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The Freedoms of Religion and Culture under the South African Constitution: Do Traditional African Religions Enjoy Equal Treatment?

Published online by Cambridge University Press:  24 April 2015

Jewel Amoah  and
Tom Bennett
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Extract

On Sunday, January 20, 2007, Tony Yengeni, former Chief Whip of South Africa's governing party, the African National Congress (ANC), celebrated his early release from a four-year prison sentence by slaughtering a bull at his father's house in the Cape Town township of Gugulethu. This time-honored African ritual was performed in order to appease the Yengeni family ancestors. Animal rights activists, however, decried the sacrifice as an act of unnecessary cruelty to the bull, and a public outcry ensued. Leading figures in government circles, including the Minister of Arts and Culture, Pallo Jordan, entered the fray, calling for a proper understanding of African cultural practices. Jody Kollapen, the Chair of the Human Rights Commission, said: “the slaughter of animals by cultures in South Africa was an issue that needed to be dealt with in context. Cultural liberty is an important right. …”

That the sacrifice was defended on the ground of African culture was to be expected. More surprising was the way in which everyone involved in the affair ignored what could have been regarded as an event of religious significance. Admittedly, it is far from easy to separate the concepts of religion and culture, and, in certain societies, notably those of pre-colonial Africa, this distinction was unknown. Today in South Africa, however, it is clearly necessary to make such a distinction for human rights litigation, partly because the Constitution specifies religion and culture as two separate rights and partly because it seems that those working under the influence of modern human rights seem to take religion more seriously than culture.

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Articles
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Journal of Law and Religion , Volume 24 , Issue 1 , 2008 , pp. 1 - 20
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Copyright © Center for the Study of Law and Religion at Emory University 2008

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References

1. Yengeni animal slaughter not criminal—SAHRC (Jan. 23, 2007), http://www.iol.co.za/index.php?set_id=l&click_id=13&art_id=qwll69538120458B262 (accessed Jan. 24, 2007).

2. Id.

3. Id.

4. Barrett, D.B., Schism and Renewal in Africa 85 (Oxford U. Press 1968)Google Scholar.

5. See infra n. 6.

6. Mankatshu v. Old Apostolic Church of Africa & others 1994 (2) SA 458 (TkAD); Allan & others v. Gibbs & Others 1997 (3) SA 21 (SE) (S. Afr.); Ryland v. Edros 1997 (2) SA 690 (C) at 703; Taylor v. Kurtstag NO & others 2005 (1) SA 362 (W) 39; Singh v. Ramparsad 2007 JDR 0019(D) ¶50.

7. Worcester Muslim Jamaa v. Nazeem Valley & others 2002 (6) Butterworths Constitutional Law Reports 591 (C).

8. South African Law Commission Report on Customary Marriages (1998) Project 90, Government Printer, Pretoria ¶¶ 4.4.5ff.

9. In this respect, the Commission was following a pattern of thinking already well-established in the courts: the “religious element” of marriage was mere custom, of no greater consequence than “music, singing or a wedding reception.” See Sila & Another v. Masuta 1937 NAC (N&T) 121 at 123 and Simons, H.J., Customary Unions in a Changing Society, 320 Acta Juridica 322–325 (1958)Google Scholar.

10. 2000 (4) SA 757 (CC).

11. Constitution of the Republic of S. Africa, Act 108 of 1996, (Dec. 18, 1996), § 30 & 31.

12. See the statistics cited below in the text to infra n. 104.

13. The Constitutional Court, in Christian Educ., S. Afr. v. Minister of Educ. 2000 (4) SA 757 (CC) ¶ 24, for example, held that the Constitution gives people the right to be who they are without being forced to subordinate themselves to the cultural and religious norms of others, and highlights the importance of individuals and communities being able to enjoy what has been called the “right to be different.”

14. This right is now preserved in all international human rights conventions. See e.g. art. 18 of the Universal Declaration of Human Rights (1948), art. 18 of the International Covenant on Civil and Political Rights (1966) and art. 8 of the African Charter of Human and People's Rights (1981).

15. See e.g. the right to freedom of religion featured in the Declaration of the Rights of Man and the Citizen (cl. 10), which was proclaimed during the French Revolution.

16. Strydom, H.A., The International and Public Law Debate on Cultural Relativism and Cultural Identity: Origins and Implications, 21 S. African Yearbook Intl. L. 1, at 4ff (1996)Google Scholar.

17. Bennett, T.W., Human Rights and African Customary Law 23–25 (Juta & Co. 1999)Google Scholar.

18. See art. 15(1)(a) & (c) of the International Covenant on Civil and Political Rights (1966). See Sieghart, P.International Law of Human Rights 339 ¶ 23.5.3 (Clarendon Press 1983)Google Scholar.

19. Thus, culture was linked to self-determination. See art. 1(1) of the International Covenant on Civil and Political Rights (1966), which provides that, by virtue of the right to self-determination, all peoples are entitled to pursue their own cultural development.

20. This definition is derived from the founder of cultural anthropology, Tylor, E.B., Primitive Culture; Researches Into the Development of Mythology, Philosophy, Religion, Language, Art and Custom vol. 1 (4th ed., H. Holt & Co. 1920)Google Scholar and continues to be taken as a core concept of this discipline. See H.A. Strydom, supra n. 16.

21. Hence, culture is inherently oppositional, and consciousness of culture arises only through close interaction between two or more social groups: Roosens, E.E., Creating Ethnicity: The Process of Ethnogenesis 12 (Sage Publications 1989)Google Scholar.

22. Culture in this sense is protected by art. 27 of the International Covenant on Civil and Political Rights (1966), which provides that:

peoples belonging to … minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

23. Progress towards definition is not, of course, assisted by the fact that lawyers, theologians and social scientists tend to work independently. See Donovan, J.M., God Is As God Does: Law, Anthropology, and the Definition of “Religion,” 6 Seton Hail Cons. L.J. 23, at 70ff (1995)Google Scholar (regarding the legal and anthropological approaches).

24. This process of blending is familiar to Christian missionaries, since African culture has long been used as a medium for communicating the gospel message. See Tlhagale, B., Inculturation: Bringing the African Culture Into the Church, 14 Emory Intl. L. Rev. 1249 (2000)Google Scholar.

25. Essentialism is used here to refer to the assumption that religion and culture have universally valid definitions. Thus, an essentialist critique of religion and religious rights would tend to assume that western religions can speak for all religions, or, at the very least, that the frame of reference for judging them different should be the western frame. In consequence, religions that do not conform to western-specifications may not by recognized and valued as religions.

26. According to some scholars, however, the process of definition is a fittile exercise, since religion cannot be defined. See George Freeman, C. III, The Misguided Search for the Constitutional Definition of “Religion,” 71 Georgetown L.J. 1519ff (1983)Google Scholar and Gunn, T.J., The Complexity of Religion and the Definition of “Religion” in International Law, 16 Harv. Hum. Rights J. 189 at 191 (2003)Google Scholar. Donovan, supra n. 23, at 28 goes so far as to say that the exercise is unconstitutional.

27. This distinction determines Durkheim's The Elementary Forms of the Religious Life (1912). See Donovan, supra n. 23, at 73.

28. See Freeman, supra n. 26, at 1553 and Donovan, supra n. 23, at 60-61, who cites the list of features prepared by the United States’ Internal Revenue Service.

29. See supra text accompanying n. 14.

30. Nor for that matter do other religions such as Buddhism. See Southwold, M., Buddhism and the Definition of Religion, 13 Man 362 (1978)CrossRefGoogle Scholar. See also Goody, J., Religion and Ritual: The Definitional Problem, 12 Brit. J. Sociology 142 (1961)CrossRefGoogle Scholar.

31. The same was true of other states. See Horwitz, P., The Sources of Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond, 54 U. Toronto Faculty L. Rev. 1, at 5 (1996)Google Scholar.

32. For instance, S v. Lawrence 1997 (4) SA 1176 (CC) challenged a contravention of § 90(1) of the Liquor Act 27 of 1987, which restricts the hours and days on which liquor may be sold.

33. See S v. Abrahams 1982 (3) SA 272 (C); Hartman v. Chairman, Board for Religious Objection & others 1987 (1) SA 922 (O).

34. Lawrence, supra n. 32, ¶¶ 90-98.

35. See Burchell, J., Principles of Criminal Law 535 & 536 (3d ed., Juta & Co. 2005)Google Scholar; Bennett, T.W. & Scholtz, W.M., Witchcraft: a problem of fault and causation, 12 Comparative & Intl. L. S. Afr. 288 (1979)Google Scholar.

36. See R v. Mbombela 1933 AD 269 which held that “a genuinely held superstitious belief” might have deprived the accused of the “capacity to appreciate the wrongfulness of his conduct.”

37. Currie, Iain & Waal, Johan De, The Bill of Rights Handbook 339 (5th ed., Juta & Co. 2005)Google Scholar. This formulation was taken from the Canadian case, R v. Big M Drug Mart [1985] 1 SCR 295 at 336, by Chaskalson J in S v. Lawrence 1997 (4) SA 1176 (CC) ¶ 92. It was followed in Prince v. President, Cape Town L. Socy. 2002 (2) SA 794 (CC) ¶¶ 38 and Christian Educ. S. Afr. v. Minister Educ. 2000 (4) SA 757 (CC) ¶ 19.

38. See Currie & De Waal, supra n. 37, at 344 citing Meyerson, D., Rights Limited 2 (Oxford U. Press 1997)Google Scholar. This difficulty accounts for the courts' reluctance to question an individual's sincerity of belief as a requirement for upholding § 15. The judgment of the court a quo in Christian Educ. SA v. Minister Educ. Gov. RSA 1999 (9) BCLR 951 (SE) 957-8 is the exception to the rule. See Currie & De Waal, supra n. 37, at 341.

39. Sec. 36(1) provides that:

[t]he rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors ….

40. Currie & De Waal, supra n. 3 7, at 344-346.

41. Meyerson, supra n. 38, at 34.

42. Currie & De Waal, supra n. 37, at 341-342.

43. The basis for this distinction is whether obligations are imposed on everyone or only on certain persons or groups. The distinction applies to rights other than human rights—for instance, copyrights are absolute, and contractual rights are relative, although neither of them is a fundamental human right. For purposes of human rights, however, the absolute rights always include the state, while relative rights exclude all other obligors but the state. Ioffe, O.S., Human Rights, 15 Conn. L. Rev. 687, at 736–737 (1983)Google Scholar (explaining that, when dealing with a human right of an absolute nature, the state must behave at least as well as other obligors, unless contrary regulations are introduced). As for human rights of a relative character, the situation changes, so that the only actions that can be demanded of the state are those which it has agreed to accomplish under concrete circumstances according to publicly adopted legal regulations. Ioffe says that “without such a prerequisite, relative human rights risk being transformed into hollow propagandistic declarations.” Based on this definition, the right to religion is absolute. But why is the right to culture instinctively considered to be relative and not absolute?

44. Davenport, T.R.H., South Africa: A Modern History 147–148 (5th ed., MacMillan 2000)CrossRefGoogle Scholar.

45. The Pondo speak a dialect associated with a cluster of closely related languages further south, termed generally isiXhosa. Tony Yengeni, for example, is a Xhosa speaker.

46. van Warmelo, N.J., The Classification of Cultural Groups 60ff (Hammond-Tooke, W.D. ed., 2d ed., Routledge & Kegan Paul 1974)Google Scholar.

47. Hunter, M., Reaction to Conquest: Effects of Contact with Europeans on the Pondo of South Africa (Oxford U. Press 1936)Google Scholar.

48. Kuckertz, Fr. H., Creating Order: The Image of the Homestead in Mpondo Social Life (Witwatersrand U. Press 1990)Google Scholar. Both Hunter and Kuckertz worked in the functionalist tradition, but they took careful note of the effects of colonization and labor migration on contemporary Pondo society.

49. Id. at 270.

50. Linguistically, it is impossible to determine the gender of the supreme being, since the prefix -u- in Xhosa denotes both male and female. The masculine attributes of the being could well have been acquired through the influence of Christianity.

51. Although some peoples in South Africa accord the supreme being power to determine the workings of nature, especially rain, drought and flood, it plays no particular role in governing people's lives. See Hammond-Tooke, W.D., World View I: A System of Beliefs, in The Bantu-speaking Peoples of South Africa 320–321 (Hammond-Tooke, W.D. ed., 2d ed., Routledge & Kegan Paul 1974)Google Scholar.

52. Id. at 319.

53. Soga, J.H., The Ama-Xosa: Life and Customs 133 (Lovedale Mission Press, Alice 1932)Google Scholar.

54. Hunter, supra n. 47, at 269. The idea of the creator survives in a widely held myth that the supreme being broke off nations from reed beds.

55. Jager, E.J. De & Gitywa, V.Z., A Xhosa Umhlwayelelo Ceremony in the Ciskei, 22 African Stud. 109, at 110 (1963)CrossRefGoogle Scholar.

56. See Hunter, supra n. 47, at 263.

57. Gluckman, M., The Logic of African Science and Witchcraft, in Witchcraft and Sorcery 322 (Marwick, M.G. ed., Frank Cass 1970)Google Scholar.

58. Id. at 275ff.

59. See Hammond-Tooke, supra n. 51, at ch. 10.

60. Kuckertz, supra n. 48, at 231.

61. Id. at 232.

62. Id.

63. Id. at 230.

64. See generally Hunter, supra n. 47, at 231-235.

65. See generally Shorter, Aylward, African Christian Theology, in A Handbook of Living Religions 431 (Hinnells, J.R. ed., repr., Penguin 1991)Google Scholar and, for another example, Schapera, I., A Handbook of Tswana Law and Custom 61–62 (2d ed., Oxford U. Press 1955)Google Scholar.

66. See generally Shorter, supra n. 65, at 425 & 434; Turner, V.W., The Ritual Process ch. 1 (U. Chi. Press 1969)Google Scholar on the Ndembu of Zambia.

67. See Hunter, supra n. 47, at 240.

68. The ceremonies are hedged around with various rituals, such as the method for slaughtering particular types of animals and the belief that the bellowing summons the ancestors. See Hunter, id. at 240ff.

69. See Hunter, supra n. 47, at 253ff.

70. Indeed, in comparison with the slaughter of beasts, there is greater variation in the occasions when beer is produced and the rituals surrounding its consumption. See id.

71. Menski, W., Comparative Law in a Global Context: The Legal Systems of Asia and Africa 414 & 415 (2d ed., Cambridge U. Press 2006)CrossRefGoogle Scholar. The determination of “rightness” or “correctness” is established by the religion concerned. There can be no external, or even universal, scale against which religious practice and/or belief is deemed to be correct or appropriate. Instead, this is determined inside the religious community. The right to engage in this internal determination is something that must also be protected in the name of culture.

72. Mqeke, R.B., Myth, Religion and the Rule of Law in the Pre-Colonial Eastern Cap, 34 De Jure 81 (2001)Google Scholar.

73. Thus Pauw, B.A., Ancestor Beliefs and Rituals Among Urban Africans, 33 African Stud. 99 at 103 (1974)CrossRefGoogle Scholar; & B.A. Pauw, The Influence of Christianity, in The Bantu-speaking Peoples of South Africa, supra n. 51, at 415 ff says many African Christians combine “regular prayer to God the Father of Jesus Christ, with a sense of dependence on their ancestors, believing that ‘God and the ancestors work together.’”

74. See Statistics South Africa, Census 2001: Primary Tables, http://www.statssa.gov.za (accessed Jan. 23, 2008). 8.2 % of the population is Pentecostal/Charismatic, 24.4% belong to established churches and 36% to “other Christian” denominations. 1.5 % of the population professes Islam and smaller minorities profess such religions as Hinduism and Judaism.

75. Id.

76. Gouws, A. & du Plessis, L.M., The Relationship Between Political Tolerance and Religion: The Case of South Africa, 14 Emory Intl. L. Rev. 657, at 660 (2000)Google Scholar.

77. Magic and traditional medicines, however, seem to be more easily adapted to urban settings. See Hellmann, E. in The Bantu-speaking Tribes of South Africa 426 (Schapera, I. ed., Routledge 1937)Google Scholar; & Hunter, supra n. 47, at 45545-8, 487, 488-496. Cf. Pauw, Ancestor Beliefs and Rituals Among Urban Africans, supra n. 73, at 99ff.

78. Hunter, supra n. 47, at 537 & 547-548.

79. See Hofmeyr, I., ‘We Spend Our Years as a Tale That is Told’ Oral Historical Narrative in a South African Chiefdom 159–160 (Wits U. Press & Heinemann 1993)Google Scholar.

80. This general thesis can be attributed to Berger, P.L., Berger, B. & Kellner, H., The Homeless Mind: Modernization and Consciousness (Penguin 1974)Google Scholar.

81. See the argument by Horwitz, supra n. 31, at 22ff. Horwitz claims that, in liberal democracies, there is a “tendency to treat rationalism and liberalism as a bedrock epistemology, a mode of thinking that tolerates other modes of experience but ultimately asserts its superiority over them.” He cites, in this regard, Fish, S., Liberalism Doesn't Exist, 1 Duke L.J. 997 (1987)CrossRefGoogle Scholar.

82. See S v. Lawrence, supra n. 32. See also Horwitz, supra n. 31, at 33.

83. Freeman, supra n. 26, at 1553.

84. Cf. the distinction made by Gunn, supra n. 26, at 194 between essentialist definitions (identifying a set of elements before something can be said to qualify as a “religion”) and polythetic definitions (conceding that there is no single feature common to all religions, but accepting some shared features).

85. From the perspective of the particular believer, of course, other religions must necessarily be ranked. Thus, typically, within the major monotheistic religions, different beliefs may be stigmatized as “schismatic,” “sects,” “cults” or (even worse) “heresies.”

86. This scale of development derives from Tylor, supra n. 20.

87. Tlhagale, supra n. 24, at 1249.

88. Brookes, Edgar H., The History of Native Policy in South Africa from 1830 to the Present Day 91–92 (Natl. Press 1924)Google Scholar.

89. wa Mutua, Makua, Limitations on Religious Rights: Problematizing Religious Freedom in the African Context, 5 Buff. Hum. Rights L. Rev. 75, at 96–97 (1999)Google Scholar.

90. Id.

91. See in this regard Obeyesekere, G., Medusa's Hair: An Essay on Personal Symbols and Religious Experience 82–83 (U. Chi. Press 1981)Google Scholar. Thus, pre-literate religions did not construct systematic theories of sin, virtue, judgment and salvation (a rite of passage whereby the individual attains an ultimate status beyond suffering).

92. The issues enumerated here are derived from von Benda-Beckmann, F., Who's Afraid of Legal Pluralism, 47 J. Leg. Pluralism & Unofficial L. 37, at 49–50 (2002)Google Scholar, with reference to systems of customary law.

93. Hammond-Tooke, supra n. 51, at 319.

94. Menski, supra n. 71, at 413.

95. Mat 419.

96. Allott, A.N., African Law, in Introduction to Legal Systems 131, at 135–136 (Derrett, J.D. M ed., Sweet & Maxwell 1968)Google Scholar.

97. Gunn, supra n. 26, at 200ff, gives three key reasons why religions experience discrimination, and he draws attention to the fact that the reason chosen depends upon what the group discriminating considers definitive of its own religion.

98. Bonthuys, E., Accommodating gender, race, culture and religion: outside legal subjectivity, 18 SA J. Hum. Rights 41, at 52 (2002)Google Scholar (describing the “mainstream legal subject” as one steeped in Western culture and beliefs). This person is “represented as innocent of cultural, religious and racial content. He exists outside of a religious or cultural community as an isolated, atomic, epistemic subject. In order to qualify as a legal subject, outsiders have to take on or appear to take on these qualities, norms and behaviours.”

99. Mutua, supra n. 89, at 75. 100.

100. Id. at 105.

101. Classic examples are the Yengeni case cited above and Nkosi & Another v. Biihrmann 2002 (1) SA 372 (SCA).

102. Id. at 97.

103. See Mutua, supra n. 89, at 105. He is nevertheless aware of the danger that his proposal to promote African religion may ultimately succeed in establishing a new orthodoxy, thereby destroying diversity (Id. at 79.).

104. See the figures given by Statistics South Africa, Census 2001: Primary Tables (available at http://www.statssa.gov.za) where members of the Zionist Christian Church account for 11.1% of the country's population.

105. Hinchliff, P., The Church in South Africa 90 (SPCK for the Church Historical Socy. 1968)Google Scholar, and “Independent Churches” in Worden, N., A Concise Dictionary of South African History 78–79 (Francolin 1998)Google Scholar.

106. The policy of inculturation has long been associated with Christian teaching, but more recently with Pope John Paul II's encyclical Redemptoris Missio (1990). See Tlhagale, supra n. 24, at 1249.

107. As Antonio, E.P., The Politics of Proselytization in Southern Africa, 14 Emory Intl. L. Rev. 491, at 523 (2000)Google Scholar says:

[T]here is a sense in which the moment of opposition to tradition gives way to the need to negotiate the new message of Christianity in terms of the symbols, values and idioms of an already familiar framework.

108. Sec. 9(1) provides that: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Subsec. (3) continues:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

109. Moreover, according to Taylor v. Kurtstag NO [2004] 4 All SA 317 (W) ¶45, the right to equal treatment of religions is horizontally applicable.

110. 1997 (2) SA 690 (C).

111. However, in S v. Lawrence 1997 (4) SA 1176 (CC) ¶122, O'Regan J. held that requiring the government to act even-handedly did not demand a commitment to a scrupulous secularism, or a commitment to complete neutrality.

112. du Plessis, L.M., Freedom Of Religion or Freedom From Religion? An Overview of Issues Pertinent to the Constitutional Protection of Religious Rights and Freedom in “the New South Africa,” BYU L. Rev. 439, at 450–451 (2001)Google Scholar. This tendency was evident in the leading case of S v. Lawrence 1997 (4) SA 1176 (CC), where a majority of the Constitutional Court judges chose to deal with a prohibition on the sale of liquor on Sundays primarily in terms of the freedom of religion. The equal treatment of all religions appeared in only a minority of the judgments, and then, arguably, only as an obiter dictum. See Currie & De Waal, supra n. 37, at 350.

113. Mutua, supra n. 89, at 79, however, is skeptical: “How does a body of principles that promotes diversity and difference protect the establishment and manifestation of religious ordering that seeks to destroy difference and forcibly impose an orthodoxy in Afric—as both Christianity and Islam … in many cases successfully did?”