Browsing by Author "Lenaghan, Patricia Michelle"

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    Restoring the ‘historical deficit’: The exercise of the right to freedom of religion and culture in democratic South Africa
    (Taylor & Francis, 2013) Lenaghan, Patricia Michelle
    On 18 January 1960, LIFE magazine began a series of articles on democracy around the world. The newly independent nation of Ghana (1957) was featured in Part 1 and the cover photograph was of Augustus Molade Akiwumi, the Speaker of the House in Ghana, dressed in British-style wig and robes. The title of the feature article read, ‘Ghana’s Leap from Stone Age to Eager New Nationhood’. The feature explains that in Ghana ‘Courts are being built, and in lower courts the temporary local judges are being replaced with more qualified appointees to settle local disputes and initiate the people in the mechanics of Western justice’. However in stark contrast to the portrayal of pre-colonial Ghana as ‘Stone Age’ the Asanti peoples of Ghana developed a complex, hierarchical society and legal system centuries before Europeans ever arrived on the continent. In critical reflection of the magazine cover, this article is founded on demonstrating how the colonial, post-colonial, apartheid and post-apartheid state have through an oppressive stance suppressed indigenous religious and cultural diversity. In addition, it is asserted that the current constitutional arrangements have not at all times effectively dealt with this subjugation. It is presupposed that unless a positive approach towards religious and cultural integrity is displayed and an environment is created in which these rights to freedom of religion and culture may prosper, the constitutional endeavour of establishing unity and solidarity in our diverse society will remain elusive. In conclusion, some approaches to enhancing this constitutional endeavour are proffered.
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    The right to freedom of religion in the public domain in South Africa
    (University of the Western Cape, 2010) Lenaghan, Patricia Michelle; Sachs, Albie; Gallinetti, Jacqueline; NULL
    Within the context of South Africa‘s diverging religious, cultural and social backgrounds, new questions on the nature of a multicultural society are raised from the perspective of human rights. The universality and indivisibility of human rights are challenged by this diversity and consequently implies that standards, concepts and structures for implementation have to be reconsidered. International and national standards are being (re)interpreted and attention is not only focused on the contents of the norms but on the limitations imposed thereupon. The debate on whether limits should be set in permitting or accommodating cultural or religious pluralism is becoming extremely relevant. The manner in which these questions are responded to is even more prominent in the light of our history of apartheid which has disregarded respect for religious and cultural diversity. In the scope of this research emphasis will be placed on the right to freedom of religion and in particular the limitation of the right to religion in an attempt to balance conflicting rights and accommodates religious diversity. The right to freedom of religion albeit constitutionally entrenched is subject to reasonable and justifiable limitations. However, no clear guidelines have been formulated on the criteria for limiting the right to freedom of religion. The main aim of this research is to find guiding criteria to facilitate the imposition of limitations on the right to freedom of religion. The limitations of the right to freedom of religion are interrelated with the following research questions: Firstly, the definition afforded to the right to freedom of religion in accordance with national and international standards; secondly, the relationship between culture and religion and any interconnection that exists between these rights. This is followed by the influence of the particular value framework or normative commitments f the judiciary on the interpretation of the right to religion, as well as the relationship between the state and religion. The above issues will be researched both on a national and an international level. The aim is to conduct research that will build on an appreciation of the guidelines that should be employed in ensuring the protection of the right to freedom of religion. To this end comparisons will be drawn with other legal systems, which on the one hand acknowledge the protection of the right to freedom of religion and on the other hand have to find ways in which the right can be balanced in the event of conflict. It is envisaged that the research of the criteria imposed on the limitation of the right to religion both on a national and an international level will assist in suggesting criteria that will influence scholarly debate on the topic. In addition that this debate will allow for the formulation of a transformative approach within the South African context that sanctions the celebration of diversity in all its aspects and in particular the right to freedom of religion.