Academic journal article Brigham Young University Law Review

Grappling with Religious Differences in South Africa: A Draft for a Charter of Religious Rights

Academic journal article Brigham Young University Law Review

Grappling with Religious Differences in South Africa: A Draft for a Charter of Religious Rights

Article excerpt

I. Introduction

Prior to the end of apartheid in 1994 and the adoption of its new constitution in 1996, South Africa lacked any constitutional guarantee of religious freedom.1 Not surprisingly, South Africa's history is replete with examples of state interference in religious matters.2 The 1996 Constitution was the first in South Africa's long history to address the problem of religious freedom and, specifically, state interference in religion. It provides an explicit guarantee of freedom of religion.3 Nevertheless, this new constitutional right is not well-defined. This article argues that religious organizations in South African civil society should take advantage of a provision in South Africa's 1996 Constitution allowing for Parliament to adopt Charters of Rights which are consistent with the Constitution, by proposing a Charter of Religious Rights for South Africa.4 Adopting such a Charter would ensure that South Africa does not repeat its history in allowing its government to define the meaning and scope of fundamental rights such as reügious freedom.

Part II of this Article recounts the history of religious freedom in South Africa, with a special focus on how the state has involved itself in defining and limiting that right. Part III focuses on religious freedom and church-state relations following the official end of apartheid in 1994. The current state of religious freedom and church-state relations is discussed in Part IV, and then Part V discusses a proposed Charter for Religious Freedom and makes the case for the charter's adoption. The Charter is attached as an addendum to this Article. Finally, Part VI offers a brief conclusion.

II. CHURCH AND STATE IN SOUTH AFRICA: RELIGIOUS RIGHTS BEFORE 1994

In 1652, the Cape-which is now Cape Town-was established as a refreshment post by the Dutch East Indian Company.5 It remained as such until 1795 when the Cape was taken into custody by the British. In 1806 it became a British colony. In 1910, selfgovernment was given to the country,6 and in 1960 South Africa became a Republic under the government of the National Party. In 1994, after the dismantling of apartheid, South Africa became a democratic constitutional state with a constitution that guaranteed freedom of religion for the first time.7

A. Church-State Relations in South Africa: 1652-1795

When the Dutch East India Company established a refreshment post in South Africa in 1652, they brought with them the reformed faith of the Dutch Reformed Church,8 which was a public, statecontrolled church in the Netherlands.9 Those who brought the Dutch Reformed Church to South Africa brought with it a Constantinian, or Erastian, view of the relationship between church and state. The Constantinian model for the relationship between church and state is positive about the role that religion should play in society. It takes the view that society should serve the Triune God and that Christianity should provide direction to society. As John Hiemstra argues:

The basic structure proposed by the Constantinian model is that political authorities are understood to be dominant over church authorities. Firstly, this means political authorities often assist, influence, and sometimes fully control church authority. Secondly, the state's role includes advancing and supporting 'true religion' through the use of its coercive power.10

The Constantinian perspective has been very strong in the Reformed Churches of the Netherlands since the sixteenth century and has also played a very strong role in England since the time of Henry VIII. As far as the Reformed Churches are concerned, the Constantinian model of church-state relations found expression in the old wordings of the Confessio Belgica (The Dutch Confession of Faith):

And the government's task is not limited to caring for and watching over the public domain but extends also to upholding the sacred ministry, with a view to removing and destroying all idolatry and false worship of the Antichrist; to promoting the Kingdom of Jesus Christ; and to furthering the preaching of the gospel everywhere; to the end that God May be honored and served by everyone, as he requires in His Word. …

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