Separation of church and state: Making sense of freedom of religion under lockdown regulations

November 1st, 2020
x
Bookmark

Picture source: Gallo Images/Getty

A central tenet and essential element of the Christian, Jewish and Muslim religion is the ability for believers to assemble, have fellowship and meet. In the Bible (NIV), Hebrews 10:25 specifically commands Christians to ‘not [give] up meeting together’ and references to the importance of the church, fellowship and meeting together are expressed in numerous other verses in the Bible.

The South African Governments’ reaction to the COVID-19 pandemic has challenged religious communities, especially as the regulations completely prevented any form of in-person religious meetings during the Risk Adjusted Strategy Alert Level 5 and 4. During Alert Level 3 and 2, religious meetings were limited to in person gatherings of up to 50 people irrespective of the size of the church. In response, some church leaders voiced their disapproval of the restrictions, some refused to adhere to the regulations (Siviwe Breakfast ‘COVID-19: Court order issued against non-compliant Gauteng church’ (www.thesouthafrican.com, accessed 4-10-2020)) and many religious leaders cancelled in-person services or moved to virtual platforms significantly impacting the essence of the fundamental human right to freedom of religion and assembly (SABC News ‘SACC urges church leaders to comply with COVID-19 restrictions’ (www.sabcnews.com, accessed 4-10-2020)).

This article will discuss the rudiments of this issue in order to determine whether or not the COVID-19 Regulations relating to religious gatherings violates national and international human rights law.

National and international human rights law
  • National human rights law

The right to freedom of religion is enshrined in the Constitution. Section 15 of the Constitution containing the Bill of Rights, affirms that ‘everyone has the right to freedom of conscience, religion, thought, belief and opinion’. Furthermore, s 17 determines that ‘[e]veryone has the right … to assemble …’, thus establishing the right to freedom of assembly.

Sections 15 and 17 should also be read with s 7 of the Constitution, which provides in subs 7(2) that ‘[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights’ placing a positive legal duty on the South African Government to ensure that fundamental human rights are respected, protected, promoted and fulfilled.

  • International human rights law

International law and human rights norms and principles play an increasingly important role in the world today. Countries are no longer free to do as they like in the domestic sphere but are bound by international law.

The Universal Declaration of Human Rights (UDHR) calls on every individual and all states to promote respect for fundamental human rights and freedoms and to ensure their observance (Willem van Aardt State Responsibility For Human Rights Abuses Committed By Non-State Actors Under the Constitution (LLD thesis, NWU, 2004) at 86).

Article 18 of the UDHR specifically determines that ‘[e]veryone has the right to freedom of … religion; this right includes freedom to, … in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’ and art 20 specifically determines that ‘[e]veryone has the right to freedom of peaceful assembly and association’.

Article 2 of the International Covenant on Civil and Political Rights that South Africa (SA) ratified without any reservation on 10 March 1999, further determines that:

‘Each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

  • Limitation of human rights

International human rights law obligates states to prevent, detect, and respond to infectious disease, but also have human rights laws in place to balance individual rights and public health (Benjamin Mason Meier, Hanna E Huffstetler and Roojin Habibi ‘Human Rights Must Be Central to the International Health Regulations’ (www.hhrjournal.org, accessed 4-10-2020)).

As governments exploited emergency declarations as a pretext to stifle fundamental freedoms, there arose a need for guidance to illuminate the legal standards that permit the temporary restriction of human rights in narrowly defined circumstances (Meier, Huffstetler and Habibi (op cit)). The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) provide a legal framework to assess restrictive measures developed in response to national emergencies. The Siracusa Principles make clear that the restriction of human rights in the context of a public emergency should be undertaken only when, such measures are, inter alia

  • responsive to a pressing public need;
  • deemed necessary and proportionate;
  • prescribed by law and not imposed arbitrarily; and
  • applied as a last resort using the least restrictive means available (Meier, Huffstetler and Habibi (op cit) and Alessandra Spadaro ‘COVID-19: Testing the Limits of Human Rights’ (2020) 11.2 European Journal of Risk Regulation 317).

The Siracusa Principles require that limitations be based on –

  • legitimate aim, law, necessity;
  • scientific evidence;
  • least-restrictive alternative;
  • non-discriminatory to any specific group (such as the religious) and arrived at through a participatory; and
  • transparent process.

In particular, restrictions must not disproportionately harm specific groups or discriminate against them (Leonard Rubenstein and Matthew DeCamp ‘Revisiting Restrictions of Rights After COVID-19’ (www.hhrjournal.org, accessed 4-10-2020) and K Moodley, AE Obasa, L London ‘Isolation and quarantine in South Africa during COVID-19: Draconian measures or proportional response?’ www.scielo.org.za, accessed 4-10-2020).

In terms of the Constitution, s 36 (that mirrors many of the Siracusa Principles) if the government wishes to demonstrate that the restriction of the fundamental human right is constitutionally justifiable, s 36(1) requires that the government must answer at least two questions satisfactorily. First, is the restriction taking place in terms of law of general application? Secondly, is the limitation reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –

  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation; and
  • whether there are less restrictive means to achieve the purpose (s 36(1)(a) – (d) and Van Aardt (op cit) at 372 – 379; IM Rautenbach and EFJ Malherbe Constitutional Law 7ed (Durban: LexisNexis 2018) at 314 – 323).
South Africa – regulations infringement on freedom of religion and assembly

The South African National Department of Health has invoked the Disaster Management Act 57 of 2002 and several extraordinary containment measures have been implemented as part of a national lockdown to limit the spread of infection (GN313 GG43096/15-3-2020).

Described by the Centre for Strategic and International Studies as one of the harshest lockdowns in the world, the South African Government has constantly asserted that their response is evidence based and determined by science and data (Judd Devermont and Topaz Mukulu ‘South Africa’s Bold Response to the COVID-19 Pandemic’ (www.csis.org, accessed 4-10-2020)).

With the benefit of hindsight, it has become evident that the South African government’s modelling and data (that comprised models, which predicted up to 351 000 COVID-19-related deaths in SA) were highly speculative, woefully inaccurate and vastly overstated the potential mortality rates (Jamie McKane ‘Data scientists angry over the “perversion of science” used to justify South Africa’s lockdown’ (https://mybroadband.co.za, accessed 4-10-2020)).

During almost all phases of the South African government lockdown regulations to address, prevent and combat the spread of COVID-19 that commenced on 26 March 2020, the essence of the right to freedom of religion and assembly were severely infringed, as can be seen below:

  • Level 5: No in person religious gatherings allowed.
  • Level 4: No in person religious gatherings allowed.
  • Level 3: Only 50 people allowed per service (irrespective of the size of the church facility).
  • Level 2: Only 50 people allowed per service (irrespective of the size of the church facility).
  • Level 1: Only 250 people allowed per indoor service (irrespective of the size of the church facility). (Disaster Management Act: Regulations to address, prevent and combat the spread of Coronavirus COVID-19: Amendment (www.gov.za, accessed 4-10-2020).)

Interestingly at the time of religious freedoms and the right to assembly being severely infringed other activities of people gathering in groups were allowed:

  • Level 5 –

–          food retailers open shop; and

–          mining activity allowed at 50% capacity.

  • Level 4 –

–          food retailers open;

–          open cast mines to 100% capacity;

–          other mines open at 50% capacity; and

–          rail, bus and taxi services permitted up to 100% of capacity.

  • Level 3 –

–          food retailers open with no limit on amount of people in shop;

–          open cast mines to 100% capacity;

–          other mines open at 50% capacity;

–          air, rail, bus and taxi services permitted up to 100% of capacity airplanes allowed to fly at 100% capacity; and

–          casinos allowed to operate at 50% capacity.

  • Level 2 –

–          food retailers open;

–          open cast mines to 100% capacity;

–          other mines open at 50% capacity;

–          air, rail, bus and taxi services permitted up to 100% capacity; and

–          casinos allowed to operate at 50% capacity.

  • Level 1 –

–          food retailers open;

–          all mining at 100% capacity;

–          air, rail, bus and taxi services permitted up to 100% capacity; and

–          casinos and other public venues allowed to operate at 50% capacity (Disaster Management Act: Regulations to address, prevent and combat the spread of Coronavirus COVID-19: Amendment (op cit)).

The pertinent question is whether these restrictions comply with national and international law and whether they were/are, inter alia, strictly necessary and proportionate to the threat, evidence based, and the least restrictive choice and non-discriminatory.

  • Strictly necessary and proportionate response

It is almost impossible to contemplate a credible argument of ‘strict necessity’ and ‘proportionate response’ justifying regulations that infringe on fundamental human rights a disease with a mortality rate of 0,08% and 0,14% (JD Rucker ‘BREAKING: Stanford study shows 50-85 times more people infected by coronavirus’ (www.noqreport.com, accessed 4-10-2020)). According to Epidemic-stats.com (https://epidemic-stats.com, accessed 4-10-2020) 16 938 or 0,0295% South Africans out of a population of 57 224 906 died from the COVID-19 as opposed to the 350 000 deaths predicted in some models. The Actuarial Society of South Africa’s predictive modelling (that they admitted in the model is and was highly speculative and uncertain) showed a difference of approximately 10 000 deaths between intervention and no intervention. Actions that severely impedes the fundamental human rights of 57 224 906 people in order to save 10 000 or 0,0175% of the population is simply not proportionate nor justifiable (Barry Childs ‘DOH Covid modelling symposium’ (www.gov.za, 4-10-2020)).

  • Evidence-based

COVID-19 is not more infectious in a church than it is in a casino and the South African Government has not presented any credible evidence that supports this absurd contention. COVID-19 is also not more infectious in a church than in a mine, grocery shop, airplane, bus or taxi and any contention to the contrary would be ridiculous.

  • Least-restrictive choice and non-discriminatory

Casinos were allowed to operate at 50% capacity during Alert Level 3 and 2, while churches were only allowed to have 50 people in attendance irrespective of the size of the auditorium. A church with an auditorium measuring 2 500m2 would only be allowed to have 50 people in attendance while a casino would be allowed 833 people (2 500m2 ÷ 3m2 (1,5m social distance all around the person) = 833 people that could be accommodated within social distancing and COVID-19 regulations). Under the recently announced Alert Level 1, churches are limited to a maximum of 250 people while other public venues such as casinos are limited to 50% of capacity. It is clear there were less restrictive measures available to be applied to churches and that churches are being discriminated against.

On the face of it and applying the most basic common sense principles the above restrictions do not meet the criteria as set out in the Siracusa Principles and s 36 of the Constitution.

Conclusion

It is my view that the South African Government public health measures in responding to the COVID-19 pandemic have breached and continue to breach national and international human rights law. The South African Government has taken extensive actions that infringe various fundamental human rights, including the right to freedom of religion and assembly based on highly speculative and grossly erroneous models without any credible effort to explain the necessity, science or proportionality of such measures.

The violation of the right to freedom of religion and assembly resulting from the South African government’s response to the COVID-19 pandemic serves as a stark reminder of how easily governments can abuse their legislative powers during a state of emergency. All United Nations Member States must respond to public health threats with the necessary respect of and strict adherence to national and international human rights law and actual credible evidence, as opposed to manipulable hypothetical models, is needed before governments can legitimately impede fundamental human rights (Meier, Huffstetler and Habibi (op cit)).

Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD (NWU) is a Human Rights and Constitutional Law Specialist in Chicago.

This article was first published in De Rebus in 2020 (Nov) DR 23.

X
South African COVID-19 Coronavirus. Access the latest information on: www.sacoronavirus.co.za