The Intricate Relationship Between Law and Religion in Our Country

Namibia is not only a democratic country, but a secular one too.

Thus, the framers of our Constitution, in sweeping and the widest possible terms, wrote under article 21 that: “All persons shall have the right to freedom to practise any religion and to manifest such practice.”

In other countries, some have argued that the constitutional freedom of religion is effectively about protecting religious beliefs from the competing commands of society or that of the state.

It is, we must now accept, all about that.

The Constitution does not do much to protect society from religion itself – in particular from religion that promotes and practises conduct that is clearly against public policy and that which is plainly criminal in nature.

Therefore, this sweeping constitutional protection of freedom to practise any religion an individual chooses, can only make sense if the framers of our Constitution believed religion is so sacrosanct and so holy that state power and authority must submissively yield to its conscience.

This was surely influenced by longstanding human perceptions of God – that religion must be practised and propagated without interference and, more frighteningly, unquestioningly.

PUZZLING

Michael Stokes Paulsen, an acclaimed writer on the subject, provocatively questions the rationale behind this unyielding constitutional protection of freedom of religion.

He asserts that religious freedom only makes sense as a social and constitutional arrangement on the supposition that God exists (or very likely exists); that God makes claims on the loyalty and conduct of human beings; and that such claims, rightly perceived and understood, are prior and superior to, the claims of any human authority.

Simply put: God’s commands – God’s will, God’s purposes – rightfully trump man’s.

Freedom of religion, understood as a human legal right, is a government’s recognition of the priority and superiority of God’s true commands over anything the state or anyone else requires or forbids.

A belief in and respect for religious autonomy, when considered against the organised laws of the state, makes the whole question of constitutional freedom of religion puzzling.

This is because the constitutional freedom of religion is understood to mean one’s right to entertain any religious belief you choose and that the right to manifest it should be untrammelled by man-made laws as you are observing – faithfully so – your chosen religion.

OBNOXIOUS PRACTICES

The reasonable restrictions to which this freedom could be subjected under article 21 of the Namibian Constitution do not – we know – do much to regulate religious practices particularly those which are obnoxious.

The religion vis-à-vis law relationship is regrettably also complicated by the fact in Africa it is not uncommon to come across reports of pastors instructing congregants to eat grass, insects, snakes or drink a cocktail of toxic liquid.

We are told this is all part of one’s chosen religion.

Moreover, where the government has intervened in the labour sector to set minimum and fair working conditions for all citizens, some believe labour laws should not interfere with the pastoral relationship between the church and its pastors.

In England, for example, it was once said a pastor is called and accepts the call. He does not devote his working life but his whole life to his church and religion.

His duties are defined and his activities are dictated not by contract, but by conscience. He is a servant of God.

If his manner of serving God is unacceptable to the church, it can end his pastorate in accordance with its rules.

The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but a court cannot determine whether a reasonable church would sever the link between pastor and congregation.

THE FALSE AND THE FICTITIOUS

Moreover, the constitutional respect for religion has led to a situation where, for instance, those who choose not to practise religion are made to feel they are coerced to submit to Christian observances when, for instance, it comes to the prohibition of selling liquor on Sundays and religious holidays.

The fact that a substantial section of Namibia’s workforce, notwithstanding much needing to be done in our economy, does not work on Sundays strongly suggests the sabbatical observance of a work holiday on Sundays had a secular and Christian purpose.

Only time will tell before a question arises in Namibian courts whether religious preachings by some church pastors on matters that are clearly fictitious, or patently false, should be accepted as in accordance with the law even when it is clear the preachings amount to fraud.

This is also made difficult by the fact there is a clear pentecostal jealousy within the broader church community .

Some churches regard themselves as superior to others, while some accuse others of fraud particularly when it comes to ‘miracles’ some claim they can perform.

It is only a matter of time before a legal question is asked in Namibia on the necessary contours when it comes to religious freedoms and beliefs.

Sisa Namandje is a legal practitioner of both the Supreme Court and High Court of Namibia and has written six law books.