Religious Freedom in Southern Africa: The Developing Jurisprudence

Article excerpt

I. INTRODUCTION

During the 1990s, many countries in southern Africa became more democratic.1 Apartheid's2 demise in South Africa has eclipsed media attention, as well as political, economic and legal scholarship, but other countries in the region have also undergone important changes. South Africa's rule of South-West Africa ended and that nation became democratic Namibia.3 One-- party rule yielded to multiparty elections in Zambia (1991)4 and Malawi (1993).5 Military rule and a ban on political activity in Lesotho ended and free elections were held in 1993.6 Five southern African countries ratified new constitutions (including new bills of rights) since 1991, providing greater freedoms for citizens of these nations.7

Countries in southern Africa, however, are by no means model examples of freedom. For instance, since 1991, Zambia has held two multiparty elections, yet there are many other areas (such as legal reform, respect for the rule of law, and freedom of the press) in which further democratic change is needed.8 Zimbabwe has an effectively one-party political system that some say stifles individual liberties.9 Political parties in Swaziland are illegal.lo And in terms of religious liberties, Hindus and Muslims are often persecuted in southern Africa by members of other religions.ll While South Africa's human rights record has historically been the poorest in southern Africa,12 its abolition of apartheid and its new constitutional dispensation has made it a leader in democracy for other southern African nations.13 The country has established a number of new institutions to protect democracy.l4 Its celebrated president, Nelson Mandela, is a powerful force for democracy in southern Africa.ls Currently, South Africa may be the strongest democracy in the region, especially in light of problems in other southern African countries,ls and is setting the trend in southern Africa in terms of human rights and freedoms. While some southern African countries are regressing in their commitments to democracy, South Africa is boldly moving ahead.

There is certainly an opportunity for South Africa to set the jurisprudential trend in terms of religious freedom case law in southern Africa. There have not been many recent freedom of religion cases in southern African courts,l7 nor has there been much academic writing about religious freedom in southern Africa as a whole.ls However, in the last two years, three important cases involving religious freedom have been decided in South Africa.19 These South African cases are the religious freedom jurisprudence saplings that likely will grow into more established jurisprudential oaks both in South Africa and hopefully the rest of southern Africa. Even though each southern African country is independent and their courts have no obligation to follow the case law of other countries, it is the practice of the highest courts of these countries to examine-and in many cases follow-each others' judicial decisions.20 This will increasingly be true with respect to following South Africa's decisions,21 as many southern African countries' legal systems are based on South Africa's mixed Roman-Dutch and English common law system.22 Additionally, the bills of rights contained in southern African constitutions can be read similarly to South Africa's constitution, especially as it relates to the protection of freedom of religion.23 Thus, it is very likely that these South African religious freedom cases will be used as "persuasive precedent"24 in other southern African countries.

This Comment accomplishes several purposes. First, it reviews South Africa's legal past and present, especially as it relates to religious freedom. Next, it comprehensively analyzes religious freedom clauses found in the constitutions of southern African countries.25 Finally, this Comment analyzes the three South African religious freedom cases decided thus far, suggests the proper interpretations and potential weaknesses of the cases, and discusses their possible future application to other southern African nations. …