On-line version ISSN 1996-2096
Print version ISSN 1609-073X
Afr. hum. rights law j. vol.8 n.2 Pretoria 2008
Jewel AmoahI; Tom BennettII
IPhD Candidate, University of Cape Town, South Africa
IIProfessor of Public Law, University of Cape Town, South Africa
This article is concerned with traditional African religions, in particular the belief system of the Pondo people of the Eastern Cape Province in South Africa, in terms of the rights to equal treatment and freedom of religion under that country's 1996 Constitution. The authors begin by describing a ceremonial animal sacrifice performed by a former executive member of South Africa's ruling African National Congress in 2007. This ritual brought to light a strong tendency to confound traditional African religions with culture. Although it is apparent that religious beliefs are treated with greater respect than cultural practices, any supposition that culture is less important than religion is not only alien to traditional African societies, but also contrary to the equality provisions in the Constitution. The paper argues that, as a consequence of being consistently overshadowed by the main monotheistic religions in Africa, Christianity and Islam, traditional religions receive far from equal treatment. Hence, instead of being treated equally, as dictated by the Constitution, traditional religions are perceived as incidents of culture, and are subjected to an implicit value judgment: that they are somehow inferior to 'true' religions, which the West would characterise as monotheistic. Full realisation of the freedoms of religion and culture requires that one be distinguished from the other. In proposing a method to do so, it is argued that culture is broader than religion, for it embraces everything that marks humans as social beings, whereas religion is not a necessary requirement of social life. In framing the argument for equality in the context of culture, the authors argue that constitutional protection of religion is best attained through the symbiosis of community and culture. In this way, the right to culture and, by extension, faith, is exercised through the identity of the group.
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* BA (McMaster), LLB (Ottawa), LLM (Cape Town); firstname.lastname@example.org
** BA, LLB (Rhodes), PhD (Cape Town); Thomas.Bennett@uct.ac.za
1 http://ww----------w.iol.co.za/general/news/newsprint.php?art_id=qw1169538120458B2 (accessed 1 January 2007.)
2 Mankatshu v Old Apostolic Church of Africa & Others 1994 2 SA 458 (TkAD); Allan & Others NNO v Gibbs & Others 1997 3 SA 21 (SECLD); Ryland v Edros 1997 2 SA 690 (C) 703; Taylor v Kurtstag NO & Others 2005 1 SA 362 (W) 39; Singh v Ramparsad 2007 JDR 0019 (D) para 50.
3 Worcester Muslim Jamaa v Nazeem Valley & Others 2001 JDR 0733 (C) para 109.
4 South African Law Commission Report on Customary Marriages (1998) Project 90, Government Printer, Pretoria paras 4.4.5ff. [ Links ]
5 In this respect, the Commission was following a pattern of thinking already well established in the courts: The 'religious element' of marriage was mere custom, of no greater consequence than 'music, singing or a wedding reception'. See Sila & Another v Masuku 1937 NAC (N&T) 121 123 and HJ Simons 'Customary unions in a changing society' (1958) Acta Juridica 320 322-5. [ Links ]
6 2000 4 SA 757 (CC).
7 The Constitutional Court, in Christian Education, South Africa v Minister of Education 2000 4 SA 757 (CC) para 24, eg, held that the Constitution gives people the right 'to be who they are without being forced to subordinate themselves to the cultural and religious norms of others, and highlights the importance of individuals and communities being able to enjoy what has been called the "right to be different"'.
8 The Pondo speak a dialect associated with a cluster of closely-related languages further south, termed generally 'isiXhosa'.
9 M Hunter Reaction to conquest: Effects of contact with Europeans on the Pondo of South Africa (1936). [ Links ]
10 Fr H Kuckertz Creating order: The image of the homestead in Mpondo social life (1990). [ Links ] Both Hunter and Kuckertz worked in the functionalist tradition, but they took careful note of the effects of colonisation and labour migration on contemporary Pondo society.
11 Linguistically it is impossible to determine the gender of the supreme being, since the prefix -u- in Xhosa denotes both male and female. The masculine attributes of the being could well have been acquired through the influence of Christianity.
12 Although some peoples in South Africa accord the supreme being power to determine the workings of nature, especially rain, drought and flood, it plays no particular role in governing people's lives. See WD Hammond-Tooke 'World View I: A system of beliefs' in WD Hammond-Tooke (ed) The Bantu-speaking peoples of Southern Africa (1974) 3 20-321. [ Links ]
13 Hammond-Tooke (n 12 above) 319.
14 JH Soga The Ama-Xosa: Life and customs (1932) 133. [ Links ]
15 Hunter (n 9 above) 269. The idea of the creator survives in a widely held myth that the supreme being broke off nations from reed beds. See F Brownlee (ed) The Transkeian native territories: Historical records (1923) 116 for the Mpondomise. [ Links ]
16 EJ de Jager & VZ Gitywa 'A Xhosa umhlwayelelo ceremony in the Ciskei' (1963) 22 African Studies 109 110. [ Links ]
17 Hunter (n 9 above) 263.
18 Hunter (n 9 above) 275ff.
19 See Hammond-Tooke (n 12 above) ch 10.
20 Hunter (n 9 above) 231.
21 Hunter (n 9 above) 232.
22 As above.
23 See, generally, A Shorter 'African Christian theology' in JR Hinnells (ed) A handbook of living religions (1991) 431 and, [ Links ] for another example, I Schapera A handbook of Tswana law and custom (1955) 61-62. [ Links ]
24 See, generally, Shorter (n 23 above) 434 and VW Turner The ritual process (1969) ch 1 on the Ndembu of Zambia.
25 The ceremonies are hedged around with various rituals, such as the method for slaughtering particular types of animal and the belief that the bellowing summons the ancestors. See Hunter (n 9 above) 240ff.
26 Beer, although a lesser offering than a beast, is another significant feature in the ceremonies associated with veneration of the ancestors. It may either be consumed or offered as a libation. In the former case, it is difficult to distinguish its use as ritual from a general social lubricant. See Hunter (n 9 above) 253ff.
27 W Menski Comparative law in a global context: The legal systems of Asia and Africa (2006) 414 415. [ Links ] The determination of 'rightness' or 'correctness' is established by the religion concerned. There can be no external or even universal scale against which religious practice and/or belief is deemed to be correct or appropriate. Instead, this is determined internally. The right to engage in this internal determination is something that must also be protected in the name of culture.
28 From the perspective of the particular believer, of course, other religions must necessarily be ranked. Thus, typically, within the major monotheistic religions, different beliefs may be stigmatised as 'schismatic', 'sects', 'cults' or (even worse) 'heresies'.
29 This scale of development derives from EB Tylor Primitive culture; researches into the development of mythology, philosophy, religion, language, art and custom (1920) 1. [ Links ] Despite the practical use of this scale of development, the legitimacy of this scale should be accepted with caution, as it is premised upon evaluating one culture by the standards of another. Such an exercise leads one to wonder how well Western cultures would fare if judges against a standard derived from African cultures. The point is that 'the other' cannot be faulted for being different, when that is the very nature of their character. See also n 82 below, and the discussion of essentialism.
30 See, in this regard, G Obeyesekere Medusa's hair: An essay on personal symbols and religious experience (1981) 82-83. [ Links ] Thus, pre-literate religions did not construct systematic theories of sin, virtue, judgment and salvation (a rite of passage whereby the individual attains an ultimate status beyond suffering).
31 The issues enumerated here are derived from F von Benda-Beckmann 'Who's afraid of legal pluralism' (2002) 47 Journal of Legal Pluralism and Unofficial Law 37 49-50, [ Links ] with reference to systems of customary law.
32 Hammond-Tooke (n 12 above) 319.
33 Menski (n 27 above) 413.
34 Menski (n 27 above) 419.
35 AN Allott 'African law' in JDM Derrett (ed) Introduction to legal systems (1968) 131 135-6. [ Links ]
36 B Tlhagale 'Inculturation: Bringing the African culture into the church' (2000) 14 Emory International Law Review 1249. [ Links ]
37 M Mutua 'Limitations on religious rights: Problematising religious freedom in the African context' (1999) 5 Buffalo Human Rights Law Review 75 96-97. [ Links ]
38 As above.
39 TJ Gunn 'The complexity of religion and the definition of "religion" in international law' (2003) 16 Harvard Human Rights Journal 189 200ff gives three key reasons why religions experience discrimination, [ Links ] and he draws attention to the fact that the reason chosen depends upon what the group discriminating considers definitive of its own religion.
40 E Bonthuys 'Accommodating gender, race, culture and religion: Outside legal subjectivity' (2002) 18 South African journal on Human Rights 41 52 describes the 'mainstream legal subject' as one steeped in Western culture and beliefs. [ Links ] This person is 'represented as innocent of cultural, religious and racial content. He exists outside of a religious or cultural community as an isolated, atomic, epistemic subject.' 'In order to qualify as a legal subject, outsiders have to take on or appear to take on these qualities, norms and behaviours.'
41 Mutua (n 37 above) 75.
42 Mutua (n 37 above) 105.
43 RB Mqeke 'Myth, religion and the rule of law in the pre-colonial Eastern Cape' (2001) 34 De Jure 81. [ Links ]
44 Thus BA Pauw 'Ancestor beliefs and rituals among urban Africans' (1974) 33 African Studies 99 103 and BA Pauw 'The influence of Christianity' in Hammond-Tooke (n 12 above) 415ff say that many African Christians combine 'regular prayer to God the Father of Jesus Christ, [ Links ] with a sense of dependence on their ancestors, believing that "God and the ancestors work together"'.
45 See Statistics South Africa Census 2001: Primary tables http://www.statssa.gov.za: 8, [ Links ]2% of the population is Pentecostal/Charismatic, 24,4% belong to established churches and 36% to 'other Christian' denominations; 1,5% of the population professes Islam and smaller minorities profess such religions as Hinduism and Judaism.
46 A Gouws & LM du Plessis 'The relationship between political tolerance and religion: The case of South Africa' (2000) 14 Emory International Law Review 657 660. [ Links ]
47 Magic and traditional medicines, however, seem to be more easily adapted to urban settings. See E Hellmann 'The native in the towns' in I Schapera (ed) The Bantu-speaking tribes of South Africa. An ethnographical survey (1937) 426 and Hunter (n 9 above) 455-458 487 488-496; [ Links ] Pauw (1974) (n 44 above (n 44 above) 9ff.
48 Hunter (n 9 above) 537 547-548.
49 See I Hofmeyr We spend our years as a tale that is told. Oral historical narrative in a South African chiefdom (1993) 159-160. [ Links ]
50 This general thesis can be attributed to PL Berger et al The homeless mind: Modernisation and consciousness (1974). [ Links ]
51 See the argument by P Horwitz 'The sources of limits of freedom of religion in a liberal democracy: Section 2(a) and beyond' (1996) 54 University of Toronto Faculty of Law Review 1 22ff, [ Links ] who says that, in liberal democracies, there is a 'tendency to treat rationalism and liberalism as a bedrock epistemology, a mode of thinking that tolerates other modes of experience but ultimately asserts its superiority over them'. He cites, in this regard, S Fish 'Liberalism doesn't exist' (1987) 1 Duke Law Journal 997. [ Links ]
52 See, too, Horwitz (n 51 above) 33.
53 And it is now preserved in all international human rights conventions. See, eg, art 18 of the Universal Declaration of Human Rights, art 18 of the International Covenant of Civil and Political Rights and art 8 of the African Charter of Human and Peoples' Rights (1981).
54 It featured in the Declaration of the Rights of Man and the Citizen (cl 10) which was proclaimed during the French Revolution.
55 TW Bennett Human rights and African customary law (1999) 23-25. [ Links ]
56 See arts 15(1)(a) and (c) of the International Covenant on Civil and Political Rights. See P Sieghart International law of human rights (1983) 339 para 23.5.3.
57 Thus, culture was linked to self-determination. See art 1(1) of the International Covenant on Civil and Political Rights, which provides that, by virtue of the right to self-determination, all peoples are entitled to pursue their own cultural development.
58 This definition is derived from the founder of cultural anthropology, EB Tylor Primitive culture: Researches into the development of mythology, philosophy, religion, language, art and custom (1920) 1, [ Links ] and continues to be taken as a core concept of this discipline. See HA Strydom 'The international and public law debate on cultural relativism and cultural identity: origin and implication' (1996) 21 SA Yearbook of International Law 1 4ff. [ Links ]
59 Hence, culture is inherently oppositional, and consciousness of culture arises only through close interaction between two or more social groups. EE Roosens Creating ethnicity: The process of ethnogenesis (1989) 12. [ Links ]
60 Culture in this sense is protected by art 27 of the International Covenant of Civil and Political Rights, which provides that: 'peoples belonging to ... minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'.
61 Progress towards definition is not, of course, assisted by the fact that lawyers, theologians and social scientists tend to work independently. See JM Donovan 'God is as God does: Law, anthropology, and the definition of "religion"' (1995) 6 Seton Hall Constitutional Law Journal 23 70ff regarding the legal and anthropological approaches. [ Links ]
62 This process of blending is familiar to Christian missionaries, since African culture has long been used as a medium for communicating the gospel message. See B Tlhagale 'Inculturation: Bringing the African culture into the church' (2000) 14 Emory International Law Review 1249. [ Links ]
63 Indeed, the apartheid regime had used culture as the basis for restructuring the South African state. Bennett (n 55 above) 7.
64 The same was true of other states. See Horwitz (n 51 above) 5.
65 Eg S v Lawrence 1997 4 SA 1176 (CC) challenged a contravention of sec 90(1) of the Liquor Act 27 of 1987, which restricts the hours and days on which liquor may be sold.
66 S v Abrahams 1982 3 SA 272 (C) and Hartman v Chairman, Board for Religious Objection & Others 1987 1 SA 922 (o).
67 Lawrence (n 65 above) paras 90-98.
68 See J Burchell Principles of criminal law (2005) 535 536 and TW Bennett & [ Links ] WM Scholtz 'Witchcraft: A problem of fault and causation' (1979) 12 Comparative and International Law of Southern Africa 288. [ Links ]
69 See R v Mbombela 1933 AD 269 which held that 'a genuinely held superstitious belief' might have deprived the accused of the 'capacity to appreciate the wrongfulness of his conduct'.
70 I Currie et al The Bill of Rights handbook (2005) 339. [ Links ] This formulation was taken from the Canadian case, R v Big M Drug Mart  1 SCR 295 336, by Chaskalson J in S v Lawrence 1997 4 SA 1176 (CC) para 92. It was followed in Prince v President, Cape Town Law Society 2002 2 SA 794 (CC) para 38 and Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) para 19.
71 See Currie et al (n 70 above) 344 citing D Meyerson Rights limited (1997) 2. This difficulty accounts for the courts' reluctance to question an individual's sincerity of belief as a requirement for upholding sec 15. The judgment of the court a quo in Christian Education SA v Minister of Education of the Government of the RSA 1999 9 BCLR 951 (SE) 957-958 is the exception to the rule. See Currie et al (n 70 above) 341.
72 Sec 36(1) provides: 'The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors
73 Currie et al (n 70 above) 344-346.
74 Meyerson (n 71 above) 34.
75 Currie et al (n 70 above) 341-342.
76 The basis for this distinction is whether obligations are imposed on everyone or only on certain persons or groups. The distinction applies to rights other than human rights; eg, copyrights are absolute, and contractual rights are relative, although neither of them is a fundamental human right. For purposes of human rights, however, the absolute rights always include the state, while relative rights exclude all other obligors but the state. OS loffe 'Human rights' (1983) 15 Connecticut Law Review 687 736-7 explains that, [ Links ] when dealing with a human right of an absolute nature, the state must behave at least as well as other obligors, unless contrary regulations are introduced. As for human rights of a relative character, the situation changes, so that the only actions that can be demanded of the state are those which it has agreed to accomplish under concrete circumstances according to publicly adopted legal regulations. Ioffe says that 'without such a prerequisite, relative human rights risk being transformed into hollow propagandistic declarations'. Based on this definition, the right to religion is absolute. But why is the right to culture instinctively considered to be relative and not absolute?
77 See nn 58 and 59 and the text above.
78 According to some scholars, however, the process of definition is a futile exercise, since religion cannot be defined. See GC Freeman 'The misguided search for the constitutional definition of "religion"' (1983) 71 Georgetown Law journal 1519ff and TJ Gunn 'The complexity of religion and the definition of 'religion' in international law' (2003) 16 Harvard Human Rights journal 189 191. [ Links ] [ Links ] Donovan (n 61 above) 28 goes so far as to say that the exercise is unconstitutional.
79 See Freeman (n 78 above) 1553 and Donovan (n 78 above) 60-61, who cite the list of features prepared by the United States' 1RS.
80 This distinction determines E Durkheim's The elementary forms of the religious life (1912). [ Links ] See Donovan (n 61 above) 73.
81 Nor for that matter do such other religions as Buddhism. See M Southwold 'Buddhism and the definition of religion' (1978) 13 Man 362. [ Links ] See, too, J Goody 'Religion and ritual: The definitional problem' (1961) 12 The British journal of Sociology 142. [ Links ]
82 Essentialism is used here to refer to the assumption that religion and culture have universally valid definitions. Thus, an essentialist critique of religion and religious rights would tend to assume that western religions could speak for all religions or, at the very least, that the frame of reference for judging different them should be the western frame. In consequence, religions that do not conform to western-specifications may not by recognised and valued as religions.
83 See the distinction made by Gunn (n 39 above) 194 between essentialist definitions (identifying a set of elements before something can be said to qualify as a 'religion') and polythetic definitions (conceding that there is no single feature common to all religions, but accepting some shared features).
84 Mutua (n 37 above) 97.
85 See Mutua (n 37 above) 105. He is nevertheless aware of the danger that his proposal to promote African religion may ultimately succeed in establishing a new orthodoxy, thereby destroying diversity (Mutua (n 37 above) 79).
86 See the figures given by Statistics South Africa (n 46 above) where members of the Zionist Christian Church account for 11,1% of the country's population.
87 The policy of inculturation has long been associated with Christian teaching but, more recently, with Pope John Paul Il's encyclical Redemptoris Missio (1990). [ Links ] See Tlhagale (n 36 above) 1249.
88 As E P Antonio 'The politics of proselytisation in Southern Africa' (2000) 14 Emory International Law Review 523 says: 'There is a sense in which the moment of opposition to culture gives way to the need to negotiate the new message of Christianity in terms of the symbols, [ Links ] values and idioms of an already familiar framework.'
89 Sec 9(1) provides: 'Everyone is equal before the law and has the right to equal protection and benefit of the law.' Subsec (3) continues: 'The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.'
90 Moreover, according to Taylor v Kurtstag NO  4 All SA 317 (W) para 45, the right to equal treatment of religions is horizontally applicable.
91 1997 2 SA 690 (C).
92 However, O'Regan J (in Lawrence (n 65 above, para 122)) said that requiring the government to act even-handedly did not demand a commitment to a scrupulous secularism, or a commitment to complete neutrality.
93 LM du Plessis 'Freedom of religion or freedom from religion? An overview of issues pertinent to the constitutional protection of religious rights and freedom in "the new South Africa"' (2001) Brigham Young University Law Review 439 450-1. [ Links ] This tendency was evident in the leading case of Lawrence (n 65 above), where a majority of the Constitutional Court judges chose to deal with a prohibition on the sale of liquor on Sundays primarily in terms of the freedom of religion. The equal treatment of all religions appeared in only a minority of the judgments, and then, arguably, only as an obiter dictum. See Currie et al (n 70 above) 350.
94 Mutua (n 37 above) 79, however, is skeptical: 'How does a body of principles that promotes diversity and difference protect the establishment and manifestation of religious ordering that seeks to destroy difference and forcibly impose an orthodoxy in Africa - as both Christianity and Islam ... in many cases successfully did?'