MALABA
CJ:
INTRODUCTION
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
schoolchildren 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 schoolchildren, 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 schoolchildren.
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
schoolchildren 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 schoolchildren 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 practise 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
schoolchildren, 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 schoolchildren 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 schoolchildren, 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 schoolchildren 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
schoolchildren 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
schoolchildren 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 schoolchildren 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 schoolchildren 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
schoolchildren 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
schoolchild 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 schoolchildren 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
schoolchildren, 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
Subsection
(1) of Section 60: Freedom of Religion
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, at para 94 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 practise, 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 CCZ 10/19 at pp 14-15 of the cyclostyled judgment the
Court commented on the interdependence 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 at para [36] 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 underlining is for
emphasis)
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 at 41-25–
41-26 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 at 41-27 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 misuse of freedom of religion.
In
Bijoe Emmanuel and Ors v State of Kerala and Ors 1986 SCR (3) 518 the
Supreme Court of India at paras 13-14 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.” (the underlining is for emphasis)
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 at 411B-C:
“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.” (the underlining is
for emphasis)
In
United States v Ballard 322 U.S. 78 (1944), the United States Supreme
Court held in this regard at p 87:
“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.” (the
underlining is for emphasis)
In
Re G (Education: Religious Upbringing) [2013] 1 FLR para 27 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 practise 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 at 1208G-1209A:
“…
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 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 CRC expressly provides that parents or guardians have
the primary responsibility for the upbringing and development of the
child.
Article
5 of the CRC 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 CRC emphasises 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 authorises 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 CRC 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)
at p 84, 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 practise his or her own
religious belief are both indispensable.
(ii)
The second guiding principle, as set out in Article 3(1) of the CRC,
provides that in all actions concerning children the best interests
of the child shall be a primary consideration.
Article
18(1) of the CRC 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 paras 37-39.
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
CRC 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 CRC 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 CRC 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 CRC.
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 CRC 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 CRC 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.
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 03 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
characterise 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 U.S.
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
schoolchild, 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
schoolchild 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 emphasised 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
schoolchild 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
the Barnette case supra MURPHY J at 646 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 O.R.
(2d) 641, quoted with approval by the Supreme Court of Canada in S.L.
v Commission Scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235,
the court struck down a regulation under the Education Act, R.S.O.
1980, c. 129, which made the recitation of Christian prayers
compulsory in public schools unless an exemption was granted. The
court at 654 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, interrelated and interdependent. Not only
are certain rights dependent on the realisation of other rights, the
rights of individuals are deeply interconnected 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 schoolchildren 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 schoolchild reciting the pledge. The education
authorities took a position for the schoolchildren 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) at 166.
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 practises 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 schoolchildren
compelled to recite the pledge with the words “Almighty God, in
whose hands our future lies”.
The
applicant's complaint was that forcing schoolchildren 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 schoolchildren who do not hold
the religious belief embraced by the words “Almighty God, in whose
hands our future lies”.
The
coercion on the schoolchildren to say the religious words offends the
religious beliefs of the schoolchildren 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
schoolchildren who belong to religions that espouse belief in the
existence of more than one god. It offends those schoolchildren 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
schoolchildren 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 schoolchildren 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
schoolchildren are, in any case, hardly capable of critically
asserting themselves against their environment. The exposure of the
schoolchildren 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. Schoolchildren 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 U.S. 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 U.S. 1 (1947), found as
follows at p 495:
“We
repeat and again reaffirm 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 at p 684:
“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 Mr Hofisi was that the applicant is proposing a pledge
of allegiance, the formulation and execution of which respects the
religions and religious beliefs of the schoolchildren 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 schoolchildren the virtues of the values of patriotism and the
other ethical precepts embraced by the pledge through its recitation
is protected.
Mr
Uriri did not challenge the premise of the proposition on which Mr
Hofisi built and advanced the applicant's case. The reason is that
Mr Hofisi'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.
Mr
Hofisi'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 …”. (the underlining is for emphasis)
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) at p155 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 at pp495F-496A:
“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 at para 49:
“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 at p216 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 S.C.R. 640 at pp
650-51.
In
McKinney v University of Guelph, 1990 CanLII 60 (SCC), [1990] 3
S.C.R. 229, the Supreme Court of Canada per WILSON J remarked as
follows at p386:
“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.”
(the underlining is for emphasis)
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 authorises 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;
reaffirming 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, p 714–738 (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
supra 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 emphasised 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 at para 31 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) at p 913H-914A 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 it 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 S.C.C. 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 at p 59C-D:
“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 U.S. 11
(1905), while delivering the opinion of the court, held as follows at
p 22:
“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.” (the underlining is for
emphasis)
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
schoolchildren the values of patriotism, national identity, honesty
and hard work can be achieved without infringement of the right to
freedom of religion of the schoolchildren 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.”
GWAUNZA
DCJ: I concur
GARWE
JCC: I concur
GOWORA
JCC: I concur
HLATSHWAYO
JCC: I concur
GUVAVA
JCC: I concur
MAVANGIRA
JCC: I concur
BHUNU
JCC: I concur
UCHENA
JCC: I concur
Zimbabwe
Lawyers for Human Rights, applicant's legal practitioners
Civil
Division of the Attorney-General's Office, respondents' legal
practitioners
