Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
3 September 2019

On freedom of religion and the right to question religious beliefs and practices

Do Christians or other religious groups have the right not to have their religion, religious beliefs, or religious practices questioned or criticised? The answer is no. Although some religious South Africans seem to believe they enjoy special constitutional protection, they are mistaken. This does not mean that the prevalence of a diverse number of religious and non-religious belief-systems in South Africa does not raise difficult ethical issues.

Over the weekend a public personality active on Twitter took exception when I pointed out that prayer is not likely ever to change either the facts or the law – just like “thoughts and prayers” are never going to stop mass shootings in the United States of America. The personality interpreted this as mocking her religious beliefs “which is enshrined in the constitution you claim to be an expert on”.

This response is not uncommon. A sizeable number of religious South Africans respond in this way when challenged about the discriminatory nature of some of their religious beliefs and practices, when the truth or efficacy of their beliefs are called into question, or when someone criticises an individual for exploiting their professed religion for political purposes. It seems as if many South Africans truly believe that the Constitution guarantees for them the right not to have their religious beliefs or practices questioned or criticised.

The only problem is that the Constitution does no such thing. Section 15(1) of the South African Constitution guarantees for everyone the right to freedom of conscience, religion, thought, belief and opinion. This means the section guarantees the right to believe in a God (or many Gods) of your choice as well as the right to believe in another deity or not to believe in any kind of higher power at all. As far as the Constitution is concerned it is perfectly normal to be religious, and also perfectly normal to be an atheist – or anything in-between.

In Minister of Home Affairs v Fourie the Constitutional Court affirmed this principle when it acknowledged that religion plays a pivotal role in both the private and public spheres in South Africa, but affirmed that “the rights of non-believers and minority faiths must be fully respected” as well.

But what exactly does this constitutionally protected right to believe or not to believe entail? The Constitutional Court, in a judgment penned by justice Chaskalson, explained in S v Lawrence, S v Negal; S v Solberg that:

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

In a separate judgment in the Lawrence case justice O’Regan argued that an additional requirement for protecting freedom of religion, belief, conscience and opinion is that different belief system should be treated fairly or equitably.

Whether equitable treatment forms part of the section 15(1) right remains an open question, but at the very least the freedom of religion, conscience, belief and opinion guaranteed in section 15(1) implies an absence of coercion or constraint. Everyone must be allowed to decide for themselves what their beliefs are, must be able to tell others what those beliefs are, and must be able to act in accordance with those beliefs.

It is clear from the above that section 15(1) of the Constitution does not protect anyone from having their religious beliefs or practices questioned or criticised. Instead, the section guarantees for everyone the right to question or criticise the religious beliefs (or the absence of religious beliefs) of others. Where somebody insists that you have no right to question or criticise their religious beliefs or practices, they are trying to deny you your section 15(1) right to form your own beliefs and to express them publicly.

(Of course, such a prohibition on criticism of specific religious or other beliefs or practices would also infringe on the right to freedom of expression, but this aspect is beyond the scope of this article.)

Let me use myself as an example. I am an atheist. I do not believe in any God, deity or higher power. I do not pray because I don’t think it can change anything. I am therefore critical of the manner in which some unscrupulous religious entrepreneurs exploit religion to make money, the way others abuse religion to gain a political advantage or public sympathy, and the way others use their religious beliefs to justify discrimination or the spreading of hate against sexual minorities, women or other marginalised groups.

When right-wing politicians in the United States refuse to enact stricter gun laws after yet another mass shooting, and instead repeat the mantra that their “thoughts and prayers” are with the thousands of victims of mass shootings, it enrages me both because I am pretty sure thoughts and prayers won’t help and because their deployment of religion so obviously exploits religious beliefs and feelings to gain some political advantage.

The wonder of the guarantee contained in section 15(1) of the South African Constitution is that I have a constitutional right to form these opinions and to express them publicly – even if they upset some adherents of that particular religion.

Having written the above, I am expecting some individuals to criticise my (non)belief and to present their particular religious beliefs as superior to my (non)belief. And because not everyone is either able or willing to engage in a reasoned argument, it is also likely that some will mock me, insult me, or vilify me for daring not to believe in their God and having the cheek to state this publicly.

Section 15(1) guarantees them the right to criticise my beliefs and, as long as it does not tip into hate speech or defamation, also to insult me and my beliefs. This is a right enjoyed by all of us.

But this may not be the end of the matter. As I have written several times before in the context of freedom of expression: just because you have a right to do something does not mean it is right to do it. But it can be rather tricky to decide what the right thing to do is when it comes to criticism and questioning of religious and non-religious beliefs. I would nevertheless want to suggest at least two tentative general principles that may help when making such decisions.

The first principle is that power matters. It is usually better to pick on those with power than on those with little power. If you pick on those with less power, you run the risk of perpetuating stereotypes about them and to encourage or facilitate their further marginalisation and oppression.

In the South African context by far the most powerful religious or non-religious belief system is Christianity. A particular type of Christian ideology (there are, of course, other versions that are more loving and open to difference) dominates discourse in our society. Many South Africans also see Christianity as the norm and those who profess to be Christian as being “normal”. Those who are not Christian are often viewed as different, strange, dangerous, morally inferior, or even evil.

Moreover, if you are Jewish, Muslim, a Rastafarian or an atheist you are far more likely to suffer from discrimination because of your beliefs than if you had been Christian. For this reason, I will be far less likely to worry that I am offending somebody when I question or criticise a professed Christian for something he or she said or did in the name of their religion, than I would have if the person was an atheist, or Jewish, Muslim or Rastafarian.

Challenging the powerful – especially those who use the power their religion cloaks them in to humiliate, stigmatise and vilify those who hold different beliefs – seems to me not only to be ethically permitted but often also ethically demanded. It should not matter that people have cloaked themselves in the garb of Christianity – or at least in their version of it.

The second tentative principle I would like to advance is that little can be gained by being deliberately cruel to others for the sake of being cruel. While it does not personally cause me distress when somebody tells me there is a God and that I will burn in hell for being an atheist, I am well aware that mocking, questioning or criticising the religious beliefs and practices of some may cause them distress. This distress is unavoidable in a society in which diverse beliefs are protected and celebrated.

But what may be avoidable is the cruel mocking of somebody’s beliefs with no other intent that to cause them distress. For example, a cartoon depicting Jesus giving a blowjob to one of his disciples might amuse some, but what could possibly be its point apart from trying to upset some Christians? The Jyllands-Posten Muhammad cartoons fall for me in the same category – except that in that case the cartoons also reinforced racist stereotypes about Muslims.

To hold on to and live this second principle is not easy, and I am not sure I have or will n future meticulously adhere to it. When members of some religious groups promote hate against women, LGBTIQ people, and others, and do so in ways that cause emotional harm and legitimise physical attacks on us, it is very hard not to lash out – even though the lashing out may not make things better.

But not being sure may not be such a bad thing. After all, as Wilson Mizner once said: “Faith is nice, but doubt gets you an education.”

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