When the Judicial Service Commission hearings on Judge Mogoeng Mogoeng were being held, I expressed significant doubts regarding his suitability for the role of Chief Justice. Among my concerns were his views on homosexuality, his reasoning in certain judgments related to sexual assault, and of course, his religious views and whether they would impact on his rulings.
In September of 2011, I was one of those to express concerns regarding Mogoeng Mogoeng’s suitability for the position of Chief Justice. At the time, I noted that “there is a distinct danger that he would be unable to separate his faith from his duties as a jurist”, and also remarked on how his appointment would occur in a context of apparent tolerance for homophobia on the part of the President himself, as well as in the appointment of someone like Jon Qwelane as ambassador to Uganda.
However, there has been no reason (that I’m aware of, at least) to fear that the worst has in fact come to pass. Morally conservative he may be, and also homophobic, but I’ve seen nothing to indicate that Mogoeng has been anything other than the loyal servant of the Constitution that he swore to be when appointed.
Originally published in Daily Maverick.
While lacking the high-profile support and marketing opportunities that Primedia and others lent to the Bill of Responsibilities, there’s another document doing the rounds that is even more wrong-headed – if such a thing is at all possible. It’s called the “South African Charter of Religious Rights and Freedoms”, and according to one of its drafters, Rassie Malherbe, is intended to “flesh out the right to freedom of religion in the Constitution”.
This fleshing-out is apparently required due to the fact that “constitutional rights are described in cryptic, vague and general terms” (pdf). Sections 9, 15, 31, 185 and 186 seem fairly clear to me, and when read in conjunction with sections 10 and 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act, it’s quite difficult to understand how religious belief could be better protected.
Of course, I’m assuming that religious beliefs should be treated as merely one form of belief competing with others on the ostensibly level playing-field provided by an impartial state. As matters stand, I’m already a candidate for appearing before the Equality Court for communicating words “that could reasonably be construed to demonstrate a clear intention to be hurtful” when speaking of religion.
Churches already enjoy preferential treatment from the taxman, while non-theistic organisations do not. The religious voice carries a disproportionate weight in debates around whether TopTV can screen pornography. On a more trivial note, for those who suffer from unpredictable thirsts for alcohol or who struggle to plan ahead, moral standards set by religion dictate the terms of liquor licences. One could go on, but the upshot of these facts is that many claims for religion requiring more protection are tenuous at best.
More worryingly, these sorts of charters have a history of allowing for discrimination against the non-religious, rather than simply proving equal protection for all. The UN resolutions on “Combating Defamation of Religions” that have made regular (and sometimes successful) appearances before various UN commissions and councils bear notable similarity to blasphemy laws such as those enforced in Ireland.
Under such laws it’s not only the case that you can (somehow) defame an idea or ideology rather than a person, but you can also go to jail for doing so. Presumably, the South African Charter would hope for such a future also. One of its clauses (6.4) states: “Every person has the right to religious dignity, which includes not to be victimised, ridiculed or slandered on the ground of their faith, religion, convictions or religious activities. No person may advocate hatred that is based on religion, and that constitutes incitement to violence or to cause physical harm.”
While the second sentence of the clause quoted above might be controversial for some, it’s nevertheless already entrenched in the Bill of Rights and Equality Act. So the Charter adds no protection by repeating it, assuming the Charter becomes law as intended by its drafters. But to demand protection from victimisation or ridicule is surely a step too far, especially when read in conjunction with something like 2.2: “Every person has the right to have their convictions reasonably accommodated”.
If reasonable accommodation comes to mean immunity from criticism – which it certainly could, with a broad notion like “victimisation” being very much an eye-of-the-beholder sort of thing – it would only be the religious that truly enjoy the rights to freedom of thought and expression afforded to us in the Bill of Rights. Those who want to express negative sentiment with regard to religion (and other categories like culture, which are also included) are of course not victimised as a result of having these protections withheld.
It goes further, as these things often tend to. On the grounds of religious belief, you can refuse to deliver “certain services, including medical or related (including pharmaceutical) services or procedures” (2.3b). And “no person may be subjected to any form of force or indoctrination that may destroy, change or compromise their religion, beliefs or worldview” (2.5) – but the same would of course not apply to that kid in the classroom who has doubts that women were magicked into existence from the rib of a man.
Furthermore, the state, including the judiciary, must “respect the authority of every religious institution over its own affairs” (9.3), and parents “may withdraw their children from school activities or programs inconsistent with their religious or philosophical convictions” (7.1). For a document that’s drafted partly in response to constitutional rights that are allegedly “cryptic, vague and general”, you’d hope for some more specificity in this charter. There is little to none of that, and I’ve only highlighted six of the thirteen clauses that are obviously problematic.
At the launch of this charter in October 2010, Deputy Chief Justice Dikgang Moseneke stopped short of endorsing it, saying that it might one day be a matter before the Constitutional Court. He nevertheless welcomed the initiative, and it seems likely that our new Chief Justice would be similarly inclined. As yet, though, there’s been little progress, and the charter has yet to be presented to even a parliamentary committee. But there are signs of life – a January article in Beeld spoke of it in positive terms, and callers to Radio Sonder Grense later that month seemed particularly enthused.
Perhaps most troubling, last week the Commonwealth Advisory Bureau issued an invitation for applications to write a paper on the right to religious freedom and belief in Commonwealth countries, in order to inform the proposed Commonwealth Charter. In this invitation, the South African charter is highlighted as an example of best practice. So even if it never reaches our parliament, there’s now a chance that other parts of the world will have the sensibilities of Malherbe and others imposed on them.
There’s no question that we need to tolerate diverse and dissenting views, and I’m sympathetic to the reality of many religious people feeling persecuted or victimised for their beliefs. Some instances of such victimisation are clearly unjust and immoral – but they are also usually already illegal and not meriting further legislation. This is part of the point of a broadly secular set of laws: that once we start creating special protections for one interest group, we have no principle by which to refuse doing so for all others.
Instead, ideas compete on their merits within a framework that attempts to give everyone an equal chance to air their views. Charters like this one hark back to a world in which a default privilege was afforded to the dominant view, and where that dominant view was a religious one. While that view is still dominant in this country as in many others, that dominance results at least in part from peoples choices and their freedom to make those choices. Let’s not entertain the nonsense that this freedom is threatened to such an extent that it can – or needs to – be protected through granting one view the sorts of protections all others lack.
Apologies for the silence here – I didn’t get around to writing a column for the Daily Maverick this week, and also haven’t blogged, mosly because it’s quite difficult to do these things when bloody agents have entered your home – twice in the space of two weeks – and taken all your stuff.
There’s a lovely hashtag that you’ll often encounter on Twitter – #middleclassproblems – and this is certainly one of them. It’s a middle (and upper, or course) problem to have stuff worth stealing, and also to have a public platform to use in order to complain about it. So far, though, it’s only been stuff, and stuff can be replaced. People can’t (well, individual people – people in general are sadly far too easily replaced). So yes, it could have been far worse.
But it’s nevertheless rather annoying, especially due to the time lost. Time waiting for people to install more security, time taken to replace my passport (including the time waiting for that damn baby, whose parents were in the queue ahead of me, to keep her eyes open for the photograph), and now, the time lost due to not being able to do proper work without a laptop at home.
And worst of all, for me, is that for the first time, I would seriously consider devoting resources to getting out of here, into somewhere in the 1st world. It’s a difficult thing to say, or to discuss, but at some point one simply gets tired of the uncertainty, of the waiting to become a victim.
The problem is that poverty and desperation don’t know who you are. You can be as committed to social equality as you like, and have spend X hours trying to help built this country into what it could be – and it could all be for naught. And I can’t blame the housebreakers for that – if I was in their situation, I might well be resorting to the same choices.
And this is because choice, or choices, can be quite an alien concept if you’re living hand-to-mouth. It’s a middle class problem to even be able to talk about choices, and that’s a genuinely sad thing.
To add to the sadness, it’s difficult to escape the feeling that South Africa is on some sort of precipice. Not the Night of the Long Knives sort of thing, as someone hyperventilated on a friend’s Facebook wall, but one involving a significant shift away from the liberal and democratic values the post-94 South Africa is rightly proud of.
The Malema hearings, the Mogoeng confirmation (or hopefully not), and the vote on the POI Bill are all pretty big deals, and depending on how they go, could give rise to legitimate pessimism about our immediate future.
I’ll say more about Mogoeng next week in the Daily Maverick, but in the meanwhile, please don’t rest, or depend on others to sort these problems out. Civil society retains a significant voice, but far too often, we stand on the sidelines and wait to protest decisions already made. Sometimes you can see them coming, and the time to raise your voice is now.