The dimensional elements of the right to freedom of religion or belief in the South African Constitution – an evaluation in light of relevant core international human rights instruments

Abstract

Current interpretations of the right to freedom of religion or belief (FoRB) in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) make important distinctions between two dimensions of the right – a forum externum and a forum internum.1 This distinction is important since, according to current interpretations, the forum externum can be limited, whereas the forum internum is absolute. In South African human rights law, the protection of the right to freedom of religion or belief is scattered across various sections of the Bill of Rights and as a result, can be limited by the general limitation clause in sec. 36. Contrary to the mentioned international human rights documents, South African law does not consider any fundamental right (or parts thereof) to have an absolute character and aims to strike a balance on the limitation of conflicting rights (with the aim of reconciling them to each other). This distinction is amplified by the judicial interpretation of religious freedom rights and their individual, collective, public, and private manifestations. Consequently, this distinct approach to the codification and limitation of the right to religious freedom raises several important questions in comparison to the current dominant approach taken in the mentioned international human rights documents (where the two dimensions are currently being distinguished, resulting in the mentioned consequences regarding limitation). Most significantly, to what extent does South African law acknowledge the two the limitation of the two dimensions of religious freedom? dimensions of the right? What is the difference in effect of the general limitation clause on the limitation of the two dimensions of religous freedom?