RECENT pronouncements by the Judge President Mogoeng Mogoeng to the effect that South Africa’s constitution needs a Christian makeover, unleashed a storm of commentary from online media. The Christian Democratic Party who don’t even have a seat in parliament were quick to thank him for his kind words in their favour.

That the country has problems giving effect to constitutional guarantees of the separation of powers and religious freedom is clear. Having experienced an 8-year-long legal battle in which my rights to a secular Jewish identity as a journalist have been denied by the Labour Court, I can certainly testify to the many problems faced by South Africans in the aftermath of apartheid theocracy. Secularism is not, as many people commonly hold, the absence of religion, but rather the “principle of the separation of government institutions and persons mandated to represent the state from religious institutions and religious dignitaries.”

“One manifestation of secularism is asserting the right to be free from religious rule and teachings, or, in a state declared to be neutral on matters of belief, from the imposition by government of religion or religious practices upon its people.” One may quote the coiner of the term, George Holyoake in this regard. “Secularism is a series of principles intended for the guidance of those who find Theology indefinite, or inadequate, or deem it unreliable.”(1)

Will constitutionalism prevail now that the bases are loaded in favour of Christianity?

Although the far right appears to have lost support during the past election, with some notable exits from parliament amongst Islamic-orientated parties, and a decrease in support for the ACDP, the problematic conflation of Church and State remains.

Interestingly enough, our Judge President starts by quoting Thomas Jefferson, no problems there, (Holyoake who is also the coiner of the term “jingoism” would most certainly have agreed with Jefferson) but then he proceeds to quote Lord Denning on the impossibility of there being “morality without religion”, and it is sadly all downhill, surely it is enough to believe in the golden rule of reciprocity that is common to all religions and philosophies? One need not even possess a religion in order to possess ethics. Science itself is not based upon any religious creed. The no-harm principle common to medical practitioners is worth raising in this regard.

Aside from the obvious inferences one may draw from current debates on legal positivism and the scientific method and its effects on the development of law, (or lack thereof) and the post-positivist assumptions of Karl Popper, the judge president appears totally lost in obscurantist Roman Scripture and the Christian conception of the State as some kind of evocation of God’s Will as per St Augustus (aka Augustine of Hippo).

One juicy piece from his address: “”Our safety and well-being as nations equally depends on the realisation and acceptance of the fact, that just as God the Father, God the Son and God the Holy Spirit are co-equal Personalities of the Trinity, so should the Executive, Legislative and Judicial Arms of the State be co-equal partners in the governance of any democratic country. ”

Dangerous stuff for secularists, it would have been better if Mogoeng had simple remained silent and inert, or rather if he had plucked up some courage and embarked upon the clear-headed path of delineating exactly what pluralism and secularism means for the nation’s founders, this in the run-up to the 20th anniversary of the 1995-1996 constitutional assembly, the one which was tasked with drafting our nation’s Bill of Rights and which delivered an emancipatory civil rights-based document sans the need to possess religion or religious rule. Instead we end up with a moral canard against everyone who is not a Christian, or at least, not a co-religionist, this despite the rather glib and feeble attempt in his introduction to distance himself from the invariable ruminations of his own liturgy-filled address — one would hazard to pronounce on the problematic introduction of Medieval logic, but there it goes, see the bench’s recent attempts to rebut criticism and the ensuing fall-out.

The Stellenbosch address is thus a sad and sorry peon to cater to current legal dilemmas faced by the judiciary — instead of pronouncing on pluralism within the concept of a Holy Trinity and presumably, the Christian Normative legal system, Mogoeng throws away a sterling opportunity to engage in more appropriate and less divisive discussion on normative pluralism and the common law.

Read Richard Poplak’s piece God Help Us as Mogoeng Moegeng takes the constitution to Church

and a follow-up piece Mogoeng Mogoeng wants God to govern. This time, he’s serious.

Chris Roper’s Christianity is the enemy of Christianity

Ryan Peter’s Thought Leader post Are Today’s Secularists really Secular?

George Devenish, professor emeritus at UKZN who “helped draft the interim constitution in 1993”, I repeat, interim, decries Mogoeng lack of independence, ‘failed to maintain impartiality, independence‘

Vinayak Bhardwaj Religious sentiments can’t be allowed to override our Constitution

Zama Ndlovu Mogoeng’s point is best left to others to debate

Pierre de Vos The law vs. religion: Let’s try that again

(1) Principles of Secularism, George Holyoake

Here is another choice quote from Holyoake: “”A Secularist guides himself by maxims of Positivism, seeking to discern what is in Nature — what ought to be in morals — selecting the affirmative in exposition, concerning himself with the real, the right, and the constructive. Positive principles are principles which are provable.”

Tag: Jimmy Dludlu