By Michael Swain, executive director of Freedom of Religion South Africa
How greater levels of voluntary and self-regulatory accountability can effectively resolve problems
It seems that every day there is another article or TV exposure of some so-called pastor or prophet doing something that is either outright criminal or borderline at best. Both the public at large and the vast majority of the religious community roundly condemn such actions and there is an increasing clamour for solutions and appropriate sanctions. The challenge lies in finding ones which are sufficiently comprehensive to address the issues at hand, while ensuring that religious rights and freedoms remain protected and respected.
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In this context, it is important to emphasise that it is both impossible and unacceptable to try to hide a criminal or illegal act behind a cloak of freedom of religion. A crime is a crime, regardless of the context. It is also important to note that the religious community is already highly regulated and both religious practitioners (RPs) and religious organisations (ROs) are bound to obey the rule of law, which applies to all South Africans. However, it is equally important to emphasise that it is the State – not the religious community – which holds the responsibility to enforce these laws and to deal with anyone who acts in contravention of them. Where there is an infringement of the law – as highlighted in almost all the examples provided in the CRL’s Report on The “Commercialisation” of Religion and the Abuse of People’s Belief Systems – it is typically either the result of an overt criminal action (which requires State intervention), or an omission of a compliance requirement which can be remedied through a process of education.
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One of the big questions facing the religious community – and the Church in particular – is how to deal with those who claim to practice the Christian faith but whose actions are evidently in conflict with generally accepted tenets of biblical theology. The most immediate response is that there must be some form of “accountability”, typically by forming one or more “oversight bodies” consisting of mature and respected Christian leaders. Their role would be to serve as “watchmen” over those who claim to be part of the Christian faith, and to have the power to intervene and to “discipline” anyone who steps over the lines.
Voluntary submission to oversight bodies to be encouraged
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Any individual or organisation has the right to join together with others of like mind or purpose, and to voluntarily subject themselves to the terms and conditions of this relationship. Arguably, they should be encouraged voluntarily to become part of such a structure, since this would certainly provide a greater level of accountability. Such bodies would have a good sense of what was happening in their local communities and at “grass roots level”, so their existence would be helpful in identifying those whose words or actions conflict with these generally accepted tenets of faith. They could then either warn the community of the potential risks of the theological error or, where an evident illegal act was being committed, alert the appropriate State authorities so that they can intervene. In fact, international experience shows that problematic behaviour is more effectively identified by police, neighbours, disgruntled insiders and the media, than by any enforced regulation by State authorities.
However, where such a structure (or even a disciplinary procedure) becomes concerning, is when suggestions are made that such discipline should entail preventing an offending RP from continuing in a position of leadership or even closing down the RO itself if he/she refused to “repent of their error”. While at first glance, this may sound like a good solution, further consideration will demonstrate that this is very close to the concept of “Peer Review Committees” (PRCs) as proposed in the recommendations of the CRL’s Report. The Report said that it should be made compulsory for a RP or RO to join a PRC. The problem is that such compulsion, particularly when backed by State sanction, will inevitably constitute an infringement on religious freedom rights.
Church history warns against state-sanctioning of religious organisations
This problem is worsened where the State (including therefore the CRL as an “institution of state” in terms of the Constitution) gives support – with the backup of State-enforced sanctions – to PRCs who it views as representing an orthodox or preferred body of religion or religious interpretation. A brief overview of Church history provides clear evidence that whenever this happens, disastrous consequences follow.
The Lutheran and early Protestant churches were ruthlessly persecuted by the Catholic church until they became established with the backing of state power. At this point, they, in turn, persecuted the emerging Anabaptist movement with equal zeal and ruthlessness. The Puritans fled England and Europe to find refuge in the “New World” where they could be free to live out their faith but, once they were established, they persecuted emerging “new” expressions of the Christian faith. The Boston Martyrs is the name given in Quaker tradition to three of their members who were condemned to death and executed by public hanging for their religious beliefs under the legislature of the Massachusetts Bay Colony.
In our more recent history in South Africa, the apartheid government supported (and to a significant extent was endorsed by) one particular group’s interpretation of Scripture, with hugely detrimental consequences.
Minimum requirements for state-sanctioning of religious organisations
Further problems emerge when one considers how such PRCs may be structured if/when the state becomes involved in their formation, as has been the case in other countries. For example, this has involved the state requiring a certain level of formal theological education before someone will be deemed as qualified for the role/profession of a RP, or requiring minimum numeric membership levels before a church or organisation will be recognised as an RO.
In Rwanda, the government has closed down over 8,000 churches – most of whom we not part of the established church denominational structures. According to Worldwatch Monitor (which reports on religious persecution), in Angola more than 2 000 churches have been closed and over 1 000 more face closure after Angola’s cabinet approved a new law requiring them to register with the government, including presenting at least 100 000 signatures of followers.
Potential infringement on religious freedom rights
Most importantly, there is the potential to seriously infringe upon the rights given to all who live in this nation by the South African Constitution, which is the cornerstone of our democracy. Section 15 (1) declares that “Everyone has the right to freedom of conscience, religion, thought, belief and opinion.”
In this regard, the Constitutional Court has already decided in Prince v President of the Law Society of the Cape of Good Hope that a person is free to believe something even if that belief is “bizarre, illogical or irrational”. It explained its decision by stating that even if a belief is “incapable of scientific proof, [this] does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion.” Clearly, this extends beyond the framework of generally accepted Christian theology.
Viable alternatives to State regulation of religion
As FOR SA has long argued, there are viable alternatives to state or statutory regulation of religion, which can help ensure that there is a higher level of accountability in the religious sector.
a) Database of religious organisations and institutions
Section 5(1)(j) of the CRL Act, 2002 already empowers the CRL Rights Commission to “establish and maintain databases of …. religious organisations and institutions and experts…” It should be noted that there is a world of difference between requiring RPs and ROs to register (which this law already makes possible), and regulating them. Registration would entail requiring RPs and ROs to provide the CRL with a checklist of information regarding the RP and/or RO, including for example the RP’s and/or RO’s address and contact details; the RO’s legal status (whether a voluntary association, non-profit company or trust); whether the RO is registered as a non-profit organisation (NPO) with the Department of Social Development; registration with SARS; what denomination or religious grouping the RO associates with; who the RO’s office bearers are; whether the RP is registered as a marriage officer; etc.
It is also important to note that keeping an informational register (or “database”) does not in any way empower the CRL to examine doctrine or religious practice (assuming there is no infringement of law), nor would it affect people’s rights to exercise their religious freedom. Registration would, however, be compulsory for anyone who wants to be a RP or to establish a RO.
The information that could legitimately be required by the CRL in terms of its Act also has the potential to reveal where there may be compliance issues (or even illegalities) taking place. For example, when a person registers as a RP who is a foreign national, he/she could legitimately be required to present proof of permanent residency or a valid work permit. If this was not provided, it could be further investigated and (if the person was found to be working or living illegally in the country), they could be subject to deportation by the immigration authorities. If a RO registered, they could legitimately be asked to provide (e.g.) a copy of their constitution, memorandum of incorporation, or trust deed, or proof that they have a separate bank account registered in the name of the RO. Again, if such information or documentation was not able to be provided, this could be the subject of further investigation, which in turn could provide the opportunity either for further education and/or other sanction if the RO remained uncompliant.
b) Code of conduct for the religious sector
A further important component in ensuring greater levels of accountability is the development of a code of conduct. This was a universal recommendation of those denominations, organisations and churches who appeared before the COGTA Parliamentary Portfolio Committee when they held hearings into the CRL’s Report. Specifically, the COGTA report on these hearings recommended that a code of conduct be developed by the religious communities to provide a level of accountability, and as a benchmark of the responsibilities which religious communities should be expected to support and embrace.
The process of developing a code of conduct by and for the religious community has already been initiated at a conference organised by The Evangelical Association of South Africa (TEASA) at Christian Family Church, Johannesburg in April 2018. This was attended by over 70 senior religious leaders from the major denominations, church structures and traditional indigenous African religious groups. The conference gave a mandate to the South African Council for the Protection of Religious Rights and Freedoms (SACRRF) to draft and develop a code of conduct, based upon the SA Charter of Religious Rights and Freedoms. This charter was developed in the 1990s and has been endorsed by senior religious leaders representing over 22 million people from the vast majority of faiths in South Africa.
This code of conduct is already in its third draft, having been widely circulated for input. Once this process is concluded, this code could be subscribed to by both RPs and ROs. Such endorsement could be linked to a type of “Unashamedly Ethical” badge for those who have subscribed. It will also provide a standard by which the public and community will be able to tell whether or not any RP of RO is compliant with these common standards and ethics.
Religious community to engage in seeking appropriate solutions
It is therefore of the utmost importance for the religious community to step up and to engage actively in the process of developing appropriate solutions to the problems we are facing and which have been so clearly highlighted by the media and the CRL’s Report.
On a positive note, the Religious Leader’s Summit, which was co-organised by the CRL, took place on February 13 at Rhema Church, Randburg. At this event, the chairlady announced that the CRL were now handing over the process of developing appropriate solutions to the religious leaders and the religious community. The summit subsequently resolved that a local, provincial and national consultative process would take place where these issues will be addressed and solutions developed by and for the religious community that are voluntary in nature and therefore truly self-regulatory. This process is due to culminate in a three-day summit in October, when the findings and solutions can be presented and adopted.
