Dear Portfolio Committee on Cooperative Governance and Traditional Affairs,
President Ramaphosa has appointed a new CRL committee, at the helm is a professor of theology and the former deputy to a divisive character Thoko Xaluva.
During Xaluva’s tenure, there was a commitment to intimidate religious freedom and present it as a favour as opposed to protect and secure the right to practice religion as a cultural right. We do not expect anything different in this present term because there is a continuity in practice and thought. We believe that there are four areas that the commission errs in, and we call on the courts and the Minister of Cooperative Governance and Traditional Affairs to reign in these errors of mandate interpretation.
In the first instance, the CRL misunderstands their mandate as a chapter nine institution and delve conveniently on portions of their mandate to support their power-mongering and create a semblance of compliance. As the Public Protector, the Human Right Commission, the Electoral Commission and the Commission for Gender Equality- the CRL must be impartial in their exercise of power. The CRL must act without fear, favour or prejudice in promoting and protecting the right of a cultural and religious organisation. In this regard they must encourage the respect for; develop peace friendship and recommend either the establishment of or the recognition of councils for a community.
Instead, three telling actions indicate contra-commitment; first, the previous incumbent called religion in South Africa a “thing” and thus belittled the cultural significance of Christianity. Secondly, the incumbent likens religious freedom to the priveledges of operating a motor vehicle and needing a license.
Third, both the present and previous incumbents are bent on disregarding the current organisation of the church by demanding that a kind of organisation that infringes on the freedom of association and this they say should run the church.
The CRL has powers, and these include monitoring; investigation; research; education; lobbying; advising and reporting of abuses in the cultural communities. Alas, the seven angels in the Eastern Cape were not “reported” for breaking the School's Act when the prohibited children from attending school, if so then the state should ask why were these people not acted against earlier.
The CRL also has not educated Pastors on the extent of its powers to "recommend" and "recognise" but has threatened to regulate on behalf of the state. There is clearly mandate creep that undermines constitutionalism. The CRL has insisted the traditional healers should licence and have attendant education and training- It is questionable whether the conventional healers we told that this is not obligatory.
Seeing the present actictivity within the Church the portfolio committee should question the procedures followed with traditional leaders in regard to the letter and spirit of the mandate.
There are at least eight rights that the CRL’s approach is infringing and I call upon the COGTA portfolio committee to investigate this.
In the first instance, there is section 9 that demands equal treatment and no discrimination based on race, sexual orientation, gender and religion. The ventilation of freedom of religion is reinforced by conscience, belief, and culture. Section 15 establishes freedom of religion, belief and opinion. Thus a South African and by inference anyone in South Africa can believe whatever they want and follow the religion of their choice. Section 16 is freedom of expression where everyone may say and publish what they want except for propaganda and incitement to violence. Section 17 usually applies to “political” assembly but refers to the freedom to assemble and gather with other people on a cause. Section 18 association is about joining whomever you want and by inference dissociation with whomever else do not wish to join.
Section 31 protects the rights of cultural and religious organisations to enjoy their culture, practice their religion and set up their organisations. Section 33 is about just administrative action that says there should be reasonable, procedural and accountable action if one’s rights are acted against. Section 34 is about the right to access the courts.
Read together; therefore, the above states that:
The CRL cannot target-independent churches or any cultural organisation because they are not under ecumenical laws or fraternals. The breach here would be found in sections nine (9), seventeen (17), eighteen (18), thirty-one (31) and thirty-three (33). None of the churches that are now scrounging to self regulate is doing so from the understanding of section 33 in particular.
The CRL and COGTA have not written to these churches to express why their leaders should be licenced and be part of umbrella bodies. It is even more scandalous to note that even Pastors that have not been tried or convicted of crimes are being told to regulate. In some instance incentives of access to state land to build churches is used as a carrot. However, there is not administrative fairness and justice.
Reading the above together also allows us to conclude that the CRL can only recommend and not demand fraternal affiliation and licensing and the use of its power to impose these is unconstitutional see section 31.
Also, the CRL cannot and should not turn the state and government against the church see section 33. Thus, if COGTA, the Presidency and Parliament do not dissociate clearly from the proposals of the CRL that border on coercion then they are complicit in infringing all the above sections and section 31. The state, government and parliament may limit right in constitutionally allowable circumstance but not in a preemptive and prejudicial fashion that the CRL is committed to. It should be known that South Africa churches are convinced that the state wants to create a state religion and to act as Rwanda eliminating religious freedom as it stands in the constitution. This belief is inspired largely by utterances of Xaluva and those associated with regulation- the state needs to correct this perception.
The later brings me to the point of limitation, we understand that the the state is not and cannot regulate without reason outside of the legal restrictions set out in law, this would infringe section nine (9), fifteen (15), sixteen (16), thirty-one (31) and three (33) of the bill of rights. In this regard, the President, the state and the courts should pronounce that the individuals in the church should not be licensed in light of sections fifteen (15), eighteen (18), thirty-one (31), thirty-three (33) and thirty-four (34)- out of fear of arbitrary limitations of their rights to religion.
Lastly, the CRL proposed fraternals and umbrellas bodies that are controlled by the CRL. in this regard, fraternals and umbrella bodies are an administration that limits access to the courts for victims of abuse in the church and by church members, these umbrella bodies are said to be instituted for peer review, admission and compliance regulation, it is not clear how these bodies will stop crime and abuse. We call on COGTA to insist on rule of law with regards to any abuse.
The practice quasi judicial and governmental bodies as we have seen in the past is that crime is dealt with “internally”, and so the individual is at the mercy of bodies in the case of abuse. Whereas currently, as the CRL should have taught members of churches, the individual may approach the courts directly in the case of violation by Pastor or other congregants.
The proposed regulation superstructure is another tier of administration that keeps people further from the courts, and this contradicts section 34. We call on COGTA’s portfolio committee and the Chief Justice to investigate these claims in public hearings.