The State must not treat an individual, or groups of individuals, differently because of his or her or their religion. This means that, although Zimbabwe has not been constitutionally declared to be a secular State, the relationship between the State and religion, as defined under the Constitution, is based on ...
The State must not treat an individual, or groups of individuals, differently because of his or her or their religion.
This means that, although Zimbabwe has not been constitutionally declared to be a secular State, the relationship between the State and religion, as defined under the Constitution, is based on the principle of State neutrality.
The relationship between the State and Church is based on the principle that the State cannot have a religion of its own. Neither can the State choose a religion for people; nor can it force people to adopt a particular religion or religious belief.
The establishment of an official religion or State church would be in contravention of section 60(1) of the Constitution. The State must therefore adopt a position of neutrality in its relationship with individuals in respect of matters of religion.
Neutrality embraces the principles of non-identification and non-intervention.
From the principle of non-identification, embodied in section 60(1) of the Constitution, it follows that there cannot be a State church in Zimbabwe. The principle of neutrality governing State and religion applies to public officials acting in their official capacities to guard against letting their own religious beliefs influence decision-making in the execution of public duties.
The power entrusted by the people to a constitutional State, in a democratic society, is conditional upon it being used for the purposes of protecting the freedoms of everyone enshrined in section 60(1) of the Constitution, including those who belong to minority religions or those who hold what may be considered unorthodox religious beliefs or non-religious beliefs. In other words, the State must let the individual live his or her own way insofar as spiritual matters are concerned.
There may not be any orthodoxy in matters of spiritual beliefs. Monotheists, polytheists, atheists and agnostics are all protected in equal measure under section 60(1) of the Constitution.
It is the constitutional duty of the State to provide equal protection of the law to believers and non-believers alike.
The principle of State neutrality towards religion derives from the principles of pluralism and diversity of religions and religious beliefs which in turn derive from the recognition that an individual is the subject and centre of the fundamental right to freedom of conscience.
Zimbabwe is a religiously pluralistic society.
There is bound to be pluralism and diversity of religions and religious beliefs in a democratic society based on the fundamental values of openness, justice, human dignity, and freedom.
The principles of non-interference and neutrality by the State, in matters of religion, do not create a rigid wall of separation between the State and Church. As the constitutional obligation of the State is to ensure the respect, protection, promotion, and fulfilment of the fundamental right to freedom of religion, in a substantive sense its neutrality is not an abstract. It is a substantive neutrality which takes into account the fact that the exercise of the right to freedom of religion can be abused to the detriment of the common good or welfare of the community as a whole or to the injury of the fundamental rights and freedoms of others.
Whether the State has breached the principle of neutrality in its relationship with religion depends on the nature of the relationship and its effects on the exercise of the fundamental right to freedom of religion.
The principle of neutrality, in its regulation of how the State should relate to religion, is a relative principle. It derives from the realisation that absolute or complete separation of the State from religion or Church in a democratic society is impossible. The reason is that the constitutional obligation on the State, to protect and promote the right to freedom of religion inherent in the individual, is not just in respect to itself as a potential violator of a fundamental right; it is also in respect of the State as the protector of the individual in the exercise of the fundamental right against the actions of others which cause or threaten injury to his or her right or harm or threaten harm to the public interest.
Whilst Government must not forbid religious beliefs nor discriminate against them, it must also go further to create a positive atmosphere of religious tolerance within society.
The primary idea of freedom means that all religious creeds are tolerated and are free to flourish.
WOOLMAN and BISHOP, Constitutional Law of South Africa, Vol 3…, say:
“There is no reason why State involvement with religion, or Government actions that have a religious purpose or effect, would necessarily be coercive (even indirectly or subtly) and thus be inconsistent with the penumbra of the right to religious freedom.
There is, furthermore, no simple correlation between separation of church and State and total religious freedom. While complete identification of church and State clearly undermines religious freedom, a rigorous policy of State non-identification with religion would likely be violative of freedom of religion.
The apex of religious freedom therefore lies somewhere between positive identification and negative identification.”
The learned authors proceed to conclude…, as follows:
“An accommodationist approach would also appear to be preferable to a separationist stance because it would permit a Government, in certain circumstances, to enact laws that have the primary or incidental purpose of benefiting a particular religion (but do not constitute endorsement). Such measures may well be required for the full protection of religious liberty.
Worship or expressions of faith can have a public, as well as a private, dimension. Refusing to permit religious observances or other expressions or manifestations of faith in public fora can therefore constitute an infringement of the religious faith of certain adherents.
Stated differently, a policy banning all worship or religious instruction from State institutions is not neutral vis-à-vis different religions (or even all adherents of one religion), or between religious adherents, atheists and agnostics.”
The principle that matters of religion are deeply personal matters regulated by rules of faith means that the meaning of a religious belief, on the basis of which a person claims constitutional protection for his or her conduct, should be understood from the point of view of the individual not of the State.
The effect of the recognition of the existence in every person, as a human being, of freedom of conscience as the root of moral judgment, and its expression in the right to freedom of religion guaranteed under section 60(1) of the Constitution, is that no positive law regulates matters of religion.
Matters of a free conscience are not compellable by positive law....,.
In Bijoe Emmanuel and Ors v State of Kerala and Ors 1986 SCR (3) 518 the Supreme Court of India…, said:
“In Ratilal's case (Ratilal Panachand Gandhi v The State of Bombay & Ors 1954 SCR 1035) we also notice that MUKHERJEA J quoted as appropriate DAVAR J's following observations in Jarnshedji v Soonabai 23 Bombay ILR 122:
'If this is the belief of the community, and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular Judge is bound to accept that belief; it is not for him to sit in judgement on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.'
We do endorse the view suggested by DAVAR J's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.
Our personal views and reactions are irrelevant.”…,.
In, The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare 2012 (2) ZLR 392 (S), the Court held as follows…,:
“The Court does not discuss the truth or reasonableness of any of the doctrines of the religious group. It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures.
Whilst the Court does not take notice of religious opinions with the view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the Church and who should possess and control Church property.”…,.
In United States v Ballard 322 US 78 (1944), the United States Supreme Court held in this regard…,:
“The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree.
They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the State. He was granted the right to worship as he pleased, and to answer to no man for the verity of his religious views.
The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect.
When the triers of fact undertake that task, they enter a forbidden domain.”…,.
In Re G (Education: Religious Upbringing) [2013] 1 FLR…, SIR JAMES MUNBY said:
“It is not for a judge to weigh one religion against another. The court recognises no religious distinctions, and, generally speaking, passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are 'legally and socially acceptable' and not 'immoral or socially obnoxious' or 'pernicious'.”...,.
This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.
The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school children to salute the national flag and to say the words “Almighty God, in whose hands our future lies” in the process of reciting a pledge of allegiance to the country....,.
The objection by the applicant, to his children being forced to salute the national flag as being contrary to their religious belief, is based on a literal interpretation of the “Holy Scriptures”, particularly the book of Exodus. Chapter 20 verses 3-5 of the Book of Exodus is in these words:
“3. You shall have no other gods before me.
4. You shall not make for yourself a graven image or any likeness of anything that is in heaven above, or that is in the earth beneath or that is in the water under the earth….,.
5. You shall not bow down to them or serve them, for I the LORD Your God am a jealous God…,.”
Based on the literal interpretation of the above excerpt from the Bible, the applicant and his children hold the belief that worship must be reserved for God only. They believe that the national flag, as a secular object or symbol, is a graven image and that to salute it is to worship the flag....,.
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 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.
