The Sunday News
Michael Mhlanga
As we conclude this series which demands the response to: To accommodate or not to accommodate: Can Zimbabwe start the religion regulation conversation now, important nuggets should be pondered on.
This last instalment reflects on last week’s posted legitimacy argument. In summary, I wrote that the argument on State’s illegitimacy to regulate religion survives on the main normative argument for religious accommodation which is based on the idea that religious believers have an inalienable right to pursue salvation according to the dictates of their consciences.
The explicitly religious premise of this argument is that God, or some transcendent authority, has imposed duties on mankind and that fulfilment of those duties takes priority over complying with positive law. To avoid infringing on (the duty to obey God), the State should minimise conflicts between legal and religious duties, which it can do partly by granting exemptions from laws that burden religious practices.
In response to the afore-mentioned argument, first, I submit that the “legitimacy” arguments privileges religious over secular claims which violate a fundamental principle of neutrality, because in singling out religion for special treatment, the Government discriminates impermissibly against non-believers and sends a message that their views have an inferior status in the law. Second, it allows the flourishing of fraud enveloped and protected by theology while the criminal intent and action are no different from any.
That is, does religion have features entitling people who act out of sincere religious belief to receive special dispensation from the State under circumstances in which those who undertake similar actions for non-religious reasons would be punished?
Thirdly, religious freedom whether for an individual or a congregation are not absolute rights hence the State is justified to take away or regulate if the privilege of the right pose social and national insecurity.
Fourth, the laissez faire response to the obtaining religious abuses have provided a dangerous political currency that has created an unfair and unjustified singular religious domination over others sustained and protected by the state. The decolonial attempts are futile when a singular religion that was used as a colonial pavement is adopted and aggressively used in public yet it is the one laden with the acts that warrant regulation. Thus, for example, thinkers like Christopher Eisgruber and Lawrence Sager in 1994 wrote an essay titled: “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct”, asserted that the State is not obliged to accept a religious believer’s judgment about the importance of her religious interests as compared to the legitimate secular interests of the State. In this view, religious values and actions flowing from them should never be privileged over secular ones.
In beginning this conversation we should ask: Should society generally demand conformity and assimilation to liberal norms and policies preferred by the majority, or taking a “live and let live” approach: Should the law allow minority and non-conformist groups and individuals to live their lives and order their communities as they see fit? This question extends well beyond the issue of accommodation of religious practices.
The broader question is one of political philosophy, and political philosophers and others have had a good deal to say about it.
After all, in practical terms, the laws of a diverse democratic State must provide a compromise among individuals and groups with diverse viewpoints in this area. Freedom of religion and the principle of preserving public interest play important roles, when answering questions about the meaning of religion in a State. This development shows the secularisation of the State and constitutional theory. The position and meaning attributed to religion in several States may differ, but, in general, constitutional discourse should address the religious debacle when its progress threaten social, economic and national security as is happening.
Zimbabwe, like the rest of Africa, is experiencing the decline of economic activity and innovation but inversely the rapid growth of religious congregation marred with controversy, crime and drama where most productive time is spent. This warrants the conversation.
When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how?
These questions lie at the very heart of our contemporary debates. Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyse such cases, so the law is inconsistent.
All these are questions that confront all modern liberal societies, and the space for accommodating religious objections to general legal obligations is increasingly contested in contemporary legal, political, and ethical discourse. Unfortunately, there is little consistency in either the politics or the law surrounding such questions. Neither courts nor scholars have offered systematic approaches for resolving these questions in a manner that dignifies the competing underlying values in the debate of religious minorities’ right to practice according to their beliefs versus society’s interest in protecting the vulnerable and in enforcing its rules even-handedly.
Today’s reality, however, presents another picture. First, the secularisation of society unfairly impedes progress of other social cohesions and congregations that purely define our identity and secularisation in Zimbabwe is fast becoming a façade.
Second, the increase in the number of churches is seemingly a growth of one religion, one overtly commercialised and othering others to the extent that economics is better discussed and realised in churches than industry. Nevertheless, religion remains an important factor in the social, cultural, and political domains.
It turns out that religion cannot be reduced to a personal conviction, which has no meaning outside the private sphere, to some kind of a near hobby. With that in mind, let us not forget that every society must choose whether and how to accommodate, celebrate, or undermine religious sub-communities’ distinctive identities and practices within the larger polity.
