INTRODUCTION
In August 2015 the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) began an investigation into the ‘commercialisation of religion’. The investigation was in response to a number of media reports concerning suspicious or untoward practices being undertaken by various pastors and churches. These included allegations of congregants being made to eat grass or to drink petrol; stories of people being cajoled into
handing over large sums of money in order to be ‘cured’ of a disease; the encouragement of personality cults; and the depositing of church funds in the personal bank accounts of leaders.
The Dutch Reformed Church appeared before the Commission and experienced a constructive meeting with the Chairwoman Ms Thoko Xaluva and other members. The investigation ended in March 2106 and a report was subsequently issued. This report calls for far-reaching regulation of religious organisations and religious ‘practitioners’, and proposes that legislation be introduced to this end.
RESPONSE BY THE DUTCH REFORMED CHURCH
The Dutch Reformed Church appreciate the opportunity to provide feedback on the report concerning the commercialisation of religion and the abuse of people’s belief systems. We also want to commit ourselves to a process of consultation with the CRL to contribute in a constructive way.
This briefing paper will consider the role of the CRL Commission, the necessity or otherwise of the investigation, the main recommendations of the report, and whether or not the regulatory proposals offend against the rights to freedom of religion and freedom of assembly.
The Dutch Reformed Church share the CRL Commission concerns about the identified abuses within religious communities. We repudiate in the strongest possible terms both the claims and the unlawful actions of so called prophets. There are problems in the religious sphere. There are undoubtedly a number of charlatans and con-artists ready to take people’s money in return for spurious ‘cures’ and ‘healings’. Numerous prosperity cults are active around the country, preaching a message of personal material advance as a sign of God’s favour; a message intimately connected, it goes without saying, to the special material advance of the cult leader. So many desperate South Africans pay out so much hard-earned money to so many supposedly religious leaders. The very fact that a number of religious bodies have (jointly) condemned what happened should indicate that for instance pastor Mnguni’s actions are not acceptable to the religious community itself.
Although we share the CRL Commission’s concerns about the identified abuses within religious communities, we do want to raise objections to the possible undermining of religious freedom as proposed in the Report.
POSSIBLE INFRINGEMENT OF RELIGIOUS FREEDOM
In South Africa, the relationship between religion and the state corresponds to the cooperative model which provides that freedom of religion is acknowledged and constitutionally guaranteed, in terms of which individuals and religious communities and institutions enjoy maximum religious freedom to operate within the law of the land, whereas the duty of the state is to create a safe environment for religion and religious freedom to thrive. This position has been confirmed in section 15 of the Constitution.
Should legislation compel religious communities and institutions to be registered and licensed by bodies created in terms of said legislation, it would not only amount to the adoption of a completely different model for regulating the relationship between religion and the state; it would also affect the constitutional right to freedom of religion to such an extent that the constitutionality and, thus, the validity of the legislation itself will be in doubt.
The right to believe and to choose which faith, worldview, religion or religious institution to subscribe to, affiliate with or belong to, would be infringed if being implemented. When the state creates bodies (irrespective of the fact that they will consist of representatives of different religions and religious communities) for the recognition and licensing of religious institutions and communities, it limits this right, because the individual is not free to believe and, accordingly, to choose which religious institution or community to belong to. One is indirectly forced to belong only to religious institutions or communities recognised and licensed by state-created bodies (and, by implication, to adjust one’s beliefs accordingly).
The right to manifest one’s beliefs by way of religious observances and other actions, specifically the right to associate with others, to form and join religious associations and institutions, to organise religious meetings and other collective activities, and to establish and maintain places of religious practice are being jeopardise in this regard.
Religious institution is recognised and protected as having authority over its own affairs, and the state, including the judiciary, must respect the authority of every religious institution over its own affairs, and may not regulate matters of doctrine and ordinances. Having regard to the functions and powers of the various state bodies envisaged by the proposed legislation, the state will be deeply involved in the internal affairs of religious institutions.
The conclusion is that several components of the right to freedom of religion will be severely limited by the proposed legislation. This is probably an unintentional consequence of the Commission’s proposals.
The Dutch Reformed Church appeals to the Commission to respect the right to religious freedom in all its dimensions as protected in section 15 of the Constitution and in the Charter of Religious Rights and Freedoms. To respect the right of every person to believe and to manifest those beliefs. To confirm the right of religious communities to determine their own doctrines and regulate their own internal affairs. The Dutch Reformed Church support the duties of the state to create a positive and safe environment for the exercise of religious freedom, and to act impartially and without unfair discrimination against anyone on the ground of their faith, religion or religious affiliation. At the same time, the state has the responsibility to guard against the undermining of religious freedom and to encourage religious communities to respect all human rights protected in the Constitution.
This can be achieved only through cooperation between the state and religious organisations.
The Dutch Reformed Church wants to take up the invitation to respond on the report and be part of a dialogue with the CRL. Against this background, the Dutch Reformed Church would like to make the following recommendations:
- Accountability in religious institutions be strengthened
The Commission, despite noting that there are authorities with existing jurisdiction to deal with the problems it has identified goes on to conclude that there is a need for the religious sector to be regulated. Initially, it appears that it is encouraging self-regulation, but it is clear that something far more intrusive is being contemplated. Religious organisations should be encouraged to get their own house in order, among other things by proper training and putting proper internal rules in place. The onus, it seems, should be put on the religious sector to articulate for itself how it will deal with scandalous situations. The sector has to face the fact that there is a proliferation of fundamentalist faith communities all over the country, which, unfortunately, cheapen the spiritual currency.The report also neglects to explain why a cumbersome, impractical, and intrusive system of councils, committees and ‘umbrella organisations’ is needed when plenty of ordinary legal mechanisms already exist to tackle the issues it is worried about. Apart from legal systems, most of the mainline churches have tested and proved structures in place to regulate and be pre-emptive in preventing destructive practices. As far as the Dutch Reformed Church is concerned the following is in place: The presbytery, as part of the church structure, plays an important part. If a member hears the calling to the ministry, the local presbytery must give its recommendation for the candidate to start its theological studies at one of the three Theological Faculties. During the candidate studies he/she does so under the supervision of the presbytery as well as the congregation where the candidate resides. At each of the Theological Faculties there is also a body called a curatoruim which supervise the academic and spiritual progress of the candidates. The curatoruim must finally approved the candidate in order to be called to a congregation. When approved the candidate must take an ordination oath. As part of this oath the candidate commits to comply with the doctrine and Church Order of the church. After receiving a call to a congregation a pastor is under the supervision not only of the church board but also under the presbytery where being ministered. An important part of the Dutch Reformed Church’s Church Order or Church Polity is the sections that deals with the ministry of pastors in accordance to the believes and doctrines of the church. If a pastor does not comply it risks its competence to minister in the Dutch Reformed Church. The presbytery also plays an important part in the financial management of each congregation that is part of the presbytery. Audited statements, audited by chartered auditors, must be presented once a year. - Religious organisations refrain from infringing the constitutional rights of members of the public
Besides self-regulation there is another factor that must not be overlooked. Religious bodies, like any other body in the country, are subject to the law of the land and the Constitution. Freedom of religion is enshrined in the Constitution but this cannot violate other freedoms or laws. Religions do not have absolute freedom in their practices but are subject to the rights in the Constitution and the law and must abide by them. Religious bodies and their leaders are not and should not be above the law. Orthodox Christianity would hold that its followers should submit to legitimate civil authority. At the same time, secular democracy has no right to determine who may lead faith communities or how to interpret sacred texts or doctrines. This is the role of the communities themselves. Naturally, if such interpretations or actions violate the rights of other citizens (believers or nonbelievers) or do them actual harm, it may be the duty of the civil authority to respond according to the laws of the land.
The Dutch Reformed Church call upon the Government and the CRL Rights Commission to exercise their powers to ensure that perpetrators are prosecuted to the full extent of the law. There is a definite need to refer specific cases where organisations are not in compliance with the law, to the relevant authorities We also call upon the victims of these acts to withdraw their support from those whose practices and teachings are in no way a reflection of true biblical Christianity. - The Commission be capacitated to fulfil its mandate
The Commission must be empowered to promote and protect religious freedom, among others to be able to investigate complaints regarding abuse and exploitation which violate human rights or the law.
We commend the Commission for a bona fide effort to prevent and combat the “commercialisation” of religion and abuse of people’s belief systems. We believe that where the Report is challenging the freedom of religion it is unintentional. We as the Dutch Reformed Church appeal to the Commission to follow a broad consultative process with the religious sector. The Dutch Reformed Church reaffirm our commitment to support the Commission in finding solutions that are practical and aligned with the Constitution.
Dr Gustav Claassen
General Secretary Dutch Reformed Church
