(This document drafted February 14, 2008)

1.  PREAMBLE

1.1    WHEREAS human beings have inherent dignity, and a capacity and need to believe and organise their beliefs in accordance with their foundational documents, tenets of faith or traditions; and

1.2    WHEREAS this capacity and need determine their lives and are worthy of protection; and

1.3    WHEREAS the Constitution provides for the protection of -

• the right to freedom of religion and conscience as an inherent and fundamental right of all people; and
• the right of members of religious communities to practise their religion jointly, and to form, join and maintain religious associations; and
• every person's equality before the law and right to the equal protection and benefit of the law, which includes a prohibition of unfair discrimination on the ground of religion; and

1.4    WHEREAS for the effective protection of these universally recognised rights within the framework of the Constitution it is necessary to describe in more detail the content of these rights, including the conduct and interests protected, and the duties imposed, by it; and

1.5    WHEREAS religious belief embraces all of life, including the state, and the constitutional recognition and protection of the right to freedom of religion is an important mechanism for the equitable regulation of the relationship between the state and religious institutions; and

1.6    WHEREAS religious institutions must enjoy recognition, protection and co-operation in a constitutional state as institutions that function with jurisdictional independence; and

1.7    WHEREAS the state through its governing institutions has the responsibility to govern justly, constructively and impartially in the interest of everybody in society; and

1.8    WHEREAS religious belief may deepen our understanding of culture, democracy, human dignity, equality, freedom, rights and obligations; and

1.9    WHEREAS the recognition and effective protection of the rights of religious communities and institutions will contribute to a spirit of respect and tolerance among the people of South Africa; and

1.10    WHEREAS section 234 of the Constitution provides for the adoption of additional charters of rights that are consistent with the Constitution;

THEREFORE THE FOLLOWING Charter of Religious Rights is hereby proposed for the Republic of South Africa:

1. Every person (where applicable in this Charter "person" includes a religious institution or association) has the right to believe according to their own religious or philosophical convictions, and to choose which faith, worldview, religion, or religious institution to subscribe to, affiliate with or belong to.

2. No person may be forced to believe, what to believe or not to believe, or to act against their will.

• Every person has the right to change their faith, religion, convictions or religious institution, or to form a new religious community or religious institution.
• Every person has the right to have their religious beliefs reasonably accommodated.
• Every person may on the ground of their religious or other convictions refuse to participate or indirectly assist in certain activities, such as of a military or educational nature, or receive certain medical treatment, or perform certain duties or deliver certain sevices, including medical services or procedures.
• Every person has the right not to be subjected to any form of force or indoctrination that may cause the destruction of their religion, beliefs or worldview.

3. Every person has the right to the impartiality and protection of the state in respect of religion.

• The state must create a positive and safe environment for the exercise of religious freedom, but may not as the state promote or unlawfully favour or prejudice a particular faith, religion or conviction, and may not indoctrinate anyone in respect of religion. In planning residential and other areas, the state must set aside land for religious purposes.
• No person may be unfairly discriminated against on the ground of their faith, religion, or religious affiliation.

4. Every person has the right to the private or public, and individual or joint, observance or exercise of their religious beliefs, which may include but are not limited to scripture reading, confession, proclamation, worship, prayer, witness, order, attire, appearance, diet, customs, rituals and pilgrimages.

• Every person has the right to observe religious and other holy days, days of rest, festivals and ceremonies.
• Every person has the right to private access to sacred places and burial sites. Such access, and the preservation of such places and sites, must be regulated within the law and with due recognition of property rights.
• Persons of the same conviction have the right to associate with one another, form, join and maintain religious and other associations, institutions and denominations, organise religious meetings and other collective activities, and establish and maintain places of religious practice, the sanctity of which shall be respected.
• Every person has the right to communicate nationally and internationally with individuals and institutions on religious and other matters, and to travel, visit, meet and enter into relationships or association with them.
• Every person has the right to single-faith religious observances, expression and activities in state or state-aided (in other words, public institutions), as regulated by the relevant institution, and as long as it is conducted on an equitable and free and voluntary basis.

5. Every person, religious community or religious institution has the right to maintain particular matrimonial, family and personal legal traditions. Systems of religious personal, matrimonial and family law that are consistent with the Constitution must be recognised by law.

6. Every person has the right to freedom of expression in respect of religion.

• Every person has the right to make public statements and participate in public debate on religious grounds, and the right to produce, publish and disseminate religious publications and other religious material.
• Every person has the right to share their religious convictions and to attract or convert other persons on a voluntary basis to a particular faith, religion, worldview, or religious institution.
• Every person has the right to religious dignity, which includes not to be victimised on the ground of their faith, religion, convictions or religious actions. The advocacy of hatred that is based on religion, and that constitutes incitement to imminent violence or to cause harm, is not allowed.

7. Every person has the right to educate their children, or have them educated, in accordance with their religious or philosophical convictions, and may also expect the school to assist in doing so. Parental consent is required in all matters pertaining to religion in school, and parents may withdraw their children from school activities or programs inconsistent with their religious convictions, as long as it is in the interest of the child.

8. Every person has the right on a voluntary basis to receive and provide religious education, training and instruction. The state may subsidise such education, training and instruction.

9. Every religious institution has the right to institutional freedom of religion.

• Every religious institution has the jurisdictional independence to determine its own confessions, doctrines and ordinances, decide for itself in all matters regarding its doctrines and ordinances, and regulate its own internal affairs, including organisational structures and procedures, the appointment, conditions of employment and dismissal of office-bearers and volunteers, and membership requirements. The confidentiality of the internal affairs and communications of a religious institution must be respected.
• Every religious institution is recognised and protected as an institution that functions with jurisdictional independence, and towards which the state, through its governing institutions, has the responsibility to govern justly, constructively and impartially in the interest of everybody in society.
• The state must respect the jurisdictional independence of every religious institution, and may not regulate matters of doctrine and ordinances, or prescribe in this regard to any religious institution. This includes that the courts do not deliver judgment in matters of doctrine or ordinances.
• Every religious institution subjects itself to the law of the land, and must justify its independent action, or civil dissent, on the basis of its religious convictions or doctrines.

10. Every religious institution as a juristic person has the right to participate in legal matters, for example by concluding contracts, acquiring, maintaining and disposal of property, and access to the courts. The state may offer equitable tax and other benefits to religious institutions.

11. Every person has the right for religious purposes and in furthering their objectives, to solicit, receive, manage, allocate and spend voluntary financial and other forms of support and contributions. The confidentiality of such support and contributions must be respected.

12. Every person has the right on religious or other grounds, and in accordance with their ethos, to conduct relief, upliftment, social justice, developmental, charity and welfare work in the community, establish, maintain and contribute to charity and welfare associations, and solicit, manage, distribute and spend funds for this purpose.

This Charter gives effect to the religious rights that are guaranteed in the Constitution. The Charter is not construed to restrict the rights in the Constitution and must be interpreted to promote the role of religion and conscience in South Africa. In the interpretation of any law, the courts must take into account the beliefs and values of all sectors of society, including the religious sector. The Charter has the force of law, and prevails over any law, except the Constitution, that is inconsistent with it.

In order to be valid, any limitation that is imposed on the rights in this Charter of Rights must comply with the requirements of section 36 of the Constitution.