Rosalind I.j. Hackett, Regulating Religious Freedom in Africa

• Citation: Vol. 25 No. 2
• Publication year: 2010
• topic: Constitutional Law,Family Law

REGULATING RELIGIOUS FREEDOM IN AFRICA

Rosalind I.J. Hackett*

INTRODUCTION

Claims by states that they respect the fundamental right to religious freedom of their citizens may appear misleading when one looks at the evidence.1 States are capitalizing on the distinction made in international human rights documents between internal beliefs and the external realm or manifestation of those beliefs.2 So while the right to hold a particular belief is generally considered to be absolute, outward manifestations of religion may be subject to legitimate restrictions. Yet the question of state-imposed restraints

on the right to practice one’s religion is beset with a whole set of problems and ambiguities. As Winnifred Sullivan has shown in the U.S. context, the “seeming unanimity at the most general level” over government neutrality toward religion “conceals profound differences with respect to the actual legal regulation of religion.”3

Moreover, the general question of when and how governments may legitimately limit manifestations of religion and belief is described by

1. Jeremy Gunn as “one of the most complicated and poorly understood areas of international human rights.”4 Under international law, any limitation must

   
   

   * Professor of Religious Studies, University of Tennessee. I am grateful to Professors James T.

   Richardson, Abdullahi Ahmed An-Na’im, and T. Jeremy Gunn for their comments on and support of my work. Professor Ndiva Kofele-Kale also contributed valuable suggestions.

   1. Many of these violations, in Europe and beyond, are tracked by Human Rights Without Frontiers and

      the Center for the Study of New Religions. See HRWF, http://www.hrwf.net (last visited Aug. 26, 2011); CENTER FOR STUDY NEW RELIGIONS, http://www.cesnur.org (last visited Aug. 26, 2011). For annual country- by-country reports, see U.S. DEP’T OF STATE ANN. REP. ON INT’L RELIGIOUS FREEDOM, available at http://www.state.gov/g/drl/rls/irf (2010) [hereinafter U.S. STATE DEP’T REP.].

   2. While the preferred language is “freedom of religion or belief,” reflecting the inclusion of all belief

      systems (theistic, non-theistic, and atheistic), I am using here “religious freedom” as my working terminology. This eliminates confusion regarding the distinctions I am making between “belief” and “practice.” It also reflects the prevailing usage in my main area of research and discussion here, namely Africa.

   3. Winnifred Fallers Sullivan, Neutralizing Religion or What Is the Opposite of “Faith-Based?,” 41 HIST.

      RELIGIONS 369, 372 (2002).

   4. Jeremy Gunn, Report of Working Session 2: Restrictions on the Activities of Religious and Belief Communities: What is Permissible in Law and Practice?, in SEMINAR ON FREEDOM OF RELIGION OR BELIEF IN

      THE OSCE REGION: CHALLENGES TO LAW AND PRACTICE 41 (Chantal Grotens & Bahia Tahzib-Lie eds., 2001).

      be “prescribed by law,” and must be pursuant to one of five purposes: protection of public safety, order, health or morals,5 or the fundamental rights and freedoms of others; and finally, the limitations must be necessary in a democratic society. They must be narrowly construed and proportionate to the harm that a government might wish to prevent.6

      
      

      Carolyn Evans, in her study of freedom of religion and belief under the European Convention on Human Rights, argues that “the relatively liberal approach taken by the [European Court of Human Rights] and [European Commission on Human Rights] to the definition of religion or belief is subtly

      undermined at the manifestation stage.”7 Moreover, she claims that

      nontraditional forms of practice receive little protection from the court and commission because the latter uses tests to determine what is necessary to a religion that favor the dominant (Christian) culture.8

      
      

      James T. Richardson, in his 2004 book, Regulating Religion: Case Studies from Around the Globe,9 and entities such as the U.S. State Department’s Office of International Religious Freedom and the U.S. Commission on International Religious Freedom are among the individuals and organizations

      that have highlighted regulation and recognition of religion and religious practices as factors central to the changing patterns of coexistence both between religions and between religions and the state.10 Similar findings emerged from the important Seminar on Freedom of Religion and Belief in the OSCE Region: Challenges to Law and Practice, convened by the Dutch Foreign Ministry in The Hague in June 2001 (“the Hague Seminar”).11 In focusing on the problem areas of restrictions on the activities of religious and

      belief communities, namely their recognition and registration, two areas of noncompliance by some European governments with international and OSCE standards were highlighted in the discussions.12 The first involves discriminatory treatment of nonconventional or unpopular religious groups

      
      

   5. European Convention for the Protection of Human Rights and Fundamental Freedoms art. 9(2), Nov. 4, 1950, 213 U.N.T.S. 221.

   6. Gunn, supra note 4, at 42.

   7. CAROLYN EVANS, FREEDOM OF RELIGION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

      132 (2001).

   8. Id. Though Evans notes the problems of determining legitimate limitations on religious freedom in the abstract, she does seek to extract some general principles from European case law. Id. at 134.

   9. JAMES T. RICHARDSON, REGULATING RELIGION: CASE STUDIES FROM AROUND THE GLOBE (2004).

   10. Id.; see also W. Cole Durham, Jr., Recognizing Religious Communities in Law, 5 REV. FAITH & INT’L AFF. 27, 27–40 (2007).

   11. Gunn, supra note 4, at 41. OSCE is the Organization for Security and Cooperation in Europe.

12 Id. at 42–43.

because of fears of growing multiculturalism, and the second surrounds the manipulation of meanings regarding the dissemination of one’s religion, or proselytism.13 The salience of these particular areas of concern for the African context will receive further discussion in the case studies below.

Africa is generally absent from this attention to the emergence of new possibilities of misusing or reducing the constitutionally guaranteed freedom of religion and belief by governments or by non-state actors, such as religious groups.14 This is in spite of efforts by international organizations to expose religious (mainly Christian) persecution.15 Yet there have been a number of contemporary legal and other developments affecting the status of minority religious groups in many African states.16 These new or proposed limitations generally pertain to fears of untrammeled religious growth and religious extremism.17 Increasingly, they relate to debates over religious norms and family law. These debates have assumed greater public significance as religious communities struggle with—and at times fight over—not only their identities in religiously competitive public spheres, but also their very survival in the context of weakened states.18

In this Essay, using a wide-ranging set of examples, I wish to provide some background on the emergent discussion on limitations on religious freedom in Africa, especially how these relate to the current debates on family law that are the subject of this Symposium. My general objectives are (1) to consider the legitimate and illegitimate ways in which African state and non-state actors

1. Id. at 43. Disfavored groups might be accused of “indoctrination,” “mental manipulation,” “improper inducement,” or “fraud” while more favored groups might be left alone. In other words, the groups are regulated based less on their actual manifestations, and more on how familiar or accepted they are to the regulators. Id.

2. One notable recent exception is Symposium, The Foundations and Future of Law, Religion, and

   Human Rights in Africa, 8 AFR. HUM. RTS. L.J. 337 (2008). See also Lourens Du Plessis, Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law, 12 POTCHEFSTROOM ELECTRONIC L.J. 10 (2009).

3. These groups include the Hudson Institute’s Center for Religious Freedom, Compass Direct News

   Service, the American Anti-Slavery Group, and the International Religious Liberty Association.

4. See Rosalind I.J. Hackett, Prophets, “False Prophets,” and the African State: Emergent Issues of Religious Freedom and Conflict, in NEW RELIGIOUS MOVEMENTS IN THE TWENTY-FIRST CENTURY 151 (Philip

   C. Lucas & Thomas Robbins eds., 2004) [hereinafter False Prophets]; Rosalind I.J. Hackett, Millennial and Apocalyptic Movements in Africa, in OXFORD HANDBOOK OF MILLENNIALISM 616 (Catherine Wessinger ed., 2011).

5. Francophone West African states are more restrictive in terms of Pentecostal church growth. Matthews

   A. Ojo, Pentecostal and Charismatic Movements in Modern Africa, in A COMPANION TO AFRICAN RELIGIONS (Elias Bongma ed., forthcoming 2012).

6. See M. Christian Green, Religion, Family Law, and Recognition of Identity in Nigeria, infra this issue,

   for a discussion of the imbrications of religious identity and conflict in the Nigerian case.

   seek to regulate religious practice; (2) to examine how particular religious groups may be disproportionately affected by these measures; (3) to demonstrate how interference with manifestations of religion often leads to abuses of related rights and freedoms (e.g. women’s and ethnic minorities’ rights, and rights of political participation, expression, and association); (4) to broaden and update the concept of religious practice; and (5) to consider how the African examples of restrictions on and regulation of religious practice challenge Western assumptions about the nature of religion as an essentially private and internal affair. Using two East African examples, I then provide more specific discussion of how attempts to introduce domestic relations bills and Sharia law reflect these changing entanglements of religion and state in neoliberal Africa. Part I provides some background on pertinent religious and legal developments in Africa. Part II examines the dialectics of regulation and recognition of religious freedom in select contexts. Part III discusses other types of restriction, such...