APPLICATION OF THE LAW TO THE FACTSThe Applicant and His ChildrenThat recitation of the pledge is made compulsory in schools has not been disputed by the respondents. The applicant, in his founding affidavit, made a positive allegation to the effect that he had been informed that his children were required ...
APPLICATION OF THE LAW TO THE FACTS
The Applicant and His Children
That recitation of the pledge is made compulsory in schools has not been disputed by the respondents. The applicant, in his founding affidavit, made a positive allegation to the effect that he had been informed that his children were required to memorise and recite the pledge at the beginning of the next school term on 3 May 2016.
The respondents did not deny the allegation in their opposing affidavit.
The applicant and his children hold the belief that saluting a flag is an act of worshipping a secular object prohibited by what the applicant considers, on the literal interpretation of the Bible, in Exodus 20:3-5, to be a fundamental doctrine of his faith. He does not object to the use of the national flag in the pledge and its symbolism. He accepts and respects the national flag and what it symbolises as a secular object. What the applicant objects to, on religious grounds, is the Governmental action of compelling his children to perform the act of saluting the flag as part of the recitation of the pledge.
The Court does not have to involve itself with the question whether the compulsory recitation of the pledge, in the current form, amounts to worshipping the national flag as alleged by the applicant. The question is whether the applicant sincerely believes that the recitation of the pledge, in the current form, including in particular the reference to the act of saluting the national flag, is worshipping a secular object which offends against his and his children's deeply held religious belief that worship is reserved only for God.
The applicant genuinely believes that saluting a flag is prohibited by the relevant Scripture, which declares that worship must be solely reserved for God. The matters of worship, and who should be worshipped, are matters of religious conscience. They are matters covered by the relevant rules of the applicant's faith. The matter of saluting a national flag, being believed to be an act of worshipping a secular object and therefore forbidden by the fundamental doctrine of the applicant's religion, is a matter of belief internal to the applicant.
Whether the applicant has correctly interpreted the fundamental doctrine or tenet of his faith is not for the Court to decide. The Court only has to decide whether the applicant genuinely holds the belief, on the literal interpretation of Exodus 20:3-5, that saluting a flag is an act of worship forbidden by the rule of his faith to the effect that worship should be solely reserved for God.
The fact that the belief held by the applicant has a basis in the literal interpretation of the wording of the Scripture is evidence in itself of the genuineness of the belief held by the applicant.
The State may not evaluate its citizens' religious convictions or characterize their religious beliefs as right or wrong. The applicant and his children have a right to act according to his understanding of his faith. He and his children have a right not to be forced to commit an act contrary to this understanding.
The respondents did not proffer evidence to contradict the fact that the applicant truly and conscientiously believes what he says.
He does not hold his belief idly and his conduct is not the outcome of any perversity.
The claim by the applicant is not qualified by the fact that he accepts that he belongs to the Christian faith, which is a monotheistic religion. The applicant's claim for religious freedom is based on a practice deeply rooted in the religious belief shared by members of his church. In other words, the religious objection to his children being compelled, by the State, to recite the pledge with the pronouncement of the act of saluting the national flag would have been raised even if the words “Almighty God, in whose hands our future lies” had not formed part of the wording of the pledge.
The argument, by the first respondent, that the applicant believes in the “Almighty God” referred to in the pledge and that no other God is referred to misses the point.
The respondents did not put in issue the allegation by the applicant that his religious belief is that worship, as an act of expressing religion, must be reserved only for God. The first respondent's contention was that the recitation of the pledge is not worship in the religious sense of the word. Whether the ceremony for the compulsory recitation of the pledge is a form of worship is not for the Court to decide. There is no doubt that the recitation of the pledge, in the current form, has a religious character. If this were not the case, there would be no need to include, in the language of the pledge, the words “Almighty God, in whose hands our future lies.”
The belief was held, by the applicant and his children, before the pledge was imposed. It was not raised in an attempt to avoid participating in the recitation of the pledge.
There are decided cases, from other jurisdictions, involving members of the Jehovah's Witnesses sect objecting to taking part in the compulsory salutation of national flags on the ground that saluting the flag is against their religious belief that worship must be reserved only for God: see West Virginia State Board of Education v Barnette 319 US 624; Donald v The Board of Education for the City of Hamilton 1945 Ontario Reports 518.
The approach adopted by those courts has not been to impose, on the claimant, an objective definition of religion for the purposes of constitutional protection of the right to freedom of religion. The approach has been to decide whether the claim by the applicant was based on a sincerely held religious belief. Once the court decided that the belief was religious and that the applicant genuinely believed the ideas espoused, a finding that his or her right to freedom of religion has been infringed followed.
An approach to the concept of religion must therefore adequately dovetail with an appropriate test of sincerity.
It is rarely necessary to determine the religiousness of beliefs, since the State may not compel persons to believe anything. A belief is what an individual believes, not what the State compels him or her to believe as it cannot do that under the Constitution. Whether a belief is religious would depend on whether the individual genuinely believes it is religious. In other words, whether what is believed relates to religion is assessed in the light of the nature of the belief and its sincerity.
The sincerity of the applicant's religious belief is beyond question.
There is a shared interest in regarding the conscience as sacred and inviolable and as the core governing unit of society located within the individual. In a state of freedom of conscience, the individual is expected to act in accordance with the dictates of his or her conscience. There is no positive law governing conduct in respect of the matters relating to religion. The Constitution requires that the manner in which the individual handles matters relating to religion be left to the dictates of his or her conscience, the freedom of which it guarantees under section 60(1).
The presumption is that what a free conscience dictates is good for the individual and the community at large.
Whether an individual is able to exercise the freedom to act in accordance with the manner dictated by his or her conscience will depend on the circumstances in which he or she finds himself or herself at the time he or she is confronted with the matter relating to religion. If, for example, he or she is exposed to a matter relating to religion at a time when he or she is under subordination of authority or he or she is at a place where his or her presence is required by law he or she would have his or her freedom to act according to his or her conscience compromised.
A school child, whose conscience dictates that he or she should not salute the national flag during the recitation of the pledge because doing so is contrary to his or her religious belief, would find it difficult to act in accordance with the dictates of his or her conscience because of the position of subordination to authority in which he or she is placed. He or she would also find it difficult to act in accordance with the dictates of his or her conscience because of the compulsion imposed on him or her by the policy and the Governmental action to recite the pledge and to salute the flag. The school child is then forced to act contrary to his or her conscience.
No constraint of conscience can be appropriate.
Any dominance of a faith would be unjust, for faith ought to be free of all subjection to humans. Faith knows subjection only to its own rules or fundamental doctrines.
In MEC for Education, Kwazulu-Natal v Pillay 2008 (1) SA 474, the Constitutional Court of South Africa emphasized the fact that entitlement to respect for one's voluntary religious practices is a necessary element of freedom and inherent dignity of any individual. The court said:
“A necessary element of freedom and of dignity of any individual is an entitlement to respect for the unique set of ends that the individual pursues. One of those ends is the voluntary religious…, practices in which we participate. That we choose, voluntarily rather than through a feeling of obligation, only enhances the significance of a practice to our autonomy, our identity, and dignity…,.”
The compulsion imposed on the applicant's children, by the education authorities, to salute the national flag during the recitation of the pledge infringed the children's right to freedom of religion protected and guaranteed by section 60(1) of the Constitution.
The circular or directive, to the effect that it was compulsory for every school child to recite the pledge and to salute the national flag, had no legal sanction behind it in the sense that it was not issued under the authority of any statute.
The Education Act [Chapter 25:04] does not empower education authorities to compel a child to do anything which is against his or her religion or religious belief.
Without a provision under the Education Act, in terms of which the legality of their conduct could be tested, the education authorities adopted a position that accepted that their conduct was a direct infringement of the right to freedom of religion.
They sought to justify the conduct by saying that it is authorised by the preamble to the Constitution.
The benefits alleged to accrue to society, from the compulsory flag salute, do not justify the correlative violation of an individual's freedom. Loyalty and unity cannot be demanded in violation of fundamental rights; they can only be attained by the exercise of an individual's volition.
In West Virginia State Board of Education v Barnette 319 US 624, MURPHY J…, said:
“Official compulsion to affirm what is contrary to one's religious beliefs is the antithesis of freedom of worship…,. I am unable to agree that the benefits that may accrue to society from the compulsory flag salute are sufficiently definite and tangible to justify the invasion of freedom and privacy that is entailed or to compensate for a restraint on the freedom of the individual to be vocal or silent according to his conscience or personal inclination…,.
Any spark of love for country which may be generated in a child, or his associates, by forcing him to make what is to him an empty gesture; recite words wrung from him contrary to his religious beliefs, is overshadowed by the desirability of preserving freedom of conscience to the full."
In Zylberberg v Sudbury Board of Education (Director) (1988) 65 OR (2d) 641, quoted with approval by the Supreme Court of Canada in S.L. v Commission Scolaire des Chênes 2012 SCC 7 [2012] 1 SCR 235, the court struck down a regulation under the Education Act, RSO 1980 c129, which made the recitation of Christian prayers compulsory in public schools unless an exemption was granted. The court…, said:
“On its face, [the regulation] infringes the freedom of conscience and religion guaranteed by s.2(a) of the Charter….,.
The recitation of the Lord's Prayer, which is a Christian prayer, and the reading of Scriptures from the Christian Bible, impose Christian observances upon non-Christian pupils and religious observances on non-believers.”
The Applicant's Parental Right
Insofar as the nature of the compulsory recitation of the pledge, in the current form, encroaches on the religious freedom, it is primarily the constitutional position of the child, who must participate in the recitation of the pledge, which is directly affected.
Fundamental human rights are, however, inter-related and inter-dependent. Not only are certain rights dependent on the realization of other rights, the rights of individuals are deeply inter-connected with the rights of others.
If parents' or guardians' rights are violated, the children in their custody are at greater risk of harm. The fulfilment of children's rights depends, in part, on securing the rights of parents or guardians.
The applicant's parental right, enshrined in section 60(3) of the Constitution, is affected when he is compelled to expose his school-age children to a recitation of the portion of a pledge of allegiance which offends his religious belief. The protection of the religious belief of his children, demanded by the applicant, is an inseparable part of the parent-child relationship.
The Constitution specifically protects the right of the applicant to demand the protection of his children's freedom of religion by guaranteeing the parental right to determine the bringing up of his children in accordance with his faith. Considering the special weight to which the religious element of the bringing up of a child is entitled, under the Constitution, a school activity exposing the child to a possible affirmation of the truth of a different religious belief would severely tax the entire parent-child relationship.
Participation by the applicant's children in the recitation of the pledge, in the current form, could be interpreted to be an affirmation by his children of the religious belief held by other Christians that saluting the national flag is not prohibited by the Scripture relied upon by the applicant.
There is, therefore, an inseparable connection between the task of the applicant, as the up-bringer of his children, and his religious belief.
The burden on the parent-child relationship brought about by the compulsory recitation of the pledge and the salutation of the national flag by the applicant's children brings him into conflict with his own religious convictions. The conflict infringes the protected sphere of the applicant's fundamental right to freedom of religion enshrined in section 60(1) of the Constitution. The fundamental right to freedom of religion includes the right of the applicant, as a parent, to pass on to his children the kind of religious convictions he considers right. Compelling the applicant to allow his children to be exposed to religious influences which contradict his own convictions would adversely affect his parental right under section 60(3) of the Constitution.
As a parent charged with the primary responsibility of bringing up his children in accordance with his religious belief, the applicant is entitled to protect himself against Governmental action which adversely affects his right.
The parental right under section 60(3) of the Constitution does not set forth an affirmative right of control on the basis of which a parent can demand that the education authorities should not formulate a pledge of allegiance with reference to the salutation of the national flag and the saying of the words “Almighty God, in whose hands our future lies”.
The applicant does not claim such a right.
Position of Children Not Sharing The Religious Belief Embodied In The Words “Almighty God, In Whose Hands Our Future Lies”
Certain ideas, such as belief in the existence of God, His nature, and His relationship with humans, are inherently religious. Anyone saying the words “Almighty God, in whose hands our future lies” makes a claim to what he or she considers to be comprehensive truth about the existence of God and His attributes. He or she is making a religious claim, whether relying on faith or reason. The words constitute a statement of profound religious significance.
The features the statement “Almighty God, in whose hands our future lies” refers to are characteristic of monotheistic religions.
Monotheism is a religion to which belong people who genuinely believe in the truth of the doctrine or prescription on the existence of God. The essence of the belief is that God is a supernatural being capable of controlling and directing human life and is entitled to reverence, obedience, and worship from believers.
The mere saying of the words “Almighty God, in whose hands our future lies” would be an acknowledgement of monotheism, even if one does not have to believe in the truth of the prescription.
The decision to adopt or to have a monotheistic religion or religious belief must be the result of an individual's exercise of freedom of conscience.
Instead of acting in a manner that respected and protected the right to freedom of religion of all the school children who were to recite the pledge, the education authorities sought to impose, by compulsory recitation of the pledge, in the current form, certain religious beliefs on every school-child reciting the pledge. The education authorities took a position for the school children, on a religious or spiritual matter, in respect of which parents or guardians would want the children in their custody to hold different views.
The constitutional protection of the right to freedom of religion is based on a broad concept of religion. It would cover even those people who reject the idea of dependence on a creator for a guide to morality. There are people who hold a belief in and devotion to goodness and virtue for their own sakes. A sincere and meaningful belief which occupies, in the life of the possessor, a place parallel to that occupied by God in the monotheistic believer comes within the constitutional protection; see United States v Seeger 380 US 163 (1965)…,.
Section 60(1) of the Constitution protects theistic, non-theistic and atheistic beliefs as well as the right not to profess any religion or religious belief.
The population in Zimbabwe adheres to and practices different religions and religious beliefs, such as Christianity, Islam, Judaism, Hinduism, Buddhism, and traditional religion. It is a religiously pluralistic society, although Christianity has a majority of believers. The religiously pluralistic condition of society would be reflected in the religious beliefs held by the school children compelled to recite the pledge with the words “Almighty God, in whose hands our future lies”.
The applicant's complaint was that forcing school children who do not share the monotheistic religious belief to say the words “Almighty God, in whose hands our future lies”, as part of the recitation of the pledge, is to coerce the children to affirm the existence of God and His attributes.
The State cannot compel a person to perform acts which are forbidden by the religion he or she belongs to.
The duty to say the words exalting God in the pledge would seriously impair the freedom of religion of the school children who do not hold the religious belief embraced by the words “Almighty God, in whose hands our future lies.”
The coercion on the school children, to say the religious words, offends the religious beliefs of the school children who belong to religions that do not espouse the belief in God, His oneness, and His power to directly and actively influence human life. It offends the school children who belong to religions that espouse belief in the existence of more than one god. It offends those school children who, whilst believing in the existence of a supernatural power, do not believe in that force in the form of a god. It also offends the school children who do not hold belief in the existence of a supernatural power. Their belief begins and ends with the existence of a human being as a matter of fact. They do not hold a spiritual belief in the existence of a supernatural being arising from seeking to find answers to the question of how the human being came to be in existence in the first place.
The compulsion suggests, to the school children who hold polytheistic religious beliefs or non-theistic beliefs, that their beliefs are inherently less religious than the theistic ones embraced by the pledge. At best, there is an unconscious bias against non-theistic religions and their beliefs in the adoption, as part of the pledge, a statement that has, as its content, acceptance in the existence of God and exaltation of His powers.
According to para 4 of the Human Rights Committee General Comment No.22, acts protected by freedom of conscience must give direct expression to one's religion or religious belief.
Children are generally regarded as impressionable people who are vulnerable to outside influences because of their age and level of maturity. Young school children are, in any case, hardly capable of critically asserting themselves against their environment. The exposure of the school children to the mandatory saying of the religious words in the pledge, during its recitation, every school day in formal ceremonies would condition their minds to eventually accept, as the truth, the contents of the words. The affected children may end up believing in the existence of God who is a supernatural being with powers to control and direct human life, at the same time commanding reverence and obedience from human beings believed to be his creation.
In other words, saying the religious words under compulsion, on a daily basis during school term, under the guidance of teachers, might have some kind of proselytising effect on those children who belong to religions and hold religious beliefs different from those depicted by the prescribed religious words.
The impression likely to be created in the children's minds would be that for one to become the ideal person, who lives according to the values and principles espoused by the pledge, one has to be a believer in the features of the monotheistic religions represented in the words “Almighty God, in whose hands our future lies.” The children may think that one may not embrace the values of patriotism and national identity without, at the same time, being a holder of the belief in the existence of God. School children may begin to believe that the future at the school, for anyone who refused to say the religious words forming part of the pledge, for reasons of a coerced conscience, would be in jeopardy at the displeasure of God in whose hands the future of every person is said to lie.
Participation in the recitation of the pledge would, in the circumstances, be out of fear that one's future at the school would be imperilled.
There is, in fact, an implied suggestion that the secular values pursued by the pledge are consistent with the values of monotheistic religions only.
Whilst it is ideal that every citizen should be patriotic and embrace the other values set out in the pledge, it is certainly not a constitutional expectation that citizens should belong to monotheistic religions. The fact that the values pursued by the pledge also form part of the values espoused by monotheistic religions does not entitle those religions to a more favourable treatment by the State at the expense of other religions and religious beliefs.
In guaranteeing to every person, in equal measure, freedom of religion, section 60(1) of the Constitution prevents endorsement or disapproval of any religion or religious belief by the State, thereby promoting the richness of religious pluralism and diversity.
The observance, and enforcement, of the principle of pluralism and diversity of religions and religious beliefs protected by the Constitution would promote the attainment of patriotism as the secular objective of the pledge. It promotes equality, peace, and tolerance amongst people of diverse faiths.
In Torcaso v Watkins 367 US 488 (1961) the appellant was an atheist and he refused to take an oath of office, which required a declaration of belief in the existence of God. The court, while quoting Everson v Board of Education 330 US 1 (1947), found as follows…,:
“We repeat and again re-affirm, that, neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion'.
Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”
On 19 August 2005, the United States Court of Appeals, Seventh Circuit, in Kaufman v McCaughtry 419 F.3d 678 (7th Cir. 2005) upheld the right to freedom of religion of a person who wanted to start a religious group based on the rejection of the idea of belief in the existence of a supreme being. The court said…,:
“The problem with the District Court's analysis is that the court failed to recognise that Kaufman was trying to start a religious group, in the sense we discussed earlier.
Atheism is Kaufman's religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being. As he explained in his application, the group wanted to exercise freedom of thought, religious beliefs, creeds, dogmas, tenets, rituals and practices, all presumably from an atheistic perspective.
It is undisputed that other religions are permitted to meet at Kaufman's prison, and the defendants have advanced no secular reason why the security concerns they cited as a reason to deny his request for an atheist group do not apply equally to gatherings of Christian, Muslim, Buddhist or Wiccan inmates…,.
But, the defendants have not answered Kaufman's argument, that, by accommodating some religious views, but not his, they are promoting the favoured ones. Because the defendants have failed even to articulate, much less support with evidence, a secular reason why a meeting of atheist inmates would pose a greater security risk than meetings of inmates of other faiths; their rejection of Kaufman's request cannot survive the first part of the Lemon Test.”
Besides atheism, there exist other forms of religion or beliefs. For instance, agnosticism is one such doctrine. Agnostics subscribe to the doctrine that humans cannot know of the existence of anything beyond the phenomena of their experience.
JUSTIFICATION OF INFRINGEMENT OF THE RIGHT TO FREEDOM OF RELIGION
Limitation of Fundamental Rights
The contention by counsel for the applicant was that the applicant is proposing a pledge of allegiance, the formulation and execution of which respects the religions and religious beliefs of the school children who have to recite it.
There is, of course, the need to ensure that the public interest in the realisation of the legitimate objective of instilling in school children the virtues of the values of patriotism and the other ethical precepts embraced by the pledge through its recitation is protected.
Counsel for the respondents did not challenge the premise of the proposition on which counsel for the applicant built and advanced the applicant's case.
The reason is that counsel for the applicant's argument was based on a premise, the essence of which was an acceptance of the legitimacy of the secular objective of inculcation of patriotic feelings in school children. He argued, strongly, that what was objectionable about the pledge, in the current form, was the inclusion of the element of compulsion on the children to do acts and to say words contrary to their religious beliefs as part of the pledge as a means of accomplishing the legitimate objective.
Counsel for the applicant's contention was simply that it was the substantive effect of the compulsory religious part of the means chosen for the achievement of the legitimate objective that rendered the pledge unconstitutional.
Having come to the conclusion that the compulsory recitation of the pledge in schools infringes the rights guaranteed under section 60 of the Constitution, the next inquiry is whether the pledge can be saved under section 86(2) of the Constitution or must be declared constitutionally invalid.
Section 86(3) of the Constitution makes provision for fundamental human rights which are non-derogable. The right to freedom of religion is not one of them. It is not unlimited. The justification for limitation of fundamental human rights and freedoms is the principle that they must be reasonably exercised and with due regard for the rights and freedoms of other persons.
The principle enshrined in section 86(1) of the Constitution recognises the fact that, like all the fundamental rights, freedom of religion, guaranteed under section 60, has, as its point of departure, the view of a human being in the Constitution as a responsible personality, developing freely within the social community. It can be restricted by the Legislature by a law of general application with constitutional anchors and sufficient safeguards for the rule of law when community goods are endangered.
Section 86(2) of the Constitution contains requirements, the contents of which include compelling public interests that would justify certain restrictive State actions and limit the exercise of the right to freedom of religion.
The State can limit the exercise of the right to freedom of religion only to the extent and in the manner prescribed under section 86(2) of the Constitution.
An examination of the contents of the requirements of acceptable limitation of a derogable fundamental right or freedom shows that the object of section 86(2) of the Constitution is to ensure that the essence of the fundamental right or freedom is preserved. The primary constitutional duty on the State is to protect and promote fundamental human rights and freedoms enshrined in Chapter 4. The power to limit the exercise of derogable fundamental human rights and freedoms is an exception to the primary duty to respect, protect, promote and fulfil fundamental human rights and freedoms. It is for this reason that limitations to the exercise of fundamental human rights and freedoms must be construed strictly and narrowly, whilst fundamental rights and freedoms must be given broad and generous interpretation.
Section 86(2) of the Constitution provides:
“86 Limitations of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors including…,.”…,.
Section 86(2) sets the minimum requirement for the limitation of a fundamental right.
A proper reading of the section points to the fact that only a law of general application may limit a right enshrined in Chapter 4 of the Constitution. The limitation section is premised upon the fundamental tenet of the rule of law which reinforces the idea that public authority may only be exercised where the law clearly provides for it.
CURRIE and De WAAL in 'The Bill of Rights Handbook' (6ed, Juta & Co (Pty) Ltd 2013)…, describe the concept behind the requirement that the limitation must be in terms of a law of general application as follows:
“The 'law of general application' requirement is the expression of a basic principle of liberal political philosophy and of Constitutional Law known as the rule of law. There are two components to this principle;
The first is that the power of the Government derives from the law. The Government must have lawful authority for its actions, otherwise it will not be a lawful Government but will be despotism or tyranny.”
In Chimakure and Ors v The Attorney-General of Zimbabwe 2013 (2) ZLR 466 (S), the Court fortified the position that the rights enshrined in Chapter 4 can only be limited in terms of the law. The Court held as follows…,:
“It is a fundamental principle of Constitutional Law that any restriction which hinders the enjoyment of a fundamental right must be introduced by a legal provision.
The grounds for the justification of the restriction must be found in the law by which it is imposed.
Fundamental rights and freedoms and other constitutional values are protected by the fundamental law which is the supreme law of the land. Restrictions imposed on them must be consistent with the fundamental law otherwise they are void.
The requirement that the restriction on the exercise of the right to freedom of expression must be contained in law is expressive of and consistent with the principle of the rule of law. The principle is to the effect that every governmental action which adversely affects the legal situation of persons in a free and democratic society must be justifiable by reference to an existing law.”
The dictum of NGCOBO J in Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) is apposite. It was held as follows…,.:
“The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution.”
While interpreting the requirement of section 1 of the Canadian Charter of Rights and Freedoms, to the effect that a limit on the exercise of freedom of expression must be “prescribed by law”, BROWNRIDGE JA, in Regina v Therens [1985] 13 CRR 193…, held as follows:
“The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law, within the meaning of section 1, if it is expressly provided for by statute or regulation or results, by necessary implication, from the terms of the statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.”
See also R v Thomsen 1988 CanLII 73 (SCC) [1988] 1 SCR 640…,.
In McKinney v University of Guelph 1990 CanLII 60 (SCC) [1990] 3 SCR 229, the Supreme Court of Canada, per WILSON J, remarked as follows…,:
“Section 1…, serves the purpose of permitting limits to be imposed on constitutional rights when the demands of a free and democratic society require them. These limits must, however, be expressed through the rule of law. The definition of law for such purposes must necessarily be narrow. Only those limits on guaranteed rights which have survived the rigours of the law-making process are effective.”…,.
It cannot be gainsaid that a limitation of a fundamental right enshrined in the Constitution must be in terms of a constitutional provision, a statute and/or its subordinate legislation. This is because the limitation of a right must, of necessity, be as a result of a meticulous and extensive legislative process. The limits should be interpreted narrowly, thereby respecting the importance of the fundamental right or freedom sought to be protected and enforced.
A balance has to be found between respecting the religious freedom of the school children objecting to participation in the compulsory recitation of the pledge, as currently formulated, and the legitimate public interest in having the values of patriotism and the other ethical precepts referred to in the pledge inculcated into school children.
The Executive cannot introduce measures which have a direct impact on fundamental rights secured by the Constitution without there being a law that authorizes such action. Where such measures are taken in the absence of legislative provisions backing the impugned measures, the resultant effect is that the conduct will fall short of the standards set by section 86(2) of the Constitution and will consequently be void.
For the pledge to survive constitutional scrutiny, it must be established that it is contained in a law of general application.
PREAMBLE TO THE CONSTITUTION
As regards the legality of the pledge, it is the respondents' contention that the pledge was taken from the Preamble to the Constitution. It is on this premise that the respondents aver that the pledge does not violate fundamental rights enshrined in the Constitution, unless an inference is made that the preamble to the Constitution is ultra vires the substantive provisions of Chapter 4 of the Constitution.
The State has to convincingly establish, with something more than unproven assertions of administrative convenience, that limiting the otherwise constitutionally protected activity is reasonably justifiable in a democratic society. It must do so by reference to the substantive standards of permissible limitation of fundamental rights prescribed by section 86(2) of the Constitution.
The Preamble to the Constitution reads as follows:
“We, the people of Zimbabwe, united in our diversity by our common desire for freedom, justice and equality, and our heroic resistance to colonialism, racism and all forms of domination and oppression; exalting and extolling the brave men and women who sacrificed their lives during the Chimurenga/Umvukela and national liberation struggles; honouring our forebears and compatriots who toiled for the progress of our country; recognising the need to entrench democracy, good, transparent and accountable governance and the rule of law; re-affirming our commitment to upholding and defending fundamental human rights and freedoms; acknowledging the richness of our natural resources; celebrating the vibrancy of our traditions and cultures; determined to overcome all challenges and obstacles that impede our progress; cherishing freedom, equality, peace, justice, tolerance, prosperity and patriotism in search of new frontiers under a common destiny; acknowledging the supremacy of Almighty God, in whose hands our future lies; resolve, by the tenets of this Constitution, to commit ourselves to build a united, just and prosperous nation, founded on values of transparency, equality, freedom, fairness, honesty and the dignity of hard work; and, imploring the guidance and support of Almighty God, hereby make this Constitution and commit ourselves to it as the fundamental law of our beloved land.”
Whilst the fact that the religious words are in the Preamble to the Constitution, is, in itself, not a justification for violation of a fundamental right or freedom as required by section 86(2) of the Constitution,
it is important to locate the role of the preamble in the Constitution.
It is axiomatic that different constitutions assign different roles to preambles. The different functions played by preambles, in constitutional enterprises, are represented in the form of three models.
From Plato's Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy-making. Simply put, a preamble presents the history behind the constitution's enactment, as well as the nation's core principles and values. A preamble may be a part of the constitution. With summary formulae, it may express the fundamental ideas and constitutional aims that the makers wanted to engrave into the text of the constitution. They are sometimes enforceable, but in other jurisdictions, they are not viewed as formally operative.
ORGAD L in 'The Preamble in Constitutional Interpretation, International Journal of Constitutional Law, Volume 8, Issue 4, October 2010…, (2010) comments on the legal status of preambles in the following terms:
“The preamble has several functions:
To begin with, it has an educational purpose: it is one of the most significant sections of the Constitution that is mentioned in educational and public arenas. Unlike the Constitution, usually a very long document including complex provisions, the preamble is relatively short and is written in a more accessible language.
Next, the preamble has an explanatory purpose: it serves to specify the reasons for the Constitution's enactment, its raison d'etre, and eternal ideals.
In addition, the preamble has a formative purpose: it constitutes a political resource for the consolidation of national identity and serves as a national 'calling card'.
The preamble has a legal purpose as well.
This section sketches a three-part typology of preambles: a ceremonial preamble, an interpretive preamble, and a substantive preamble.”
As has been said above, there are basically three types of preambles:
(i) The first one is the ceremonial preamble.
A ceremonial preamble, as per Plato's assertion, is designed to convince the people why laws are morally good. Laws are intended to establish a self-controlled society, and, to that end, they need to be virtuous. This virtue is established in the preamble, the soul of the law, which sets the tone for the people to freely comply with the law. It is a vehicle by means of which the legislator “sells” legislation to the people. Plato's notion of a preamble is meant to justify the law. A good preamble would persuade the people to obey the law, not because of civil or criminal sanctions but because it is a good law. The purpose of the preamble is to mitigate the harshness of the law and thus a law without a persuasive preamble is a “dictatorial prescription.” Plato's preambles use abstract terms and invoke poetic ideals. However, they are not regarded as an integral part of the law and they do not create rights or have binding interpretative power.
ORGAD L in 'The Preamble in Constitutional Interpretation, International Journal of Constitutional Law, Volume 8, Issue 4, October 2010 is of the view that an example of a ceremonial preamble is contained in the Constitution of the United States because it is persuasive, symbolic, and, generally, has no legal force. It is couched in the following manner:
“We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
(ii) The second type of preamble is the interpretive preamble.
The use of preambles in constitutional interpretation is quite usual in Common Law and Civil Law legal systems. This role of preambles is particularly emphasized when they include keynotes or guidelines for constitutional interpretation. A good example is the preamble to the Constitution of South Africa. In interpreting the preamble to the Constitution of South Africa, the Constitutional Court of South Africa, in United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21…, stated the following:
“The Preamble to our Constitution is a characteristically terse but profound recordal of where we come from, what aspirations we espouse, and how we seek to realise them. Our public representatives are thus required never to forget the role of this vision as both the vehicle and directional points desperately needed for the successful navigation of the way towards the fulfilment of their constitutional obligations. Context, purpose, our values as well as the vision or spirit of transitioning from division, exclusion and neglect to a transformed, united and inclusive nation, led by accountable and responsive public office-bearers, must always guide us to the correct meaning of the provisions under consideration. Our entire constitutional enterprise would be best served by an approach to the provisions of our Constitution that recognises that they are inseparably interconnected. These provisions must thus be construed purposively and consistently with the entire Constitution.”
In S v Mhlungu and Others 1995 (3) SA 867 (CC)…, the court stated that:
“The Preamble, in particular, should not be dismissed as a mere aspirational and throat-clearing exercise of little interpretive value. It connects up, reinforces, and underlies all of the text that follows. It helps to establish the basic design of the Constitution and indicate its fundamental purposes; (see too the concluding passages.) This is not a case of making the Constitution mean what we like, but of making it mean what the framers wanted it to mean; we gather their intention not from our subjective wishes, but from looking at the document as a whole.”
(iii) In respect of the third class of preambles, named, substantive preambles, they can be regarded as legally binding constitutional clauses and they serve as independent sources for rights and obligations.
An example of a substantive preamble that governs constitutional interpretation is in France where the Constitution of the Fifth Republic (1958) provides as follows:
“The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004. By virtue of these principles, and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality, and fraternity and conceived for the purpose of their democratic development.”
The Preamble to the 1958 Constitution did not originally enjoy binding legal force, nor was it even considered an integral part of the Constitution. However, on 16 July 1971 the Conseil Constitutionnel (Constitutional Council) recognised the preamble's binding force as an independent legal source of human rights. For the first time, the Constitutional Council found an Act passed by the French Parliament to be unconstitutional because it contradicted freedom of association, one of the “fundamental principles recognised by the laws of the Republic.”
See Constitutional Council - Decision No.71-44 DC of 16 July 1971.
In India, the significance of the preamble in a Constitution was underscored in the case of Kesavananda Baharati v State of Kerala (1973) 4 SCC 225. At para 538 the court held:
“We shall first deal with the preamble in our Constitution.
The Constitution makers gave to the preamble the pride of place. It embodied, in a solemn form, all the ideals and aspirations for which the country had struggled during the British regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and ideas adopted from the Constitutions of other countries. But, the constant strain which runs throughout each and every article of the Constitution is reflected in the Preamble which could, and can, be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody, in a very few and well defined words, the key to the understanding of the Constitution.”
A distinctly unique example of a substantive preamble appears in Nepal. Article 116(1) of the Constitution of Nepal, 2015 proclaims that “a Bill to amend or repeal any Article of this Constitution, without prejudicing the spirit of the Preamble of this Constitution, may be introduced in either House of Parliament.”
An analysis of the clause shows that it invalidates even a constitutional amendment which violates the spirit of the Preamble. In that regard, Nepal is unique, not only for the specific provision indicating the legal status of the Preamble, but also for taking additional measures to protect the Preamble's spirit.
In Zimbabwe, the preamble to the current Constitution can best be characterised as ceremonial.
It was formulated and added to the Constitution after the instrument and its normative provisions had been drawn up or drafted. The Preamble is not a numbered section in the body of the Constitution. It is not regarded as an integral part of the law as it does not create rights and obligations. The law is independent of the preamble.
It differs from the Preamble that existed in the Constitution prior to the Constitution of Zimbabwe Amendment (No.14) Act No.14 of 1996.
Prior to the Constitution of Zimbabwe Amendment (No.14) Act No.14 of 1996, the preamble to the Declaration of Rights was provided in terms of section 11 of the Constitution and it read as follows:
“Whereas every person in Zimbabwe is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, tribe, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely —
(a) Life, liberty, security of the person and the protection of the law;
(b) Freedom of conscience, of expression, and of assembly and association; and
(c) Protection for the privacy of his home and other property and from the compulsory acquisition of property without compensation; and
whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms, by any person, does not prejudice the rights and freedoms of others or the public interest.”
In interpreting the above preamble, the Supreme Court, in Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (S), found that the Preamble constituted part of the Declaration of Rights. The court made the following pronouncement…,:
“In In re Munhumeso and Ors 1994 (1) ZLR 49 (S) this court was of the view that the upgraded status of the provision from a Preamble, in each of the four earlier Constitutions, to a numbered section, signified that it is to be regarded as conferring substantive rights on the individual, and not merely a guide to the intention of the framers in enacting Chapter III. It was accepted to be the key or umbrella provision in the Declaration of Rights under which all rights and freedoms must be subsumed, and that it encapsulates the sum total of the individual's rights and freedoms in general terms, which may be expanded upon in the expository, elaborating, or limiting ensuing sections 12 to 23. I can perceive of no warrant to differ from that analysis and reiterate my respectful concurrence with the reasoning of AMISSAH JP and AGUDA JA in Dow v A-G supra in the passages of their respective judgments at 636E-637C and 669I-670C.”
It is therefore apparent that the preamble to the Declaration of Rights was construed as a substantive one.
Section 3 of the Constitution makes the intention of the makers thereof clear that Zimbabwe, as a constitutional republic, is based on its fundamental values and principles set out therein.
Section 3(1) is a clear declaration that the Constitution is the supreme law of the land and that any law, conduct, custom or practice inconsistent with its provisions is invalid to the extent of the inconsistency.
The constitutional provisions guaranteeing the fundamental human rights and freedoms take precedence over what is said in the Preamble. What is said in the preamble cannot be used to justify a limitation to a fundamental human right or freedom enshrined in Chapter 4 of the Constitution if such justification does not meet the requirements of acceptable limitation of a fundamental right or freedom prescribed under section 86(2) of the Constitution.
The current Preamble merely sets out the history behind the Constitution's enactment, as well as the nation's core principles and values.
A further key difference is that the current Preamble is a preamble to the whole Constitution, as opposed to the erstwhile preamble which was a prelude to the Bill of Rights.
It has been agreed that the current preamble to the Constitution is merely ceremonial or symbolic and that it does not confer any substantive rights. Consequently, the question that falls for determination is whether a pledge that is premised on such a preamble may be used as a basis to interfere with or limit fundamental rights contained in Chapter 4 of the Constitution.
This brings to the fore the issue pertaining to the limitation of fundamental rights in terms of section 86 of the Constitution.
It has been contended, by the respondents, that there is nothing wrong in “acknowledging God” at the beginning of the pledge, as the preamble to the Constitution acknowledges the same. It is from this background that the respondents justify the acknowledgment of a deity in the pledge.
As has already been established above, the preamble to the Constitution is ceremonial in nature and thus cannot be used to limit rights enshrined in the Constitution.
The Supreme Court of the United States had an opportunity to consider the effect of a ceremonial preamble of the Constitution with regard to executive power. HARLAN J, in Jacobson v Massachusetts 197 US 11 (1905), while delivering the opinion of the court, held as follows…,:
“We pass, without extended discussion, the suggestion that the particular section of the statute of Massachusetts now in question (137, c.75) is in derogation of rights secured by the Preamble of the Constitution of the United States.
Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.
Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted.
Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.”…,.
It is not disputed that the pledge does not fall within any of the categories mentioned above, and thus does not qualify as a law for the purposes of limiting a fundamental right in terms of the limitation provision.
The pledge has the effect of denying the applicant's children, and other school-going children, their fundamental rights.
Since it is not authorised by any law, there is no possibility of justifying the infringement of the applicant's rights in terms of section 86(2) of the Constitution.
The purpose served by the pledge is a secular one. The officials in the Ministry of Primary and Secondary Education were entitled to adopt the mechanism of a pledge of allegiance in pursuit of the legitimate secular objective of inculcating into children attending infant, primary and secondary schools the virtues of the values of patriotism, national identity, and the other ethical precepts considered lacking in society. The objective of instilling in school children the values of patriotism, national identity, honesty, and hard work can be achieved without infringement of the right to freedom of religion of the school children participating in the recitation of the pledge.
Good citizenship, in a secular society, does not necessitate the abandonment of religious discipline.
Patriotism is a heritage that every nation must pass on to its children if it has pride in itself as an independent and sovereign nation of people who share common values and aspirations enshrined in a Constitution which defines its destiny. Patriotism entails the appreciation and upholding of the foundational constitutional principles and values of nationhood, which include the plurality and diversity of religions and religious beliefs characteristic of Zimbabwean society. Compulsion, as employed in the pledge, was not a permissible means for achieving its legitimate objective of inculcating in school children feelings of patriotism.
CONCLUSION
There is a tension between negative and positive religious freedom. The tension cannot be neutralised by the elimination of the reference to the salutation of the national flag and the saying of the words “Almighty God, in whose hands our future lies” from the pledge. The elimination of these elements from the pledge would infringe the right to freedom of religion of those children, and their parents or guardians, who want the saluting of the national flag and the saying of the religious words in the course of the recitation of the pledge to be observed. An appropriate relief, in the circumstances, would be one that would effectively protect and enforce the right of freedom of religion of the dissenting children, and their parents or guardians, without infringing the right of the other school children to exercise the positive freedom to recite the pledge in the current form.
The education authorities ought to have guaranteed the dissenting pupils' right to decide, freely, not to perform the act of saluting the national flag or not to say the words “Almighty God, in whose hands our future lies” when the time for doing so came up in the course of the recitation of the pledge.
DISPOSITION
It is ordered as follows -
(1) The application be and is hereby granted with no order as to costs.
(2) It is declared that the policy requiring all children in schools to recite the pledge of allegiance, as formulated, is constitutionally invalid, in that it violates the right to freedom of religion enshrined in section 60(1) of the Constitution in relation to the applicant's children and school children not sharing the belief in the existence of God, and the parental right enshrined in section 60(3) of the Constitution of Zimbabwe in relation to the applicant.
(3) As a result of the declaration in paragraph (2) above, the education authorities may formulate a pledge of allegiance which allows school children who, on conscientiously held religious beliefs, object to saying the words 'Almighty God, in whose hands our future lies' and to saluting the national flag, to be exempted in the course of the recitation of the pledge from saying the religious words or saluting the national flag.