Religious Freedoms at Risk in South Africa

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February 2013

INTRODUCTION: A SECULAR HUMANIST CONSTITUTION:

The Western political tradition has generally assumed that in order to be valid, human laws must be grounded in the natural law by which God orders his creation, which is in turn a participation in his eternal Law. This assumption was expressed in the Magna Carta of 1215, a ground-breaking charter guaranteeing certain rights and privileges to the nobles against the king. It was also the foundation of the English common law.

“The law of nature dictated by God Himself…is binding in all countries and at all times,” wrote the great eighteenth-century jurist Sir William Blackstone. “No human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority mediately or immediately, from this original”.

The South African Constitution, whilst containing many positive provisions, guarantees every liberal freedom and so-called right currently being debated in the Western World.  Constitutions of nations such as the United States are being reinterpreted by their judiciaries to allow for abortion and to open the debate surrounding issues such as 'sexual orientation'. But South Africa's Constitution explicitly guarantees all these 'rights'. All legislation passed since 1996 is measured against the secular humanistic values enshrined in the Constitution. South Africans have consequently seen a rising tide of immorality sweep the nation.

The ACDP's stance on the National Constitution is well known we have been vindicated in our opposition to the Constitution, whilst being supportive of the concept of a Constitutional Republic..

Almost on a daily basis Christians are faced with legislation that directly opposes our  Christian ethos. The ACDP has taken the lead in opposing the spread of secular humanism through legislation, some of which is highlighted in this document:

1. THE NATIONAL GAMBLING ACT, 1996 AND THE LOTTERIES ACT, 1997

Status: Acts passed in 1996 and 1997.

The Gambling Act provided for the regulation and co-ordination of casinos, gambling and wagering and provided for an initial 18 licences to be granted country-wide. More recently, the Minister of Social Development has echoed the calls of the ACDP to investigate the detrimental effect that gambling has had on the social fabric of society.

The National Lotteries Act established a national lottery owned and controlled by central government, with the marketing and operation awarded to the private sector.

One of the consequences of these pieces of legislation is that wealth is perceived to be a matter of luck. This conflicts with the Biblical principles of wealth creation.

2. THE FILM AND PUBLICATIONS ACT, 1996

Status: Act passed in 1996.

Notwithstanding that the overwhelming majority of submissions were in favour of retaining or strengthening the laws restricting immoral materials in South Africa, the Films and Publications Act was passed which only reflected the minority views of pornographers who requested that pornography be constitutionally protected.

A wide selection of pornography is now freely available, including child pornography until the amendment to the Act in 1999, considered “bona fide” art, whatever that means.

The Cape Attorney-General expressed his concerns regarding the legislation stating that: “It is impossible to police and will lead to a free-for-all culture of pornography.”

Cheryllyn Dudley who sat on the task team dealing with sexual abuse of children, pointed out that although legislation has been tightened to stamp out child pornography, adult pornography is protected. It is adult pornography that fuels rapists and it is adult pornography which is used by gang members or paedophiles to lure children, placing children in harmful and dangerous situations.

The ACDP therefore continues to call for an amendment to this Act which will restrict adult as well as child pornography.

3. CAPITAL PUNISHMENT AND THE CRIMINAL LAW AMENDMENT ACT 1997:

Status: Act passed in 1997.

Capital punishment was abolished in 1995 following the Constitutional Court's judgement that certain provisions of the Criminal Procedure Act 52 of 1997 that provided for the death penalty, were unconstitutional, in that they breached sections 9 and 10 of the constitution,  pertaining to life and dignity, as well as section 11(2) pertaining to cruel, inhuman and degrading punishment. This finding was reached notwithstanding the Court accepting that the majority of South Africans were in favour of the death penalty.

Thereafter, Parliament passed the Criminal Law Amendment Act 105 of 1997 to allow for the commuting of death sentences to periods of imprisonment.

During parliamentary question time, the Minister of Justice was unable to give the assurance that those criminals who had had their death sentences commuted would not re-offend, should they be granted parole. It should be born in mind that the death penalty was given in only the most heinous of crimes. Many of these criminals will qualify for parole in due course.

Whilst many political parties are now calling for the return of the death penalty, it is significant that the ACDP was the only party in the Justice Committee that voted against the Constitution, as well as against South Africa acceding to a United Nations Protocol that makes it unlawful in terms of international law to reintroduce the death penalty into South Africa.

4. CHOICE OF TERMINATION OF PREGNANCY ACT 1996

Status: Act passed in 1996; further liberal amendments passed by Parliament

This Act made abortion-on-demand in South Africa legal up to and including the twentieth week of pregnancy.  Abortion is permitted thereafter under certain conditions. More than one million legal abortions have been performed in South Africa since then. According to Cheryllyn Dudley ACDP spokesperson on health, this number does not include many abortions recorded as miscarriages due to increased use of the abortion drug. Taxpayers' money is used to fund and promote abortion even though most surveys indicate that the majority of South Africans are opposed to it and alternatives to abortion, like motherhood and adoption, are not a priority.  

Three times as many innocent lives are taken through abortion than are taken by criminals, and while statistics reveal that abortions after 12 weeks account for almost one third of abortions in South Africa, Cheryllyn has reported that hospital staff have revealed that this figure is closer to two thirds (66%) as any reporting that would hinder access to CTOP is omitted. 

Minors do not need their parents' permission to have an abortion; neither does a wife need her husband's permission.  There are penalties of up to 10 years in jail for preventing an abortion. Health professionals are not protected in the Act if they refuse to assist in or perform abortions.

Subsequent challenges to the Act in the courts failed as the unborn child is deemed to be a non-person, and is not the bearer of constitutional rights. The government continues to make more funds available to increase the number of abortions in the country. The Act has been amended to allow greater access to abortion facilities.

5. EDUCATION LAWS AMENDMENT ACT 1999

Status: Act passed in 1999, continually being amended.

At the time that this Bill was passed, ACDP President Kenneth Meshoe said that with this Act that government “behoves it upon itself the sole moral imperative to determine the norms, standards and functions of the educational system.” He said that the legislation minimizes the role and authority of parents, and even the provinces to determine education policy. In the Education laws Amendment Act 2005 provision is made for the department to override recommendations for the appointment of teachers by school governing bodies (SGB'S), and does not require the HOD to give reasons for doing so. This merely compounds an already very worrying trend. Cheryllyn Dudley appealed to government to stop creating continual uncertainty and education which so visibly impacts on all stakeholders and disrupts learning.

Meanwhile, government policies have promoted Outcomes Based Education (OBE) in schools.  OBE has failed dismally and is more directed at shaping students socially than teaching them knowledge.  'Tolerance', the main 'value' taught,  squarely challenges Christian beliefs and basic skills in reading, writing and mathematics have not been adequately transferred.

In 2009, however, the Minister of Education finally admitted that OBE had been a failure. The government is now taking steps to reverse teaching methods back to the traditional methods of ‘chalk and talk’ and text books. The disadvantage of textbooks, however, is that learners will now be tested on what is in the textbook, compared to OBE where, for example Christian government schools could use their own material as long as the right ‘outcome’ was achieved.

Planned Parenthood has won the right to train all South Africa's Life Skills and HIV/AIDS (Sex) Education teachers.  The main message taught is 'condomise' and sexually explicit material is given to adolescent children. 'Alternative' lifestyles such as homosexuality are taught to be acceptable. The right to obtain an abortion, without parental consent, is also taught.

6. SOUTH AFRICAN SCHOOLS ACT 1996

Status: Act passed in 1996.

This Act inter alia prohibited corporal punishment in schools.  Christian Education South Africa subsequently challenged this in the Constitutional Court on the grounds that it curtailed the freedom of schools to educate in line with their religious principles.  The challenge failed, with the result that corporal punishment is banned in all schools. These provisions must be considered with present attempts to ban parental corporal punishment dealt with below under the Children's Bill.

The ACDP fought successfully for the legalisation of home-schooling in South Africa after 1994.  Since then home-schoolers have experienced problems. The South African Schools Act (section 51) specifies that home learners must meet the basic requirements of the curriculum in public schools and standards must not be inferior. 

Other policy announcements regarding religious observances in schools as well as multi-faith religious education remain a serious concern for Christian parents. Learners will be tested on their knowledge and practices of all faiths. It is still uncertain to what degree learners will be expected to have practical knowledge of faiths (i.e. participate in rituals etc.) as opposed to mere cognitive knowledge of the essentials of various faiths.

7. BROADCASTING ACT 1999

Status: Act passed in 1999.

The aim of the Act is to provide for the regulation of the public broadcaster in South Africa.  Before this Act was passed there were attempts to close Christian radio stations by redefining “Community Radio Stations” in the bill to mean a geographical community, rather than a 'community of interest'.  Christians marched in protest, and the proposed amendment was dropped.  However,  the Act has since been used in attempts, some successful, to close Christian radio stations for various reasons.  ACDP members have been assisting some Christian radio stations in the courts.

The Bill was pushed through parliament with every reference to the protection of religion excluded.  This means that the public broadcaster no longer has any legal obligation to show any Christian programming at all. 

8. PREVENTION OF DISCRIMINATION AND PROMOTION OF EQUALITY ACT 2000

Status: Act passed in 2000.

The laudable stated aim of this Act was to prohibit discrimination, including 'hate speech', on the basis of amongst other grounds, race, sexual orientation, religion and pregnancy. Unfortunately, on closer study, the Act redefines the word “marital relationship” to include those in a same-sex relationship and  includes 'termination of pregnancy' in its definition of pregnancy. 

This act prohibits one saying anything “hurtful” or 'discriminatory' against another person's religion. ACDP President Kenneth Meshoe, objecting to the bill said in parliament on 26 January 2000: “(This) Bill is going to directly affect a number of rights enshrined in the Bill of Rights such as the right to freedom of belief, freedom of religion, freedom of association, freedom of speech and freedom of conscience.  The ACDP regards this Bill as one of the worst and most far-reaching interventions by this Government in the regulation of private life…”

The Act explicitly makes provision for special protection on the basis of 'sexual orientation'. At this stage, the foreign homosexual 'partners' of South Africans are recognized as 'married' for the purposes of receiving permanent residence, homosexuals are allowed to adopt children and their 'partners' receive pensions and other benefits from state institutions. 

This act makes it a criminal offence for private individuals and institutions to 'discriminate' against homosexuals by refusing to employ them or give them the same benefits as married couples. They may not be denied membership in any private clubs and institutions. This may include churches, depending on the interpretation given by the special 'Equality Courts' established to adjudicate such matters. It also opened the way for legislation to allow homosexuals to 'marry'.

The ACDP challenged the government to amend the constitution if it is serious about protecting the family unit.

9. FIREARMS CONTROL ACT 2000

Status: Act passed in 2000; amendments passed in September 2003.

The introduction of the Firearms Control Act 2000 restricts the right of law-abiding citizens to obtain firearms to protect themselves and their families from criminals. The Act has been accused of being 'impossible to implement' due to the introduction of excessively stringent requirements for gun-ownership. The focus should be on apprehending criminals who are in illegal possession of firearms, not in harassing legal firearm holders, or preventing those citizens who wish, for a variety of reasons, to possess firearms. At present, there are thousands of firearm owners who have not yet applied to renew their licences and a huge backlog of dismissed applications for licences. Our concerns have been realized that the state does not have the capacity to implement the new legislation.

We are additionally very concerned about the concept of 'gun free' zones, as this leaves only the criminals with firearms in gun-free zones. Shootings at schools emphasises this dilemma, as teachers are not able to protect themselves or other learners.

10. IMMIGRATION ACT 2001

Status: Act passed in 2001.

This Act enshrined the rights of homosexual partners to obtain permanent residence in South Africa, and followed the Constitutional Case which decided that after the words “spouse”, the following words are to be read “or a partner in a permanent same-sex life partnership in which the parties have undertaken reciprocal duties of support.” This was the first time in South Africa's history that a court usurped the function of Parliament by adding words to legislation, and is a prime example of judicial activism that is sweeping the world.

11. JUDICIAL OFFICERS AMENDMENT ACT 2003

Status: Act passed in September 2003.

This legislation, whilst dealing with many positive aspects relating to judicial officers' salary and pension benefits, includes provisions allowing similar provisions for same-sex partners, as well as heterosexual partners, who choose not to get married. This follows the Satchwell Constitutional Court judgement, upholding the constitutional rights of a lesbian judge and her partner not to be discriminated against on grounds of their sexual orientation.

This decision and the consequent legislation strikes at the very heart of family values in South Africa. Besides protecting homosexual partners, it also encourages heterosexual partners not to get married, as they will enjoy the same pension benefits. It is just a matter of time before this principle is extended to all areas of our society, particularly in view of the SA Law Commission's report on domestic partnerships dealt with below.

12. ALTERATION OF SEX DESCRIPTION AND SEX STATUS ACT 2003

Status: Act passed by the National Assembly in September 2003

The aim of the Bill is to provide for the alteration of the sex description of  persons in the National Population Register whose sex organs have been altered by surgical or medical treatment or "by evolvement through natural development resulting in a sex change"- whatever the latter means.

The Bill deals with the actual application process as well as amending the Births and Deaths Registration Act (Act No. 51 of 1992), by inserting a section dealing with alteration of sex description and the issuing of an amended birth certificate to the person concerned.

ACDP spokesperson on justice Steve Swart said that while the ACDP appreciates that the present South African law allows for sex change surgery, he believed that the approach adopted by the English cases and followed in South African courts should be followed.

"The central question in this case was whether it was possible for a person to change their sex (as defined for the purposes of marriage). In deciding that it was not, the South African court employed the "Ormond Test" from the English case of Corbett v Corbett (1971). This test applied a biological and genetic definition of sex. It considered the "chromosomal, gonadal and genital tests" and if all three are congruent, this would determine the person's sex for the purpose of marriage. In other words a person's sex for legal purposes is a wholly biological question and is fixed at birth," Mr Swart said.

“The ACDP can find no fault with this approach as it affirms our viewpoint that we are "fearfully and wonderfully" created by a loving God, and that surgical or medical intervention does not change our sex.”

The ACDP also objected to the inclusion of the phrase "evolvement through natural development resulting in a sex change" as the party rejects the unscientific basis of Darwinism and the evolution theory, and fails to see the need for the inclusion of this phrase when no evidence exists of such occurrences in South Africa.

This is another example of the impact of secular humanism on our legislative process - secular humanism being undergirded by concepts of atheism and evolution.

13. CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT ACT 2007

Status: Act passed by the National Assembly in 2007.

Whilst much of the Amendment Act is to be welcomed in an attempt to protect our women and children from sexual abuse by inter alia extending the definition of rape, the ACDP is extremely concerned regarding the reduction of the age of consent for sexual intercourse from 19 years (as contained in the previous Sexual Offences Act) to 16 years for boys, and in certain circumstances of consensual homosexual or heterosexual sexual experimentation (of a non-penetrative nature), even to further reduce the age for children to between 12 and 16 years.

Whilst not being oblivious to the fact that many children are sexually active, it is utterly outrageous that twelve to sixteen year olds, most of whom will not have reached puberty, should legally be able to give their consent to older chidren who want to exploit them sexually. The age differentials contained in the draft legislation to allow for so-called “sexual experimentation” for children is unacceptable, and can result in a child 12 years and one day consenting to sexual experimentation with a child 15 years and 364 days. The older child will  enjoy complete defence to an indecent assault charge in circumstances where there is an almost 4 years age difference. The three years differential would be a defence where the older child was 18 years old and the victim 15 years.

Minors may not enter binding contracts without parental guidance. It is furthermore illegal to sell liquor or cigarettes to children under the age of 18, as these are deemed harmful to children's health. Surely this minimum should likewise apply to the age that children are allowed to consent to sex, particularly in view of the HIV-AIDS pandemic. Casual sexual relationships nowadays have additional life-threatening consequences.

The ACDP rejects the reduction of the age of consent for sodomy (anal intercourse) from the present statutory age of 19 to 16. There is no doubt that boys need to be protected from homosexual acts during their formative years. The ACDP recommends that the definition of rape be extended to include the rape of males, but that the age of consent for homosexual acts should be 18.

The South African Law Commission conceded in its report (which formed the basis of the draft legislation) that the age limits were set “arbitrarily”. The ACDP has called for a reconsideration of these arbitrary age limits as the implications for our children are inestimable. Teenage years are fraught with emotional conflict as the transition from child to adult is made, and our children need to be protected and guided, rather than encouraged to participate in homosexual and heterosexual sexual experimentation, with possible life-threatening consequences.

It is also significant that the Child Justice Bill recommends that the rebuttable presumption that a child cannot distinguish between right and wrong be maintained at 10 to 14 years of age. Thus certain pieces of legislation presume that a child over the age of twelve can consent to sexual relations, can have an abortion and be given contraceptives without parental consent, whilst the Child Justice Bill presumes that a child between the ages of 10 and 14 cannot tell the difference between right and wrong. The only inference that can be drawn is that the decision on moral issues, such as participating in sexual activities, whether heterosexual or homosexual, is not seen as deciding between right and wrong.

Should the proposed reduction in the age of consent be permitted, an automatic protection of the criminal law would be removed.

Age of consent offences offer the best legal protection for boys and girls from adult abusers. Liberalising the offences will make convicting child sex abusers more difficult.

Predatory men will now be able to claim that their victims consented. If those men are to be convicted their victims will have to prove that they did not consent. Should the age of consent be 18 years, the child victim below 18 years would merely have to prove that the act took place. There would be no dispute regarding consent, as is so often the case facing victims of rape.

OTHER LEGISLATION THAT IS UNDER CONSIDERATION

14. DECRIMINALISATION OF PROSTITUTION:

Status: Law Reform Commission due to make a recommendation to the Minister of Justice, then Bill to be drafted.

The SA Law Reform Commission (SALRC) has issued a discussion paper on the possible decriminalization or legalization of prostitution in South Africa. In 2009, the public had an opportunity to make submissions on this Discussion Paper. These submissions are being reviewed by the SALRC. The SA Revenue Service has also investigated the tax implications of legalization. The ACDP believes that this proposal will cause the further deterioration of family life and the moral fibre of our nation.

15. END OF LIFE BILL

Status: Law Commission Report completed, Bill not yet before Parliament.

South Africa may soon have the most liberal euthanasia laws in the world if the SA Law Commission's recommendations are accepted.  A proposed bill released by the Commission in 1999 proposes the introduction of active voluntary euthanasia by means of a lethal agent.  Anyone suffering of an intractable disease, that is, any physical or mental condition that cannot be cured and is the cause of suffering considered “not reasonable to be endured”, even if the condition is not terminal can commit suicide with the help of a doctor. The Bill proposes that doctors perform euthanasia on their own authority.  It normalizes the practice of ending a patient's life by withdrawing “life-sustaining medical treatment”, which according to the bill includes artificial feeding with or without the patient's consent.  The bill states that “any interested person” can instigate the ending of a life.

16. DOMESTIC PARTNERSHIPS AND HOMOSEXUAL 'MARRIAGE'

Status: Civil Unions Act passed in 2006, domestic partnerships Bill pending.

The Constitutional Court ruled in 2005 that gay couples were capable of and had equal family life to that of heterosexuals. Law Commission researcher Pierre van Wyk said, “We recognize that the Constitution does not discriminate on the basis of orientation which poses the question, why don't we allow same-sex marriages or recognize them?”

The Supreme Court of Appeal (on 30 November 2004) and the Constitutional Court (on 1 December 2005) found that the provisions in the Marriage Act as well as the common law definition of marriage (being between a male and a female) unfairly discriminated against same-sex couples and were thus unconstitutional. The Constitutional Court then referred the matter to Parliament for rectification and a Bill was drafted. The Civil Unions Act was passed in November 2006, giving homosexual “civil unions” equal legal status as marriage.

17. CHILDREN'S ACT 2005 and AMENDMENT ACT 2007

Status: Children’s Act passed in June 2005, Amendment Act passed in November 2007.

This Act followed an extensive process conducted by the SA Law Commission. Whilst there are many positive aspects to this bill, the following are major concerns.

Section 134 made it an offence to refuse to provide condoms to a child. It also provides that contraceptives other than condoms may be provided without the consent of the parent or care-giver of the child under certain conditions.

The Children’s Act has now been passed. Whilst again containing many good elements, we opposed it on the following basis:

Cheryllyn Dudley: "We object, however, to various clauses in the Act which are of great concern.  The Act provides for 12-year-old children to carry the responsibility of consenting to medical treatment and surgical operations including abortion. It also makes provision for 12-year-olds to access contraception without parental consent.  This legislation also confirms the court judgment allowing same-sex partners to adopt children.”

A clause contained in the Children’s Amendment Act abolishing parental corporal punishment (spanking), was dropped after objections to were raised by the ACDP and various pro-family churches and groups. An Amendment Bill, dealing with this issue may come before Parliament in the future.

Such a Bill would totally erode parental authority to discipline their children and follows the abolition of corporal punishment in schools.

POLICY CONSIDERATIONS:

One of the most far-reaching policy decisions of the government has been its unacceptable approach to HIV-AIDS. The failure to provide ante-retroviral treatment to prevent mother-to-child transmissions, is beyond comprehension. It is also inexcusable that rape survivors were not, until fairly recently, provided ante-retrovirals, whilst the rapist would, in terms of various court decisions be entitled to such treatment at state expense.

The government has acceded to the Constitutional Court decision to roll-out ante-retroviral treatment to AIDS patients nation-wide. The preventive campaigns are still focussed on 'condoms', and not behavioural changes in line with Biblical principles of chastity and fidelity to one partner in marriage.

CONCLUSION:

The above is not a conclusive list of all legislation and policy affecting our Christian ethos. Much blame for the liberal rights reflected in the above laws lies with the constitutional interpretation by the Constitutional Court, and the Legislature's rigid adherence to secular humanist values enshrined in the constitution.

According to Gary Demar, State constitutions of the 18th Century give ample evidence of the overwhelmingly Christian view that rights are endowed by the Creator, with a manifest connection between Christianity, moral virtue and national liberty. Today in South Africa, there is much talks about rights, but little talk about duties and responsibilities.

Confusion over human rights as they relate to judicial pronouncements arises from moral and intellectual relativism. If it is assumed that no absolute law exists, then it follows that an individual's rights must be equally relative. The French Declaration of the Rights of Man placed rights in the strong arm of the state. Rights were given by the state and could just as easily be taken away. The bloody French revolution followed.

Contrasted with this is the American Declaration of Independence, of 1776 that “all men are endowed by their Creator with certain inalienable Rights that among these are Life, Liberty, and the pursuit of happiness.”

What secular humanists call rights, such as homosexual rights, lesbian rights, prostitute rights, abortion rights, we Christians consistently call wrongs.

How can we have a moral regeneration in this climate? Today, the battle in South Africa is not physical, but moral. Unless a sufficient number of pro-moral South Africans acknowledge that fact and are willing to do battle on a basis of common moral conviction, we will not be able to meet the challenges facing us, such as the HIV-Aids epidemic, rampant crime and corruption, and extreme poverty.

Our society is in a state of moral decay not because the majority of South Africans love degeneracy, but because secular humanism has exercised more influence on our culture than that of faith-based organizations, such as the church.

 According to Demar, the reason why debate continues over what is right (what is ethical or moral) is that too often no one really understands what is right. In fact, many maintain that to define what is 'right' is to speak in absolute terms, which does not fit the evolving nature of ethics based on evolutionary assumptions. As long as moral relativism prevails, human rights always will be elusive. When a nation moves away from the absolutes of God's law we can expect an immediate substitute to fill the void. Unfortunately, the 'human rights' idea has become the alternative to God's law: it now forms the basis and foundation for all spheres of life.

If pro-moral Christians stand together as fellow South Africans concerned with the preservation of the family and moral decency, we can, with God's help, win this battle as His promise is “If My people who are called by My Name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from Heaven, and will forgive their sin and heal their land.” (2 Chronicles 7:14)

By Steve Swart, MP

Christian Action P.O.Box 23632 Claremont 7735 Cape Town South Africa info@christianaction.org.za - 021-689-4481 - www.christianaction.org.za
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