South Africa does not require new laws to regulate religion, but needs consistent enforcement of existing laws, complemented by voluntary, sector-led accountability mechanisms.
This is the view of Freedom of Religion South Africa (FOR SA) following seemingly conflicting statements by Rev John Maloma — the newly appointed chair of CRL Rights Commission’s section 22 committee for the Christian sector — and commission chair Thoko Mkhwanazi-Xaluva on the process to develop a self-regulatory framework for the Christian sector.
FOR SA said at the commission’s media conference on March 25 that Maloma said the current section 22 process was an open, voluntary consultation and a sincere effort to listen to the church and co-create a framework for accountability.
Maloma said this was not about imposition but participation and it was not about state regulation but self-governance.
FOR SA said in a televised interview on SABC News on April 2, Mkhwanazi-Xaluva stated the CRL’s position explicitly when she made the following statement: “There must be a council for the religious sector, which will then mean there must be an act [of parliament] and a council formed out of that act.”
FOR SA executive director Michael Swain said on Tuesday that this could not be treated as simply a passing remark.
“It does not depict legislation as merely one possibility under consideration. It is a clear articulation of legislative intent. An act of parliament is not guidance; it is a binding law,” Swain said.
He said a council created by that act would not be a forum, but a statutory body, a state-created and state-empowered structure exercising authority over the religious sector.
He said Mkhwanazi-Xaluva then went further, declaring that state intervention should not be limited to whether something was legal or not, but also whether it was ethical. She said a council was necessary to handle such issues and that it was essential to protect congregants, even from themselves.
“At that moment, the shift had already occurred. The focus moved from enforcing the law to regulating ethics, and from addressing harm to asserting sector-wide authority.”
Swain said it was no longer confined to prosecuting and punishing illegal conduct. “Instead, it now includes what is described as ‘unethical conduct’. This is a vital distinction and a significant escalation.”
He said illegal conduct can and should be prosecuted under existing laws.
“However, ethical conduct is much more subjective, often influenced by belief, doctrine, and conviction.”
FOR SA said no one in the faith sector was arguing in favour of or trying to justify unethical behaviour. “It should go without saying that the state can (and has a duty to) enforce criminal or other laws where boundaries are crossed and abuse or misconduct occur.
“However, once the state claims authority to regulate ethics within religion, it inevitably intrudes into the domain of belief itself.”
FOR SA said that was a line the constitution does not permit it to cross. “To do so would amount to the state determining acceptable belief and practice, which is incompatible with constitutional protections for religious freedom.”
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