Toleration, Religion, Law and Something Else

The last time I put my fingers to my keyboard was almost two months ago. I started, buoyed by naïve enthusiasm to write a three-part blog series on Defending Religion. At that time, hot issues around religion had waxed cold, the only one in distant memory being the National Cathedral. So, in a lot of ways, I was pulling coins out of thin air – seeing problems out of nothing.

I had no idea the hurricane was coming. In less than two months, two Rastafari kids could not go to their school of choice. In our national discourse, we had only eaten bad Tabacco and had spat it out. As we often do. We soon forgot about it. A few weeks back, the question of intra-church exploitation came up. Recently, I heard that a Muslim girl could not fast in a school. I have not written because I have patience. Now now… those are real issues. Should I write about those specific issues? I don’t think so. Maybe some other day. I am going for the jugular today. The reason is simple: these seemingly, intractable issues reveal deeper, material matters.

For many people who have had some bit of legal training, laws are enough. This is a view I have always considered dangerous. Sometimes people come across things that are cultural to an in-group but offensive to others outside that group. It literally offends their sense of justice. So, it must be prohibited – without looking at the human and social cost. This is why many laws which have the intention of changing people’s feelings from a said date have never worked.

Law is not enough, any how. There are other things that matter. For today, the bases of our religious problems.

I start with toleration. Ghana is divided into a majorly Muslim north and a predominantly Christian south. That is one thing we can all agree on. Somehow, we seem to have figured out how to live together in this place called Ghana. We exchange food during Christmas and Eid irrespective of the religious affiliations of our neighbors. In fact, we seem to be loving our neighbors as ourselves.

This could be true until you come across an Afrobarometer Report in which people actually do not like to have neighbors of a different religious affiliation. This contradicts what we feel we have always known: that we have figured diversity and inclusion out already. I just referred to Christmas and the Eid, both Christian and Muslim ‘celebrations’. I did not refer to food being shared between neighbors at say, Homowo. That is where the erasure starts. We have somehow convinced ourselves that these two are the only ones that matter. And that is totally wrong. Thus, when we see someone else who exhibits some ‘otherness’, we are quick to conclude that that is something else, not true religion but a depraved, deadly thing. Something that we must kick out of this place. I don’t blame this cycle of thinking. It seems inherent in religion which seem to posit that each has the exclusive truth that can save mankind from eternal damnation –whatever that may mean. Once I was told, that oppression is a function of power. I did not think much of it then, but I do now. We have gotten to the point where we feel that majority is right. Whoever wields religious power at a certain point and in a certain place should prevail over everyone else. Whatever happened to love your neighbor as yourself? If the last couple of weeks are anything to go by, religious toleration is superficial.

Tolerating one another religiously is not new. Check the open pages of the Krisnaswami Report (more like the scripture of religious freedom). You will find Ashoka, St Thomas Aquinas and the Holy Prophet Mohammed expressly urging their respective adherents to respect others. It is not about live and let live. It is about understanding how the freedom others have to hold and exercise their beliefs ultimately determines to what extent we are free to exercise ours. That is at least a secular reason. More importantly, there is a religious one, found in all faiths, I dare say. It is consent and free will. One cannot be forced either expressly or impliedly to comply with beliefs that contradict the personal. John Locke could never for the life of him, understand how pious people would rather compel others to join their faith by force. Check A Letter Concerning Toleration.

So far, what we have experienced this year is a clash of Christian values - often branded as ‘long standing practices’– and educational rights. Thus, as a side glance, today, I am appealing to your Christian conscience, if you are one. Will you put yourself in the sandals of another? Will you pause for a moment, putting aside your prophets, doctrine and dogma, just to imagine what the other person’s life must be like? And how they would want to be treated?

Anyone who has read Christianity seriously will know how it started. The popularization of Christianity was not in Israel or Palestine or Greece but Rome. The worst persecution happened in Rome. In the early years, Diocletian would have you recant your faith. Diocletian would have your churches destroyed. It was not until Gelerius’ Edict of Serdica and Constantine’s Edict of Milan, passed in 311 AD and 313 AD that the concept of freedom of religious worship became a thing in Rome. It was not until 380 AD that Christianity became the official state religion of Rome.

Throughout history, Christians have cried foul when persecuted only to return the favor when they have been given power. Forget the inquisitions and fix your focus on America. In Europe, the rule at a point was that the religion of the king was the religion of the people. You did not have a choice in the matter. This is one of the reasons America came to be. People were in search of their God. They wanted something that mattered to them. It is not for any reason that the 1st Amendment in America prohibits the establishment of religion or the free exercise of religion. And Americans take their 1st Amendment seriously. It is so important a right that the American people are ready to accommodate people’s religious beliefs where the law would impose heavy burdens on their religious beliefs. Check the Religious Freedom Restoration Act of 1993. Reason why peyote can be used in Native American rituals without the fear of violating anti-drug laws. The concept of accommodation can also be seen in cases of conscientious objections. Where people feel their religious beliefs will be hurt by doing military service, a less burdensome alternative is provided. They are not told: ‘It is a 'long standing practice, others from your faith did it and so will you’.

Toleration and the love of freedom are the bedrock of religious freedom. Take it or leave it. Back at home, maybe we may not have been exposed to such turbulence but when you decide to BUILD a nation-state, you take the minimum content of the draft model you make for yourself, warts and all. We have been unashamed about admitting how influential American and British legal and political systems are. Therefore, when you say citizens have the right to hold a belief and practice that belief, we must mean it, taking the contexts of where that is coming from into consideration. It is not merely a rule. It contains minimum substantive content. This is the first reason why we need to respect religious freedom.

We now have a solid basis to justify religious freedom. What now is the role of law? Over the centuries, religious freedom has come a very long way. It will take hundreds of hours to sketch that history. Rather than split hairs, I would simply sketch major events in the development of this legal framework. In the beginning, was the tumult: the time the two major religions we have in this part of the world sought to gain a foothold. It eventually happened. Then the rule of ‘the king, the law, and the religion’ happened. Then countries began to enter bilateral treaties with one another for the protection of religious minorities, most often their citizens. Not long after, the religious minorities’ treaties started to happen at the League of Nations. The intervening between the League of Nations and the United Nations was the Second World War which so scarred the conscience of the world that the broken pieces of hope had to be collected together and stitched into the Universal Declaration of Human Rights. In there is an elaborate provision on what freedom of religion is. Modern Constitutions have almost always drawn inspiration from this Declaration to provide for human rights. In this, we see the interplay between national and international systems.

Currently, on the international level, religious freedom is at least protected under the Universal Declaration and the International Covenant on Civil and Political Rights. Further interpretative value comes General Comment 22 from the UN Human Rights High Commissioner’s Office. I reproduce just a part of it here:

The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.

Much more than the influence of American and British legal systems, the international framework has brought much influence to bear on our religious freedom laws. As far back as 1969, the Constitution captured the right in similar language as the international legal instruments. It was largely retained in 1979. The 1992 Constitution just has two lines on religious freedom. It says you can hold the belief and you can manifest it. That is all it says. In another place, it says Parliament does not have the power to impose a common program of a religious or political nature. The Constitution as we have it does not say very much about religious freedom. All we can do is make implied deductions about what is or is not a component of religious freedom. The job now rests on the Courts of Law. The Supreme Court has already held in Bomfeh Jnr v Attorney General that it is coercion and discrimination on religious grounds that counts. This was when somebody tried to challenge the building of the national cathedral. That was an opportunity for the Court to establish the kind of institutional configuration our Constitution demands of duty bearers in safeguarding religious freedom. It was not a core religious freedom case properly so-called. It did not test belief and the practice of belief. The Rastafari kids have sued and we have to wait to see what comes out of it.

I think it was not a very good idea to abridge the religious freedom rules in 1992. The 1969 Constitution acknowledged particular problems such as the finding of a solution where religious freedom and educational rights conflicted. Evidently, the problem was not solved as of 1992, neither has it been solved today, 2021. The original rendition ought to have stayed.

International courts and local courts have done a fascinating job at telling us what religious freedom is, giving the right teeth. ‘One is free to believe and not to believe’, the European Court in Strasburg tells us. ‘ The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.’ The Canadian Supreme Court would have us know. A prayer by a Rabbi at a school graduation violates religious freedom, the American Supreme Court has ruled. The development of the right is far advanced and we hope to see what emerges out of the ash of these burning moments.