Department of International Law and Constitutional Law, University of Groningen, The Netherlands. 1

Transcription

1 Journal of African Law, 45, 1 (2001), School of Oriental and African Studies. Printed in the United Kingdom. THE ACCOMMODATION OF RELIGIOUS DIVERSITY IN SOUTH AFRICA AGAINST THE BACKGROUND OF THE CENTRALITY OF THE EQUALITY PRINCIPLE IN THE NEW CONSTITUTIONAL DISPENSATION KRISTIN HENRARD INTRODUCTION South Africa is often characterized as a highly religious country since many South Africans consider their religious beliefs to be central to their lives. 1 Although religion is widely believed to be a non-issue, these strong religious identifications might, however, play a role in the apparent ethnic resurgence. 2 Consequently, the religious diversity of South Africa should be appropriately accommodated in the post-apartheid regime so as to prevent religion-based conflict. It is generally known that the great majority of South Africans are Christian, 3 but that Christian majority can be further subdivided, giving rise to many religious minorities. The Christian affiliations that one can distinguish are the African Independent Churches, the Dutch Reformed Church, the Roman- Catholic Church, the Methodist Church, the Zion Christian Church, the Anglican Church, the Apostolic Church, the Lutheran Church and the Presbyterian Church. Also the other world religions, like Hinduism, Islam and Judaism, are present (in relatively small numbers). 4 The extensive religious diversity thus revealed underscores further the need for a proper accommodation of that diversity as part of the wider democratization-transformation process after apartheid. This article is structured as follows. A brief review of relevant apartheid practices is followed by an assessment of the constitutional negotiations and the ensuing constitution (1996) in terms of the accommodation of religious diversity and its relation to the equality principle. Some attention is also given to the more or less explicit minority rights provisions. 5 An overview and evaluation of the implementation of the various relevant constitutional provisions finally culminates in a conclusion. Department of International Law and Constitutional Law, University of Groningen, The Netherlands. 1 E.g. R.B. Nicholson, Ethnic nationalism and religious exclusivism, (1994) Politikon Ibid. at See also H. Kotze, Culture, Ethnicity and Religion: South African Perceptions of Social Identity, Johannesburg, 1997, 3; Nicholson, above 57; M. Prozesky, Religious justice at last? Believers and the new Constitution in South Africa, (1995) Journal of Theology of Southern Africa South African Institute of Race Relations (SAIRR), Race Relations Survey 1998, Johannesburg, 1998, The more specific debates and constitutional provisions regarding culture and education will not be focused upon here as that would make the scope of this article over-broad. Electronic copy available at:

2 52 The Accommodation of Religious Diversity RELEVANT APARTHEID PRACTICES [2001] J.A.L. Apartheid is generally said to have started after the 1948 election victory of the National Party (NP), which used that concept and programme as the focus of its election campaign. 6 Although apartheid is best known as a system of pervasive racial (and ethnic discrimination), these types of discrimination went hand in hand with what amounted to religious apartheid. Thus whilst about three-quarters of the South African population adheres to Christianity, there are nevertheless several internal differences within the Christian population that can be quite far reaching. In addition, several other world religions are represented. 7 From around 1652 until the start of the post-apartheid era, unequal legal status was accorded to the different belief systems. 8 From the beginning, public policy was characterized by protestant hegemony and a concomitant restrictive attitude towards other religions. 9 It can thus be said that there were nearly 350 years of religious apartheid, closely matching socio-political racial apartheid, 10 which entailed an unequal measure of recognition and respect, as shown by the virtually total absence of a balanced, multi-faith programme of religious studies in state-funded schools. 11 Regarding religion in education, reference should be made to the apartheid paradigm of Christian National Education. This required schools to educate their students about and in line with the spirit of Christian values. 12 The official apartheid policy wanted to give a Christian character to state schools, and targeted state funding preferentially to private schools with such a character. 13 Furthermore, the courses that were part of the public curriculum, namely religious studies or biblical studies, had a very conservative theological perspective in the sense that the focus was on Christian essentials, while hardly anything was said about other world religions. It should, furthermore, be underlined that the predominance of Christianity in public policy went hand in hand with the non-recognition of Hindu and Muslim marriages, with all its pernicious consequences. 14 As SACHS, J., correctly pointed out in Lawrence v. The State and Another: (t)he marginalization of communities of Hindu and Muslim persuasion flowed from and reinforced a tendency for the norms of Christian civilisation to be regarded as points of 6 E.g. T.R.H. Davenport, South Africa, a Modern History, Toronto, 1991, 519. See also N. Worden, The Making of Modern South Africa. Conquest, Segregation and Apartheid, Oxford, 1994, 87 who underlines that the NP had pulled voters together by means of the apartheid slogan. 7 Prozesky, above at N. Moosa, The Interim and Final Constitution and Muslim personal law: Implications for South African Muslim women, (1998) Stellenbosch Law Review 196, 199; Prozesky, above at Prozesky also underlines that for Muslims things improved somewhat... and public profession of their faith became possible from the late 1700s onwards. But there was no question of official recognition of their faith as having equal status with Christianity. This dispensation of a measure of tolerance mixed with inequality of status, also applied to the other religious communities whose arrival in southern Africa is such an important feature of nineteenth-century history: Jews, Hindus, the Muslim communities in kwazulu-natal and gauteng, and others (above at 14). 10 Ibid. See also Davenport, above at Prozesky, above at Malherbe, above, 3 and J.L. Beckman, Religion in the schools: Some implications of a new Constitution, (1995) South African Journal of Education A. Sachs, Advancing Human Rights in South Africa, Cape Town, 1992, 83. See also S.S. Nadvi, Muslim minorities in Minorities: Self-Determination and Integration, Johannesburg, 1987, 4. Electronic copy available at:

3 Vol. 45, No. 1 The Accommodation of Religious Diversity 53 departure, and for Hindu and Muslim norms to be relegated to the space of the deviant Other. 15 THE CONSTITUTIONAL NEGOTIATION PROCESS In the 1980s there were increasingly intense negotiations between the government and the ANC and other parties from the resistance movement. Eventually, this led to De Klerk s famous speech on 2 February, 1990, at the annual opening of parliament, which set in motion the protracted constitutional negotiation process leading up to the first multi-racial elections in April 1994 and the first democratic constitution for South Africa. In view of the distinctive features of the apartheid regime, the following were bound to become more or less sensitive issues during the negotiation process: the form of state, the exact formulation of the equality principle, the question of group rights or other special rights for minorities/communities, the right to education and also, but to a lesser extent, the accommodation of Muslim personal law as well as other aspects explicitly related to the accommodation of religious diversity. 16 Clearly, not only the latter more explicit religious issues but also the equality principle, the right to education, and the so-called minority rights are relevant to determine the extent to which post-apartheid South Africa accommodates its religious diversity. The rationale and the importance of the two-stage constitutional transformation South Africa opted for are dealt with at length elsewhere. 17 In view of the specific subject of this article, it seems appropriate to focus on the 1996 Constitution, the preceding constitutional negotiations and its ongoing implementation. Consequently, no specific attention will be given to the 1993 Constitution and the certification of the 1996 Constitution by the Constitutional Court of South Africa. THE 1996 CONSTITUTION OF SOUTH AFRICA AND THE PRECEDING CONSTITUTIONAL NEGOTIATIONS Accommodation of religious diversity in the 1996 Constitution: the Freedom of Religion provision, the Equality provision and a brief analysis of the General Limitations provision In view of apartheid s divide and rule policy and its legacy of group-based discrimination, it is understandable that there was extensive emphasis on equality and the need to redress previous disadvantages throughout the constitutional negotiations. 18 There can be no doubt that the equality principle lies at the heart of the constitution and pervades it. It should be underlined that: the Constitution is not neutral as between different conceptions of equality. It subscribes to a (10) BCLR 1348 (CC). 16 The right to property and its protection under the Constitution versus the possibilities for redistribution of land as means to address the legacies of apartheid was, understandably, also a hot issue. The entire regulation of labour relations proved to be contentious and divisive as well. 17 E.g. H. Corder, Towards a South African Constitution, (1994) Modern Law Review ; H. Klug, Historical background in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, Kenwyn, See Preamble of the 1996 Constitution for South Africa. See also J. Kentridge, Equality in M. Chaskalson et al. (eds.), above, 14.1; D. Van Wyk, Introduction to the South African Constitution in D. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, 1994, 131, 158.

4 54 The Accommodation of Religious Diversity [2001] J.A.L. particular vision of equality, one which is usually called substantive equality, 19 which can be contrasted with mere formal equality. Substantive equality demands a contextual approach, which takes into account differences in circumstances. Understandably, in view of the history of legally instituted and entrenched discrimination under apartheid, the equality section of the 1996 Constitution contains a non-discrimination clause, which prohibits discrimination, inter alia, on the ground of religion. 20 Two issues during the second set of constitutional negotiations were both related to religion. The importance of religion in the lives of many South Africans manifested itself in the strong reactions about the use of the term secular state to describe South Africa. The problem was that the concept secular was misunderstood by the population as referring to a godless or even immoral state. After the constitutional experts had emphasized that a secular state by necessity implies religious freedom and religious tolerance, the popular dissatisfaction ceased. 21 Still, it is significant that the term secular state was eventually not included in the 1996 Constitution, which can only be explained by the highly religious nature of the South African society and the perceived need to respect that. A closely related issue was whether or not the preamble should refer to God and if so in what way. Since a preamble gives an important indication about a constitution s fundamental values, this did cause some debate, but eventually a compromise was reached by taking the views of all the negotiating parties into account to some extent, and by ending the preamble with: May God protect our people. 22 It was thus considered acceptable for the constitution not to be a religiously neutral document. It was already apparent in the interim Constitution that South Africa did not want to institute a strict separation between church and state, 23 which is obviously closely related to the fact that religion is indeed an important source of identity for many South Africans. The 1996 Constitution contains a provision allowing for religious observances to be conducted at state or state-aided institutions, albeit under certain conditions. 24 This clause, and especially its condition that religious observances are conducted on an equitable basis, can be argued to imply that the rights and interests of minority religions should be properly taken 19 J. Kentridge, Equality, above, ; C. L Heureux-Dubé, Making a difference: The pursuit of equality and a compassionate justice, (1997) S.A.J.H.R. 335 at S. 9(3) and (4) of the 1996 Constitution. It should nevertheless be underscored that this clause prohibits unfair discrimination, giving rise to interesting jurisprudence from the Constitutional Court. For an excellent analysis of the equality clause, before the most important judgments of the Constitutional Court in this regard were handed down: see T. Loenen, The equality clause in the South African Constitution. Some remarks from a comparative perspective, (1997) S.A.J.H.R. 401, See e.g. Constitutional Talk Number 8 June 29 June 1995, talk8 95.html, 1 2; Constitutional Talk Number 30 June 10 August 1995, talk9 95.html, The relevant issue of Constitutional Talk does not refer to the agreement that was reached on the preamble but this statement is based on my personal experience of attending that session. 23 G.E. Devenish, Freedom of religion, belief and opinion, dealing with the 1996 Bill of Rights also underlines that this section exhibits a bias in favour of religion as opposed to atheism or agnosticism. 24 S. 15(2), 1996 Constitution of South Africa: Religious observance may be conducted at state or state-aided institutions, provided that (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary. There was some debate about whether appropriate public authority should not be replaced by the NP s proposal authority in immediate control of that institution so as to prevent state interference. See debates in Constitutional Subcomittee on 12 March, 1996.

5 Vol. 45, No. 1 The Accommodation of Religious Diversity 55 into account when devotional arrangements are made in schools. Such a sensitivity toward minority concerns would support the statement that the South African Constitution does not subscribe to a type of democracy amounting to simple majority rule. 25 It was obvious early on that all parties agreed that freedom of religion, belief and opinion should be guaranteed in the constitution. 26 Although most parties agreed that there should be reasonable limits in an open and democratic society, 27 the question of what kind of limits could and should be imposed on a person s right to hold and practise religion 28 provoked extensive debate. This issue is at the same time related to the question of the horizontal applicability of the Bill of Rights especially the equality provision and its impact on the possible recognition of forms of Muslim (and other religiously based systems of ) personal and family law. 29 It is appropriate to mention at this point that the South African Bill of Rights contains a general limitations provision which indicates the extent to which limitations to provisions of the Bill of Rights are acceptable. The general requirements include the need for the limitation to be: reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, 30 which can be argued to be analogous to the corresponding provisions in international human rights instruments. It confirms furthermore the high importance attributed to equality (as well as democratic values) by the postapartheid constitution. Although the 1996 Constitution does not provide for an express hierarchy of rights, 31 it does enumerate explicitly: at least some of the factors a court should consider when deciding whether a limitation placed on a fundamental right is both reasonable and justifiable. 32 Woolman argues that the first factor, the nature of the right, would nevertheless imply that (i)f the right infringed is deemed crucial to our constitutional project, it will tighten several, if not all of the limitation inquiries that follow. 33 This analysis would mean that the range of acceptable limitations to the equality clause is not extensive, as the right to equality has such a central place in the new constitutional dispensation. The latter right will thus carry a lot of weight in any process of balancing competing rights and the underlying values N. Smith, Freedom of religion under the final Constitution, (1997) S.A.L.J. (217) Cf. Constitutional Talk Number 8 June 29 June 1995, 95.html, Constitutional Talk Number 7 19 May 1995, 1.htm, See also Devenish, Freedom of religion, belief and opinion, above 2, who expresses the view that some distinctions must be drawn as to what can be accepted as religion. 29 See below. 30 S. 36(1) of the 1996 Constitution. See also S. Woolman, Out of order? Out of balance? The Limitations Clause of the Final Constitution, (1997) S.A.J.H.R. 102, This is in contrast with the 1993 Interim Constitution of South Africa, s. 33(1)(a) and (b). 32 Woolman, above, Ibid. at See in this respect the holding of the Constitutional Court in S v. Makwanyane and Another, CCT 3/94, 6 June, 1995, 104 that: (t)he limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values and ultimately an assessment based on proportionality. This is implicit in the provisions of section 33(1). The fact that different rights have different implications for democracy, and in the case of our constitution, for an open and democratic society based on freedom and equality means there is no absolute standard which can be laid down for determining reasonableness and necessity... (emphasis added). See also SACHS, J., in Lawrence v. S, at 165. For some critical remarks on the balancing approach to limitation analysis see Woolman, above at

6 56 The Accommodation of Religious Diversity [2001] J.A.L. The Constitutional Court has, furthermore, made interesting statements in Lawrence v. The State and Another, 35 on the content and implications of the freedom of religion, and more specifically on the appropriate approach of the state towards the manifold religions present in South Africa. It should be pointed out though that no majority opinion can be distinguished 36 and that the judgment reveals differences of opinion among the judges as to the required degree of distance between the state and the respective religions. 37 In response to the challenge that because closed days for grocers to sell alcoholic beverages are exclusively determined by Christianity, this determination would amount to a violation of the freedom of religion, different tests are formulated for state activity that would amount to an unjustifiable endorsement of a particular religion (and thus a violation of section 15 of the 1996 Constitution). CHASKALSON, P., as well as three other concurring judges, are of the opinion that there may be circumstances in which the endorsement of a religion by the state would contravene the freedom of religion. This would be the case where the endorsement has the effect of coercing persons to observe the practices of a particular religion, or placing constraints on them in relation to the observance of their own religion. 38 O REGAN, J., with whom two other judges concur, adds another requirement, namely that the state is not permitted to act inequitably in its dealing with the various religions represented in the country, or that it should act even-handedly in this regard. 39 SACHS, J., is even more demanding since, according to him, the state is not even allowed to send out a (symbolic) message that the state is favouring one specific religious creed over the others. 40 Both SACHS, J., and O REGAN, J., appear to acknowledge in their analysis of the freedom of religion that a government which remains passive when the free exercise of minority religions is made impossible by the dominant forces in society is implicated in the violation of the freedom (of religion). Only subsequent cases will demonstrate whether these different opinions within the Court will tend to converge more, and, as a consequence, determine more unambiguously what section 15 requires of the state. 41 The possibility, already created in the 1993 Constitution, for legislation to recognize marriages and other systems of personal and family law under certain non-christian religions, reflects a certain positive disposition for the protection of religious minorities. However, the negotiating parties wanted to avoid the impression, created by the formulation of section 14(3) of the 1993 Constitution: (n)othing in this Chapter shall preclude legislation recognising..., that: systems of religious law trumped all provisions of the Bill of Rights. 42 Since there was a strong call to ensure that the right to equality was paramount in the final 35 See p. 4, n J. De Waal, Religion, belief and opinion in J. De Waal et al. (eds.), The Bill of Rights Handbook 1998, Kenwyn, 1998, 225, See also De Waal, Religion, belief and opinion, loc. cit., ; P. Farlam, The ambit of the right of freedom of religion: A commentary on S v. Solberg, (1998) S.A.J.H.R Lawrence v. S, Lawrence v. S, Lawrence v. S, 159, Farlam remarks in this regard that the kernel of the right to freedom of religion in Solberg is in tune with the traditional understanding of the right in international law and in many foreign jurisdictions and should not cause much controversy (Farlam, above at 309). 42 Smith, above at 222.

7 Vol. 45, No. 1 The Accommodation of Religious Diversity 57 Constitution, 43 all parties initially agreed to add the qualification that such legislation: must be consistent with the provisions of the Constitution. 44 Later on, representatives of the Muslim community managed to persuade the ANC to propose an amendment so that the legislation must be consistent with this section and the provisions of the Constitution. This concession was merely symbolic for the ANC and was therefore also acceptable to the other parties. The Muslim community, however, felt that not only requiring consistency with the entire constitution but also and specifically with the section on religious freedom, would leave them more scope to regulate family relations according to their religion, given that the courts would have to balance the equality provision with the provision on freedom of religion. 45 For them, this measure of accommodation was an important sign that their concerns were also taken into account. The eventual degree of accommodation of religious diversity which can be achieved by this constitutional clause will be determined by the decisions of the courts, the (if any) implementing legislation and finally, and especially, by the Constitutional Court, which has the final word in constitutional matters 46 (and can also invalidate legislation on this ground). 47 In view of the crucial place given to equality concerns by the Constitution, there seems to be little scope for acceptable limitations to the right to equality. 48 The accommodation of religious diversity in the 1996 Constitution: Horizontal application of the Bill of Rights The horizontal applicability of the Bill of Rights was hotly debated, mainly regarding the horizontal applicability of the equality provision. Agreement was easily reached on the horizontal application of the right to dignity which would thus be directly applicable to customary law and common law. 49 The main problem provision regarding horizontal application was the equality clause. The draft of the non-discrimination clause at one point mentioned explicitly: neither the state nor any person may discriminate..., but this was felt to be problematic by the National Party and the Democratic Party. These parties were in favour of a separate section which would oblige the state to pass laws regulating private discrimination. 50 The ANC, however, did not want to compromise on its clear preference for horizontal applicability of the nondiscrimination provision in order to ensure that there would be no back door apartheid. 51 After intense discussions the non-discrimination provision was divided in two, one part dealing with discrimination by the state, 52 the other 43 Constitutional Talk Number 8 29 June, 1995, 95.html, Constitutional Talk Number 2 8 March, 1996, 1.html, 1. See also L.S. Underkuffler-Freund, Religious guarantees in a pluralistic society: Values, problems and limits, (1997), SA Public Law (34) Personal Observations during the Constitutional Subcommittee s session of 25 April, The Constitutional Court will thus demarcate through its interpretations the exact scope of the protection afforded by the Bill of Rights. 47 S. 167(3)(a), (4)(b) and (5) of the 1996 Constitution. 48 Cf. Smith, above, Ibid. 50 Constitutional Talk Number 1 9 February 1996, 2.html, 1; Constitutional Talk Number 2 8 March 1996, 2.html, Constitutional Talk Number 2 8 March 1996, 2.html, S. 9(3) 1996 Constitution of South Africa.

8 58 The Accommodation of Religious Diversity [2001] J.A.L. with discrimination by a private person. The latter subsection also included a requirement for national legislation to prohibit unfair discrimination, 53 which will probably contain further guidelines for the courts on how to deal with claims of unfair discrimination against a private person. In addition to the horizontal applicability entrenched in the section on equality, other constitutional provisions also contain indications of a more general possibility of horizontal application of the Bill of Rights, thus strengthening the horizontal application of the equality provision. Not only is the judiciary now explicitly enumerated as being bound by the Bill of Rights, 54 and the courts obliged 55 to promote the spirit, purport and object of the Bill of Rights when developing common and customary law, 56 but section 8(2) also explicitly mentions the qualified possibility of horizontal applicability of the provisions of the Bill of Rights: A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. 57 On the one hand, it can be pointed out that the expression to the extent that appears to acknowledge that the Bill of Rights cannot bind individuals in the same way as it binds the state. Whereas the state has no constitutional rights but only duties in view of the fundamental rights and freedoms of the individuals, the duties imposed on individuals by the Bill of Rights must be balanced against the rights that the Bill of Rights accords to individuals. 58 On the other hand, the centrality of equality to the post-apartheid dispensation and the additional reference to horizontal application of the non-discrimination provision, arguably strengthen the case for the horizontal application of the latter provision. This would obviously have certain consequences for the way in which the constitutional possibility in section 15(3) is dealt with. In the end, this qualification and its interpretation by the courts, and especially the Constitutional Court, will determine the actual degree of horizontality of the Bill of Rights. 59 The accommodation of religious diversity in the 1996 Constitution: Rights of religious minorities During the last-minute negotiation marathon (18 19 April, 1996) discussions between the ANC, the NP and the Freedom Front led to agreement on a 53 S. 9(4) 1996 Constitution of South Africa. 54 S. 8(1) 1996 Constitution of South Africa. 55 The corresponding provision in the interim Constitution required merely the courts to have regard for international law (s. 35(1) 1993 Constitution of South Africa). 56 S. 39(2) 1996 Constitution of South Africa. 57 S. 8(2) 1996 Constitution of South Africa. See also M. Lobban, Un Accord Négocié: Le Processus Constitutionnel en Afrique du Sud depuis 1991, above, See e.g. I. Currie, Indigenous law in Chaskalson et al. (eds.), above, See also H. Cheadle and D. Davis, The application of the 1996 Constitution in the private sphere, (1997) S.A.J.H.R. (44), See also J. De Waal and I. Currie, Application of the Bill of Rights, above, 32: (q)uestions concerning the horizontal application of the Bill of Rights can not be determined a priori and in the abstract. Whether a provision of the Bill of Rights applies horizontally depends on the nature of the private conduct in question and the circumstances of a particular case. Although Sprigman and Osborne are in general against an extensive direct horizontal applicability of the Bill of Rights, they do acknowledge that the Constitutional Court will have the final say in this regard since the Final Constitution merely permits but does not require horizontal application (C. Sprigman and M. Osborne, Du Plessis is not dead: South Africa s Final Constitution and the application of the Bill of Rights to private disputes, (1999) S.A.J.H.R. 10, 13).

9 Vol. 45, No. 1 The Accommodation of Religious Diversity 59 Commission for the Protection and Promotion of the Rights of Cultural, Religious and Linguistic Communities, cultural rights 60 and a provision on selfdetermination for a community sharing a common cultural and language heritage. 61 Although the word community is used instead of minority, the similarities between article 27 ICCPR and section 31 are striking. The concept community was preferred because minority is related to the apartheid ideology and because the former concept would express ties of affinity and connectedness rather than ties of blood. 62 It can nevertheless be argued that: the most pragmatic way to deal with the difficulties of definition of the term community is to see it as doing more or less the same work as the term it substitutes for article 27 s category of a minority. 63 Apartheid s abuse of ethnicity furthermore explains the use of cultural instead of ethnic. 64 It was decided that this Commission would be provided for in the chapter on State Institutions Supporting Constitutional Democracy, thus confirming the link between democracy and minority protection. The Commission is to be broadly representative of the several (also religious) communities in South Africa and is empowered to monitor, investigate, research, educate, advise and report on issues concerning the rights of these communities. 65 Further details should be provided by the legislation which will actually establish this Commission. 66 Section 185(1) explicitly enumerates the following primary objectives of the Commission, which reveals that it is meant to contribute to the accommodation of South Africa s (religious) population diversity: 67 (a) to promote respect for the rights of cultural, religious and linguistic communities; (b) to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and (c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils 68 for a community or communities in South Africa (emphasis added). 60 Contained in s. 31 and to be similar to art. 27 of the International Covenant on Civil and Political Rights (ICCPR). 61 I will not elaborate on that issue here in view of the specific angle of the article. However, I have written an article on this subject which appeared in JAL (2000). 62 I. Currie, above, I. Currie, Minority rights: Culture, education and language, above, 35.16; G.E. Devenish, Minority rights and cultural pluralism the protection of language and culture in the 1996 Constitution, above, 15; H.A. Strydom, Minority rights issues in post-apartheid South Africa, (1998) Loyola of Los Angeles International & Comparative Law Journal (873) Currie, above, S. 185(2) 1996 Constitution of South Africa. Strydom, above, S. 185(4) 1996 Constitution of South Africa. This statement is made on the basis of personal observation when attending the session of the Constitutional Sub-Committee where the political parties reported about their agreements. 67 See also G. Erasmus and J. De Waal, Die Finale Grondwet: Legitimiteit en Ontstaan, (1997) Stellenbosch Law Review 31, 34 where it is argued that section 185 denotes an acceptance to accommodate a separate desire, sensitivity etc. and that it can likely be seen as an indication of the way in which one should try to reach a constitutional democracy in South Africa. Cf. C. Dlamini, The protection of individual and minority rights in Van Wyk et al. (eds.), op. cit., Devenish argues that the provision for the establishment of such councils would amount to a manifestation of segmental autonomy, one of the four characteristics of a consociational democracy (Devenish, Minority rights and cultural pluralism the protection of language and culture in the 1996 Constitution, regarding the 1996 Bill of Rights, on file with the author, 21). In our view, such a description is very premature as it is not clear what kind of competencies these councils might have. If they have only an advisory capacity, they would arguably not amount to a manifestation of segmental autonomy.

10 60 The Accommodation of Religious Diversity [2001] J.A.L. The Commission s task to recommend the establishment or recognition of cultural councils, but foremost these councils themselves, can be related to the right to identity of the corresponding population groups and arguably even to the internal dimension of self-determination. The content of the eventual national legislation with more concrete guidelines and conditions will, however, determine to what extent such councils will be able to contribute to the right to identity of religious minorities. Agreement was also reached on the inclusion in the Bill of Rights of a section with additional cultural rights, meant to reflect the spirit of article 27 ICCPR. The rights are indeed framed as collective rights, more specifically in terms of members belonging to... religious... communities and arguably enshrine a right to identity. 69 There was some contention about the exact wording of the clause, namely whether it would be negative like article 27 ICCPR or positive, but eventually the first option was taken up and section 31(1)(a) of the 1996 Constitution reads as follows: Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community (a) to enjoy their culture, practise their religion and use their language... (emphasis added). Section 31(2) furthermore adds that these rights should not be exercised in a manner inconsistent with any provision of the Bill of Rights. This inconsistency clause is another indication of the increased recognition of the supremacy of the Bill of Rights and certainly of the equality provision. The latter entails obvious tensions with the complete recognition of Muslim personal law systems and marriages, as was already indicated above. It is appropriate to mention at this point that the ANC has emphasized the overall objective of nation-building in subsequent talks on the establishment of that Commission (and the rights provided for in section 31). At the same time it also acknowledged the need to accommodate the country s population diversity by taking up the theme of unity in diversity. 70 It is not clear to what extent the prime objective of national unity and nation-building will leave effective scope for genuine protection and promotion of the religious population diversity of South Africa, as are made possible by sections 31 and 185 of the Personal observation during the CA process. 70 Minister of Constitutional Development, Valli Moosa, made the following statements at a Conference organized by IDASA in September 1996 on matters relating to the Commission: (t)he constitutional principle which underlies the establishment of the Commission is to promote the objective of nation-building.... The establishment of the envisaged Commission must be guided by the following principles: The promotion of the rights of cultural, religious and linguistic communities; and the enhancement of peace, friendship, humanity, tolerance and national unity (V. Moosa, Legislation and the anticipated political process, unpublished manuscript but on file with the author, 3, 6). Minister Kader Asmal (water affairs, also ANC), made the following comments at that conference, which reflect the same mood: (o)ne of the challenges of this period is to successfully build a nation, a common national identity out of a very divided people.... The reconciliation of these two factors, nationhood and cultural differences, is one of the major challenges for democratic South Africa... the function of the Commission is to create a forum for the expression of legitimate and genuine concerns and issues for minority groups, but within a context that will ultimately foster national unity (K. Asmal, Constitutional background and political imperatives surrounding the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, unpublished manuscript on file with the author, 3, 4, 6). See also Speech delivered by the Minister for Provincial Affairs and Constitutional Development, Valli Moosa, on the occasion of the launch of the debate on the culture, religion, language and nation building. National Assembly August 4, See also Y. Carrim (MP for the ANC), Nation building and the Commission in Proceedings of a Conference held in Pretoria (18 19 March 1997) on the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities, Pretoria, 1997, 91,

11 Vol. 45, No. 1 The Accommodation of Religious Diversity 61 Constitution. 71 Further implementation as well as application will show whether the ANC, as the dominant political party, senses that the goal of nation-building can be furthered, instead of threatened, by accommodating South Africa s (religious) population diversity effectively. In the end, the exercise will be about finding the right balance between promoting unity and accommodating diversity, which is not a straightforward matter and requires thorough consideration of all the relevant circumstances. Furthermore the inconsistency clause in section 31 indicates that one cannot rely on this section to support a practice which would infringe (other) individual human rights enshrined in the Bill of Rights. In other words, the inconsistency clause would make the application of the limitations clause as regards these other fundamental rights enshrined in the Bill of Rights, including the equality provision, more rigid. It can also be argued that a lower status is attributed to rights to culture and rights to identity than to other rights of the Bill of Rights. 72 At the same time, these inconsistency clauses would clarify that the constitutional protection of community identity is not a licence to that community to violate the rights of its members. 73 Overall, the actual degree to which section 31 s right to cultural (including religious) identity will entail a (significant) contribution to the accommodation of South Africa s religious population diversity may seem limited, but will only be revealed by its ongoing implementation. IMPLEMENTATION OF THE RELEVANT CONSTITUTIONAL PROVISIONS It remains to be seen how the guiding constitutional principle of substantive equality will be applied to issues closely or directly related to the accommodation of South Africa s religious population diversity, like the implementation of sections 15(3), 29(2), 31 and 185 of the 1996 Constitution. Substantive equality requires that all relevant circumstances be taken into account in an ad hoc balancing process, 74 which would leave some scope for the recognition of different ways of life. The Constitutional Court has explicitly recognized the need to accommodate diversity in the National Coalition for Gay and Lesbian Equality and Another v. The Minister of Justice and Others 75 as it expressed agreement with SACHS, J. s concurrent opinion which underscores, inter alia, that: Equality means equal concern for and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not 71 V. Sacks, Multiculturalism, constitutionalism and the South African Constitution, above, According to Currie, section 31 right to identity entails in the context of customary law that (w)hile the Bill of Rights contains provisions supportive of group solidarity and continuity, such as s. 31, it places them in the context of a list of rights aimed at guaranteeing individual freedom and equality. The constitutional protection of culture has therefore been phrased so as not to undermine the primacy of individual rights. The collective right to cultural integrity (identity) is qualified by the requirement that it may not be exercised in a manner inconsistent with any provision of the Bill of Rights (Currie, Indigenous law, above, 36.26). 73 Currie, Indigenous law, above, See also Devenish, Minority Rights and Cultural Pluralism The Protection of Language and Culture in the 1996 Constitution, above, (12) BCLR 1517 (CC) (hereinafter: the Gay Case).

12 62 The Accommodation of Religious Diversity [2001] J.A.L. imply a levelling or homogenisation of behaviours but an acknowledgement and acceptance of difference. 76 SACHS, J., spelt out the implications of substantive equality for minority protection and accommodation of population diversity in his opinion: the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. 78 The accommodation of religious diversity and the equality principle: Muslim personal law As religion is in general an important part of people s identity in South Africa, it entails a need for an appropriate governmental attitude towards religious diversity. As was revealed by the Lawrence case, the Constitutional Court is divided about the degree of even-handedness demanded from the state considering the non-absolute separation of state and religion and the demands of the prohibition of discrimination on the ground of religion and of religious freedom in general. 79 The future developments in the case law of the Constitutional Court, hopefully towards a more unified position, will be important for the eventual assessment of the extent to which post-apartheid South Africa protects its religious minorities. A more specific issue concerns the accommodation of divergent systems of religion-based personal and family law under section 15(3) of the 1996 Constitution It should be mentioned that legal counsel for the Coalition for Gay and Lesbian Equality said that the judgement would have an impact not only on gay and lesbians but on all minority groups struggling for equality in South Africa ( Constitutional Court decriminalises Gay Sex, October, 1998). 77 It should be emphasized that the majority judgment explicitly agrees with the sentiments expressed in SACHS, J. s opinion. The Constitutional Court has, more generally, confirmed the importance of the Constitution s focus on substantive equality for minorities which would also tie in to the non-discrimination jurisprudence and more specifically the nature of the group factor, see the Gay Case, ss. 22, 25, 60 and Gay Case, ss. 132 and See also Prince v. The President of the Law Society of the Cape of Good Hope and Others, High Court Cape Provincial Division, 23 March, 1998 (unreported). The law society concerned had declined to register a lawyer wishing to qualify as attorney because he had two convictions for the possession of cannabis which according to that lawyer amounted to a violation of his freedom of religion. The Court held that there was indeed a limitation of the freedom of religion but one which was justifiable in terms of the general limitations clause. The appeal was dismissed by the Supreme Court of Appeal on 25 May, 2000 [ 80 A development that is closely related is the amendment to the Divorce Act aimed at eliminating discrepancies between common law and Jewish law. The South African Law Commission submitted October 1994 a report on Jewish Divorces. In view of the fact that the freedom of religion, requiring a neutral position of the state vis à vis the various religions, would be enshrined in the new South African Constitution, the Commission recommended that the proposed reform would be non-specific in regard to any religion (Report, 61). The SALC also formulated the following interesting argument regarding the freedom of religion: the shaping of legislative regimes to protect persons in religiously distinctive positions from losing state benefits or being subject to particular hardships in the operation of the law is precisely what is required by the constitutional guarantee of freedom of religion (Report, 81). Eventually this report resulted in The Divorce Amendment Act, No. 95 of 1996 which had as long title: To Amend the Divorce Act, 1979, so as to Empower a Court to Refuse to Grant a Decree of Divorce if it appears to the Court that the Spouses are bound by their religion to effect a divorce in accordance with their religion before a decree of divorce will have full effect. This development arguably aims at accommodating the religious diversity of the country in a way which prevents abuses of the national legal system which would contradict the new constitutional order.

13 Vol. 45, No. 1 The Accommodation of Religious Diversity 63 The recognition of Muslim 81 marriages, and related to that Muslim personal law, which has been a sensitive point for decades, needs to be addressed urgently. The central discussion is focused on gender discrimination in its manifold expressions within Islam and thus raises the difficult question of how to find an appropriate balance between the right to religious identity (section 31) and religious freedom (section 15) on the one hand and the central principle of equality in the new constitutional order on the other hand. In other words, the central question is how the integrity of Muslim principles can be maintained while being in conformity with the dominant legal system. Understandably, the Muslim community in South Africa has been highly divided as to the appropriate approach. 82 After a long, protracted consultation process which started in June 1986, in May 2000 the South African Law Commission (hereinafter SALC) published its Issue Paper 15 Islamic Marriages and Related Matters. Several cases since 1994 had indeed confirmed that the main and most urgent problem is the lack of recognition of marriages 83 celebrated according to Muslim rites and its unjust results, such as the illegitimate nature of the children and the unprotected position of the wife in respect of third persons. Prior to analysing the Issue Paper of the SALC on this matter, it seems appropriate to discuss the most relevant post-1996 case law. The first case that should be analysed concerning the recognition of Muslim marriages is Ryland v. Edros. 84 Although it is not decided by the Constitutional Court, it does signify the first step towards a broader judicial recognition of Muslim marriages and the resulting status of the spouses, which is even more important in anticipation of legislation regulating this recognition. The case deals with claims between the ex-spouses of a Muslim marriage 85 after it was dissolved according to Muslim law. The Court held that potentially polygamous marriages according to Muslim faith and law are not contrary to boni mores (contra the position under apartheid) and that the enforcement of the contractual relationship arising from them (is) no longer per se contrary to public policy. The Court based its reasoning on the new constitutional dispensation and draws upon the constitutional principles of equality and tolerance, which would call for a reasonable accommodation of diversity within a plural society: It is remarkable that adherents to the Hindu faith are not that vocal about a separate system of personal and family law. Their claims, as formulated by the South African Hindu Maha Sabha, during the constitutional negotiations focused on general cultural and linguistic issues. See e.g. Document submitted to Theme Committee 4 of the MPNP by the Hindu Maha Sabha (given to us by Mr Kalideen, president of that organization). The document addresses on the Freedom of Religion only issues of religious holidays and on Language and Cultural Rights the need for Hindu religious education, Indian languages in education as subjects, the need for an inclusive curriculum and finally, the need for a more substantial time slot on SABC. 82 See also D. Chidester, Religions of South Africa, New York, 1992, 167, who mentions that the Muslim Judicial Council was founded in 1945 to further Muslim unity (without much success as was revealed by the numerous workshops organized by SALC in 1997). 83 The conflict between Muslim personal law and the common law regarding marriages situates itself in the following domains: different requirements for a valid marriage, the consequences of marriage, its dissolution, the maintenance obligations, custody, adoption and succession (1) BCLR The man pursues an eviction claim against the woman who makes various financial counterclaims like arrears maintenance, a consolatory gift and a part of the man s estate as she alleges to have contributed in many respects to that estate. 86 See also K. Malan, Oor Gelykheid en Minderheidsbeskerming na Aanleiding van Ryland v. Edros en Fraser v. Children s Court, Pretoria North, (1998) T.H.R.H.R, (300) 302.