusion that whenever a picture is taken of two people engaged in sexual acts (whether the picture is taken by themselves or by someone else), this turns a private and acceptable (if somewhat strange and perhaps slightly shameful) act into a public and hence depraved and immoral act.

Maybe in Bloemfontein – as elsewehere in South Africa – many people think in this way, but in a constitutional democracy in which the narrow and moralistic, religiously-inspired, values are not supposed to be enforced by the law, one can hardly argue that the legal construct of a reasonable person could jump to such a conclusion. But this is exactly what the Constitutional Court – at least the majority – seemed to have done here.

In the absence of an explanation, it is not far-fetched to wonder whether the majority of the court was not influenced by its own ambivalent (if perhaps repressed) assumptions about gay men. After all, the stereotype that all gay men are always promiscuous and that gay men are always engaged in immoral acts are widely held in our society. Could it be that because the two men were photographed and did not care to hide the fact that they might enjoy the sexual company of each other (hence that the two men were not ashamed of their homosexuality and the sex they were enjoying), made the “perversion” and “immorality” just so much more shocking for the so called “reasonable person” constructed by the majority of the Constitutional Court.

What I take from this judgment is that for the reasonable person constructed by the Constitutional Court, sex and sexuality is by its vary nature shameful and degrading, that as long as sex (especially sex between two men) remain hidden in the privacy of these men’s bedroom one could still tolerate the immorality of it all, but as soon as the sexual engagement is made public it becomes so shameful, depraved and immoral that any reasonable person would conclude that it would be deeply hurtful to anyone if one ever suggested that they could possibly have been engaged in such activity.

After having concluded that the reasonable person would have interpreted the picture in the way described above, the court had to decide whether the image was defamatory. In doing so, the majority of the Constitutional Court argued that what had to be answered was the question whether any reasonable observer would infer some association between the two teachers, on the one hand, and the situation described in the picture, on the other. The majority found that the mythical reasonable observer would do just that:

After all, their faces were directly linked to the bodies. In my view that renders the picture difficult to distinguish from a caricature or a cartoon: in all these cases it is obvious that the person identified is not an actual depiction of that person, but that there is some association between that person and what the picture conveys.

According to the Court the reasonable person would ask: why?  “Why are the principal and his deputy, Dr Dey, associated with persons behaving in a lewd and indecent way”? (Once again, note the assumption that when two men are depicted as engaging in sexual activity this must always be assumed to be lewd and indecent.) Why are their faces not pasted on, say, the bodies of ballet dancers, the court wanted to know.

The answer to these questions that, in my view, instinctively springs to mind is this: the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be learners at the school. This means that the average person would regard the picture as defamatory of Dr Dey.

The majority of the Constitutional Court somehow did not “instinctively” jump to the conclusion that the picture was manufactured and distributed by schoolboys and that they were engaged in a schoolboy prank. Could it be that the judges were so horrified by the depiction of two men engaging in sexual activity (this “lewd”, “indecent” and “immoral” behaviour – siesa!) that the majority could not conceive of the schoolboy prank in any way other than that it was aimed at tarnishing the image of the headmaster and his deputy and that it had achieved this purpose.

Of course, I would argue that a reasonable person imbued with the values of the Constitution, a person who did not instinctively recoil from depictions of gay sex but understood that sexual activity was a rather enjoyable and mostly positive experience – whether the sex occurred between two men or between a man and a woman – a person who showed some understanding and tolerance for the world of pranks and jokes inhabited by schoolchildren, that such a person might well have concluded that the images were not defamatory because they did not in fact lower the esteem of the headmaster and deputy headmaster in the eyes of any reasonable person.  (Athough it must be conceded that the schoolboy prank probably did lowered the esteem of the headsmaster and the deputy headmaster in the eyes of humourless homophobes and bigots.)

But the majority of the Court found that the fact that this was a schoolboy prank was of little use to the defendants. The real question, argued Brand AJ, is whether the reasonable observer – perhaps, while laughing – will understand the joke as belittling the plaintiff; as making the plaintiff look foolish and unworthy of respect; or as exposing the plaintiff to ridicule and contempt.

Once one has assumed that sex between men – unless hidden away in the privacy of a bedroom – is always promiscuous and immoral, the answer to this question seems pretty obvious. No wonder the majority of the court found in favour of the deputy headmaster who (revealingly) seemed to have been rather disproportionately upset by the suggestion that he might have engaged in same-sex sexual acts.

On Woolworths and freedom of conscience

An interesting debate has been raging – especially in the Afrikaans press – about the decision of Woolworths to stop selling certain religious magazines in its stores. The retailer decided to restock the magazines after an outcry last week by fundamentalist Christians. One report suggested that Woolies decided to stop selling these magazines because of two articles in Joy! magazine, which reportedly had offended a senior Woolies executive. The articles were about the subject of “Judaizers”.

Judaizers are apparently Christians who observe certain Jewish customs, like having the Sabbath on the Saturday. The articles, written by an alleged “missionary” called Peter Hammond, described the behaviour of Judaizers as “unchristian”. Hammond is controversial because he had been accused of smuggling guns to Renamo during the civil war in Mozambique and more recently to rebels in Sudan. During the nineteen eighties there were also persistent rumours that he was working with the South African military to destabilise Mozambique.

I have no idea whether these rumours are true, but having read stuff he had written, I am of the opinion that he is a rather scary and deeply reactionary man. But that is besides the point. The larger issue centres on our understanding of section 15 of the Constitution, which guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”.

In the one corner defenders of Hammond and Joy! magazine argue that Woolies showed a contempt for their Christian faith and that the decision not to stock the religious magazines (as well as subsequent criticism of such magazines and of people like Peter Hammond) at best display intolerance towards Christianity and at worse infringe on the freedom of religion of those few Christian believers who read Joy! magazine every month to keep up to date with news about the deep and abiding faith of people like Joost van der Westhuizen and Amore Vittone.

In the other corner, there are those who argue that Woolies should not have capitulated to religious fundamentalists who insist on their right to see (but seldom to buy) these magazines while standing in the queue at Woolies. Why, they ask, did Woolies not stand up to these religious bullies? How can we be a completely free country if a handful of religious fanatics can dictate to a large retailer what goods they should and should not stock? Are we not on the slippery slope to a Christian dictatorship where Christian values and beliefs (instead of, say, Sharia Law) determines how we live our lives?

Well, the text of section 15 makes it pretty clear that the first group has nothing to complain about. Section 15 does not only guarantee the right to freedom of religion, but also the right to freedom of thought, belief and opinion. We are all entitled to think what we want, believe what we want and express any opinions that we want — as long as we do not defame somebody else or break some other constitutionally valid provision of the criminal law.

Anyone is therefore perfectly entitled to criticise religion in general or the tenets of a particular religion specifically. If I want to say that the beliefs underlying Christianity or Islam are absurd, demonstrably untrue, oppressive and deeply offensive to any conception of freedom, I am entitled to do so. Granted, blasphemy is still a criminal offense in terms of our common law, but I cannot imagine that if challenged this provision will not be declared unconstitutional. The Broadcasting Complains Commission of South Africa has already accepted that blasphemy as defined in our law will not waistband constitutional scrutiny.

Blasphemy is usually defined as the unlawful and intentional insulting or showing contempt or lack of reverence for God/Christianity/Islam. There is no equivalent law criminalising contempt for atheism because if there were the Pope, and thousands of other religious leaders would have had to be locked up long ago. Anyone who challenges the prohibition on blasphemy will therefore have every possibility of being successful as the blasphemy law infringes on the right of non-believers (or the believers of those religions whose God was not targeted) to not only privately believe what  they wish, but to state their beliefs in public.

I obviously have sympathy for the second group, but their complaint does not seem to touch directly on a constitutional issue. In a capitalist state where everyone is free to complain if a retailer stocks or does not stock certain products and is free to urge a boycott of that retailer, the pressure put on Woolies was probably not unlawful or unconstitutional. One could argue that Woolies had caved in to bigotry by deciding to stock these magazines and then one is free not to shop at Woolies because of its cowardly capitulation to right wing bigots. That is what freedom means.

But this question is rather complex.

The fact of the matter is that if one is an atheist, agnostic or if one believes in Judaism, Islam of Hindu religion one is part of a small minority in South Africa. The vast majority of South Africans claim to be Christians (which usually means they go to Church for christenings, weddings and funerals and otherwise ignore religion until they are in big trouble in which case they say a silent prayer to Jesus our Lord).

This does not mean that Christians can demand that their views be accepted by the majority. In the Pillay case, in which the Constitutional Court found that the schools code of conduct was unconstitutional because it failed to accommodate the practices of the Hindu culture and religion, the court made it clear that rules or codes which seem neutral, but which are really based on Christian values, often marginalises and oppresses minority groups and may discriminate against them.

But I suspect there is a difference between a public institution like a school or university or a workplace environment dealing with the behaviour of employees on the one hand, and a private business dealings on the other.  The former can never discriminate. The latter cannot discriminate against individuals it employs but in conducting its business it can probably take decisions that would favour one group or another without fear of being taken to the Constitutional Court.

There is a grey area here between the public and the private and it will not always be easy to decide when the religious views of some could be relied on by a private institution when it made decisions about its business practices. While the Woolies example probably does not implicate the right to freedom of conscience, other examples will be far more problematic. For example, if a Golf club decides, based on the views of its members, not to allow Muslims to join this will probably be unconstitutional (as well as an infringement of the Promotion of Equality Act). But where that same Golf club decided that its members should not play golf on a Sunday I am not sure whether one would be able to challenge this if one happened to be  Jew or an atheist.

It is always complex to deal with (and respect) the widely held superstitions of the majority while also protecting the minority from discrimination and oppression. The  line will not always be easily drawn between permissible Christian influence on the one hand and impermissible marginalisation and oppression on the other.

WWYHD: “What would you have done?”

One of the wonders of living in a democracy is that one soon finds out that there are quite a few idiots about (not all of them politicians) and that it is ok for people to behave like idiots as long as they do not cause too much harm to others. Usually the world as we know it does not come to an end just because some fool somewhere has decided to do something really daft to attract attention or to demonstrate that he (it is always a he is it not?) can be hateful and bigoted in a very special way.

One is free to phone radio talk shows to make cringe worthy statements demonstrating one’s ignorance and superstition or  to say racist, sexist and homophobic things – even if your name is not Julius Malema. One can dress up in horns and a tight blue jersey and paint one’s face blue to show loyalty to that hopeless rugby team called the Blue Bulls. One can appoint an all male cabinet and think no one will notice and one can even – and now I am pushing it – believe that the legal advice provided to the Minister of Defence by her fugitive-from-justice advisor is legally sound.

But when should the courts intervene to stop individuals from making fools of themselves? On what basis should a judge decide that the actions of an individual will cause such harm to others that he or she should be stopped and should be interdicted from going through with his or her planned actions? Should a judge prevent someone from communicating his or her displeasure about a topical issue merely because this would be hurtful to a certain section of the population?

These questions came to mind when I read in the media that Judge Sita Kolbe in the South Gauteng High Court issued an interdict on Friday against a planned Bible burning by businessman and law student Mohammed Vawda.  Vawda said his plan had nothing to do with Christianity; instead, he said he planned the burning because he was angry about Florida pastor Terry Jones’s plan to burn Korans over the weekend.

One could argue that this judgment is not surprising, given the provision of section 16(2)(c) in the Constitution as well as the content of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 16(2)(c) of the Constitution states that freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

This means that the burning of Bibles (or the Koran) would not constitute constitutionally protected speech if it advocated hatred and constituted incitement to cause harm. The Constitutional Court has not yet given a conclusive answer to what this might mean. Canadian case law suggests that the harm should be defined more broadly than physical harm. Acts or words that advocate hatred against a group based on their religion and that constitute incitement to cause serious emotional distress would also qualify as hate speech and would not be constitutionally protected.

Would the burning of Bibles or the Koran constitute incitement to cause serious emotional distress?  Well, it probably would cause serious emotional distress to devout Christians or Muslims if Bibles or Korans are burnt, but I am not so sure that one would be able to argue that the burning of these books would in itself constitute advocacy of hatred of people based on their religious beliefs. Such actions would be mean-spirited and would clearly be intended to hurt the seriously religious. But would one be able to interpret such a pathetic act as advocating hatred against Muslims or Christians? Would it not “merely” be a spiteful attempt to upset Christians (or Muslims)?

If one thought that it could be interpreted as advocating hatred, then one would be entitled to believe that the interdict would have been granted validly. If one thought that it could not, then one might have to conclude that the judge was wrong to grant the interdict.

But even then, this would not be the end of the matter as section 10 of PEPUDA prohibits any person from publishing, advocating or communicating words that could reasonably be construed to demonstrate a clear intention to be hurtful, to be harmful or to incite harm against individuals or groups, inter alia, because of their religion.

Here the definition is far broader than the hate speech provision in the Constitution – except that it seems only to include words and not other kinds of communication such as the burning of Bibles or Korans. One would have to interpret the phrase “advocating or communicating words” so broadly as to include actions – such as the burning of Bibles – where no words are spoken at all but where some communication takes place that signals an intention to hurt others on the basis of their religion.

I am not so sure that the phrase could reasonable be interpreted in such a broad manner. If it could be interpreted so broadly, then it would be clear that the burning of Bibles (or Korans) – a rather spiteful and childish act intended to upset others – would constitute hate speech in terms of PEPUDA and the court would have been correct to grant the interdict. If, however, one interprets words more narrowly to include only words (what a lawyerly phrase that is!) then section 10 would not apply to the burning of Bibles (or Korans) and the granting of the interdict might have been a mistake.

Unless, perhaps, the burning of the Bibles (or the Korans) would have incited people to commit violence. Could a court justifiably have granted an interdict because it was worried that the burning of Bibles or copies of the Koran would have been so provocative that it would have created a serious threat of violence by those offended by the burning of what they consider to be a holy book?

Would this have been a responsible and correct approach or would it have been rather problematic because it would have endorsed the religious intolerance of those who are so easily offended that they would resort to violence every time somebody does something nasty or hurtful relating to their religion? Should religious people not lighten up a bit and chill out and if they do not, should the court take this into account when muzzling free expression?

If we talk about a respect for difference and tolerance of religious diversity, does this not mean that religious believers must also show a tolerance and a respect for diversity towards those who wish to provoke them. I for one, will not rush out to buy a gun or gather my matches and necklaces to go out and kill Christians just because they rock up at my house to protest and to tell me that I am a pervert and that I will burn in hell.

In fact, I will blow them kisses and wave nicely – “one-two-three clutch pearls” – before smiling and getting ready for another wave – “one-two-three clutch pearls”(one can always learn something about how to behave in stressful situations by studying the Queen – of England).

But what is to be done when others are not as tolerant as oneself? Should a court take cognisance of that fact or should the court stand firm against all kinds of intolerance? For once I am not sure what I would have done in this case.  Should a judge prohibit the burning of Korans and Bibles because of the obvious intention behind such a move merely to hurt (rather than to communicate a political or religious message)? Or should a judge allow such a burning on the basis that religious believers should grow up and should learn to embrace the values of democratic tolerance?

WWYHD? (What would you have done?)

Who is digging a big hole for itself?

Maybe Rooseveld High School in Gauteng is a wonderful school with a truly nurturing atmosphere where real learning takes place and the critical thinking abilities of learners are developed so that they can become active citizens in our society. You know, a school where children are taught to respect diversity and embrace difference, to work hard and to think for themselves.

That would make Rooseveld High School a very different school from Pietersburg High School in Polokwane (where I matriculated in the 1980s). There, we were told to love God and our country (which belonged only to white people as black South Africans belonged in Homelands – unless they worked for white people). We were also warned to show pride in our bodies by shaving our hair poenskop (like they did in the army), by refraining from self pleasure and by marching around in military uniforms every Wednesday in preparation for defending apartheid on “The Border” (a mythical place that was somewhere in illegally occupied Angola.

Nothing much seemed to have changed at Pietersburg High School. The present headmaster of Pietersburg High School, one DW Schoeman, earlier this year gave an astonishing speech at assembly saying that “the ethos of the school requires zero tolerance for the use of alcohol and drugs, Satanism and gay activities”.

Leaving aside for the moment the worrying fact that somebody in charge of educating children at one of the top schools in Limpopo believes in Satanism (has anyone ever seen a Satanist and is it true that they play Kurt Darren songs backward to listen to the hidden messages about skinning cats, smoking at school or kissing girls and liking it?), it is rather worrying that Mr Schoeman had not heard that section 9(3) of the Constitution prohibits unfair discrimination on any ground including sexual orientation.

Equating the use of drugs with “gay activities” displays the kind of reactionary attitude that was rife amongst teachers when I was at school there. At least one assumes it has stopped employing a nasty maths teacher called “Koorspen”, who came to class on Monday’s with a heavy hangover bragging about how he and some selected boys from the residence had gone out at night to assault black people.

All this came back to me when I read that a pupil called Luthando Nxasa was having some trouble at Rooseveld High School at the moment. According to her father she was thrown out of class after she spoke isiXhosa to a girl who sits next to her in class.  Nxasana was also allegedly prevented from writing two mid-year exams or going to the toilet, and forced to spend three school days standing in a foyer. Luthando takes up the story:

“It was a free lesson. Everyone was chatting among themselves. Even the teacher was just chatting to some other learners,” said Luthando, who sits close to the desk of her business teacher, Mrs C Venter.  Lebo sits next to me. She was worried about not completing her work. I told her to relax, she shouldn’t worry.” But then the teacher heard the conversation.  “Mrs Venter said to me: ‘Luthando, either you speak English or you get the hell out of my class.’ I stopped and looked at her and decided to take my bag and walk out.” As Luthando walked out, she confronted the teacher, telling her that the reprimand was racist. Venter then allegedly said: “You’re digging a big hole for your small little body.”

If even half of this is true (and the details of the story and the fact that a spokesperson for the school trotted out that hoary chestnut called the sub judice rule, suggests that there was some truth to this story), the school, rather than Luthando, is the one that has been digging a big hole for itself.

What is clear is that a school is prohibited from telling pupils that they cannot speak their home language at school and that they have to speak English – even in a free period where no lessons are taking place. Although the rule might apply to all pupils, the effect of the rule would be to exclude and marginalise some pupils based on their race, language or culture and would therefore unfairly discriminate against those pupils whose first language was not English.

As the Constitutional Court made clear in the Pillay case (dealing with the Hindu pupil who was prohibited from wearing a nose stud), a school had a special duty to accommodate diversity and difference (whether on the basis of their culture, race, language or sexual orientation). This meant that the school could not make rules which, while formally neutral, would enforce the basic assumptions of the dominant group at the school. (I note from the schools website that there are no African representatives on the school governing body, so I assume that the ethos of the school is still very much white and English – despite the diversity of the pupil body.)

It was also not very comforting to note that the code of conduct of the school prohibits pupils from talking to teachers unless being invited to do so. How can one actually become a thinking, reflective person if one is not allowed to speak to a teacher unless invited to do so. If this rule was actually adhered to, one would not be able to ask a teacher any questions (unless invited to do so), and will not be able to challenge a teacher – even when he or she says something racist, sexist or homophobic. This would be absurd and pedagogically disastrous.

Maybe because the school is trying to instil a Waspish reserve in it students in order for them to be able to fit in when they emigrate to the UK? The code also states that “any excessive display of affection is unacceptable”. God forbid one would want to show affection – next thing one might want to talk about one’s emotions too and that, my dear Watson, just won’t be cricket.

This case forces us to ask serious questions about the manner in which schools deal with diversity in post apartheid South Africa. Do the teachers and members of  governing bodies of former “white” schools in South Africa understand that they come to the task of teaching and running the school weighed down by many unexamined assumptions, prejudices and beliefs which – if not checked – would marginalise and alienate pupils who do not share their race, religious, cultural or language background. Do they understand that they have a special duty to review policies and codes of conduct to ensure that these are not used merely to try and force all pupils to become perfect little white, heterosexual, conformist, Englishmen or Afrikaners (who all went along with apartheid after all)?

Somehow – and not only because of the stories relayed above – I have my doubts. If my suspicions are correct, the question may be asked: what kind of society are we creating where we teach pupils that they can only get ahead if they betray their own identities and strive to become good little white, heterosexual, English speaking, Christians? Are we not creating a time bomb by promoting  insecurity and resentment that will haunt our society for decades to come?

The Windows of Heaven (and your wallets) are open!

One of the (many) reasons why I am not a fascist or a Stalinist is because I am rather worried that people might begin to think that I am a repressed and self-hating homosexual who is trying to hide his true self by embracing rightwing Christian fundamentalism. If I ever wavered in my commitment to remain a constitutional democrat and if I ever feared that I would fall into the arms of dangerous spin merchants, there will always be people like Mr Errol Naidoo (who is the director of an outfit called the “Family Policy Unit”) to keep me on the strait and narrow (no pun intended).

Errol2

Mr Naidoo (see picture on the left), who has the suave charm of a Verimark infomercial presenter and the fading good looks of a celebrity contestant on Fear Factor, is a busy man. (I must confess, if we were both a bit younger and if he had been a bit more careful about his diet, I might have lusted after his body — if not his mind.)

In an email addressed to his fans entitled, “The Windows of Heaven are Open!, he informs all who wish to listen of his latest exciting escapades and thoughts (I use the latter term rather generously, of course). He informs us that he had spent an “exhilarating” two days in the Kruger National Park with his wife, Arlene (whom he refers to with suspicious regularity). “Being up close and personal with God’s awesome creation — in their natural habitat — is an experience Arlene and I will long remember,” he enthuses.

(Why he had to go to the Kruger Park – instead, say, of going to the local Shoprite in Brackenfell or to an HIV clinic in Khayelitsha – to get close to God’s awesome creation is unclear. I guess the folks who demonstrate their sincere commitment to God by donating buckets full of money to his outfit do not begrudge him this little extravagance. After all, people are dirty, troublesome, sinners who have a tendency to make fun of you, while wild animals never talk back and live in the Kruger Park – which is rather more glamorous than Brackenfell.)

But I digress. In the email, Mr Naidoo (I make no comment about the fact that his surname sounds rather similar to an Afrikaans word often used at Stag parties) has the following to say about his wheelings and dealings with politicians and about our sacred constitutional democracy:

There appears to be a growing sense amongst Christians across the country that God is giving the Body of Christ in South Africa a “window of opportunity” to rise up & impact the nation. Despite all the negative reports in the media, many Christians believe God is supernaturally removing barriers to areas of power & authority to provide access for the influence of the Church.

I noticed this shift in attitude towards the Church since the Zuma administration came to power. My submission on gambling law reform to parliament, my partnership with the Dep Minister of Home Affairs, Malusi Gigaba to ban internet pornography, and my work to inform government about the dangers of legalised prostitution, all bear witness to a more family-friendly environment.

The liberal media also appear to recognise this shift in attitude toward family values and are openly attacking government for granting access to the “rightwing Christian fundamentalists”. Several hysterical articles appeared in the media recently criticising government for talking to “shady” Christian organisations like Family Policy Institute. Apparently, groups that disagree with homosexuality and oppose abortion, pornography etc, have no right to engage government.

Read this article by so-called constitutional expert and homosexual activist, Pierre de Vos. ‘The return of fake morality’. A similar article by Tony Weaver was published in the Cape Times. When the Mbeki administration suspended South Africa’s democratic principles in 2006, to railroad same-sex “marriage” legislation through Parliament – despite massive public opposition — people like Pierre de Vos and the pro-homosexual media were conspicuously silent! Ironically, this attitude — promoted in the media — is a violation of core constitutional freedoms…..

P.S. Please forward this to a friend

As I do not like sending spam emails, but at the same time do not want people to think that I have anything against poor Mr Naidoo, I decided to reprint the sizeable section of his email above. Hey, Errol, you know what they say: “All publicity is good publicity.” (Or was that rather: “All publicity brings in the bucks?”)

However, it saddens me to note (and I do hope Mr Naidoo and his followers do not take this in the wrong way) that all that time with Gods creatures in the Kruger Park seemed to have affected Mr Naidoo’s ability to construct a rational argument. Mr Naidoo also sadly seems to have lost his memory and has forgotten that we now live in a constitutional democracy (and not in the Christian Nationalist state of the apartheid era).

He seems blissfully unaware that we now have a justiciable Bill of Rights in which the power of the state to oppress people and to discriminate against them based on their personal attributes and characteristics (like their race, sex, disability and sexual orientation) is severely limited.

In a constitutional democracy the religious views of some — and I have no reason to believe that Mr Naidoo and his lovely wife Arlene do not hold their religious views deeply and sincerely — cannot be imposed on society as a whole as this would be in fundamental breach of the rights of those who do not share these views. Sincerity and deeply held convictions do not justify unfair discrimination in a constitutional democracy.

While every person is entitled to believe what he or she wishes (one can believe, for example, that Simba the Lion King is the God Almighty, or that all homosexuals will burn in hell or, even, if one wants to stretch the point, that 300 000 believers will be whisked away to Heaven on the day of the Rapture) a person cannot get the state to force his or her beliefs down the throats of others as this would constitute a fundamental breach of our human rights. (For example, a religious group — even if it had the support of the majority — could not legitimately demand that the state ban all driving on a Sunday because the group happens to believe the Rapture would occur on a Sunday and that driving on that day would therefore cause too many accidents.)

Mr Naidoo is therefore entitled to believe that same-sex marriage is just as evil as child abuse or women’s liberation — as the leadership of the Catholic Church seem to do, at least about women’s liberation — but he cannot require the state to enforce that belief by banning same-sex marriage. If he wanted the state to ban same-sex marriage or to force women to stay barefoot and pregnant in the kitchen, he is of course free to emigrate to Saudi Arabia. (I hear Iran also has lovely game parks and rather strict laws on homosexuality — although I am not sure whether they will embrace emigration by right wing Christians.)

He is free to believe what he wants, to preach what he wants and to even practice what he preaches (the latter being a rare occurrence in the overtly pious — at least in my experience). And in the unlikely event that, like many Evangelists in the USA, his animosity towards homosexuals is fuelled by a secret desire to have sexual relations with members of the same sex, he is even free to divorce his wife and marry another man — although he will have to go on a diet, radically revise his beliefs, and read a few satyrical novels before I would seriously consider his marriage proposal.

The claim by Mr Naidoo that the “core constitutional freedoms” have been breached by the adoption of same-sex marriage laws can only be sustained if one believed that freedom had nothing to do with freedom at all, and hence that freedom was completely divorced from the notion that people had a right to live their lives free from hatred and discrimination. His view of “constitutional freedoms” would require one to endorse the idea that the state had a right to enforce the views of some on society as a whole.

Such a society would not be free, of course, and neither would it be a substantive democracy. In such a society the only people who would have “core constitutional freedoms” would be those who wielded power and could therefore ensure that their beliefs were enforced through the barrel of a gun and through torture (perhaps by forcing people to listen to Gospel music played backwards), imprisonment or campaigns of social vilification. Such a society would be one in which the human dignity of almost all people would be flagrantly disrespected and would be decidedly undemocratic (a bit like Texas without the big hats, the funny accents, the Hummers and the occasional election).

PS: This post must be read in the same spirit in which Umberto Eco wrote his novel, The Name of the Rose. In this novel a Franciscan Friar discovers that Monks are being poisoned in a monastery when they read humorous books because some members of the church hierarchy believe that laughter is the antidote to fear and that if one stopped fearing one might also stop believing in God. As Wikipedia explains: “As the plot unfolds, several other people mysteriously die. The protagonists explore a labyrinthine medieval library, the subversive power of laughter, and come face to face with the Inquisition. It is left primarily to [the main protagonist] William’s enormous powers of logic and deduction to solve the mysteries of the abbey.”

The return of fake morality?

Because my parents were members of the Dutch Reformed Church, I had to attend the church service and Sunday school every week. What fun! The dominee (minister), speaking in the ridiculously pretentious accent learnt at the kweekskool (seminary), usually warned in apocalyptic terms against the evils of sex before marriage (or sex with an Engelse meisie or a black woman – after marriage), Satanism, masturbation, homosexuality and the twin evils of communism and majority rule.

Sometimes the dominee also warned us that one had to pay at least one tenth of one’s income to the church to demonstrate one’s love for Jesus our Lord. (Loving Jesus was not too difficult for me, as the pictures in my Children’s Bible of a semi-naked Jesus on the cross, his six pack rippling, his long blonde hair styled in the way that was so popular amongst hairdressers in Benoni and Brakpan in the nineteen seventies, was almost as sexy as the adverts for Jockey underpants in Huisgenoot.

The Dutch Reformed Church, whose dominees almost all belonged to the secret and shadowy Afrikaner Broederbond, was all-powerful – the National Party at prayer – and played a pivotal role in legitimising and defending apartheid. It also ensured that a narrow, bigoted, morality was enforced on society as a whole: there was no movies or sport allowed on a Sunday and even at the Hennenman swimming pool (which was only open from 2-5 pm on a Sunday) one was not allowed to dive from the diving board on a Sunday out of respect for the Church and perhaps even for God.

After 1994, Afrikaans Churches pretty much lost their moral authority as more and more white Afrikaners faced up to the fact that the church had supported an evil and immoral system under the guise of high moral principle. In 1998, staying at the Parktonian Hotel in Braamfontein, I was therefore not surprised when I looked out of my hotel window across the street and spotted the face brick Dutch Reformed Church, now all boarded up with a huge “For Sale” sign in the front.

The church and its particular brand of bigoted and racist moralism had become truly bankrupt and was now completely delegitimised. From now on, I thought, we will look towards the Constitution as a guide for ethical living – not towards any church or the teachings of some odd men in Penguin suits.

But in the moral universe of President Jacob Zuma (in which it is perfectly acceptable to take more than a million Rand from a crook, to do favours for that crook and then to submit a fake loan agreement to Parliament to cover up your tracks) and some (but luckily by far not all) of the members of the ANC, churches and a particular brand of narrow minded and bigoted morality is making a comeback. Hey, in this world, it is ok to steal other people’s money and to be corrupt – as long as one prays to God and hates homosexuals and woman equally.

Recently the shadowy and far-rightwing group called the Family Policy Institute (FPI) teamed up with the Film and Publications Board (the predecessor of the censor board who, under the guidance of the Dutch Reformed Church, “protected” apartheid South Africa from the “immorality” of being shown woman’s naked breasts and the “dangers” of the speeches of Nelson Mandela and Oliver Thambo) to hold a seminar warning against the so called dangers of pornography.  

This was not, let’s be kind, an event where scientific or academically plausible research was shared or discussed: it was a progapaganda exercise promoting narrow and very particular religious views.

For some scary entertainment on the laughable and unfounded views of the FPI, one can peruse their website which warns that pornography destroys the human soul (if one can find the soul at all) and morality (as defined by some people who believe that if we only fear a god we cannot see and whose existence we cannot prove we will all live happily ever after in a heaven where we will all love each other, sing Kumbaja while holding hands, before retiring to bed to recite Amore Vittone songs backwards to make us go to sleep). The document also warns that pornography is so strong and evil that it destroys marriages (the heterosexual and non-polygamous kind, of course) and also causes poverty and corruption. (Well I lied about the poverty and corruption, but you get the drift.)

The fact that a state body like the Film and Publication Board, with the assistance and support of the Deputy Minister of Home Affairs, teamed up with a very reactionary, homophobic, anti-abortion, religious group, is truly shocking as it sends a signal that a state institution has chosen sides against the values of openness, respect for difference, freedom of religion and opinion and human dignity ensrined in the Constitution.

It suggests the Department of Home Affairs and the Film and Publication Board have decided to endorse the mad ramblings of a reactionary group who feigns interest in saving our soul while eying our wallets. What do all the many strong and progressive woman and men in the ANC think of this, I wonder?

Another such scary group now gaining in influence amongst members of the new elite in the Eastern Cape is an outfit called the “Godly Governance Network” (lovely name, not such lovely people). In an email advertising its “prayer focus” for the next two months, the Network states:

Repent before the Lord for the sexual immorality and adultery that is filling our Province resulting in unwanted pregnancies (and often abortion), break up of marriages and the rapid spread of HIV/Aids.  Repent on behalf of the government’s policies that have encouraged this…..

Pray for the re-education of this generation on family values according to the Word of God, i.e. a man shall be a husband of one wife (Titus 1:6); sex outside of marriage is sin (Hebrews 13:4); homosexuality is sin (1 Cor 6:9); divorce is not God’s will(Mark 10:6-12); husbands should love their wives (Eph 5:25,28); wives should respect and honour their husbands as head of the home (Eph 5:22-23, 1 Pet 3:1); children should honour and obey their parents ( Ex 20:12; Col 3:22)

The Network is also trying to resist the teaching of evolution in schools and argues that evolution is “Satanic”. These people are crackpots of the first order and they make those omies of the Dutch Reformed Church almost look kind and reasonable. In one of their “Concept Documents”, published in 2008, they write:

Hence most organizations and political parties, from the recently liberated countries find themselves controlled and manipulated to implement the secret agenda of the New Age Movement by adopting constitutional models and systems of government that are aimed at installing the fascist Luciferian World Order and Government. South Africa, the African National Congress and other parities are not immune to this global conspiracy. It is not a surprise to discover that most of its social and economic transformation policies and legislative framework are so alien and foreign to the general citizens of the country. The agenda is to control and manipulate people to adopt Illuminati Policy Agenda through a centralized system of government.

Of course, section 15 of the Constitution guarantees for everyone the right to make a fool of him or herself and proudly to display his or her ignorance and bigotry for all to see. Well, that is not exactly what section 15 states:  it says that everyone has the right to freedom of conscience, religion, thought, belief and opinion – but you get the drift.

While people have a right to hold religious views, no matter how scary or hateful (just as they have the right to believe that religion is a lot of codswallop), it becomes rather troubling when religious groups like those mentioned above attack the very basis of our democracy: the Constitution. Even more troubling is the fact that they seem to have some official sanction from elements in the government. If these people were journalists they would long since have been arrested.  The Constitutional Court has made clear that the right to freedom of religion prohibits the state from enforcing the religious views of some onto society as whole. But that is exactly what the groups mentioned above is agitating for.

Why is it then that in the email I received from the Godly Governance Network, I am told I can contact the Eastern Cape Legislature where the Speaker’s Office will assist me with information about a prayer service conducted in the legislature every Thursday between 4:30 to 6:00 in the Speaker’s Conference Room? Surely, no self-respecting ANC MP would want to be associated with these crackpots? 

Or are we seeing a gradual move back to the pre-democracy era where the government of the day, trying to regain some of the legitimacy it has lost through its immoral and greedy actions, endorses censorship of the press and embraces ever more reactionary religious groups in the hope that ordinary people will be blinded by a misguided moral righteousness and will therefore forget that they are suffering because of the actions of incompetent or corrupt government officials?

How long before Ministers (of the church and of the government) starts warning us again the evils of homosexuality, Satanism and masturbation? How long before a woman’s right to choose to have an abortion is taken away and pictures of naked women and men are banned – along with novels like Lolita, Lady Chatterleys Lover and Chinua Achebe’s When Things Fall Apart? Is this not the way that government’s go when they run out of ideas and have to admit that they are incapable of creating a better life for all?

Zapiro, freedom of speech and the Burka

It is rather ironic that Zapiro is in hot water for drawing a cartoon bemoaning the fact that some followers of the Prophet Muhammad have no sense of humour. It would be like me being assaulted by ANC Youth League members for saying they are politically intolerant. The vehement response from Zapiro’s critics sort of proves his point.

But irony aside, what would the correct constitutional position be in a case like this where the freedom of expression of the majority clashes with the religious beliefs of the few? I am not talking about one’s personal views and whether, as a matter of respect, one would choose to express or not to express certain views about another person’s religious or other beliefs. Does Zapiro have the right to draw a cartoon of Muhammad or do those followers of the Prophet have the right to demand that Zapiro refrains from drawing such cartoons.

Regular readers of this Blog might have noticed that I am rather libertarian as far as freedom of expression is concerned. Whether it is Julius Malema singing “Kill the Boer” or some fanatical Priest or Imam spewing forth homophobic vitriol, I maintain that more often than not it is better to allow the expression than to ban it. Tyranny thrives in ignorance and silence. If the Pope wants to brand me a pervert who will burn in hell, let him. I don’t believe in hell in any case, so I will just laugh at the Pope and dismiss him as a primitive and superstitious man in a funny dress.

(Of course, one has wondered whether the Pope is making such a fuss about homosexuality because he himself prances around every day in a dress, bedecked in jewels and wearing rather “gay” red Prada shoes, and might be worried that people would think he watches old Liberace videos in his spare time – but let us not go there.)

The Constitutional Court has spoken of the need for our laws reasonably to accommodate the religious and other differences between us. Although the reasonable accommodation of different religious beliefs (and non-beliefs) is not always easy, our Constitution requires all of us to respect the rights of others to hold their own views and to express those views – as long as it does not fundamentally limit our ability to live our lives as we see fit. An atheist is entitled to say that God is dead, just as a reborn Christian is allowed to say that an atheist will burn in hell.

For example, although some people believe that God hates men who love men or women who love women, the state cannot prohibit same-sex couples from getting married because that would infringe on the rights of people based on their sexual orientation. At the same time the state cannot force the religious groups to change their beliefs or to marry same-sex couples in contraventions of their religious beliefs.

Thus the views of religious groups are reasonably accommodated – as they can continue believing in homophobia and can continue practicing it within their Church, Mosque or Synagogue – while the rights of gay men and lesbians are also protected in that the religious beliefs of some are not enforced by the state on all of us to prevent them from living lives of dignity.

In the case of cartoons like the one drawn by Zapiro, one would imagine that the religious beliefs of some could not be used to trump the freedom rights of others and that Zapiro cannot be prohibited from drawing a cartoon that offends some people. To allow that would be to allow the religious views of some to dictate to others what they can and cannot do and say, thus endorsing those religious views and choosing those views above the views and beliefs of others. That would fundamentally infringe not only on the freedom of expression of Zapiro and others but also on their freedom of religion and conscience.

Some atheists, say, may feel deeply offended when they see a woman dressed in a Burka or when they are woken up on a Sunday morning by the church bells, but a law that bans the Burka or bans a church from ringing its bells  would not be reasonably accommodating the views of all religious groups. Similarly, just because some people are offended by depictions of their Prophet does not mean the law can ban others from drawing depictions of the Prophet.

The need to accommodate (without prescribing to others what they can and cannot believe, think or do) becomes obvious when one realises that there are many different religious and other beliefs jostling for space in our democracy and that the state should try not to choose which views and beliefs are true or right – as this would infringe on the religious and other freedoms of others. If the state endorsed the views of one group over another it may lead to tyranny. If the state enforces only the views of some because they claim to be more offended than the rest of us, it would mean that the state has chosen sides in religious disputes – something it should not do.

In any event, as Wikipedia reports, there is no unanimity, even amongst Muslims – about depicting the Prophet:

The Qur’an does not explicitly forbid images of Muhammad, but there are a few hadith (supplemental traditions) which have explicitly prohibited Muslims from creating the visual depictions of figures under any circumstances. Most contemporary Sunni Muslims believe that visual depictions of the prophets generally should be prohibited, and they are particularly averse to visual representations of Muhammad. The key concern is that the use of images can encourage idolatry, where the image becomes more important than what it represents. In Islamic art, some visual depictions only show Muhammad with his face veiled, or symbolically represent him as a flame; other images, notably from Persia of the Ilkhanate, and those made under the Ottomans, show him fully. Other Muslims have taken a more relaxed view. Most Shi’a scholars accept respectful depictions and use illustrations of Muhammad in books and architectural decoration, as have Sunnis at various points in the past.

Just as Christians do not all agree that homosexuality is a sin, Muslims do not all agree that depictions of the Prophet is wrong. This is exactly why the state and our courts should try not to choose sides in these disputes and should leave open a space in which reasonable people could express their views on such matters. Sometimes this is very difficult, of course. Some religious practices or beliefs may be so shocking to the majority or may be viewed as so harmful to some that the state would be justified to intervene.

For arguments sake, if a religious sect believes that child incest is demanded by the teachings of their God, the law may well justifiably limit the rights of that religious sect by enforcing the ban on child incest. This is also why the Constitutional Court endorsed the ban on the possession and use of cannabis – despite the fact that Rastafarians believe the smoking of the Holy Weed will bring them closer to God.

Sometimes – as in the latter example – it will not be easy to draw the line, but personally I would choose more freedom for more people by prohibiting only the absolute minimum number of religious practices while also allowing the widest possible scope for religious contestation trough freedom of expression. Let both the Burka and depictions of Muhammed thrive!

This does not mean, of course, that as South Africans living in a diverse society we should not try to be sensitive about the beliefs of others (whether it is the belief in a God or the belief in no God at all) and should not try to accommodate the practices associated with those beliefs. Although I am not a great fan of the Catholic Church (what with its homophobia and its murderous policy of discouraging its members from wearing condoms in a time of AIDS), I nevertheless keep a respectful silence when I enter a Catholic Church.

And when I speak to a Muslim friend, I will try not to mention my love of bacon and red wine and will, perhaps, politely refrain from bringing up the persecution of gay men and lesbians in many countries where Islam dominates. This I do gladly, not because my friend has a right to demand this of me, but because I think in a diverse society we must try and get along and must respect each other on a personal level.

All I ask is for the same respect to be shown to me and to my own views on religion. Let us all live together without wanting to oppress each other, I say. Maybe in the long run we might all even learn to cultivate a sense of humour.

Is Terreblanche’s church allowed to discriminate?

My friend was incensed: “Why,” he wanted to know, “is the Afrikaanse Protestantse Kerk (APK) allowed to discriminate against black people?” Last Friday, at the funeral of Eugene Terreblanche, much was made of the fact that some black journalists and observers were allowed into the APK. This is because the APK is a whites only church and usually does not allow black people inside the church – at least not during the sermon.

“The Constitution and the Equality Act surely prohibits such discrimination,” my friend continued. “Why is Afriforum not making a noise about this? Why does it not lodge a complaint with the Equality Court against the Church to challenge its policy of racial discrimination? Afriforum claims to be so worried about discrimination so it should do something about this!”

Maybe, I explained, it was because such an action – by Afriforum or anyone else – would have no chance of success. The Equality Court will reject the complaint because the right to freedom of religion will trump the right to equality. In equality matters one must weigh up the purpose of the discrimination against the effect that the discrimination would have on the human dignity of those who are being discriminated against.

Here the purpose of the discrimination is to protect the freedom of religion of the weirdo’s who belong to the APK. They believe that God had separated blacks and whites and should pray separately and the purpose of the discrimination is to give effect to that belief. (I am not sure whether they also believe there is one heaven for whites and one for blacks. How would that work in any case?)

On the other hand, it could be argued that the effect of the discrimination would not be particularly egregious as there are many churches where black and white can pray together and black people would probably not feel very welcome in a church that believes that God was really a big fan of apartheid. Banning blacks from the APK therefore does not present such a fundamental affront to the human dignity of black South Africans that it should trump the freedom of religion of the APK.

“But that does not make sense at all,” retorted my friend. “The Constitutional Court found that Rastafarians were not allowed to smoke dagga, despite the fact that this is a central tenet of their religion. To ban them from smoking dagga discriminates against them in the most fundamental way. Besides, the smoking of dagga is probably far less harmful than the effects of racial discrimination. We live in South Africa, after all, and one can buy dagga on every street corner in the city centre of Cape Town.”

I explained that he was confused. In the case of the APK discrimination the question is whether the APK can discriminate against black people. In the Rastafarian case the question was really whether the state can discriminate against Rastafarians. The Court in effect found that it could (although it decided the case on the basis of freedom of religion, not on the basis of equality) because the purpose of the discrimination was so important that it trumped the freedom of religion of Rastafarians. The ban on dagga keeps us all safe from the evils of drug abuse and thus trumps the right to freedom of religion. At least that is what a majority of the judges of the Constitutional Court believed.

My friend was not impressed. “The Equality Act bans discrimination on the basis of race in the same way that the law bans the use of dagga. Are you saying it is ok for the state to discriminate against a religion when the adherents of that religion are mostly black, but its not ok for the state to discriminate against a religion to enforce racial equality when the religion is exclusively for whites?”

Good question, I had to agree. But the use of dagga is a criminal offense and while racial discrimination is prohibited by the Equality Act, it is not a criminal offense to discriminate against anyone. Maybe that’s the difference between the two religions – the practices of the one religion is a criminal offense while the practices of the other is only illegal and enforced not in the criminal court but by the Equality Court. Or maybe both the state and our Courts just think that the use of dagga is far more dangerous and harmful for our society than the racial discrimination by a private institution who happens to be a church.

“Are you kidding?” my friend wanted to know, his voice rising a notch as it always does when he gets excited. “More people are addicted to alcohol than to dagga and far more people crash cars and kill people in accidents when they are drunk than when they are high, so dagga cannot be that dangerous. Given our apartheid past and given what I saw on TV of the Terreblanche funeral, racism and discrimination is far more of a problem in our society than the use of dagga.”

Well, I explained, maybe this also has something to do with the separation of powers doctrine. If the state explicitly banned religious groups from discriminating against anyone then maybe the courts will agree that such a ban was constitutional. But then I realized I was talking rubbish. The state will never force the catholic church to open up the priesthood to women. Neither would it ever pass a law that would force churches, mosques or synagogues to abandoned their homophobia and to marry same-sex couples.

“So,” said my friend gleefully, “what you are saying is that the state is too scared of the established religions and of people in the APK to ban their religious practices, but because the Rasta’s are such a small and powerless group the state has no problem with banning one of the central practices of their religion!”

Don’t ask me, I told my friend. Ask the Constitutional Court and the members of Parliament why they do not ban the APK from discriminating against black people or why they do not make an exception to allow Rastafarians to use dagga.

My friend laughed. “I wonder what the APK position is on men sleeping with young black men? They are probably not too keen on that.”

Luckily, I am not planning to visit my local APK anytime soon to find out, I told my friend.

Do we have freedom of concience and religion at public schools?

Discussing freedom of religion and conscience protected by section 15 of the Constitution a few years ago, a Muslim student told me her Grade 1 daughter was forced to learn the song: “Fishing for Jesus.” When she complained about this to the teacher, the enterprising teacher made a plan. A few days later her daughter came home singing the same song, but with a second verse added: “Fishing for Allah!”

This story came back to me when I read in the Afrikaans media that Prof George Claassen of Stellenbosch University has launched a campaign to try and prevent public schools from using teaching time to conduct religious instruction at schools. Claassen is also upset that some schools describe themselves as having a “Christian character” and as institutions where “Christian values” (whatever that may mean) are taught. He is also upset that some schools organise something called a “Jesus week” during which children are encouraged to pin yellow ribbons to their uniforms to show that they are Christians.

Some constitutional law experts quoted in the article rubbished Claassen’s campaign, stating – correctly – that religious ovservance at public schools are not prohibited by our Constitution. But this is a grey area and it is far from clear where exactly our Constitution draws the line.

Many moons ago when I was still at school, our education was avowedly “Christian Nationalist” in character. This meant we were taught that Jesus loves apartheid, the National Party, and “our” boys on the border, that He had died for our sins on the cross so that we could live happily ever after in white South Africa and beat the technical school at rugby, and that evil philanthropists like Lord Phillip who believed black and white were equal in the eyes of the Lord would burn in hell for their sins.

My take of freedom of religion and conscience might therefore be slightly jaundiced.

The starting point must, of course, be section 15(2) of the Constitution which states that “religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary”. This must be read with section 7 of the South African Schools Act which 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.

But what does this actually mean? Our Constitutional Court’s jurisprudence on freedom of religion and conscience has been far from satisfactory, so the answer to this question is not as clear as it could have been.

The Court seems to have some difficulty with the interpretation and application of section 15 and then often reverts to the limitation clause to “solve” the problem. In one case – Christian Education - Justice Sachs even declined to make a finding on whether the ban on corporal punishment at Christian schools infringed the right to freedom of religion (spare the rod and spoil the child, and all that). He merely assumed that it did infringe on the right before deciding that even if it did, the ban would still be justifiable in terms of the limitation clause.

In the Lawrence case, Justice Chaskalson – in what was effectively a minority judgment – emphasised that the right to freedom of religion meant that school prayers had to be carried out on an equitable basis and had to be voluntary and then continued:

I doubt whether this means that a school must make provision for prayers for as many denominations as there may be within the pupil body; rather it seems to me to require education authorities to allow schools to offer the prayers that may be most appropriate for a particular school, to have that decision taken in an equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise to indirect coercion of the non-believers.

The big problem is, of course, what would constitute coercion. It is clear that coercion can be both direct and indirect in nature. Direct coercion would occur where a pupil is forced to take part in religious activities or instruction, forced to sing “Fishing for Jesus”, or forced to wear a yellow ribbbon for Jesus. 

Indirect coercion is more subtle. The examples used by Prof Claassen might amount to such indirect coercion. Justice O’Reagan pointed out in the same Lawrence case (in a majority judgment), that where an institution endorses one religion over another or religion over non-religion, the effect would be coercive in nature.

Where the institution places its prestige and authority behind one religion or behind religion in general, it will send a signal that individuals who do not adhere to that religion or are not religious at all are somehow less worthy of respect and dignity. It will then place pressure on such individuals to conform and not to opt out of religious observance or instructions for fear of being ostracised or vilified. Religious observance will then become voluntary in name only.

In such circumstances it will be difficult for individuals – especially school pupils who experience peer pressure acutely – to distance themselves from the widely endorsed religious practices of a school and they will indirectly be coerced into taking part in religious activities with which they do not agree. While the religious views of the majority of pupils could be taken into account by a school’s governing body when formulating a policy on religious observance for its school, and while a school could therefore facilitate voluntary prayers associated with that majority religion, any policy will have to be formulated in a way that would prevent indirect coercion.

A policy that explicitly endorsed one religion over another or religion over non-religion will – in my opinion – not be in accordance with the Constitution because it would signal that those with different beliefs are not “normal” or are considered to have a lesser status or dignity by the powers that be.

I would say a school breaches the provisions of section 15 if it states that it has a “Christian character” and teaches “Christian values” or where it endorses a “Jesus week” but fails to endorse other religious activities of minority religious groups or non-believers. Such actions would make it very difficult for non-believers or believers of non-majority faiths from opting out of the religious activities at schools and the non-believers or believers of other faiths will be indirectly coerced into a specific Christian religious observance – something prohibited by the Constitution.

One way to get around this would be for a school to encourage and facilitate respect for religious differences by refusing to endorse one particular religious view and by encouraging pupils to express their beliefs openly – no matter what they may be. Such a school would then be allowed to have a “religious week”, say, where pupils could wear yellow ribbons if they were Christians, orange ribbons if they were Muslim and purple ribons if they were athiests.

A school could also invite different speakers who would then inform all pupils about various religions and athiesm to send the signal that while the majority of pupils in a school adhere to Christianity, say, other religions and athiesm are just as valid and pupils who adhere to other beliefs are just as valued and respected as those who believe in fishing for Jesus.

Just a jump to the right?

What kind of democracy do we want in South Africa? Do we want a Westminster style winner-takes-all democracy with Parliamentary supremacy in which the majority of the moment can do as it pleases – regardless of the consequences to vulnerable and marginalised sections of society? Or do we want a constitutional democracy in which the majority of the moment is constrained by a set of normative values and human rights safeguards set out in a Constitution in order to bestow equal citizenship on all – regardless our differences?

I am asking because the Mail & Guardian reported on Friday that the National Interfaith Leadership Council (NILC), formed by Rhema church leader Ray McCauley and closely associated with President Jacob Zuma, wants to revisit laws legalising abortion and same-sex marriages.

The NILC last week also attacked FUL for launching a legal challenge against the JSC decision to sweep the Hlophe scandal under the table.  Nthabiseng Khunou, an ANC MP and member of the NILC secretariat, told the Mail & Guardian that the council would “play a role” in revisiting legislation legalising abortion and gay marriage. At least four of the 20 members of the NILC are reportedly ANC members of Parliament and the M&G claimed that the NILC uses the ANC parliamentary caucus’s communication facilities to communicate with the media, as two NILC press statements were sent from the ANC’s offices in Parliament.

When the same-sex marriage legislation was discussed in the ANC caucus before it was passed by Parliament, many ANC MP’s expressed vehement disapproval of the legislation, some doing so in the most ugly homophobic terms. During the public hearings in Parliament on the legislation some ANC MP’s expressed concern that the legislation would lead to the extension of adoption rights to gay couples, blissfully unaware that the Constitutional Court had already extended that right to same-sex couples several years ago.

One hopes that the Mail & Guardian report is a little alarmist and that the majority of ANC MP’s and members of its NEC are neither right-wing, nor homophobic. Nevertheless, it is worrying that there seems to be a growing lobby in the ANC who are right-wing and hate gays and lesbians. After the Polokwane revolution, many commentators argued that the ANC would now move to the left, but that prediction seemed to have been wildly optimistic. Are we seeing a jump to the right instead?

Of course it will not be easy to take away the right of same-sex couples to get married. The Constitution will have to be changed first. And many good people inside the ANC are dead-set against changing the Constitution in order to reintroduce discrimination against gay men and lesbians, condemning us to second-class citizenship.

Some would argue that the Constitution should be changed to allow for the reintroduction of discrimination against gay men and lesbians and the subjugation of woman living in rural areas because that is what the majority of South Africans want. Respect for the dignity of women and gay men and lesbians, so the argument goes, are not in accordance with “African values and traditions”, “Christian or other religious teaching”, “Afrikaner culture”, “public morality” etc. 

This view cannot be squared with the notion of a constitutional democracy. In such a democracy – established by the 1996 Constitution – the views of the majority (no matter how sincerely held) cannot always be used to justify discrimination against vulnerable and marginalised sections of society. Justice Sandile Ngcobo said it well in the Hoffmann v SAA judgment dealing with HIV discrimination:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.

I obviously subscribe to the notion of constitutional democracy. That is why I believe in religious freedom and the right of religious organisations to discriminate against gay men and lesbians. If a religious group refuses to marry a same-sex couple or prohibits its clergy or ordinary members from loving members of their own sex, I might point out that they are animated by prejudice, bigotry and hatred, but I would not advocate for a closure of the church or for an incarceration of its leadership. Live and let life, I say.

The folks of NILC are a bit less tolerant, it seems, and want the law to reflect their own prejudices and to endorse their own bigotry. This is rather short-sighted as it assumes that one’s own view will always be the majority view. But societal views change and none of us can say with certainty that we would not find ourselves as part of a vulnerable and marginalised minority at some point during our lives. We may discover we are HIV positive or we may suddenly belong to the “wrong” faction in the ANC. It is then that a constitutional democracy will protect us from mob rule.

Pity so many religious leaders cannot understand that it is short-sighted and dehumanising to want to enforce your own views on the society as a whole. Why are they so insecure about their teachings that they want the state to police the teachings of their church? Are they somehow worried that ordinary people would reject the fairy tales they tell every Sunday? Don’t they have any FAITH?