Solomonic wisdom needed to settle tiff over God in South Africa’s public schools
The place of religion in South Africa’s public schools is set to come under scrutiny when two groups battle it out in court later this month.
From 15 to 17 May the Gauteng High Court will hear the long awaited case, Organisasie vir Godsdienste-Onderrig en Demokrasie (OGOD) v Laerskool Randhart & Others.
OGOD’s Afrikaans name translates into “Organisation for Religions Education and Democracy” in English. According to its website, OGOD endeavours to promote fact-based education about religions of the world. It also seeks to eradicate religious indoctrination in South African public schools and promote a democratic, secular society based on human rights.
The organisation is taking on six public schools to prohibit them from identifying themselves as Christian and to outlaw their Christian practices. It also wants the court to declare that it’s unconstitutional for “any public school” to commit or permit any religious observance.
The legal basis for the suit is that these schools have breached the National Policy on Religion and Education by conducting religious observances and other religious activities. This, OGOD claims, is unconstitutional as it violates the right to equality and religious freedom. It argues that these schools cannot, for example, teach that non-believers will go to hell. The organisation also insists that pupils cannot be required to pray and sing Christian songs.
According to OGOD’s heads of argument, these schools are targeted specifically because they:
- adopt a single faith approach to religious observances,
- endorse Christianity,
- advertise themselves as Christian, and
- have scripture reading and prayers, among other actions.
It’s interesting to note that most South Africans identify as religious. The bulk of them, 85,6%, are overwhelmingly Christian. Muslims are 2%, Hindus 1% and Jews 0.2%. The rest belong to other faiths.
For their part, the six schools argue that although they are majority Christian, they also accommodate other religions, in keeping with the prescriptions of their school governing bodies.
They counter that the relief sought by OGOD is drastic, and would effectively eliminate religion at all public schools in the country.
South Africa and secularism
This case is extremely complex, with a variety of arguments about the proper place of religion at all public institutions. OGOD’s stated objective to make South Africa a democratic and human rights based society is laudable. But, its claim to be doing so under the auspices of secularism is not uncontroversial.
That is because South Africa is not a strictly secular country. South Africa doesn’t have the similar strict separation between religion and the state as found in the United States, for example. It also doesn’t adhere to strict forms of secularism found in countries such as France where merely wearing a Muslim headscarf sparked controversy.
Yet, the absence of strict secularism doesn’t mean that South Africa is a theocracy. Secularism comes in many forms and has several ideological presuppositions of its own. South Africa adheres to a “soft” form of secularism, to the extent that it has some separation between religion and state. But, this separation also allows for cooperation between the law and religion.
This much has also been made clear in the National Policy on Religion and Education. It’s this very document that OGOD wants to ensure is being implemented correctly. The policy proposes a cooperative relationship between religion and the state. This means that both the principle of separation and the possibility of creative interaction between state and religion are affirmed.
Such a “non-establishment” approach was also recently supported in the case of Christian Education South Africa v Minister of Education. The Constitutional Court declared corporal punishment in schools unconstitutional. Although it found religious motivations could not serve as a justification for corporal punishment in schools, former Constitutional Court Justice Albie Sachs stated:
(religion and religious people) are part of the fabric of public life and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution.
By recognising the need to accommodate both the religious and secular beliefs within the framework of managing a diverse society, section 15 of the constitution doesn’t require a strict separation between state institutions and religious observances. Examples include oaths of public office, the country’s national anthem and interfaith prayers at official funerals.
Section 15(2) of the Constitution allows for religious observances when all the constitutional requirements are met. Such observances must:
- follow rules made by the appropriate public authorities,
- must be conducted on an equitable basis, and
- their attendance must be voluntary.
Religious observances have also been protected by courts where pupils in public schools wanted to wear religious attire.
Promoting a cooperative relationship
South African law and case law clearly protect the right to religious freedom (section 15) and equality (section 9). These are upheld when all religions are treated the same in public schools. In light of the allowance of religious observances under section 15, and the fact that South Africa is not a strictly secular state, religion is allowed in public schools.
On the other hand, public schools cannot claim to be promoting religious freedom on an equal basis if they cater for some religions only, or for the majority religion only. If a school wishes to allow religious observances, it needs to provide the same opportunities for all religions. It also needs to ensure that attendance is voluntary and in line with the constitution.
This court case has the potential to affect the right to religious freedom in public schools and other state institutions. It needs to be decided with the utmost sensitivity to the nature of religion and its importance in the lives of its adherents.
Due regard must also be given to the fact that South Africa is a religiously diverse country. Otherwise, the outcome may have far-reaching discriminatory effects for religious freedom in the future.
Georgia Alida du Plessis, Research Fellow in Public Law, University of the Free State
This article was originally published on The Conversation. Read the original article.