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.
(i) The first question is whether the policy and the actions of compelling the applicant's children, who hold a religious belief that saluting a flag is “worshipping a graven image”, contrary to a fundamental doctrine of their faith, infringed their right to freedom of religion.
(ii) The second question is whether the policy and the actions of the education authorities, of compelling the applicant's children to salute the national flag, infringed the applicant's parental right to determine the upbringing of his children according to his religious belief.
(iii) The third question is whether the policy and the actions of the education authorities, of compelling all schoolchildren, regardless of religious affiliation, to say the words “Almighty God, in whose hands our future lies” infringed the right to freedom of religion of children who do not belong to religions that embrace the belief in the existence of God or in the existence of a god at all.
The Court holds that, the policy and the actions of the education authorities, of compelling all school children, regardless of religious affiliation, to salute the national flag and to say the words “Almighty God, in whose hands our future lies” as part of the recitation of the schools' national pledge of allegiance (“the pledge”) infringed the right to freedom of religion of the applicant's children, enshrined in section 60(1) of the Constitution; the applicant's parental right, enshrined in section 60(3) of the Constitution; and the right to freedom of religion of children who belong to faiths that do not embrace the belief in the existence of God or in the existence of a god at all, enshrined in section 60(1) of the Constitution.
The saluting of the national flag and the saying of the religious words in the pledge are not, per se, unconstitutional. They are made to be so by the effect of the compulsion on the school children.
The Court holds, further, that no justification which met the requirements of an acceptable limitation of a derogable fundamental right or freedom, prescribed under section 86(2) of the Constitution, was advanced by the respondents in respect of any of the cases of infringement of the fundamental rights concerned. The detailed reasons for the decision of the Court now follow.
BACKGROUND FACTS
Sometime in 2016, the first respondent introduced the pledge, which all school children were compelled to memorise and recite at assemblies every school day - there is no provision for exemption.
The avowed primary purpose and objective of the pledge is the inculcation into school children of feelings of patriotism and other ethical precepts, such as honesty and dignity of hard work. The primary objective pursued by the pledge is secular in nature. Included in the essential elements of the pledge, as a means for the achievement of the secular objective, are acts, the commission of which would have a direct effect on the religious beliefs of the reciters of the pledge.
Compulsory recitation of the pledge, in the current form, by children at private and public infant, primary, and secondary schools was the chosen means by which the governmental policy behind the pledge is enforced.
Two versions of the pledge were designed. There is the pledge for primary schools and secondary schools, and another for infant schools.
The pledge for secondary and primary schools reads as follows:
“Almighty God, in whose hands our future lies: I salute the national flag United in our diversity By our common desire For freedom, justice and equality Respecting the brave fathers and mothers who lost lives in the Chimurenga/Umvukela. We are proud inheritors of the richness of our national resources. We are proud creators and participants in our vibrant traditions and cultures. I commit to honesty and dignity of hard work.”
The formulation of the pledge for infant schools is as follows:
“Almighty God, in whose hands our future lies: I salute the national flag. I commit to honesty and the dignity of hard work.”
The applicant says he is a devout Christian, who is a member of the Apostolic Faith Mission (“AFM”). All the members of his family are members of the religious sect and hold and practice the religious beliefs of the sect.
On 15 May 2016, the applicant approached the Court alleging that the versions of the pledge, as formulated, violate his children's fundamental right to freedom of religion, in that they are compelled to salute the national flag contrary to their religious belief. The applicant and his children hold a belief that it is a compelling precept of their faith that a secular object must not be saluted. He also alleged that the compulsion, on his children, to salute the national flag, violates his parental right to determine, in accordance with his religious belief, his children's moral and religious upbringing. The applicant also alleged that by compelling all school children, regardless of religious persuasion, to say the words “Almighty God, in whose hands our future lies” in the recitation of the pledge the first respondent violates the fundamental right to freedom of religion of the school children who do not share the religious belief embodied in the words.
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.
According to the applicant, being compelled to salute the national flag is to coerce his children to perform an act contrary to their religious belief. He argued, on account of his religious belief, that his conscience remains tormented and gives him no rest or peace when his children take part, under compulsion, in the recitation of the pledge in the current form, which includes pronouncement of the act of saluting the national flag. The applicant, without desire to show disrespect for the national flag and the country, interprets the Bible as commanding, at the risk of God's displeasure, that his children must not go through the form of a pledge of allegiance that involves saluting a secular object such as a flag.
The significance of a symbol lies in what it represents.
The applicant does not challenge what the national flag, as a symbol, represents. He challenges the constitutionality of the policy and the governmental action of compelling all school children, regardless of religious persuasion, to salute the national flag as part of the pledge of allegiance to the country. His objection to the use of compulsory recitation of the pledge to inculcate the virtues of patriotism and national identity in school children is notwithstanding the legitimacy of the secular objective pursued.
The applicant does not reject the national flag. He respects it.
His case is that the use of the national flag, as symbolism for the legitimate secular purpose, does not have to take the form of a coerced salutation of the flag, which he says he genuinely believes is a form of worshipping of the flag. The applicant's complaint is that the policy and the governmental action of compelling all school children to salute the national flag, as a symbol for inculcating feelings of good citizenship, infringe his children's right to freedom of religion enshrined in section 60(1) of the Constitution.
The applicant argued that the community interest in ensuring that school children are imbued with the virtues of the value of patriotism or good citizenship would not be prejudiced by the protection of freedom of religion of the children.
The applicant alleged that the religious words “Almighty God, in whose hands our future lies”, forming part of the pledge, embody a religious belief in the existence of God, who is a supernatural being with supreme power, capable of controlling and directing human life and entitled to reverence and obedience.
The contention, by the applicant, was that the religious belief embodied in the words the school children are compelled to say, in reciting the pledge, is characteristic of monotheistic religions.
The applicant averred that the first respondent gave a State endorsement to monotheistic faiths.
The applicant said the alleged conduct of the State infringes the right of freedom of religion of those school children who do not share the faith based on the belief in the existence of God. There are schoolchildren who believe in polytheism.
He said the pledge also violates the freedom of religion of those school children whose religious beliefs do not recognise the existence of any form of a deity or supreme being or who are non-committal on the question of the existence of a higher being. In this regard, the applicant stated the following:
“As such, the national pledge effectively casts those…, with a contrary faith as outsiders…,. This is because the State has formulated a pledge to be recited on matters, including religious matters.
The mere recitation of the national pledge will thus amount to a repudiation of their religious values, and, in essence, will amount to a public announcement that they do not belong to the political community.
Concordantly, those…, who do not share the faith, as formulated in the pledge, will be cast as unpatriotic even though they respect the culture and national heritage but only do not wish to do so in a religious context. This is needless and unnecessary exclusion, marginalisation which will effectively make them feel like second class citizens and is discriminatory on religious grounds.”
The application was opposed by the first, the second, and the third respondents (“the respondents”).
The first respondent, who was responsible for the formulation of the policy which gave rise to the Governmental action requiring the compulsory recitation of the pledge, deposed to the opposing affidavit.
He admitted that the pledge, as formulated, forces a school child, at the time of its recitation, to acknowledge the existence of “Almighty God” and to exalt Him as a supernatural being capable of controlling and directing human life and entitled to individual reverence and obedience. He averred that the applicant's objection to the pledge, on religious grounds, was misplaced because the pledge was not a prayer but simply “a pledge or commitment which begins by exalting 'Almighty God'”. He said there was nothing wrong in acknowledging God at the beginning of the pledge.
The first respondent said:
“There is no other God that is acknowledged in the school pledge, neither does the school pledge demand worshipping or bowing to any other god…,. The school pledge is part of appropriate education.”
The respondents characterised the pledge as a “creed” which testifies to the religious, cultural, and historical beliefs of the people of Zimbabwe. They contended that the pledge is necessary for nation-building. They averred that the pledge is a way of inculcating feelings of patriotism. The respondents further averred that there was no endorsement of monotheism by the State. The contention was that the words “Almighty God, in whose hands our future lies” were of a ceremonial and patriotic nature. They did not constitute an attempt to officially promote a particular religious belief.
Regarding the salutations pertaining to the national flag, the first respondent averred that the flag “is an important symbol of national unity and referring to it in the pledge is part of initiatives designed to promote knowledge of the institutions and symbols of the country.”
The relief sought by the applicant was couched in the following terms:
“WHEREUPON after reading papers filed of record and hearing Counsel, IT IS DECLARED THAT:
1. The policy requiring all children in schools to recite the national pledge, as formulated, is constitutionally invalid in that it violates the rights enshrined in sections 60(1) and 60(3) of the Constitution of Zimbabwe.
CONSEQUENTLY, IT IS ORDERED THAT:
2. There shall be no recitation of the national pledge, as formulated, in any schools or by any school children in Zimbabwe.
IN THE ALTERNATIVE:
3. The first respondent be and is hereby barred from compelling schools, and all children in schools, to recite the national pledge, as formulated, or requiring any punitive consequences on those that elect not to recite the pledge.
4. Consequently, the second and third respondents shall not compel school children, including the applicant's children, to recite the national pledge, as formulated, or require any punitive consequences on those that elect not to recite the pledge.
5. The first respondent to pay the costs of this application.”
It is important to note that the pledge, in the current form, met with criticism from parents and religious groups on the ground that it was an attack on religious freedom. The recitation of the pledge was suspended by the education authorities pending the decision of the Court on the application.
RIGHT TO FREEDOM OF CONSCIENCE
Section 60 of the Constitution contains the right to freedom of conscience. It provides as follows:
“60 Freedom of conscience
(1) Every person has the right to freedom of conscience, which includes —
(a) Freedom of thought, opinion, religion or belief; and
(b) Freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.
(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.
(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.
(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”
INTERPRETATION OF SUB-SECTIONS (1) AND (3) OF SECTION 60 OF THE CONSTITUTION
The fundamental right to freedom of conscience, as asserted by the applicant, is of vital importance in an open and democratic society. It is essentially the seal of a free society based on human dignity and equality. A person's ability to formulate beliefs and express them is central to social stability, and his or her growth and self-worth.
The importance of the right to freedom of religion is not only shown by the constitutional guarantee. It is also shown by the fact that almost all international human rights instruments require States Parties who subscribe to them to guarantee the right to freedom of religion as an aspect of freedom of conscience.
The special treatment of religion and the protection of matters of belief and practice related to it under the rubric of freedom of conscience arise from the fact that they deal with the innermost convictions of the human being.
If religion were not singled out for special treatment, under section 60(1) of the Constitution, beliefs and practices protected under religious freedom would have been reduced to aspects of other rights such as freedom of expression (section 61), personal liberty (section 49) and freedom of association (section 58).
Freedom of religion inspires other provisions of the Constitution, such as section 56(3) which prohibits discrimination based on religion.
Section 60(1) of the Constitution is based on the universal principle that every person has inherent fundamental rights and freedoms by virtue of being human. The principle is derived from Article 1 of the Universal Declaration of Human Rights (1948), which states that “all human beings are born free and equal in dignity and rights.”
Freedom is one of the underlying values of the Declaration of Rights.
Courts must interpret all rights to promote the underlying values of human dignity, equality and freedom. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. See Ferreira v Levin N.O. and Ors [1995] ZACC 13.
The Constitution recognises and embraces the fundamental principle that every person has a conscience.
Conscience is to be understood as an experiential and spiritual phenomenon that compels a person to commit himself or herself unreservedly to an ideal. It is an inner moral command, force or sense that touches the very depths of a person's personality, steering him or her away from evil and toward good. The inner scruples of a person's conscience have the power to dictate his or her actions on matters falling within the area of the influence of conscience. The person is bound to act in accordance with the dictates of his or her conscience on matters of conscience, as such actions or beliefs are not governed by positive law.
The Constitution guarantees, and protects, the legal status of the person and his or her actions in accordance with the dictates of conscience to the extent that it recognises, under section 60(1), the right to freedom of conscience and imposes on the State, or any other person, the negative obligation not to interfere with the person in the exercise of the freedoms included in the freedom of conscience.
Freedom of conscience must be interpreted broadly to reflect the true meaning of the concepts used to denote the area of its operation. Within the broad ambit of freedom of conscience falls freedom of religion. This means that the right to freedom of religion is a guarantee to every person of positive freedom to act on matters of religion without interference from the State or any other person. It also means that the right to freedom of religion is a guarantee to every person of negative freedom not to act on matters of religion at all or not to perform acts which are contrary to or in conflict with his or her religion or religious belief.
The principle is that the acts done or things said in accordance with matters of religion should be done or said freely and voluntarily by a person without hindrance, impediment or prohibition by the State or any other person.
Religion or faith is that system of fundamental doctrines and principles which provide to a person, as comprehensive truth, without need for proof, answers to the fundamental question of the origin and purpose of the universe and human life. The right of every person, at an appropriate stage of physical and intellectual development, to indulge in the contemplation of answers to the fundamental question about the source of origin of humanity, and to settle the question on the basis of an answer that takes the form of a religious belief which satisfies his or her spiritual needs, is a fundamental right which section 60(1) of the Constitution protects and guarantees to the person.
The matters to which freedom of religion applies include choice, adoption, change of religion, entertainment of religious belief, and free exercise, practice, or giving expression to religion or religious belief through activities of one's choice such as worship, observance and teaching. The person is free to exercise his or her right to freedom of religion alone or together with others.
In R v Big M. Drug Mart Ltd [1985] 1 SCR 295, 78 DLR (4ed) 321, DICKSON CJC, writing for the Supreme Court of Canada…, said:
“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses; the right to declare religious beliefs openly and without fear or hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination.”
The exercise of religion has a central significance for every religious belief. Freedom of religion, as a right, is not guaranteed in the abstract for its own sake. It is guaranteed in relation to acts by which its existence is manifested. It is guaranteed in respect of acts that form the essential and integral aspects of the religion or religious belief. In other words, the act, on its own, may not be a religious matter. It becomes a religious matter when its nature, purpose, and effect are assessed.
The right to freely choose, hold, change religion and entertain religious belief, and the right to freely practice, exercise and give expression to religion or religious belief, are inextricably linked. That means that acts that are directly connected with or are an essential or integral aspect of religion or religious belief are protected by the right to free exercise or practice of religion guaranteed under section 60(1) of the Constitution.
In that sense, freedom of religion is relative, in that it must relate to matters connected with religion or religious belief. Religious freedom, under section 60(1) of the Constitution, therefore, guarantees to the individual a legal sphere in which he or she may adopt the lifestyle in respect of spiritual matters that corresponds to his or her convictions. This encompasses not only the internal freedom to choose, adopt, change religion, entertain, and hold religious belief. It also encompasses the individual's right to align his or her faith with, and to act in accordance with, the dictates of his or her conscience.
Section 60(1) of the Constitution, as an expression of human dignity, protects those infrequently occurring convictions which diverge from the teachings of the churches. It is not possible to properly establish the scope and purpose of the right to freedom of conscience, as entrenched in the Constitution, without reference to the inherent dignity of the person entitled to exercise the right. The two are not mutually exclusive, as the principle of inherent dignity forms the basis upon which other fundamental rights can properly be understood.
Section 3 of the Constitution provides that Zimbabwe is founded upon respect of the nation's diverse cultural, religious and traditional values. It also states that the country is founded upon the recognition of the inherent dignity and worth of all human beings.
In S v Chokuramba CC10-19…, the Court commented on the inter-dependence between human dignity and human rights. The Court said:
“Section 46 of the Constitution is the interpretative provision. It makes it mandatory for a court to place reliance on human dignity as a foundational value when interpreting any of the provisions of the Constitution which protect fundamental human rights and freedoms. This is because human dignity is the source for human rights in general. It is human dignity that makes a person worthy of rights. Human dignity is therefore both the supreme value and a source for the whole complex of human rights enshrined in Chapter 4 of the Constitution.
This interdependence between human dignity and human rights is commented upon in the preambles to the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966).
The preambles state, in express terms, that human rights 'derive from the inherent dignity of the human person'. They all refer to '…, the inherent dignity…, of all members of the human family as the foundation of freedom, justice, and peace in the world'.
The rights and duties enshrined in Chapter 4 of the Constitution are meant to articulate and specify the belief in human dignity and what it requires of the law.”
In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) the Constitutional Court of South Africa…, said:
“There can be no doubt that the right to freedom of religion, belief, and opinion in the open and democratic society, contemplated by the Constitution, is important. The right to believe or not to believe, and to act or not to act, according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity.
Yet, freedom of religion goes beyond protecting the inviolability of the individual conscience.
For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate, in an intensely meaningful fashion, to the sense of themselves, their community, and their universe.
For millions, in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self-worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.”…,.
The protection and the guarantee of freedom of religion, under section 60(1) of the Constitution, prescribe the nature of the relationship between religion and secularism or Church and State.
The nature of the relationship between the State and religion, defined by section 60(1) of the Constitution, is gleaned from the consideration of the following underlying principles:
They derive from the fundamental principle that the individual, and not the State, is the subject and centre of the right to freedom of conscience which includes freedom of religion. The right to freedom of religion, and its exercise, as protected and guaranteed under section 60(1) of the Constitution, is an intimately or deeply personal matter. Freedom of religion attaches to an individual. The State is not an individual. As such, the State has no liberty or right to freedom of religion.
Freedom of religion, and its exercise, should not depend on the attitude of the State towards a particular religious creed in a democratic society based on the values of openness, justice, human dignity, equality and freedom.
Whilst the Constitution recognises and protects the right to freedom of religion as being inherent in every person, by virtue of being human, it considers the State as a creation of the people, who vest in it powers to be used for their own interests in accordance with the rules prescribed by the Constitution and laws consistent with the Constitution.
The State represents governmental power, which the people conferred on those in Government to act in the public interest. Under section 44, the Constitution imposes a positive obligation on the State to respect, protect, promote and fulfil every person's right to freedom of religion and to ensure the same conduct by individuals towards each other.
The constitutional protection and guarantee of every person against interference by the State or any other person with the exercise of his or her religion or religious belief according to the rules of his or her faith imposes a negative obligation.
The purpose of the creation of the State is to ensure the protection and promotion of the fundamental rights and freedoms guaranteed to the individual under the Constitution. The State cannot control the exercise of the right to choose, have, adopt, change religion or entertain a religious belief because the contents of the exercise of the right, and their effects, remain embedded in the conscience of the individual.
The State may pass laws of general application to limit the exercise of the right to manifest, express or propagate religion or religious belief in the interests of the common good. The actions of the State are regarded, by the Constitution, as an exception, because the primary constitutional duty on the State is to respect, protect, promote, and fulfil the fundamental rights and freedoms guaranteed to every person under section 60(1) of the Constitution.
Underlying the constitutional order is the unity of the fundamental values and principles of human dignity, equality, justice, and freedom which every Governmental institution, in a democratic society, is required to protect and promote.
Every person is equal to the other by virtue of being human and having the right to freedom of religion.
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.
Religion becomes a source of regulation of conduct. Human laws do not grant a court power to judge the efficacy of religious doctrine. It is not for a court of law to decide whether the matters which constitute the content of the individual's belief are, as a matter of fact, commanded by the fundamental doctrines or tenets of his or her faith. It is not for a court of law to ascertain the correctness or otherwise of the belief held by the person by measuring it against its understanding of the fundamental doctrines concerned. Every member of a church or religious faith must, as a believer, concern himself or herself with the fundamental doctrines or tenets of the faith. A court of law must defer to him or her in regard to the understanding of the fundamental doctrines or tenets by which his or her faith is governed.
Religion is, after all, a matter of self-definition. It is the self-definition of the believer that the court of law must rely upon, as there would be no positive law setting out an objective standard by which it can measure the conformity of the conduct of a believer on matters of religion.
The test to be applied is whether the individual genuinely, or, conscientiously, believes that the matters he or she believes in are in accordance with the fundamental doctrines or tenets of his or her faith. Where the issue is the objection by an individual to performance of acts required by governmental action, the test to be applied, consistent with the constitutional protection of the right to freedom of religion, is one that asks whether the claimant genuinely or sincerely believes that what he or she is being compelled to do is contrary to the fundamental doctrines or tenets of his or her faith as he or she understands them.
Freedom of religion, guaranteed under section 60(1) of the Constitution, includes the right to freely elect not to do any act that is prohibited by or is contrary to one's religion or religious belief.
As long as a court of law finds, as a matter of fact, that the person claiming constitutional protection genuinely holds the belief that the matters to which his or her belief relates are commanded by the fundamental doctrines, tenets or rules of his or her faith, the belief would fall within the ambit of section 60(1) of the Constitution as a religious belief.
It is not for a court of law to second-guess the believer by deciding the question whether he or she has correctly interpreted and understood the fundamental doctrine or tenet or rule of his or her faith. To do so would be to seek to provide an authoritative interpretation of the fundamental doctrines or tenets of a religion and to apply it to the belief held by the individual. That would be tantamount to the substitution of the court's conscience for that of the individual.
A belief is internal to an individual, being a product of the dictates of his or her free conscience.
Pure matters of faith, such as religious belief, give effect to moral values. A court of law should resist the temptation to impose a secular objective perspective on the matter.
The purpose of assessing the genuineness of a religious belief held by an individual is to prevent mis-use of freedom of religion.
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'.”
Section 60(1) of the Constitution addresses impediments to the exercise of the right to freedom of religious belief. The fact that the acts performed in the exercise of freedom of religion or religious belief must be related to or connected with the religion or religious belief adopted or held by the actor means that compelling a person to perform acts not related to or contrary to or forbidden by the religion or religious belief he or she holds violates the person's freedom to manifest or practice his or her religion or religious belief.
In other words, forcing a person to perform acts that are related to a religion or religious belief which is not the one he or she holds coerces and torments the person's conscience.
Freedom to practise one's religion or religious belief encompasses the right to perform acts which are in conformity with the individual's faith.
The application of the principle against coercion or compulsion on a person on matters of religion gives substantive value to the principle of voluntarism embodied in the concept of freedom of conscience. Freedom of conscience demands that every person must be permitted to be his or her own master in respect of matters of choice, adoption, change of religion, entertainment of and adherence to religious belief and the exercise, practice, manifestation and propagation of religion or religious belief.
It is universally understood that rights protect a right-holder's self-determination and personal integrity.
In our legal system, one generally has no right to control the life of another. This is a principle derived from the nature and meaning of the concept of right.
The religious liberty protected by the free practice provision of section 60(1)(b) of the Constitution is the right of every person to freely choose his or her own course with respect to religious practice. It is a liberty to worship according to the dictates of one's own conscience. Section 60(1)(b) of the Constitution does not entitle anyone, nor can it be construed to entitle anyone, to force others to espouse certain religious beliefs or engage in particular practices or otherwise to control the life of another person in accordance with the dictates of that other person's own religion.
People simply do not claim a right under the freedom of religion provision to force another person to profess their beliefs.
The provisions protect the right-holder's control over his or her own person.
At the heart of liberty is the right to define one's own concept of existence, of the meaning of the universe, and of the mystery of human life; see Planned Parenthood v Casey 112 SCT 279 (1992).
In S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) CHASKALSON P remarked as follows…,:
“…, freedom implies an absence of coercion or constraint and that freedom of religion may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs. This is what the Lord's Day Act did; it compelled believers and non-believers to observe the Christian Sabbath.”
Subsection (3) of Section 60: Parental Right
Section 60(3) of the Constitution acknowledges the importance of parents and guardians in the survival and development of children.
Section 46(1)(c) of the Constitution provides that in interpreting a provision of Chapter 4 which relates to the Declaration of Rights a court “must take into account international law and all treaties and conventions to which Zimbabwe is a party.”
The Court has taken into account the relevant provisions of the Convention on the Rights of the Child (1990) (“the CRC”) in interpreting the provisions of section 60(3) of the Constitution.
Zimbabwe is a party to the Convention on the Rights of the Child (1990) (the CRC).
The rights of parents and guardians, to determine, in accordance with their beliefs, the moral and religious upbringing of the children in their custody derives from the principle that the care and the upbringing of children are duties primarily incumbent on parents and guardians.
Article 18(1) of the Convention on the Rights of the Child (1990) expressly provides that parents or guardians have the primary responsibility for the upbringing and development of the child.
Article 5 of the Convention on the Rights of the Child (1990) requires the State to respect the rights, responsibilities, and duties of parents and guardians.
The Special Rapporteur on Freedom of Religion observed, in a report to the United Nations General Assembly, that:
“The rights of parents to freedom of religion or belief include their rights to educate their children according to their own conviction and to introduce their children to religious rites.”
See: Special Rapporteur on Freedom of Religion's Report to UN General Assembly A/70/286 http:ap.ohchr.org/documents/d page-e.aspx?m-86).
The spiritual needs of a child are bound to be nourished by the religious belief of the parent or guardian, depending on the age and maturity of the child.
Section 60(3) of the Constitution is clear, in that it requires that the parental right be exercised subject to the duty on the parent or guardian to protect, promote and fulfil the fundamental rights and freedoms of the child. That includes the child's right to freedom of religion or religious belief.
Article 14 of the Convention on the Rights of the Child (1990) emphasizes the importance of the role of the rights of the child in the parent-child relationship.
According to the provisions of section 60(3) of the Constitution, a person must have the legal status of being a parent or guardian to be possessed of the right conferred on him or her. Not every person can be a parent or guardian. The rights and responsibilities prescribed by section 60(3) of the Constitution are therefore functions of parenthood or guardianship until the child is capable of exercising those rights on his or her own behalf.
Not only does section 60(3) of the Constitution identify and protect the primary responsibility of parents and guardians in the upbringing and development of a child, it also underlines the principle that a child is an individual with a right to be heard on matters affecting him or her commensurate with his or her age and maturity.
Constitutional liberties pertain to individuals.
Parents and children do not possess unitary interests. Whatever considerations may justify protecting the right of adults to control their own lives, they do not validate an unqualified right of adults to deprive the children in their custody of the right to decide, as free and rational persons, what kinds of lives they will choose to lead. The parent-child relationship is a relationship of two individuals, each with a separate intellectual and emotional makeup.
Children are distinct persons with rights of their own under the Constitution.
A child is a subject of his or her own rights. The parent or guardian is entitled to decide that the child in his or her custody shall be brought up in accordance with the values of his or her own religion. Section 60(3) of the Constitution uses the word “determine”, which implies the making of a decision on matters affecting the child after careful consideration of the interests of the child.
Section 60(3) of the Constitution should not be interpreted to mean that the parental right authorizes one person to dominate or control the life of another to satisfy his or her own religious interests. To do so would be contrary to the fundamental principle and value of equality. A child is a human being with inherent dignity, deserving of respect from others - including those acting as his or her custodians. Section 60(3) of the Constitution cannot be construed to mean that the parental right endows a parent or guardian with the power to indoctrinate the child with his or her religious belief notwithstanding the harm such conduct would have or has on the well-being of the child.
No-one, including a parent or guardian, would have a right to subject a child to coercion or compulsion which would impair his or her freedom to have or adopt a religion or religious belief of his or her own choice.
Parental rights and responsibilities are not unbounded.
There are provisions in the Constitution and the Convention on the Rights of the Child (1990) which set out principles which guide a parent or guardian on the factors he or she has to take into account when making decisions on matters affecting the spiritual development of the child. The guiding principles set certain boundaries on the upbringing and development of children in terms of section 60(3) of the Constitution.
(i) The first guiding principle is that the parent or guardian must proceed on the basis that a child is a separate person with inherent dignity as a human being, entitled to respect and protection from harm to his or her religious interests.
The parent or guardian must accept that under section 60(3) of the Constitution a child has his or her own right to freedom of religion, entitling him or her to decide, if he or she has the ability to form a view and express it on matters affecting him or her, on what to do in the exercise of religion.
Honouring the agency and inherent dignity of children, by according them meaningful participation in decision-making on matters affecting them, is an important way of showing children that they are valued.
In a document titled “Faith and Children's Rights” produced by Arigatou International New York in 2019 (arigatouinternational.org)…, the authors make the observation that children are “subjects of rights” with individual identities that must be respected.
The right of a parent or guardian, to guide the spiritual development of the child, and the right of the child to practice his or her own religious belief, are both indispensable.
(ii) The second guiding principle, as set out in Article 3(1) of the Convention on the Rights of the Child (1990), provides that in all actions concerning children the best interests of the child shall be a primary consideration.
Article 18(1) of the Convention on the Rights of the Child (1990) requires parents and guardians to have the best interests of the child as their basic concern when discharging the primary responsibility of the upbringing and development of the child.
So, in determining matters relating to the upbringing of the child, in accordance with his or her religious belief, a parent or guardian must ensure that the best interests of the child, and not his or her own interests, are promoted as a result.
It is clear that the overriding principle that the best interests of the child shall be a primary consideration in all actions concerning the child has become universally acceptable. It is expressly provided for under section 81(2) of the Constitution, which provides that “a child's best interests are paramount in every matter concerning the child.”
A parent or guardian is bound, by the Constitution, when performing the primary responsibility of bringing up a child. There is, however, no fixed standard of what will be in the best interests of the individual child. The law does not start from a prior assumption about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, depending on the circumstances of the case; see In Re J (Child Returned Abroad: Convention Rights) [2006] 1 AC 80…,.
Religious norms are brought into focus by section 60(3) of the Constitution, which recognises that they should be taken into account by a parent or guardian and be the determinant factor in his or her decision on matters affecting the upbringing of the child according to his or her religious belief. If a religious norm is, by its nature, harmful to the best interests of a child or what it commands the parent or guardian to do in the practice of his or her religious belief is harmful or poses a substantial threat of harm to the best interests of the child, the Constitution mandates intervention by the State, through the courts, for the protection of the best interests of the child.
The interests underlying the rule of law that a parent or guardian has a right to determine the upbringing of the child in his or her custody in accordance with his or her religious belief are those of the child. The rule merits constitutional protection because its purpose, and primary object, is the protection and promotion of the best interests of the child. Like any other human being, every child is unique. The principle is that the activity to which the parent or guardian subjects the child in accordance with his or her religious belief should, on the whole, be conducive to the well-being of the child. Such a matter is of paramount consideration and is not rendered irrelevant by the religious motivation of the parent or guardian.
The approach is based on the personhood and distinct interests of children.
The special protection of the principle of the best interests of the child is guaranteed to all children who are subject to the exercise of the parental right until they have their own opportunity to make life's religious decisions for themselves upon the attainment of the age of reason.
The Convention on the Rights of the Child (1990) establishes a direct relationship between the child and the State. It renders the child visible as a subject of rights, entitled to protection on his or her own behalf. It empowers the State to intervene, when necessary, to protect the rights of the child in recognition that the best interests of children are not always protected by parents or guardians.
(iii) The third guiding principle is that the parent or guardian is under a duty to direct the spiritual development of the child in his or her custody in terms of section 60(3) of the Constitution in a manner that is consistent with the evolving capacities of the child.
Article 14(2) of the Convention on the Rights of the Child (1990) recognises the right and duty of a parent or guardian to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. Article 5 of the Convention on the Rights of the Child (1990) imposes an obligation on the State to respect the responsibilities, rights, and duties of parents or legal guardians “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child” of the rights recognised in the Convention on the Rights of the Child (1990).
The use of the words “appropriate direction and guidance” is clearly intended to set an objective standard by which the decision of the parent or guardian can be measured.
As subjects of rights, children's voices must be heard and given due weight in matters that concern them, in keeping with their evolving capacities. The Special Rapporteur on Freedom of Religion has observed that parents or legal guardians have the right and duty to direct the child in the exercise of his or her freedom of religion or belief. He said “such direction should be given in a manner consistent with the evolving capacities of the child in order to facilitate a more and more active role of the child in exercising his or her freedom of religion or belief thus paying respect to the child as a rights-holder from early on.”
The principle of evolving capacities of the child, by which a parent or guardian is required, by Article 14(2) of the Convention on the Rights of the Child (1990), to be guided when providing appropriate direction and guidance to the child in the exercise of his or her right to freedom of religion was discussed in a document titled “Evolving Capacities” prepared for UNICEF and SAVE THE CHILDREN. The author of the document said:
“The concept of evolving capacities is central to the balance embodied in the Convention between recognising children as active agents in their own lives, entitled to be listened to, respected, and granted increasing autonomy in the exercise of rights, while also being entitled to protection in accordance with their relative immaturity and youth. This concept provides the basis for an appropriate respect for children's agency or their capacity to act and make decisions without exposing them prematurely to the full responsibilities normally associated with adulthood. As children grow up, they have evolving capacities and a growing understanding and maturity.”
The author of the document also states that the concept of evolving capacities recognises that children in different environments and cultures, who are faced with diverse life experiences, will acquire competencies at different ages. Their acquisition of competence will vary according to circumstances. Children, therefore, require varying degrees of protection, participation, and opportunity for autonomous decision-making, in different contexts and across different areas of decision-making.
The words “in a manner consistent with the evolving capacities of the child”, used in Article 14(2) of the Convention on the Rights of the Child (1990), suggest that the degree to which a parent or guardian can influence a child's religious formation is universally proportional to the age of the child. In other words, parents or guardians may be able to bring up the children in their custody in accordance with their own religious faith and practice, but they should gradually grant the children more freedom on religious matters as they mature into adulthood.
Recognition of the agency of children avoids the conflation of the religious freedom of parents and guardians with that of the children.
In summary, the principle underlying section 60(3) of the Constitution is that the responsibility of involving a child in matters of religion and bringing him or her up to be a good citizen lies with the parent or guardian. The State will not interfere with the performance of parental duties in the absence of clear and affirmative evidence of harm or “substantial threat of harm” to the best interests of the child.
The parental right provided for under section 60(3) of the Constitution, and the attendant duties, come to an end when, in terms of section 80(1) of the Constitution, the child attains the age of eighteen years.
When the boy or girl attains the age of eighteen years, he or she becomes an adult and is deemed, at law, to have acquired full capacity for self-autonomy and self-determination as a holder of fundamental rights and freedoms.