adminSharon Hofisi Legal Letters
It is best argued in this article that the regulation of religion must not be done in a manner that ultimately gives another religion some control over another. Even though I read somewhere in a newspaper article that Zimbabwe is a secular republic, I can only argue, in quick note form though, that such a description is a bit foreign to the Constitution.
Perhaps the meaning in that article was attached to a secular description in poetic form to refer to the Constitution as a product of human arguments. Back to the issue of regulation, it is wise to start with the words of some sages. David Hume argues that “there is a perpetual internecine struggle, open and secret, between authority and liberty.”
In that struggle, neither of the two fighting forces listed above “ever absolutely prevail in the contest.” Hume, however, demonstrated that “liberty is the perfection of civil society; but still authority must be acknowledged as essential to its very existence.”
This article is written for the regulators and the regulated. It is a continuation of my article on the general arguments that are currently obtaining on the need to regulate the behaviour of prophets. Set out here are key aspects on how rights, freedoms or liberties are protected or limited by the Constitution and reconciled with regulatory authority.
The churches and State have enjoyed centuries of cordial relations. The Catholic Church in France showed how important religious beliefs were to State administration. Some religions are State religions.
Zimbabwe is a unitary, democratic and sovereign republic. I may start with the preamble for guidance in this think piece. A secular republic is irreligious. Zimbabwe cannot fit in that category if regard is had to the preamble. It describes Zimbabwe as a nation, which “acknowledges the supremacy of Almighty God, in whose hands our future lies.”
Several religions believe in a deity. The deity under deific law is the supreme giver of life and shapes the course of the life of those who subscribe to his beliefs. Divine law has also been used to explain the views of thinkers who believe that rights were naturally given.
Some of the religions that believe in deific law include African Religion, Christianity (to the extent that it can be described as a religion), Islam and other diverse religions. The preamble, as the highest expression of individual sovereignty in Zimbabwe, acknowledges this diversity.
Apart from the acknowledgment of the supremacy of Almighty God, the preamble speaks to us in a manner which “implores the guidance and support of Almighty God” in the making of our Constitution. In this regard, every Zimbabwean must show commitment to the Constitution as the fundamental law of the land.
Further, regard must be had to the founding tenets of democracy that are enshrined in the Constitution. The individual sovereignty that is protected by the Constitution also shows the need for the supremacy of the Almighty God.
The individual sovereigns in the preamble resolved by the tenets of the Constitution to commit themselves to build a united, just and prosperous nation, founded on transparency, equality, freedom, fairness, honesty and the dignity of hard work.
Embedded in this resolve is the need to use the tenets in the Constitution. The important tenets are those values that are enshrined in section 3 of the Constitution. They are regarded as founding values and principles.
They include the supremacy of the Constitution, rule of law, fundamental human rights and freedoms. Most importantly, the founding provisions show that Zimbabwe is also founded on the respect for the nation’s diverse cultural, religious and traditional values.
It is very important that the Grundnorm, or the highest law of the land, starts with a distinction between cultural, religious, and traditional values. The intention of the framers of the Constitution is deliberate. Those three aspects are interwoven, but distinct from each other.
Because the constitutional jurisprudence of Zimbabwe is still in its infancy, it goes without mention that courts of law have not perhaps embarked on interpretations of the provision. Culture gives Zimbabwean laws the human factor content (Ubuntu or hunhu).
Religion gives rules and regulations a deific or natural content (depending on the obvious distinctions between human rationalism and divine revelation). Tradition gives laws the customary touch.
Those who follow certain cultural practices, subscribe to certain religions and venerate certain traditions are free to do so under the constitutional democracy that is envisaged by our Constitution.
The Constitutional values allow Zimbabweans to assert their rights. The Constitution speaks to the need to respect the rights of ethnic, racial, cultural, linguistic and religious groups. The Constitution’s liberal language is important in any arguments on matters such as religious regulation.
An ethnic group is free to observe its rights. A follower of a particular cultural practice has a right to do that. The same obtains for racial, linguistic and religious groups. Religion and traditions are matters of belief. Those who believe do not know with certainty that what they believe in is there. They have a strong conviction that they are right.
Apart from the founding provisions, the national objectives have been used to interpret constitutions. Important in this discussion is the fact that they include the fostering of fundamental rights and freedoms, promotion and preservation of cultural values and practices and ensuring that there is due respect for the dignity of traditional institutions.
With the above in mind, the work of prophets is situated under the Christian religious beliefs. At the basic level, they believe in Christ. Admittedly, they have different doctrinal teachings. Apostolic prophets may use an admixture of ethnic tradition and spiritual biblical beliefs. Pentecostal or charismatic prophets may explain their prophecy in terms of spiritual gifts as explained in I Corinthians or as part of the five-fold ministries identified in Ephesians.
Any regulation process must give due regard to the important distinctions that exist between traditionalists, cultural and religious practitioners. Even arguments on democracy take joy in distinguishing between cultural relativism and other arguments.
Above all, the Constitution protects freedom of conscience. A rights-based approach clearly allows thoughts, opinions, religion, or beliefs. Churches are involved in church planting, evangelism, apostolic works, prophecy and pastoral work.
Their activities fit perfectly under the freedoms protected in section 60 of the Constitution. They can practice, propagate or give expression to their thought, opinion, religion or belief. They cannot be forced to take oaths that are contrary to their beliefs. Most importantly, we have a judge, who decided to take an oath in a manner that appeals to his conscience.
The beauty of protecting religious freedoms include the fact that the State is obliged to protect rights and freedoms. They also bind natural and juristic persons. The courts can interpret violations using a normative framework that is informed by the founding values and national objectives alluded to above.
Of course, it can be argued that rights come with responsibilities and those who ignore this fact do so at their own peril. The Constitution clearly speaks to the need for every right holder to understand that the fundamental rights and freedoms protected under Chapter 4 do not preclude the existence of other rights.
Those rights must however be consistent with the supremacy clause in the Constitution. Equally important is the fact that the Constitution imposes various limitations on human rights. They must be exercised reasonably and with due regard to the rights of others. This is where congregants and the greater public may weigh in and register their concerns on certain religious practices.
The other limitations relate to the nature of the right. Freedom of conscience is accorded to every person. This expression is variegated when regard is made to the diversity of peoples who constitute the Zimbabwean society.
Some rights are given to every Zimbabwean, or every child, people over the age of seventy, every citizen and so on. A right that is framed in a way that allows every person to enjoy it must be considered in the interests of every person.
No wonder why the Constitution pitches the limitations to include “whether there are any less restrictive means of achieving the purpose of the limitation.”
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