The right to freedom of religion in the public domain in South Africa

Abstract

Within the context of South Africa‘s diverging religious, cultural and social backgrounds, new questions on the nature of a multicultural society are raised from the perspective of human rights. The universality and indivisibility of human rights are challenged by this diversity and consequently implies that standards, concepts and structures for implementation have to be reconsidered. International and national standards are being (re)interpreted and attention is not only focused on the contents of the norms but on the limitations imposed thereupon. The debate on whether limits should be set in permitting or accommodating cultural or religious pluralism is becoming extremely relevant. The manner in which these questions are responded to is even more prominent in the light of our history of apartheid which has disregarded respect for religious and cultural diversity. In the scope of this research emphasis will be placed on the right to freedom of religion and in particular the limitation of the right to religion in an attempt to balance conflicting rights and accommodates religious diversity. The right to freedom of religion albeit constitutionally entrenched is subject to reasonable and justifiable limitations. However, no clear guidelines have been formulated on the criteria for limiting the right to freedom of religion. The main aim of this research is to find guiding criteria to facilitate the imposition of limitations on the right to freedom of religion. The limitations of the right to freedom of religion are interrelated with the following research questions: Firstly, the definition afforded to the right to freedom of religion in accordance with national and international standards; secondly, the relationship between culture and religion and any interconnection that exists between these rights. This is followed by the influence of the particular value framework or normative commitments f the judiciary on the interpretation of the right to religion, as well as the relationship between the state and religion. The above issues will be researched both on a national and an international level. The aim is to conduct research that will build on an appreciation of the guidelines that should be employed in ensuring the protection of the right to freedom of religion. To this end comparisons will be drawn with other legal systems, which on the one hand acknowledge the protection of the right to freedom of religion and on the other hand have to find ways in which the right can be balanced in the event of conflict. It is envisaged that the research of the criteria imposed on the limitation of the right to religion both on a national and an international level will assist in suggesting criteria that will influence scholarly debate on the topic. In addition that this debate will allow for the formulation of a transformative approach within the South African context that sanctions the celebration of diversity in all its aspects and in particular the right to freedom of religion.