Religious Freedom and Human Rights in South Africa After 1996: Responses and Challenges

I. INTRODUCTION In 1996, a new constitution was passed in South Africa displaying cultural and religious sensitivity in an ethnically-diverse country. The previous constitution entrenched the religious values and moral norms of the mainline churches to the exclusion of the indigenous population. In contrast, the new constitution contains a secular bill of rights that adequately protects religious freedom, but it also addresses real-life inequities in employment, health care, and housing in a way that ecclesiastic rhetoric did not. Despite these benefits, there are challenges to the implementation of the new constitutional provisions of South Africa. The Western orientation of the constitution disregards the collective nature of human rights in the African context. Additionally, the living (i.e. unwritten) law, which underlies traditional African society, does not really feature in the constitution, despite some lip service to it. Finally, the African worldview makes no distinction between the sacred and the worldly (religious and secular). The new South African Constitution permits the secular administration of human rights if the dialogue concerning those rights is sensitive to the challenges presented by the universality of human rights, the living law, and the non-separation of the sacred and the secular in African culture. This Article argues that the bill of rights in the new South African Constitution institutionalizes the moral and judicial rights of human beings in a way that makes far better sense in an African context than the standard Western approach adopted by the South African mainline churches. The approach in the bill of rights is more appropriate in South Africa since African morality and belief systems are essentially secular. Part II of the Article provides a background of South African history and constitutional development. Part III reviews secular and religious human rights, and Part IV examines three problem areas: universal versus contextual rights, living law, and the religious-secular dichotomy. Part V identifies responses to the constitution from a number of religious groups. Finally, Part VI offers a brief conclusion. II. BACKGROUND A. South African History There was a strong alliance between politics, law, Western religion, and Afrikaner civil religion in pre-1994 South Africa. "Afrikaner civil religion, which . . . promoted in particular the three Afrikaans [Reformed] churches, offered religious justification for whites' and Afrikaners' self-assumed position of superiority in relation to the 'non-white' population and thus also for the policy and ideology of apartheid."1 And even today, the country's statutory and common law still show a Christian bias.2 Religion, specifically the Reformed traditions, provided the theological justification to keep discriminatory laws in place, and Reformed churches were favored by the Apartheid government. "Legislation of a not so overtly religious nature, such as the infamous Prohibition of Mixed Marriages Act and the controversial section 16 of the Immorality Act, were enacted at the behest of, amongst others, the Afrikaans churches in an attempt to prevent 'miscegenation.'"3 Some laws had a specifically Christian bias, like the censorship law in the Publications Act,4 which introduced blasphemy as a criterion for censorship; the National Education Policy Act,5 which prescribed a Christian orientation in education; and some Sunday observance laws.6 These laws focused on the ruling white minority and favored their religious and cultural preferences. A section of "the Blacks (Urban Areas) Consolidation Act of 1945 authorized the prohibition of blacks from attending church services and functions in urban areas occupied by 'non-blacks.'"7 White churches did not oppose this law, suggesting that they condoned it. It is important to note that in apartheid South Africa, the religious and secular spheres were closely linked. …