Guest Column

When people’s beliefs are abused

2017-07-16 06:35

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Shadrack Gutto

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) has officially released to the public its “report of the hearings on the commercialisation of religion and abuse of people’s belief systems”, as well as its recommendations for legislative amendments. ­Predictably, this has generated robust public debate.

On the eve of the report’s presentation to a parliamentary portfolio committee last month, it was presented and ­discussed with religious leaders in Cape Town. I attended both the discussion with religious leaders and the parliamentary portfolio committee workshop in an ad hoc capacity as constitutional and legal expert adviser to the CRL.

This commentary is personal and independent, though it draws from the opinion I presented at the two events and my earlier engagement with the commission.

The entry point in the debate on the report, especially the recommendations for implementation by the CRL, ought to be based on the Constitution and laws – including relevant international laws that are recognised by and are binding on South Africa, such as the African Charter on Human and Peoples’ Rights of 1981 and its protocols.

The CRL is an organ of state performing constitutional obligations. The Constitution requires that the performance of constitutional obligations must be done “diligently and without delay”. The mandate of the CRL is broad – it includes what are expressly provided for in section 185 of the Constitution, including “to promote respect for the rights of … religious … communities and the power to monitor, investigate, research, educate, lobby and advise on issues concerning … religious communities”.

The CRL’s investigative power is also affirmed in section 7 of the CRL Act of 2002, which gives it the power to summon people to testify and order them to produce documents in its investigative processes.

This includes issues dealing with cultural and linguistic communities, which the CRL has indicated it will focus on separately in the near future.

Violation and denial of rights

The outcry from critics of the report, particularly over its recommendations, came because the CRL indicates that the state is encroaching on the right to freedom of religions enshrined in section 15 of the Constitution. In my considered opinion, this is not well founded. What the report and its recommendations is dealing with is focusing on section 31, which provides for the rights of people belonging to a religious community to enjoy their religion and “to form, join and maintain religious associations”, but not “in a manner inconsistent with any provision of the Bill of Rights”.

First and foremost, the report is about the violation and denial of certain fundamental rights and freedoms of congregants or followers by some – not all – religious leaders, whether they regard themselves as preachers, pastors, bishops, archbishops, prophets, imams, rabbis or African tradition spiritualists.

Congregants or followers are entitled to rights and freedoms of religion, belief, opinion, human dignity, security of the person, equality, expression, assembly, association, movement and residence, trade, health, labour, profession, education, culture, religion, access to information and just administrative action. However, they, as all other individuals in the country, must act within the Constitution and laws of the country.

The supremacy of the Constitution is part of our founding values. The idea that the words, revelations and instructions from the gods, whatever they may be, are above the Constitution and laws of the country is promotion of theocracy that, sooner or later, may turn into movements similar to that of past crusaders and present-day fundamentalist groups such as the Islamic State.

Children of religious followers also have specific rights under the Constitution, as amplified in the Children’s Act. Parents, religious leaders, religious bodies and organisations are obligated to respect these rights and freedoms.

Besides, the general overarching limitation to rights and freedoms in the Bill of Rights, which has safeguards, apply to religious rights and freedoms of people, and the rights of religious communities and their associations or councils.

No society or country can function meaningfully in the 21st century without revenue from all sources of taxation. This requires everyone, including religious/spiritual organisations, to contribute. They must be open, responsible and accountable.

Ultimately, the question is whether the amendments to the CRL legislation proposed by the commission are within the constitutional and relevant legislation.

In my opinion, the suggestions and recommendations are directed at limiting the overexploitation and abuse of the rights and freedoms of innocent, vulnerable and ordinary people, especially the poorest of the poor and children, and at ensuring financial accountability of religious bodies to the followers/believers, society and the state.

There can be no credibility to religious bodies preaching to politicians and political bodies to be ethical and transparent when they themselves are not.

Registration of religious leaders and associations, either as trusts or nonprofit bodies, is necessary. They ought to be subject to internal and, where necessary, independent financial audits. This will contribute to their not being suspected of engaging in money laundering, racketeering and funding of political parties or such other hidden illegal activities.

The fact that some religious leaders and organisations are entrepreneurs who have commercialised their trade for monetary reasons, with little or no real material benefits to their congregants or followers – aside from abstract promises that they will go to heaven by enriching the religious leaders and organisations – is not new, but it has become a booming industry.

Some preachers pretend that they are talking to the gods on cellphones while they preach. Even old people who live off meagre social grants are preyed upon.

The SA Revenue Service (Sars), in collaboration with the CRL, should develop a mechanism for monitoring and regulating such predatory, non-taxpaying practices. The issue of how they can be taxed must involve Sars, which can provide some of them with tax exemption. The latter is outside the mandate of the CRL.

Another tendency of abuse of religious forums, which was not covered in the report, its recommendations and proposed legislative amendments, is the use of religious beliefs and forums by politicians during election campaigns.

An example relates to when President Jacob Zuma told people that those who did not vote for the ANC would not be allowed by God to enter heaven. Such an issue needs to be attended to, not only by the CRL, but by the commission in collaboration with bodies such as the Electoral Commission of SA.

Lastly, the CRL does not make laws, but it can propose them based on its constitutional mandate and based on the objects in the legislations that are relevant to its operations.

Those opposing the findings and recommendations in the report, as well as the CRL’s proposals for legislative amendments, are, of course, free to challenge the final actions in courts of law once Parliament has decided on them.

South Africa is building a constitutional democracy based on the rule of law. This is a long and continuous journey.

Emeritus Professor Gutto heads the Centre for African Renaissance Studies, College of Graduate studies at the University of SA (Unisa). The views expressed do not necessarily reflect the views of Unisa or the CRL

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