- The draft charter elevates religious and cultural values without the balancing safeguards found in South Africa’s Constitution.
- South Africa protects tradition while ensuring cultural and religious rights remain subject to the Bill of Rights.
- The proposed charter could weaken established human rights protections for women, children and minority communities across Africa.
Look closely at the Draft African Charter on Family, Sovereignty, and Religious and Cultural Values, and a question sits underneath every article: What happens when “tradition” and a person’s rights do not agree?
South Africa constitutionally protects religion and culture. It is significant because it built something the draft charter never bothered to build: a way to hold both at once, without asking one to swallow the other.
Two different starting points
Section 15 of South Africa’s Constitution protects freedom of conscience, religion, belief and opinion. It also makes room for religious observance in public institutions and for marriages solemnised under religious or customary law. Section 31 goes further, protecting the right of people in cultural, religious and linguistic communities to practise that identity together and organise around it.
The difference appears the moment those rights collide with something else in the Bill of Rights. Section 31(2) is explicit: these protections cannot be exercised in a way that conflicts with the rest of the Bill of Rights.
Section 36, the Limitation Clause, explains how rights, including cultural and religious rights, may be limited only through a law of general application and only to the extent that the limitation is reasonable and justifiable in a society founded on dignity, equality and freedom.
Religious and cultural life in South Africa is real, protected and taken seriously. It is also never treated as a trump card. It exists within a constitutional structure designed to balance competing rights.
The draft charter has no such structure, and this is not merely a South African objection. The Institute for Strategic Litigation in Africa (ISLA), in its legal analysis of the draft, reaches the same conclusion. The binding African Charter on Human and Peoples’ Rights contains its own limitation clause requiring rights to be exercised with due regard for the rights of others, collective security, morality and the common interest.
ISLA finds that Article 5 of the draft charter contains no proportionality test and no requirement that cultural or religious practice comply with human rights standards. Instead, courts and human rights bodies are instructed to protect “religious and cultural values” while rejecting “gender ideology” and supposedly foreign human rights concepts deemed incompatible with African custom.
This is not a milder version of South Africa’s constitutional model. It is a fundamentally different one. One system balances competing claims; the other names a winner before the debate begins.
Whose religion, exactly?
Article 1 defines religious values as rooted in Christianity, Islam and African traditional religions. That is considerably narrower than South Africa’s lived religious landscape, which includes Hindu, Buddhist, Jewish, Baha’i and Rastafari communities, alongside a growing number of people who identify with no religion.
This framing essentialises culture, privileges dominant traditions and removes any requirement that cultural practice meet human rights standards. It homogenises traditions that, in reality, contain diverse views on family, sexuality and gender.
South Africa’s institutional response to plurality is the CRL Rights Commission, established to protect cultural, religious and linguistic communities through equality and non-discrimination, not by elevating one tradition above another.
A charter that names only three faiths as the moral foundation of African values struggles to fit comfortably within a constitutional order deliberately designed to avoid religious preference.
Tradition already has a seat at the table
One assumption running through the draft charter is that protecting tradition and protecting rights are inherently in tension, forcing countries to choose between them. South Africa’s Constitution disproves that assumption institutionally.
Chapter 12 formally recognises traditional leadership under customary law, while legislation gives traditional and Khoi-San leaders meaningful advisory roles within governance structures.
Traditional leadership is not fighting for legitimacy against a hostile constitutional order. It functions as a recognised part of democratic governance while remaining subject to the Constitution. That is precisely why the Constitutional Court could strike down the customary rule of male primogeniture in Bhe v Magistrate, Khayelitsha without dismantling customary law itself.
South Africa demonstrates that genuine respect for tradition and meaningful protection for people within traditional structures can exist simultaneously. The draft charter wrongly presents them as mutually exclusive.
When family autonomy meets an actual person inside the family
The clearest illustration of what is truly at stake comes from Women’s Legal Centre Trust v President of the Republic of South Africa (2022).
For decades, Muslim marriages performed under Sharia had no recognition under South African marriage and divorce law unless they were also registered as civil marriages. In practice, this left many wives, particularly those in polygynous marriages, without legal claims to maintenance or marital property when relationships ended.
The Constitutional Court found that the legal failure was unconstitutional because it violated equality, dignity, children’s rights and access to justice. Parliament was ordered to remedy the defect.
The direction of that judgment matters. The court did not defer to family autonomy or treat religious family life as beyond state scrutiny. Instead, it identified the people most vulnerable within the family structure and extended constitutional protection to them.
The draft charter adopts the opposite theory. Article 1 defines a family-centred approach as one that strengthens, rather than replaces, internal family authority, while Article 5 protects family autonomy as a value in itself.
ISLA concludes that this concept is unknown to established human rights law and risks functioning as a veto against rights-protective legislation. Applied to a case like Women’s Legal Centre Trust, it would encourage precisely the non-intervention that left Muslim wives without legal protection for decades.
The same pattern appears in Article 4, which directs states to identify and nullify instruments promoting sexual and reproductive rights. ISLA argues that this provision directly targets the Maputo Protocol’s protections for survivors of rape, incest and life-threatening pregnancies. South Africa ratified the protocol in 2005, and its Choice on Termination of Pregnancy Act already provides broader protection than the protocol requires.
Ubuntu, read two ways
This is perhaps the most revealing contrast. The draft charter and South African constitutional law invoke the same African philosophy while reaching profoundly different conclusions.
The draft charter uses Ubuntu to reinforce family authority, communal control and intergenerational obligation. South Africa’s Constitutional Court invoked Ubuntu in S v Makwanyane to abolish the death penalty and expand the meaning of human dignity.
Justice Pius Langa described Ubuntu as recognising that another person’s life is worth at least as much as one’s own, while Justice Tholie Madala connected it to reconciliation rather than retribution.
ISLA independently reaches the same conclusion: the draft charter reverses Ubuntu’s established constitutional role by using it to justify subordinating individual rights to collective authority.
Across South African jurisprudence, Ubuntu has consistently strengthened dignity, equality and care. The draft charter employs the same concept to achieve the opposite outcome.
Where the charter says its own ideas come from
One of ISLA’s sharpest observations concerns Article 24, titled Sources of Inspiration. The draft cites the Entebbe Declaration, inter-parliamentary communiqués and the Geneva Consensus Declaration as its intellectual foundation.
None constitutes a recognised source of international law under Article 38 of the Statute of the International Court of Justice.
The Geneva Consensus Declaration, in particular, emerged from a 2020 United States initiative aimed at challenging reproductive rights in international forums rather than from any African Union process.
Perhaps more revealing is what the draft omits. It does not ground itself in binding African Union treaties, African Commission resolutions or African Court jurisprudence. For a document claiming to defend African values against foreign influence, its own references point outward instead of inward.
Where this leaves us
South Africa never had to choose between protecting religious and cultural life and protecting individual rights. Its Constitution deliberately protects both through carefully balanced constitutional principles rather than permanent hierarchy.
Traditional leadership is constitutionally recognised. Religious marriages receive legal protection, and where that protection proved inadequate, the courts intervened. Ubuntu continues to shape constitutional reasoning in ways that expand, rather than diminish, human dignity.
The wider concern identified by ISLA is that family protection can become a vehicle for excluding families that do not conform, while religious and cultural values become a veto against individual rights. Courts and human rights institutions risk losing independence when those values are elevated above constitutional safeguards.
The draft charter does not engage with South Africa’s constitutional alternative or with the existing continental human rights architecture. It simply assumes the choice between tradition and individual rights must be made and chooses the opposite path.
The Draft African Charter is expected to be presented at the next Family Values Conference in Cape Town in May 2027. South Africa should reject it unequivocally and work with SADC and other African Union member states to prevent its adoption.
The responsibility belongs not only to government but to every citizen committed to protecting the dignity, equality and freedom of people across the continent.
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The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of Conviction.co.za
