The Background and Contents of the Proposed South African Charter of Religious Rights and Freedoms

"So in everything, do to others what you would have them do to you." Matt. 7:12 I. INTRODUCTION The quest for the ideal relationship between people and the governments ruling over them is nothing new, and numerous theories, views, and approaches to ensure a just relationship between rulers and their subjects have prevailed at different junctions of human history. These theories and approaches primarily relate to forms of state and government, but also relate to the substantive balancing of interests between the state and its subjects.1 In our age, a just relationship is believed to be found not only through democratic institutions and processes, but, in particular, through the constitutional protection of human rights. Consequently, most modern constitutions contain a so-called bill of rights that (a) defines the fundamental rights of people; (b) prescribes to whom and how the bill of rights applies; and (c) regulates how and when the rights in the bill of rights may be lawfully limited. As a legal instrument, a bill of rights therefore regulates the relationship between the people and the state and the relationship among the people themselves. In most states including a bill of rights in the constitution makes sense, as the constitution is entrenched, and the courts are vested with the power to enforce the constitution. The history of humankind is also the history of religious intolerance, discrimination, domination, and persecution.2 It therefore comes as no surprise that die right to freedom of religion3 is recognized in most prominent international human rights instruments,4 as well as in the bills of rights of many individual countries.5 The South African Constitution of 1996 is no exception.6 In this Article, recent developments in South Africa concerning the protection of religious freedom are explored, specifically the proposed South African Charter of Religious Rights and Freedoms.7 By way of background, the Soutii African democratic constitutional framework, in existence now for a decade and a half, is explained briefly, with emphasis on the supremacy of the South African Constitution and the justiciable Bill of Rights forming part of that Constitution. This discussion is followed by a justification for the adoption of a South African Charter of Religious Rights and Freedoms, a brief explanation of the main features of that Charter, and a few remarks about the way forward. II. THE SOUTH AFRICAN CONSTITUTIONAL FRAMEWORK A. Constitutional Supremacy The South African Constitution of 1996 is the remarkable outcome of the historic transformation process that took place in the country during the early nineties.8 The Constitution represents and embodies in legal terms the principles and main features of the new democratic constitutional order.9 The Constitution is the supreme law of the Republic of South Africa.10 Law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency, and the obligations imposed by the Constitution must be fulfilled. The Constitution is entrenched, and special procedures and majorities apply to its amendment.11 The courts are formally vested with the power to invalidate any law or action that is inconsistent with the Constitution.12 All legislative and executive bodies, including Parliament, are subject to the Constitution.13 All high courts have constitutional jurisdiction, but a special Constitutional Court was added as the spearhead of judicial control.14 In Executive Council of the Western Cape Legislature v. President of the RSA, the Constitutional Court emphasized the supremacy of the Constitution as follows: "It is of crucial importance at this early stage of the development of our new constitutional order, to establish respect for the principle that the Constitution is supreme."15 B. The Bill of Right/6 Given the background of apartheid, die Constitution states unequivocally that it aims to eliminate the discrimination, inequality, and injustice of the past, and that the protection of human rights is accordingly a major focus and objective in the new South Africa. …