Government must review ‘unfair’ regulations on religious gatherings, says FOR SA

By Freedom of Religion South Africa (FOR SA)

When President Ramaphosa declared a national state of disaster on March 15th, there was little data about COVID-19 and thus considerable uncertainty and fear.

His decision to take decisive action, and the “hard” lockdown regulations that followed, was widely supported. At the time, the death toll in Italy and elsewhere was climbing rapidly. It made sense to give our Government a critical opportunity to test for and isolate infections, and to build up our own fragile healthcare systems.

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Although there was an awareness that such precautions would be costly on multiple levels, people were prepared to absorb the pain of separation and economic hardship.

Fast forward seven weeks and we face a very different picture: Testing in South Africa has been minimal and erratic. Where it has been implemented, the effect has largely been made redundant by delayed test results. Regulations have been enforced by the police and army with unacceptable enthusiasm, one of the worst examples being the reported arrest and detention of a Muizenberg couple when their toddler ran onto the beach.

Regulations appear at times to be bizarrely irrational, like forcing people to exercise from 6am to 9am when half the time is in total or semi-darkness, with the limited areas where exercise is permitted being overcrowded as a result.

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There have also been multiple incidents of corruption in the issuing of permits and the distribution of food to the tens of thousands who are on the edge of starvation.

The National Coronavirus Command Council (NCCC) has also appeared at times to be divided and influenced by internal politics, seemingly only willing to listen to reason when aggrieved and adversely affected parties are on the steps of the courtroom.

Today we know that the virus itself is also far less deadly than originally feared. For example, worldwide, almost no one under 45 has died of this virus and only a tiny fraction under 60 will die. Of those who have succumbed, statistics are often skewed to include those who have died from a pre-existent health condition.

Two studies (in Switzerland and Iceland) show that although children under 18 will contract the virus, the vast majority are asymptomatic and that there is almost zero transmission from children to adults.

Although it is true that any life lost is a tragedy, there must always be a necessary balance between the loss of life and the effects of the loss of livelihood. The Panda report, compiled by a group of actuaries and other medical and legal professionals, is predicting that the “life-years lost” as the result of the continuing lockdown will be almost 30 times greater than that which will be caused by the actual disease.

Importantly, in the absence of a vaccine or a cure, this disease will inevitably run its natural course. Only once +/- 60% of a population has been infected and “herd immunity” attained, will we be free from this threat.

Lockdown will not stop this spread and as the infection rates inevitably increase, it ceases to serve any viable purpose. That said, it is universally agreed that there is merit in continuing with social distancing, hand washing, mask-wearing and other sanitation and health protocols.

It is also true that the majority of people can assess personal risk and are likely to behave responsibly – especially if their health (or that of a loved one) is at risk. All this means that we MUST question whether the current (and proposed future) lockdown regulations are achieving their intended purpose – especially when balanced against the dire (health and economic) consequences of their continuation.

The evidence is increasingly clear that this is having a catastrophic and disproportionate effect and that we will be living with the consequences for many years to come.

In this light, it is increasingly important to hold Government to constitutional standards of accountability. Government should be both willing and able to justify their decision to limit our fundamental rights, which it has a duty to uphold. It is worth noting that the applicable test in Section 36 of our Constitution to any restriction of our fundamental rights, is that it must be both reasonable and justifiable, having regard also to the rationality (whether there is a rational connection between the means and the ends) and proportionality (whether the restriction only goes as far as is absolutely necessary) of the particular restriction.

Adverse impact on the religious community
Although multiple areas of our society and economy are adversely affected by the regulations, one which has received very slight (if any) consideration by government is the religious community. Given that a person’s faith – and the expression thereof – is central to their dignity as a human being, the total ban, even at the lowest Level 1, of any form of religious gathering (except for a limited waiver for funerals) is increasingly difficult to justify.

Given that even air travel and accommodation will be permitted at Level 1, a continued moratorium on religious gatherings is clearly a material omission and is grossly unfair and prejudicial to worshippers.

True – in the beginning, the vast majority of the religious community believed that a suspension of meetings and services was acceptable and right. However, no consultation or consideration seems to have been given to the current approach, which puts religious gatherings of any number in the same category as night clubs and sporting events.

This effectively means that such meetings can only take place once government has decided that there is no danger of infection, or when a cure or vaccination has been discovered and is freely available.

It is possible that this over-reaction to the “danger” of religious gatherings is the result of exaggerated media reports. However, these early reports, which identified a disproportionate outbreak in South Korea with a church service, have subsequently been proven to be largely “fake news”. In any event, this (and a similar incident at a church conference in Bloemfontein) occurred before strict border control, social distancing and other health protocols were widely implemented.

Regardless, it is difficult (if not impossible) to distinguish between the risk of infection in a crowded shopping centre or down a mine shaft, with the equivalent concentration of people in a church, or other place of worship.

As the recent judgement from a Kentucky (US) court stated: “If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.” This is in line with a judgement from Germany’s apex court, which has allowed exceptions to a blanket ban on religious gatherings if sufficient precautions were taken to avoid infection.

As such, government must review its current position regarding the religious community. Failing to do so, is to overlook or underrate the essential and unique contribution of the religious community.

Throughout history, the religious community has typically been at the forefront of the response to the ravages of disease. Apart from offering fervent and continual prayers for the government and those suffering in our communities, it also offers practical service, spiritual counsel and support.

These actions include the feeding and clothing of the poor, the elderly and otherwise vulnerable people as well as comforting, counselling, encouraging, caring for and supporting those impacted. There is also the significant contribution the religious community can make in calming an already restless society.

Depriving South African society of the contribution of the religious community is arguably highly counter-intuitive and counter-productive. Today, many people are isolated, lonely and scared of what the future will bring. Some have lost loved ones already, many more face the possibility of unemployment, while others are already devastated by it. Others need basic assistance with things as simple as shopping for groceries or pharmacy items.

In some cases, religious communities are their only lifeline. Other challenges include depression (and possible suicides), heart attacks and even rising levels of domestic and gender-based violence, which is triggered by stress and the enormous debt burden that is already being experienced by thousands. The religious community – with its established “grassroots” network throughout this nation – is uniquely positioned to assist in alleviating these burdens.

It is therefore unsurprising that many in the religious community are questioning the Government’s current position. What is surprising is that it appears – for the moment anyway – that Government only seems to be engaging with the more established sectors of the religious community and ignoring millions of others of that same community whose voices and sincere concerns are equally valid.