Excerpt
Table of Contents
Acronyms and abbreviations
1. Introduction
2. Religion and Law in South Africa
2.1 The religious landscape of South Africa
2.2 Law in South Africa
2.3 Religion and Law in Post-apartheid South Africa
2.4 The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL)
3. Theoretical framework
4. Methodology
5. Analysis
5.1 Causes of the CRL’s investigation
5.2 Procedure of the investigation
5.3 Recommendations of the CRL
5.4 Legal and normative basis of the recommendations
5.5 The negotiation of the CRL’s recommendations
5.5.1 Self-regulation and current legislation
5.5.2 The negotiation of harmful practices
5.5.3 The state-religion-relationship
5.5.4 (Un-)Constitutionality of the recommendations
5.5.5 The mandate of the CRL and its perception
5.6 Theoretical embedment
5.7 Critical discussion
6. Summary and outlook
References
Acronyms and abbreviations
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1. Introduction
25 years after the de jure end of apartheid, the notion of religious freedom is highly contested in South Africa (SA). With a population of roughly 55 million inhabitants (CIA 2018), SA is generally well-known for its religious plurality, as entailed in the term “rainbow nation”. In the last few years, however, repeatedly unusual practices called for attention that supposedly abused the belief systems of congregants.1 According to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL), some congregants, for example, were fed living rats and snakes or asked to drink petrol by their religious leaders (CRL 2017).2
This thesis aims to explore the case of SA as a prime example of how possible limits to rights related to the freedom of religion are societally negotiated and religious practices politicised. More precisely, the following research questions, as two sides of the same coin, will be scrutinised: (1) How do different social groups attempt to negotiate the extent to which the notion of freedom of religion can be stretched? (2) How do these groups negotiate when religious practices must come to an end in order to protect the earthly well-being of congregants?
In order to answer these questions, a content analysis of the Report of the Hearings on the Commercialisation of Religion and Abuse of People's Belief Systems (henceforth “the Report”), published by the CRL in 2017, as well as of affiliated documents and focal examples of media coverage was conducted. Additionally, I hold an interview with the CRL’s Deputy Chairperson to shed more light both onto the self-understanding of the Commission and the background against which its Report was published. The CRL was chosen as the main unit of analysis as it is one of the few constitutional organs to exert some control over developments threatening people’s well-being in SA’s religious sector. It is expected that, considering the manifold constitutive tensions built into the legal architecture of post-apartheid SA (Burchardt 2017a), both the CRL’s investigation itself as well as its recommendations are highly contested by most various groups. Moreover, since the abuse of people’s belief system became a crucial point of political conflict for the first time in the post-apartheid era, it is also expected that no consensually agreeable solution to halting them can be found in the foreseeable future.
To begin with, I will provide a brief overview of the historical role that religion and law have played in shaping today’s SA, including their manifold intersections (2.). Subsequently, in order to provide a conceptual basis for the content analysis, the theoretical approaches of "public religion" (Casanova) and “governmentality” (Foucault) will be presented (3.) and the methodology that the content analysis requires will be described (4.). The analysis (5.) itself is divided into several subchapters. This includes different discourse lines of how limits to rights related to the freedom of religion were negotiated, as to whether the presented theories hold true and a critical discussion. The thesis closes with a short summary and outlook (6.).
2. Religion and law in South Africa
In order to investigate how rights related to the freedom of religion are currently contested in SA, one first has to get a clear idea of what its subdimensions, religion and law, exactly are. In this thesis, I will follow a definition of religion proposed by Amoah and Bennett (2008). The biggest advantage of their definition is that it aims to overcome the religion-culture-divide – a legacy of the colonial era that was codified in post-apartheid law (Burchardt 2017a). According to Amoah and Bennett (2008, pp. 371-372) the essence of a true religion is often taken to be: monotheism, belief in a supreme being, the proclamation of everlasting truth, an explanation of the plight of the human condition… Religion is regarded as a matter of the spiritual and (apparently) irrational, demanding faith (or obedience to authority), while culture is a matter of the mundane, the world of empirically demonstrable cause and effect… The religions indigenous to South Africa, however, have no established canons of belief …, nor do they maintain a strict distinction between the sacred and profane.
For the purpose of this thesis, it is sufficient to follow a general understanding of law as a system of rules that regulates behaviour. Both spheres, the legal and the religious, can be said to be “contested arenas of social interaction” (Kirsch & Turner 2002, p. 2), having at the point they intersect questions of the freedom of religion. Before I shed more light on this notion, their individual role shall be discussed.
2.1 The religious landscape of South Africa
Historically, all the major religious traditions in the world have been present in SA ever since (Burchardt 2017a) and religious pluralism has never been a major source of intolerance (Du Plessis 2001). In contrast: For more than a century now, a peaceful co-existence has been part of the everyday life of most people in urban agglomerations (Burchardt 2017a). Since then, most South Africans are Christians (Hendriks 2005). In the case of SA, as well as for many other formerly colonised countries, churches played a significant role in the process of colonisation (e.g. Amoah & Bennett 2008; Burchardt 2010). Both before and under the apartheid state, the percentage of Christian South Africans increased almost uninterruptedly while African Traditional Religions were ‘relegated to a barbaric and outdated African culture with a secular spirituality’ (Mndende 2013, p. 74).
Moreover, during the apartheid era the White Dutch Reformed Church – as one of the backbones of SA’s Christian political theology (Leatt 2007) – constituted a driving force of racial policies (Nepstad & Williams 2007; Burchardt 2017a). Furthermore, the ethos of Christian National Education became a paramount project under the supremacist National Party from 1967 onwards (Chidester 1996). Some religious institutions such as Methodist and Anglican Churches, in contrast, were strong forces in the anti-apartheid movement (Burchardt 2017a). Since the de jure end of the apartheid in 1994, in turn, a secular political theology was established that finds its expression in terms like “rainbow nation” or “unity in diversity” (Leatt 2007). Despite (or because of) this change of paradigm, religious institutions in SA enjoy generally a high level of public trust (e.g. Swart 2006) and almost no state interference in religious matters takes place (Burchardt 2016). At the same time, SA’s religious institutions can be perceived as highly politically organised (e.g. Burchardt 2010).
Despite SA’s self-understanding as a secular state, in the last few years, it experienced a continuous increase in the religiosity of its people (e.g. Statistics South Africa 2014; PewResearch Center 2015). This culminated in 2015 when 86% were Christians and around 9% belonged to other religious affiliations while only 5% had no religious affiliation at all (CIA 2018). In order to describe SA’s religious landscape, which consists of several thousand denominations (Du Plessis 2001), most scholars use a tripartite classification, dividing it into mainline churches, African Initiated Churches and evangelical and Pentecostal churches (e.g. Garner 2000). Especially Pentecostal churches, over the last 20 years, experienced a phenomenal rise which Burchardt (2017a) explains by their promise to protect its congregants from misfortune. I will repeatedly come back to Pentecostal churches throughout chapter 5.
2.2 Law in South Africa
22 years ago, SA’s current Constitution – celebrated by many (e.g. Klug 2000) as among the world’s most progressive and liberal constitutions – came into force. It followed on the transitional constitution (entered into force in 1994) which coincided with the first fully democratic elections that the country had ever seen (Du Plessis 2001). Largely based on the same, the current Constitution entails an elaborate system of checks and balances. Furthermore, it can be perceived as a rather massive programme of transformation rather than a static document (Murray 2006), aiming, as its preamble highlights, for ‘a society based on democratic values, social justice and fundamental human rights’. Generally, the Constitution is held in extraordinarily high esteem which finds its expression in the circumstance that ‘citizens, even in the remote reaches of the countryside, even in penitentiaries, have come to speak its text as lingua franca’ (Comaroff & Comaroff 2005, p. 25).
Against the background of the former apartheid regime and the colonial era, the belief in the power of law, clearly, was not always that present. Desmond Tutu, one of the key figures during the anti-apartheid struggle, stated that among the black population a hatred for the law was particularly prevalent under apartheid, resulting from the experienced systematic dehumanisation (Truth and Reconciliation Commission 1997). Nowadays, in turn, some argue that SA is one of the spearheads of a global process in which civil demands are increasingly formulated in the language of rights (Burchardt 2013). This tendency to achieve political ends by turning to judiciaries is frequently called “judicialization” (Hirschl 2004) and often results in further contestations, including religious ones (Burchardt 2017a). To what extent the notion of freedom of religion finds its legal expressions in SA, will now be explored.
2.3 Religion and law in Post-apartheid South Africa
As already highlighted in subchapter 2.1, during the apartheid era SA was defined as a Christian country by the supremacist regime of the National Party – with a distinct Christian bias even in its law (Du Plessis 2001). Nowadays and supported by mainline churches, however, SA is a declared secular state (Burchardt 2013) which is in line with the majority of national polities in the world (Leatt 2007). Its secularity itself, though, is not frequently addressed in political discourses (Burchardt et al. 2013). In the context of overcoming the apartheid cruelties, it can even be argued that ‘secularity turned into a vehicle for securing non-discrimination in the field of religion and a symbol of equal citizenship’ (Ibid., p. 619).
More precisely, Burchardt describes SA as a “moderately” secular state that is ‘based on the principles of freedom of religion, non-discrimination, state neutrality, and respect toward religion, but also offering some space for religious expression in public institutions’ (2017a, p. 264). As becomes clear, a significant tension between legal universalism and cultural relativism is built into the post-apartheid constitutional order (Burchardt 2017a). The challenge in balancing these two paradigms is further aggravated by the state’s constitutional obligation not only to respect and protect religious and related rights but also to actively promote and fulfil the same (Du Plessis 2001; Du Plessis 2011).
Freedom of religion, which was one of the first legally enforced human rights, in its broadest definition can be understood as ‘a state’s duty to refrain from interference in an individual or community’s pursuit of a chosen belief’ (Amoah & Bennett 2008, p. 367). In the context of SA, the rights related to the freedom of religion are entrenched in the Bill of Rights and were further elaborated in the South African Charter of Religious Rights and Freedoms (henceforth “the Charter”) which was endorsed in 2010. The role the Charter plays in SA more generally and for the CRL’s investigation more particularly will be examined in chapter 5.
2.4 The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL)
As one of the six “state institutions supporting constitutional democracy” in Chapter 9 of the Constitution (henceforth “Chapter 9s”) and after the passing of the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act no. 19 of 2002 (CRL Act), the CRL was inaugurated in 2004 with various constitutional objects: to promote respect among diverse communities (s.185 (1) (a)), foster friendship and peace among the same (s.185 (1) (b)) and to recommend the establishment or recognition of community councils (s.185 (1) (c)). The responsibilities of the CRL, as a composite of three units (legal services and conflict resolution, research and policy development as well as public education and engagement) are ‘to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities’ (s.185 (2)). Hence, the CRL can be perceived as an intermediary institution between civil society, judiciary and administration.
In order to conduct its own investigations, the CRL first has to address the South African Human Rights Commission (SAHRC) (s.185 (3)) – another one of the six state institutions. Together with the Commission for Gender Equality and the SAHRC, the CRL constitutes the troika of the South African human rights institutions – all who have the mandate to build supporting networks around human right norms (Murray 2006). As institutions that are per Constitution independent from the government, all Chapter 9s share two more mandates: to check the government’s actions and to contribute to the country’s transformation to a socially just society. It must be stressed, however, that these institutions act cooperatively rather than coercively towards the government – a kind of relationship that Murray (2006, p.133) labels “cooperative control”.
3. Theoretical framework
In order to contextualise the analysed material, a solid conceptual basis is inevitable. The first concept that is promising for the context of SA, governmentality, was first developed by Foucault (1988). It focuses on practices of governing people by categorising them in different administrative categories which are supposed to shape their behaviour by shaping their identities. In other words: ‘[T]he ways that power operates through practices of classification, labeling and naming whereby people are registered through particular social categories’ (Burchardt 2018a, p. 436). Applied to the notion of religion, these processes of power canalisation are preceded by the ruling government placing the religious sphere purposefully in the public sphere, aiming for higher social control by co-operating with religious institutions (Burchardt 2016). Burchardt (Ibid.; 2017b; 2018a), for instance, demonstrates that the concept can also include the notion of religious diversity as a new category.
The second theory promising for the South African context is Casanova’s (1994) concept of public religion. Originally focusing on developments in states usually accounted to the Western world, Casanova (1994, p. 3) captured his observation as follows:
Religion in the 1980s «went public» in a dual sense. It entered the «public sphere» and gained, thereby, «publicity». Various «publics» – the mass media, social scientists, professional politicians, and the «public at large» – suddenly began to pay attention to religion. The unexpected public interest derived from the fact that religion, leaving its assigned place in the private sphere, had thrust itself into the public arena of moral and political contestation.
The bigger picture, Casanova (1994, p. 5) centrally claims, is that we can witness the “deprivatisation” of religion during which (1) private spheres become re-politicised while (2) political and economic spheres become “ re-normativised ”. Hence, his concept of public religion manifests itself in three corresponding forms in modern societies, compiled by Burchardt (2013, p. 241) as follows: (1) state religions/established religions, (2) religious investments of political parties and (3) religion as an own civil society actor.
Beckford (2010, p. 123), however, applying the concept of public religion to the case of the United Kingdom, showed that Casanova, because of his presumably selective exaggeration, overlooked both the continuing privatisation of religion and governments’ attempts to govern religions themselves. In fact, Beckford (2010) states first, privatisation constitutes a necessary concomitant of secularisation and second, private and public forms of religion are highly interrelated. As becomes clear, these observations are crucial to applying the concept to our case. Having presented these two concepts, I will now explain how the selected material was analysed.
4. Methodology
For the purpose of this thesis, a content analysis deemed to be the most promising approach. Content analysis, although it originally emerged as a purely quantitative method (e.g. Schreier 2012; Krippendorff 2013), over the last decades was increasingly facilitated for qualitatively- oriented enquiries as well. Krippendorff (2013, p. 23), in its engaging treatise about the origin of content analysis, even stresses that over the years it ‘evolved into a repertoire of methods of research’ – centrally characterised by being ‘ empirically grounded …, exploratory in process, and predictive or inferential in intent’ (Krippendorff 2013, p. 1; italics in original). Moreover, understanding content analysis as a research technique that must necessarily be reliable, it aims to find replicable and valid results by making inferences from texts or other sources to specific contexts (Krippendorff 2013).
In this thesis, more precisely, I will conduct a qualitative content analysis (QCA). This approach strives to meet the quality criteria of intra-coder-reliability as well as inter-coder- reliability by embedding the analysed material in a bigger model of communication, including (1) the situatedness of each author, of recipients and content analyst as well as (2) the background of the text and situation of the text production. In order to do so, rules are required that are laid down before the analysis itself can be conducted. Generally spoken, these rules range from the unit of analysis over the content analysis itself to the modes of procedure and must be constantly modified (Mayring 2010). In order to meet all the criteria mentioned, these rules must be embedded in a certain procedure. For this reason, I followed Schreier’s (2012) proposal of eight essential steps specific to QCA. This includes, (1) to decide on the research questions, (2) selecting material, (3) building a coding frame, (4) dividing material into units of coding, (5) trying out the coding frame, (6) evaluating and modifying the coding frame, (7) conducting the main analysis and (8) interpreting and presenting the findings.
Moreover, besides the documents commenting on the CRL’s Report I also analysed an expert interview with a public figure who has a privileged position in the context under scrutiny – hence, his status as an expert (Meuser & Nagel 2006, p. 57). The structured guideline interview with the Deputy Chairperson of the CRL, David Luka Mosoma, was held in Johannesburg in September 2018. In order to embed this additional source of information in the bigger context of QCA, I follow the classification of Meuser and Nagel (1991, p. 445), defining the expert’s role as an informant, complementary to the target group (religious groups) in the sense that he possesses knowledge about contexts.
5. Analysis
Thus far, I have provided a comprehensive background on the situatedness of religion in post- apartheid SA and the necessary framework to conduct and embed the following content analysis. Starting first with a descriptive analysis of the chosen case, I strive to answer two research questions with these two approaches: (1) How do different social groups attempt to negotiate the extent to which the notion of freedom of religion can be stretched? (2) How do these groups negotiate when religious practices must come to an end in order to protect the earthly well-being of congregants?
For this purpose, all available documents related to the CRL’s investigation, covering a period of almost three years (October 2015 until September 2018) were analysed. This period equals the points of time when the CRL started having its first hearings until the expert interview was held. Further included in the analysis were focal examples of media coverage and submissions for both the CRL’s final Report as well as for the hearings of the Portfolio Committee on Cooperative Governance and Traditional Affairs (PC on COGTA) on the Report. It was outside the scope of this thesis to consider more recent developments in SA’s religious sector for the content analysis. Nevertheless, I will briefly touch on them in the outlook of chapter 6. First of all, for what reasons did the CRL initiate its investigation?
5.1 Causes of the CRL’s investigation
In its Report, the CRL (2017) argues that the undertaking of an investigative study was unanimously agreed on, considering media coverage on various unusual and even potentially harmful practices. This included for example that some pastors let their followers drink petrol, eat live snakes and sprayed the insect-repellent “Doom” in their face.
Secondly, these practices must be examined as part of a wider spectrum of current substantive issues in SA’s religious sector (CRL 2017). This also includes an unprecedented increase in the number of advertisements of religious activities as well as in the number of religious institutions and foreign leaders – phenomena that raised the question ‘[as to] whether religion has become a commercial institution or commodity to enrich a few’ (Ibid., p. 4).
Thirdly, the CRL justified its investigation by stressing the constitutional mandate of its own ‘responsibility to guard against the undermining and abuse of this very religious freedom’ (CRL 2017, p. 27) – a self-understanding that the Commission repeatedly facilitated (e.g. PC on COGTA 2017a). So, how exactly did the CRL become active?
5.2 Procedure of the investigation
David Luka Mosoma, the Deputy Chairperson of the CRL (who is also an ordained minister and university professor), in an interview with the author in September 2018 stressed that, initially, the Commissioners ‘decided to pilot meetings … jointly with the South African Council of Churches to invite pastors in different regions to talk about these issues and what can be done.’ Since the attendance at those meetings was very low, however, the CRL (2017) decided to summon religious leaders to ensure attendance. This is, as Mosoma stressed, a common legal practice of the CRL to gather crucial information or documentation needed, making use of section 7 (2) (b) of the CRL Act. These hearings, however, were overshadowed by the fierce opposition from some of the summoned religious leaders (e.g. Tandwa 2015; CRL 2017). I will critically discuss what was at stake for those opposing in subchapter 5.7.
The hearings took place between October 2015 and March 2016, in all of SA’s nine provinces. Overall, 85 face-to-face-interviews were held with religious leaders and traditional healers who represented religious institutions ‘from mainline or traditional churches to charismatic, Pentecostal, Islamic, Bahai Faith, Judaism, Hinduism, non-Christian religions, African Independent churches, and African Traditional Religion, etc, to ensure a fair representation’ (CRL 2017, p. 13). For this purpose, and to ensure a proportionate distribution of religion in the country as well, a random sampling design was facilitated that drew on both the community councils registered with the CRL and figures from the 2001 census (Ibid.). Moreover, as the Chairperson of the CRL’s research desk, Brian Makeketa, clarified in an email subsequent to the interview, individual Pastors were called where churches did not belong to an umbrella body. Adding to that, the Commission (2017, p. 14), stressed that it was ‘[a] very critical matter … to be seen treating all religious leaders the same and thus issuing them with the same summons asking for similar documents.’
Throughout the period under scrutiny, the CRL’s investigation was highly contested. This finally culminated in the hearings that the PC on COGTA held in October 2017 and its committee report on the CRL’s final Report in February 2018. For the purpose of this thesis, it is inevitable to briefly embed these two constitutional organs and their relationship in SA’s political system.
Most importantly, though addressing the National Assembly with its recommendations, the PC on COGTA must be understood as the main recipient of the CRL’s Report – hence its long-term engagement with it. This is since, within the National Assembly, the Portfolio Committees (PCs) are in charge of elaborating new legislations and making proposals to amend existing laws. In these processes, they are supported by Chapter 9s, including the CRL. As Schmidt (2016) notes, until now – and mostly due to the lack of research on it – it is unclear to what extent the PCs can be called the “engine room of the new parliamentary democracy” (Venter &Taljaard 2003, p. 34). What is undoubtedly clear, however, is that the CRL – as an advisory body with no legislative competences – is dependent on the PC on COGTA’s dealing with its recommendations.3 To come back to our case of enquiry, what exactly did the Commission recommend in its Report – and on what basis?
5.3 Recommendations of the CRL
The CRL claims to have found most various violations against existing legislation and infringements on the constitutional rights of congregants. Its main findings are loosely compiled in Table 1:
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Source: CRL (2017, pp. 33-33); own illustration
Based on these findings, the CRL proposed various measures. Most profoundly, the Commission (2017) demanded an amendment to the CRL Act in order to extend its own powers, justifying this with its perceived necessity to intervene in future abusive cases. Equally straightforward, it also claims that ‘nowhere in [the] recommendations … [is it said] that the state must interfere in the religious affairs of any religion. Instead, the recommendations encourage self-regulation, rather than state regulation’ (Ibid., p. 27). Most importantly, the CRL proposed the introduction of two new institutions: Peer-Review Committees and the Peer- Review Council.4 While it is not further specified in the Report – in contrast to the preliminary report – what the Peer-Review Council would be in charge for, the Commission makes it quite clear for the Peer-Review Committees, equipping them with the broad mandate to ‘ensure that there are religious self-organisation and accountability’ for their particular religion (Ibid., p. 47).
They would be constituted by one elected representative of each Umbrella Organisation – many of them already exist – which, in turn, represent Worship Centres that ‘would freely choose [to] which [one] they want to belong to’ (Ibid., p. 45). The peer-review organs would also be responsible for registering religious institutions which the latter, crucially, are not yet obliged to by law, although some incentives already exist (e.g. U.S. Department of State 2018). Hence, a structure is proposed by the CRL (Graphic 1) that Mosoma claims to ‘assist religious institutions to account, to be fair, to promote integrity, to bring about competence in whatever they do’:
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Source: CRL (2017, p. 42)
As becomes clear, this structure entails many possible points of contestation, for example, the requirement to become part of an Umbrella Organisation – an idea that is rejected by many Pentecostal churches (Kgatle 2017). The same holds true for other recommendations that the CRL made and which I will soon touch on.
5.4 Legal and normative basis of the recommendations
In the following, I will briefly present four points of view that the CRL repeatedly stated in order to justify its regulation-focused recommendations.5 They were selected since they are highly contested by various social and religious groups (hence evolving into discourse lines), as I will demonstrate in the following steps of the analysis: (1) the safety and well-being of SA’s religious population must be weighted higher than their unconditional freedom of religion; (2) legal shortcomings and loopholes allow abusive practices and the commercialisation of religion in the first place; (3) vulnerable congregants, in particular, must be protected from financial exploitation; (4) religious professions can and must be regulated like any other profession.
First of all, by facilitating the frame “abusive” as one of only a few, the CRL points unambiguously towards violations of the law (including rights related to the freedom of religion. In the Report, however, the Commission does not clearly define its understanding of “abuses of people’s belief systems”. The only points of reference it gives are, besides specific unusual practices, abuses of human rights, such as hate speech (CRL 2017, p. 34). The Deputy Chairperson elaborated the CRL’s understanding further in the interview, stating that ‘[r]eligion by its very nature is not harmful … [A] religious practice that is harmful is one that … [is] likely to cause harm to their body, to their health, … things that dehumanise them.’ Adding to his understanding of harmful practices, Mosoma also highlighted in the interview that religious practices must never undermine human dignity in order to be legal and that once religion becomes harmful, ‘the state can’t just sit and watch’. Furthermore, at a roundtable discussing the problem of religious-based violence, the CRL’s Chairperson, Ms Thoko Mkhwanazi-Xaluva, openly argued that ‘freedom of religion may be limited in order to protect millions of people’ (Konrad-Adenauer-Foundation 2017). Hence, (1) it might be derived that the CRL weights the safety and well-being of SA’s religious population higher than their (and the rest of the population’s) unconditional freedom of religion.
Secondly, (2) it seems that the CRL’s strong focus on legal adjustments results from its perception of legal shortcomings. Not only does the Commission (2017, p. 35) highlight a lack of enforcement of existing legislation and legal loopholes which create opportunities for abuse in the first place. In cases of abuse, it also finds itself in a situation of legal powerlessness, as its Deputy Chairperson admitted in the interview:
[B]ecause people do that voluntarily, … there is nothing in law which makes these perpetrators criminals. There is nothing… We find it very difficult, especially because it is alleged that people do so voluntarily. They submit, they are not under compassion to … submit themselves.
This observation leads us back to the second cause of the CRL’s investigation: the commercialisation of religion which the Commission (2017, p. 19) broadly understands as the assumption of divine/missionary right to directly or indirectly solicit and receive gifts/offerings/tithes in cash or any kind from their members … without commitment to responsible financial management and accounting.
A narrower definition was provided by Mosoma who, being asked by the author why it might be necessary to separate religious practices and commercial activities – one of the CRL’s most insistent demands –, exemplified it with a key practice of the Commission’s concern:
The power of prayer does not come from you, the pastor or the minister or the bishop, it comes from God. So, the power to heal, if you have, is not your own power, the power that is derived from the authority of God. And therefore, you can’t pray for water and … say: ‘This water will heal you because I prayed for it.’ Because if you do that you are selling what? You are not only selling water; you are selling prayer… Which is what is happening now.
As mentioned in the quote, (supposedly) blessed water is one of those highly commercialised goods, sometimes being sold for 2000 rand although its material value does not even exceed two rand, as a focus group stated in a study conducted by the University of South Africa (UNISA) in the year 2016. I will come back to this particular study in the subsequent subchapters. In fact, water is one of the few examples at the intersection of commercialised and abusive practices. More precisely: where its purchase leads to the rejection of formerly taken antiretroviral pills (e.g. against HIV/Aids) and as a result to the congregant’s deteriorating health – or even death – soon after. Hence and thirdly, (3) regarding the notion of commercialisation, it can be argued that the CRL aimed with its recommendations also for the protection of (particularly vulnerable) congregants from financial exploitation. This idea is further supported by a statement that David Luka Mosoma made in a newspaper a few years ago (Buzz South Africa 2015, quoted in Burchardt 2017a, p. 278), this time illustrating structural factors for the commercialisation of religion:
The challenge we have in this country is that each and every person who does not have employment, the first line of call is to start a church. People of this country believe. If you say, ‘God has said’, they will follow you. So, because of that vulnerability, people exploit it for financial gain… Churches have become more like business. Some, when you walk into their churches, there are ATMs or speedpoints so that they would not take the little donation you want to give willingly… Your donation is measured by how much you give and it creates your status more than your faith. It destroys the integrity of the word of God.
Fourthly, (4) repeatedly the CRL (and the Chairperson in particular) stressed its perception that religious professions must not be seen as any different from other professions (especially medical and legal) – and hence can be equally regulated (e.g. CRL 2017; PC on COGTA 2018a). As one might expect, neither this Constitution-interpreting point of view by the Chairperson nor others by the CRL were undisputed.
5.5 The negotiation of the CRL’s recommendations
To start with, two critical comments deem promising to contextualise the CRL’s points of view. Firstly, while the CRL in the Report (2017) repeatedly emphasises its mandate as a guard of the freedom of religion, Burchardt (2017a) points out that there are not only indicators that the Commission actually aims for limiting rights related to the same; it also engages in its own sort of theological interpretation (“good religion” versus “false religion”), as the final sentence of Mosoma’s quote above exemplifies. Burchardt (Ibid.) continues his argument, underlining that these criteria were introduced into the investigation of practices of Pentecostal pastors – the movement accused of conducting the unusual practices under scrutiny.
Second, one of the few studies about those practices highlights that, until the day of its publication, they were mostly conducted by only four religious leaders of Pentecostal churches (Kgatle 2017) – and not, as both the Report and Mosoma in the interview implied, within different denominations or even religions.6 More precisely, these four religious leaders have in common that they are leaders of “Neo-Pentecostal” churches (Ibid.) which, in distinction to classical Pentecostalism, are said to be trans-denominational and provide a popularised rendition of Christianity (Khanyile 2016).
5.5.1 Self-regulation and current legislation
It might seem perplexing that the CRL (2017, p. 42) both proposes the presented new structure with regard to ‘[t]he underlying principle [of] respect for self-regulation by each religious institution’, while also explicitly aiming for the external regulation of religion. The latter notion is further supported by the circumstance that the Commission (2017) also straightforwardly declares itself the final arbiter of all matters that the peer-review organs advise it on. This proposal of external regulation stands in clear contrast to many voices that solely call for better internal regulation of religions.
One of the measures of self-regulation that many involved parties agreed upon (PC on COGTA 2018a), was the introduction of a “Code of Conduct”. A similar proposal was already made by the CRL (2017), recommending a “Code of Ethics” to which religious institutions would be encouraged, but not legally compelled to. A foundation for this code is already provided by the South African Council for the Protection and Promotion of Religious Rights and Freedoms (SACRRF), the protector-by-law of the Charter on Religious Rights and Freedoms. The signatories of the Charter not only represent almost half of SA’s population, as the Christian non-governmental organisation (NGO) Freedom of Religion South Africa (FOR SA)7 and SACRRF stress (2017), but also the CRL itself. Legally spoken, however, the Charter itself is no obligation for its signatories but rather constitutes a guideline (PC on COGTA 2017b). However, Peter Coertzen and Rassie Malherbe of the SACRRF highlighted in the hearings of the PC on COGTA that judicial notice is taken by courts whenever the Charter is endorsed by religious bodies (Ibid.). Coertzen even expressed more sharply that it must not be the task of the CRL to structure religion (Konrad-Adenauer-Foundation 2017).
Equally consensually agreed upon was the significant lack of the enforcement of pre- existing laws. For example, FORSA and SACRRF, in their common comment (2017, p. 65) on the CRL’s preliminary report, reject the presumably far-reaching recommendations ‘particularly when various laws and legal mechanisms are already in place to address the problems identified in its Report’ – including the existing civil and criminal law in particular (FOR SA & SACRRF 2017). Besides FOR SA – which can be understood as the CRL’s fiercest opponent regarding its recommendations – and other opposing national groups, even international bodies came to the judicial conclusion that the current legislation is enough to tackle the practices under scrutiny. In the latest International Religious Freedom Report, the U.S. Department of State (2018) further opposed CRL’s proposals to implement new laws on the grounds that they might affect particularly independent faiths and beliefs. It is argued that they would no longer be able to operate legally if they refused to submit themselves under an Umbrella Organisation – as the CRL wants every religious organisation to be obliged to do.
Moreover, the current legislation’s deficiencies are illustrated with an absurd but legally possible situation by an anonymous correspondent of the channel News24 (2015) paraphrasing the Commission’s Chairperson:
At the moment, religious bodies were governed by the same legislation as non-profit organisations. This was problematic because the administration of a soup kitchen and that of a church earning millions were simply not comparable.
It must be stressed that the religious sector in SA is not as unregulated as one might get the impression of. It already regulates itself in its own right by various acts (e.g. UNISA 2016) and existing legislation is sufficient in some cases. For example, the so-called “Prophet of Doom”8 was taken to court by the Department of Health of the Limpopo Province and forbade to continue using the insect-repellent (Wesleyan Church 2017). However, and similarly to the CRL (2017), the difficulty of criminal charges was expressed by Nhlanhla Mkhize of the University of KwaZulu-Natal (PC on COGTA 2017b) who stated that “mind capture” per se is no crime, despite the abusive practices that might follow on the voluntary participation.
Nevertheless, some voices opposed an amendment to existing legislation completely. Arguing historically, FOR SA (2017a, p. 2) in its open letter to the CRL positions itself clearly against any form of state-led regulation, arguing that the ‘freedom [of religion] has never been regulated in South Africa and the Courts in particular have always been very wary and careful to leave the different faiths to self-regulate.’ Others such as the Church Leaders Empowerment Foundation Africa (CLEFA), in turn, explicitly do not reject all of the CRL’s recommendations. This case is particularly stunning since CLEFA is an Umbrella Organisation of independent Pentecostal and Charismatic Churches that represented some of the churches accused of abusive practices (PC on COGTA 2017a). For this reason, I will shed some more light on its points of view.
Similar to most other religious groups (e.g. FOR SA et al. 2016 in their Joint Statement Repudiating Unlawful Acts Carried out in the name of Religion), and unsurprisingly, CLEFA disassociated itself from the dubious pastors (PC on COGTA 2017a). Condemning them as ‘some crazy individuals’ in its submission to the PC on COGTA (CLEFA 2017, p. 1), the Umbrella Organisation points out that it would be a great mistake to put the whole of Christianity in one basket. However, CLEFA does not stop there, stating that the Report was biased against Christianity as such (PC on COGTA 2017b) and stresses that some ‘strange practices [can be found] in other religions [, too]’ (CLEFA 2017, p.1). At the same time, the Umbrella Organisation highlights that is has nothing to hide as well as its proactive approach towards the CRL by making own recommendations (PC on COGTA 2017a; CLEFA 2017). As becomes clear, CLEFA draws a line where the Commission supposedly wants to limit doctrinal matters (which Mosoma rejected in the interview), as indicated further above – hence rejecting the Commission’s proposed structure as such. Nevertheless, some of CLEFA’s proposals are fully in line with the CRL’s. This includes, among others, that the registration of religious institutions and background checks of foreign pastors should become obligatory. This is since rejecting the Report wholesale is perceived by CLEFA (2017, p. 3) as an ‘indirect way of promoting and encouraging continuation of ill-practices.’
5.5.2 The negotiation of harmful practices
It is evident that no final definition can be given where unusual practices end, and abusive ones start. FOR SA (2017a, p. 4), among others, stresses that in 2002 the Constitutional Court case of Prince v President of the Law Society of the Cape of Good Hope established the “harm principle”. This allows the Courts and the State of SA to intervene when religious practices are deemed harmful or illegal. As a ruling of the same case, beliefs that include practices which might seem “bizarre, illogical or irrational ” without being harmful , are guaranteed and protected by the Constitutional Court, also known as “hands-off approach” . In order to argue that the existing legal framework is sufficient, FOR SA (2017a) also draws to the already mentioned example of the Limpopo Department of Health which applied the Hazardous Chemical Substances Act and Regulations – an act that regulates the kind of situation that the “Prophet of Doom” brought his congregants into. A case that would most likely not be covered by this act but rather resembles the dilemma I repeatedly showed so far was illustrated by the CRL’s Deputy Chairperson in the interview:
[W]hen you have a victim or a congregant, … infected with HIV … and the victim is under medication and you tell the person to leave the medication … in favour of certain concoctions, either water or oil which scientifically would not add anything to the health of the person. And many people have died as a result of that because they believe in what the pastor says, they do not believe what the doctor says.
Against the background of the cases stated, the CRL’s stance on the need to intervene becomes particularly clear. The presumable urgency is further stressed by Mosoma who portrays the abusive practices, similar to CLEFA (2017), as a kind of an “imported” problem – hence the CRL’s proposal to consider the pastors’ backgrounds for the allocation of visas:
Those are harmful … religious practices which are only endemic and prevalent in South Africa because of our openness of abuse. We have accommodated many people coming from different parts of the world with different practices and they are using this as a laboratory of experimentation. And they are using our people as objects of experiment in this regard.
5.5.3 The state-religion-relationship
The feared reversal of SA’s state-religion-relationship is another rights perspective which frequently led to a rejection of all of the CRL’s recommendations as such. In the post-apartheid era, as Mosoma drafted in the interview, this relationship is profoundly characterised in the sense that [t]he state … [is] a provision of a constitution, provides a constitution. In fact, the state protects everybody, including the church, including the religion… So, there must be … a healthy relationship between the state and religion. And why a healthy relationship? Because they are all concerned about the common root, all concerned about the people.
During the hearings of the PC on COGTA (2017a), he already stressed that the duty of government is to provide protection of society’s right to defend itself against abusive practices committed under the umbrella of the freedom of religion. He also claimed that one needs to glean the basic moral principles that guide the work of the Commission in order to read the Report from the same “hymn sheet”. Crucially, besides respect for self-regulation of each religious institution as one underlying principle (CRL 2017), at no point in the Report does the CRL state other principles in more detail. They are only mentioned in the protocol of the hearings of the PC on COGTA (2017a) as ‘the need for effective safeguard of citizens and peaceful settlement of conflicts, out of the need for care and genuine public peace; and out of the need for proper guardianship and public order.’
Moreover, one might interpret the metaphor of the “hymn sheet” as the CRL’s attempt to define the “right” moral principles for what the “correct” definition of the state-religion- relationship is that it tries to safeguard – similar to the claim that Burchardt (2017a) makes regarding the CRL’s understanding of “good religions”. Many opposing voices, in turn, attack the recommendations as aiming for nothing else than reversing the cooperative state-religion- relationship (e.g. Christian Family Church Emalahleni 2017). FOR SA (2017a) even goes so far as to paint the image that the ‘proposal will reverse the roles and make the State the watchdog over … the whole religious community of South Africa.’ This claim is supported by the International Institute for Religious Freedom (IIRF), a network that is under the oversight of the World Evangelical Alliance. It argues (2017) that the relationship would not only be reversed by licensing religious practitioners and places of worship – it would also be unconstitutional, violating against section 15 (freedom of religion) and section 18 (freedom of association).
5.5.4 (Un-)Constitutionality of the recommendations
From the first day of the preliminary report published in October 2016, many doubted that the CRL’s recommendations are in accordance with the Constitution (e.g. Badenhorst 2017; IIRF 2017). Frequently, since no juridical certainty could be given it was often only the fear of their unconstitutionality which led many parties to reject most, if not all, of the Commission’s recommendations, including the PC on COGTA (2018b).
This is despite the fact that the CRL (2017) repeatedly stressed that their legal team advised them on the recommendations’ constitutionality, claiming, for example, that ‘[p]rofessionalising the religious sector cannot be deemed to be unconstitutional’ (CRL 2017, p. 41). Nadene Badenhorst, an Advocate of the High Court and Legal Counsel of FOR SA, however, disagreed completely with the CRL on the Christian website Gateway News (2017). She argued that religious professions must be treated differently from any other professions (particularly medicine and legal) since no objective criteria exist to measure religious beliefs and practices. Similar claims are made, for example, by the PC on COGTA (2017a). The argumentative opposition to the CRL’s recommendations is further supported by the SACRRF’s claim that, if the Commission strives to gain executive power (by being in charge of licensing), not only a new amendment to the CRL Act but also to the Constitution would be required since the Commission legally has only an advisory function (PC on COGTA 2017b).
Besides the recommendations’ contested constitutionality, doubts were also expressed as to whether they would conflict with international law. For example, the IIRF (2017) warned that the recommendations are in conflict with the stance of the former UN Special Rapporteur on Freedom of Religion or Belief regarding their overwhelming focus on beliefs rather than the believers. The IIRF derives from this viewpoint that no common denominator exists to regulate beliefs under Umbrella Organisations. Moreover, in its request for oral presentation to the PC on COGTA, it highlighted that Article 18 of the Universal Declaration of Human Rights guarantees the unrestricted freedom of religion (Ibid.). Further supported is this notion by Article 18 of the International Covenant on Civil and Political Rights (ICCPR) of which SA is a signatory state for 20 years now. Although the ICCPR states in subsection 3 of the same article that the freedom of religion may be limited (if prescribed by law), IIRF (2017, p. 5) doubts that the ‘isolated instances of the abuse of religion amounts to a “threat to public safety, order, health, or morals or the fundamental rights and freedoms of others.”’
Another internationally heard and adamant voice is the U.S. Department of State with its annual International Religious Freedom Report (2018). In the latest report, as already stated, it was feared that the CRL’s recommendations – in accordance with most critiques – would affect particularly independent faiths, e.g. Neo-Pentecostalism, most negatively. It is against this background, that it stresses that the current legislation is sufficient and that the CRL exceeds the boundaries of its own mandate.
Ultimately, the PC on COGTA rejected the CRL’s recommended structure (including the peer-review organs) in its own report and made other proposals to the National Assembly. This included, among others, the strengthening of existing legislation and of bodies penalising misleading media claims (PC on COGTA 2018b) – measures, that solely enforce the self- regulation of religions. Again, it must be stressed that the CRL does not have the legal competence to exert control on religious institutions at all. Why, then, has it made recommendations that the PC on COGTA could hardly follow?
5.5.5 The mandate of the CRL and its perception
A first indicator of how the Commission interprets its own mandate can be obtained from the Report (2017) as well as its website (CRL 2019). The CRL highlights its independence as an intermediary institution, its role to protect and promote cultural, religious and linguistic rights, to provide space and promote unity and to foster mutual respect and the rights of communities, to facilitate both proactive and reactive approaches, with the overarching aim of strengthening SA’s constitutional democracy and ‘building a nation united in diversity’ (CRL 2017, p. 8).
The CRL’s mandate, as both the Report (2017) and Mosoma stressed, was always explained to the religious leaders summoned. Equally, the Deputy Chairperson highlighted the crucial role that understanding the Commission’s mandate plays for its legitimacy. Another pitfall of the investigation was the tight rope the Commissioners were forced to walk on. Of all parties involved (and besides the IIRF), it was FOR SA that justified the CRL’s approach with this metaphor, illustrating the complexity of the recommendations to put an end to the harmful and abusive practices committed under the guise of religion (PC on COGTA 2017a). It is evident that toppling of this tight rope – and stretching its constitutional mandate too far – is a deadly misstep which could strike the Commission at any point during its investigation. Surprising is, how clearly UNISA (2016) states in its pilot study on the commercialisation of religion in the province of Gauteng, that the CRL made too many mistakes in the investigation. This ultimately resulted in ‘[t]he feeling … that the Commission is not democratic and does not allow debates. What … [it] needs to do is to play an educative and not a judgemental role. Government cannot regulate religion’ (UNISA 2016, p. 115) Crucially, this study was commissioned by none other than the CRL itself which exemplifies the dissatisfaction with the Commission’s approach among most parties.
Part of the harsh critique is the widespread impression of the CRL rushing into this investigation and constructing a case of emergency (e.g. FOR SA 2016; FOR SA 2017a). This found its expression not only in the initially extremely short time period of only three weeks to submit comments on the preliminary report (FOR SA 2016).9 UNISA itself (2016, p. 116) criticizes that when its study was published in August 2016, only two cases of misconduct were known – raising the question ‘whose religion ... [the CRL] is protecting.’
Moreover, the Commission was accused of conducting questionable practices for their investigation. Firstly, in its committee report on the CRL’s Report, the PC on COGTA (2018b) raises questions about the cost-effectiveness of the investigation. Secondly, and in contrast to what the CRL implies in its Report (2017), the hearings were not open to media from the first day on. It was just in early November 2015 that a High Court ruled that they must have access (Eyewitness News 2015) – while the CRL was further proceeding with the hearings.
Thirdly, especially FOR SA (PC on COGTA 2017b) argues that the CRL was ignorant of others’ proposals of how to deal with the unusual practices of matter. In fact, the recommendations made in the preliminary report and the final Report are almost identical – despite nine months in between, including dozens of comments during the submission period. Even worse in terms of the CRL’s reputation, it was accused of making false claims by the PC on COGTA. FOR SA (2017b) summarises this incident by stating that the CRL openly misled the Parliament by speaking of strong support for its recommendations by major churches that it actually has not had. Against this background of critiques, it might wonder less that some media portray the CRL and its situation in an alarmingly bad light. Vicky Abraham, a writer for the newspaper The Citizen (2015), for example, called Ms Thoko Mkhwanazi-Xaluva an “aggressive” chairperson in her description of the hearing of Archbishop Stephen Zondo of the Rivers of Living Waters Ministry – who was accompanied by armed guards, as another journalist, Sibongile Mashaba (Sowetan LIVE 2015) adds. Mashaba (Ibid.), similarly reproachful like Abraham (2015), even spoke of the CRL’s attempt to put the Zion Christian Church – SA’s third-biggest major religion (World Atlas 2017) – on its ‘radar for grilling’.
Summing up both the descriptive analysis and the qualitative content analysis, we have seen that multiple discourse lines evolved while negotiating how far the notion of freedom of religion could be stretched. It became apparent, to answer the second research question, that for most religious groups involved the constitutional rights related to the freedom of religion are not negotiable at all. It remains unclear, why the CRL, as an advisory body per law, insisted on recommendations that would have given it the constitutionally not covered “teeth” (SABC News 2017, quoted in FOR SA 2017a, p. 8) to have its own executive powers – licensing pastors and places of worships. I will embed and critically discuss this notion, among others, in the next two subchapters.
5.6 Theoretical embedment
In order to embed the analysed material in a broader theoretical framework, I will answer two questions in the following: (1) Which forms of regulation of/by religion can be found for the case? (2) How can their particular form be explained ?
First, multiple forms of regulation can be derived from the analysis. One of them is the CRL’s proposal to professionalise the religious sector, analogue to other (especially medical or legal) professions. This resembles Foucault’s (1988) concept of governmentality in the sense that “professionalising” can be understood as a form of administrative category-building. Hence, it would be expected that the behaviour of pastors would be shaped as a consequence of shaping their identities. This could result in, as only one possible consequence, that the religious leaders accused of abusing their followers’ belief systems would no longer be allowed to call themselves “pastors” – or even “prophets”. According to the CRL (2017), this form of professionalisation would have been encouraged by introducing a registration mechanism, another form of regulation. Indeed, as section 5 (1) (j) of the CRL Act states, the CRL legally has the power to establish and maintain databases of institutions under its guise. This is in line with the concept of governmentality as well since by being aware of the religious leaders’ places of worship and the Umbrella Organisation that they belong to, the CRL (2017) makes these leaders more accountable.
However, registration must not be equated with licensing religious institutions, another – and apparently the most disputed – form of regulation in our case. This reproachful term was predominantly facilitated by parties opposing the CRL’s recommendations, especially FOR SA (e.g. 2017a). Indeed, the proposed structure would have put the Commission in a structural position to exert some form of direct control over SA’s religious sector by deciding over who would get a (renewed) license to practice as a pastor and who not. Crucially, the CRL did not aim for that (at least not openly) from the beginning of the investigation. In contrast: In its preliminary report, it does not authorise itself to be the “final arbiter” (CRL 2016, p. 32) of these decisions but rather gave more power to the Peer-Review Committees and the Peer- Review Council Nevertheless, both proposed structures most likely would have had significant impacts on SA’s state-religion-relationship of “cooperative control” (Murray 2006) – another characteristic of governmentality. Reversing this relationship, in the worst case, could have ended in some form of “controlled cooperation”: Only those who would be in the position (or willing) to comply with the CRL’s (or its subservient peer-review organs’) orders would be allowed to practice their religion – an amendment to the Foucauldian notion. It must be stressed, however, that this scenario would have been highly unlikely, not least because of SA’s political system that entails many forms of checks and balances, as the PC on COGTA (2018b) exemplifies by halting the CRL from overstretching its constitutional mandate.
The concept of governmentality becomes even more useful for our case if one follows Burchardt’s (2018a) proposal to differentiate it in two forms – with measures to halt the commercialisation of religion as an economic form and measures to regulate religions as a legal-political one. As became clear in the analysis, the Commission focused predominantly on the latter. Hence, and applying Mahmood’s (2015, p. 23) thought to our case, it can be said that the state of SA, in form of the CRL, ‘is not simply a neutral arbiter of religious differences; it also produces and creates them.’ This is since the CRL with its recommendations would have affected SA’s religious denominations to different extents, with Neo-Pentecostal churches – the movement to which the pastors accused of the unusual practices belong to (Kgatle 2017) – very likely to be among the most negatively affected.
A short side note helps demonstrate this. If one looks through a lens of power relations, as Foucault (1982) suggests, it can be assumed that every religious denomination varies with regard to how power is exercised within them and to what degree. In the case of the accused leaders of Neo-Pentecostal churches, a gendered form of power relation must be added which Kgatle (2017, p. 6) strikingly describes:
These practices seem to undermine and degrade women in society. They are a sign of patriarchy. The first point of similarity is the fact that people who were represented participating in the church performances were mostly women. The pastors mentioned above are all men. Can a woman minister of deliverance perform similar acts?
Before turning to the second concept, it seems fruitful to go one step back. Drawing to another characteristic of governmentality, it can be argued that the religious sphere in the post- apartheid state was purposefully placed in the public sphere. This was done by deciding on the inauguration of the CRL in the first place, aiming to canalise the governing bodies’ power.
The concept of public religion (Casanova 1994) seems fruitful in other regards. In contrast to governmentality, religions enter the public sphere primarily by their own efforts. Clearly, this can vary significantly between religions and especially denominations. At least for Neo-Pentecostal churches in SA, it seems to be the case. As Kgatle (2017) stresses, some of them are very active on social media channels, sometimes broadcasting their church services, which even led some international media houses such as CNN (Vilakazi 2016) to report about them. This can be understood as an indicator that they ‘thrust [themselves] into the public arena of moral and political contestation’ (Casanova 1994, p. 3). One might argue, and the Deputy Chairperson supported this idea in the interview, that even without their social media presence the CRL would have heard about the unusual practices via other communication channels. Hence, social media played a rather facilitative than a causal role in this regard.
The public and especially the political discussions surrounding the unusual practices and the CRL’s recommendations built on them, indicate that two more of Casanova’s (1994) proclaimed developments were at least partially met, too: (1) the “deprivatisation” of religion, i.e. the (re-)politicisation of private spheres (e.g. church services), and (2) that political and economic spheres became “re-normativised”. The first notion finds it expressions especially in some of the key terms presented in this thesis such as “good religion” (Burchardt 2017a), “abuse” (CRL 2017) or “hymn sheet” (PC on COGTA 2017a). Less support can be found for the second development, though it can be argued that the political sphere became (re-)normativised in the sense that its individual parties united against the CRL’s recommendations in order to protect rights related to the freedom of religion. The economic sphere, if anything, was solely (re-)normativised by condemning the commercialisation of religious practices as such – what by far most involved groups agreed on. This attempt, however, was hardly ever responded to since most parties criticised the CRL for its lack of a clear definition and the mere circumstance that commercialisation itself is no criminal offence, for example during the hearings of the PC on COGTA (2017a; 2017b).
Moreover, the case of SA seemingly does not entail all of Casanova’s (1994) corresponding forms of public religions in modern societies. Neither is the case characterised by outstanding religious investments of political parties nor does SA have a state religion (or at least a predominant religion) as such, since Christian denominations are highly diversified (e.g. World Atlas 2017; U.S. Department of State 2018). The third criteria, religion as its own civil society actor, however, seems to be met with various Christian NGO’s (such as FOR SA and IIRF) or Umbrella Organisations (such as CLEFA and the All African Federation of Churches) involved in the hearings of the PC on COGTA and/or those of the CRL – which with its intermediary role can be at least partially seen as another civil society actor.
Finally, in order to adapt Casanova’s concept to our case, I follow Beckford’s (2010) modifications: Not only are there many indicators that SA as a legally secular state experienced various forms of privatisation of religion in the last years, which he describes as necessary concomitants of the process of secularisation. I follow him (Ibid.) and oppose Casanova also in the regard that SA might take its very own route towards modernity, considering both the increasing number of its religious people (CIA 2018) and commercialised religious practices.
5.7 Critical discussion
Occasionally, some critical notes were given in this thesis where they seemed to fit in the particular context. Some others, however, seemed more promising to be briefly touched on in a separate subchapter. This includes (1) conceptual specifications, (2) conspicuous points regarding the Report and (3) critique against the CRL and its investigation.
Firstly, while the CRL repeatedly highlighted the deliberate exploitation of some poor and vulnerable congregants, Kgatle (2017) argues that it is most importantly the congregants’ socio-economic situation that made them prone to follow some “fake pastors” (Ibid., p. 6). As far back as 2014, it has been widely acknowledged that young black women are the most susceptible group to the promised miracles since they are often found to internalise the guilt of being childless or unmarried (Maluleke 2014). However, these churches are also frequented by members of the middle and upper class on their search for new miracles (Ibid.). Hence, as one traditional healer is paraphrased by UNISA (2016, p. 106), it can be said that commercialisation is not only about money. It is also about the head of the church and the church council, deciding on things because of their own stature in a community as well as the honour and respect that they got from other people. They feel they are seen as one level up than ordinary people. It is not only rand and cents that is commercialised, it is that stance in the community as well.
At this point, it must be stressed that not only the notion of “commercialisation by status”10 (Ibid.) seems difficult, if not impossible, to operationalise in order to measure it quantitatively. The same holds true for the presumably increasing commercialisation of religion. To the best knowledge of the author, no precise figures about its de facto trajectory are known. Hence, one might argue that it was not (only) the amount of commercialised practices in the religious sector that increased in the last few years, but rather (or additionally) the number of reported cases, for example via new communication channels such as social media, in particular Facebook and Twitter.
Secondly and coming back to UNISA’s study (2016), it is highly interesting for another reason, as indicated earlier. Not only was it commissioned by the CRL, but its comprehensive empirical material was also gathered parallel to the Commission’s hearings and published two months before the CRL’s preliminary report. Its recommendations also show a striking similarity to those of the CRL – but it was never referred to by either the Commission nor opposing voices.11 This point is crucial since in the interview the Deputy Chairperson repeatedly referred to it, describing this institutional research and the hearings as mutual supplements to understand SA’s religious sector better. This circumstance becomes even more intriguing if one considers that the outcomes of the study were intended to brief the PC on COGTA (UNISA 2016, p. ix). Inevitably the question arises: What happened that the CRL disassociated itself so sharply from UNISA’s study – one of the main tools to legitimise its investigation in the first place?
Another critical point is the role that the Charter of Religious Rights and Freedoms played for the CRL during its investigation. While the Charter was referred to multiple times in the preliminary report and was even considered ‘very instrumental in guiding the CRL … during the investigative study’ (CRL 2016, p. 6), it degenerated in the Report to a mere document in which some constitutional rights are explained further (CRL 2017). Moreover, compared to the preliminary report, it was not even mentioned in the section about legislation or listed in the references anymore. Similar to the UNISA study, one might raise the question of what happened that the CRL distanced itself so sharply from the Charter.
Thirdly, the Commission, as already indicated, was challenged on different points. Most critically, the investigation itself was highly disputed by various parties. This becomes clearer against the background of what was at stake for some of the religious leaders summoned. The Chairperson, as the channel News24 reports (Tandwa 2015), stated: ‘The issue here is that these so-called religious leaders do not want to account. They want to intimidate us, but we can’t fold. All we are asking for is financial books.’ Hence, one might derive that nothing less than the loss of reputation and even presumably criminal charges against some churches was at stake. This might help explain, though not justify in the slightest, that multiple scenarios of threatening the Commission online or even in person emerged (e.g. Ibid.; CRL 2017), utterly undermining the constitutional requirement to act without fear.
Other religious leaders, and even the PC on COGTA (2017b), in turn, expressed concern about facilitating summons for the hearings. While the CRL in its Report (2017) and its Deputy Chairperson in the interview highlighted their role as a commonly used legal instrument that is in accordance with the CRL Act, it can be assumed that being summoned threatened many of the churches and made them feel coerced. This is although they had actually nothing to hide, as can be inferred of the statements by two chairpersons of different churches (PC on COGTA 2017b; CRL 2017).
Moreover, the hearings were frequently questioned for their representativeness. This includes that half of them took place in Johannesburg, the CRL’s location, as well as the methodology of random sampling – based on outdated data (PC on COGTA 2018b). These intricate situations, however, must also be seen against the background of the CRL’s financial constraints. It argues that its ‘extremely inadequate budget’ (CRL 2017, p. 17) let no scope to ‘hope that the invited religious leaders would comply, … and the whole investigative study would have had to be abandoned’ (Ibid., p.14).
Finally, and curiously, while the claim was raised by CLEFA against the Commission that its investigation was biased against the Christian faith (PC on COGTA 2017b), a few members of the Portfolio Committee themselves complained that in their two-day hearings only responses by the Christian faith to the CRL’s Report were heard – although its recommendations would have affected every religion in SA (PC on COGTA 2017a).
6. Summary and outlook
Summing up this thesis, its aim was to trace how possible limits to rights related to the freedom of religion were societally negotiated and religious practices politicised. The case of SA was chosen since in the “rainbow nation”, typically known for its religious plurality and tolerance with a strong legal basis to be “united in diversity”, unusual respectively abusive practices by some pastors called for attention in the last few years. The Report of the CRL (2017) constituted both the starting point as well as the focal point of this thesis. This is since the Commission must be understood as one of the few constitutional organs to exert some control to developments threatening people’s well-being in the religious sector.
In order to embed the Report in a broader context, I firstly provided a background on the role that religion and law historically played in SA. Following that, I presented two concepts, governmentality (Foucault 1988) and public religion (Casanova 1994), that seemed (and actually turned out be) very fruitful to embed the main part of the thesis – a content analysis on the Report as well as affiliated documents and focal media coverage. Two overarching research questions constituted the red threat of both the content analysis as well as the descriptive analysis prior to it: (1) How do different social groups attempt to negotiate the extent to which the notion of freedom of religion can be stretched? (2) How do these groups negotiate when religious practices must come to an end in order to protect the earthly well- being of congregants?
It became evident that four discourse lines evolved in particular, which were initially brought in by the CRL: (1) the safety and well-being of SA’s religious population must be weighted higher than their unconditional freedom of religion; (2) legal shortcomings and loopholes allow abusive practices and the commercialisation of religion in the first place; (3) vulnerable congregants, in particular, must be protected from financial exploitation; (4) religious professions can and must be regulated like any other profession.
As initially expected, the manifold constitutive tensions built into the legal architecture of post-apartheid SA (Burchardt 2017a) dominated the discourse that was already driven by legal arguments pro and contra regulating the religious sector. The other expectation, however, was only partially met: The PC on COGTA (2018b) rejected most of the CRL’s recommendations and made own ones to the National Assembly. Although they might help halting cases of abuse of people’s belief systems in the future, they clearly were not consensually agreed on by all the parties involved in the PC on COGTA’s hearings. It remains an open question as to whether this would have been possible at all.
Coming back to the title of this thesis, the content analysis reveals that SA did not experience a successful attempt to regulate religion externally. Instead, a (so far) successful form of collective self-regulation of its religious sector can be stated. This was facilitated by SA’s system of checks and balances that hold back the CRL of seemingly overstretching its own mandate. By just attempting to do so, considering the harsh critique on the investigation and the Commission itself by most various parties, it can be summarised that the CRL fall of the “tight rope” (PC on COGTA 2017a) it was walking on during the investigation – and hence delegitimised its own recommendations. This note leads us straight to an outlook on research gaps and the latest developments regarding the case.
Firstly, as the content analysis presented in this thesis was supplemented by only a single expert interview, further expert or focus-group interviews deem promising, especially with religious leaders of non-Christian-religions. Asking them about the investigation and current developments in SA’s religious sector could be insightful regarding how they would have been affected by the recommendations and their perception of when religious practices must come to an end in order to protect the earthly well-being of their congregants, too.
Secondly, since it was outside the scope of this thesis, analysing media coverage on the CRL’s investigation and the Report more comprehensively is a promising starting point to continue research in this field. Moreover, an evaluation of the CRL’s work since its inauguration fifteen years ago or a comparative study of its various reports could reveal how (differently) the CRL dealt with problems emerging in the other two areas that it is responsible for – the rights of linguistic and cultural communities. Further methodological approaches such as process tracing or discourse network analysis could also pay more attention to the role of other communication channels such as social media in negotiating the regulation of SA’s religious sector.
Thirdly, the five-year term of the Commissioners in charge of the investigation just ended in February 2019 (FOR SA 2019) – only a few days after the 4th National Consultative Conference was held to discuss challenges in the religious sector, as proposed by the PC on COGTA (2018b). Until now, to the best knowledge of the author, no specific outcomes were discussed in public. Moreover, new Commissioners are yet to be appointed by President Cyril Ramaphosa (PC on COGTA 2019). As FOR SA (2019) states, the foundation for how the new Commission will proceed with the current status quo is already laid: a final summit to adopt ‘truly self-regulatory solutions’ will be held in October 2019. Nevertheless, it remains an open question as to whether the new Commission will follow the path that their predecessors chose in their own search for answers on how to protect the well-being of SA’s religious population.
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[...]
1 The term “unusual practice” was suggested by Kgatle (2017) and will be facilitated throughout this thesis. It was chosen for three reasons: (1) It was frequently used by various actors and religious groups to refer to the reported practices, (2) it distinguishes these practices from presumable “normal practices” and (3) can be considered a rather neutral and descriptive term.
2 Occasionally, for the sake of better legibility, I also refer to the CRL as “the Commission”.
3 Besides the PC on COGTA, the Report was also referred to the Select Committee on Finance, PC on Trade and Industry, PC on Home Affairs and PC on Social Development for consideration (PC on COGTA 2018b).
4 For the sake of better legibility, all the mentioned peer-review organs are written in capital letters.
5 By “regulation”, throughout this thesis, not only juridified practices but also norms of (moral) behaviour are meant. This is particularly important since the CRL (2017) shows a quite broad understanding of the term, making it almost replaceable by the term “control” (which it facilitates repeatedly, too).
6 These are Pastor Lesego Daniel of Rabboni Centre Ministries, Prophet Penuel Mngini of End Time Disciple Ministries, Pastor Lethebo Rabalago of Mount Zion General Assembly and Paseka Motsoeneng (“Pastor Mboro”) of Incredible Happenings Ministries.
7 Crucially, FOR SA was one of the most active actors to engage with the CRL’s investigation. Consequently, and inevitably, the documents provided by FOR SA became a major source of opposing arguments for the analysis presented here.
8 The real name of this pastor from the Mount Zion General Assembly is Lethebo Rabalago.
9 Dubiously, in the CRL’s Report (2017) a wording is used that suggests a more generous period of submission.
10 It seems fruitful to elaborate this notion further by facilitating, for example, a power relations-informed approach (e.g. Foucault 1982) or to apply concepts of masculinity (e.g. Burchardt 2018b; Burchardt 2018c) to it.
11 In fact, the only occasion known to the author was when FOR SA and SACRRF (2017) in their common statement on the CRL’s preliminary report rejected UNISA’s study on the basis of insufficient representativeness.
- Quote paper
- Max Schmidt (Author), 2019, Regulation of Religion in the Rainbow Nation, Munich, GRIN Verlag, https://www.grin.com/document/502734
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