See, this is exactly the kind of thing that made everyone jittery about the appointment of Mogoeng Mogoeng as Chief Justice of the Constitutional Court in September 2011. He made it clear to the Judicial Service Commission, during his interview process, that he had the Big Man in the Sky on speed dial.
“I am one of those believers who believe that there is God and God does speak,” he told his interlocutors. And now he wants to inject God—or, rather, the version of the Christian God he constantly WhatsApps—into the one thing this country has going for it: the Constitution.
No one believed we would get anything less than what we paid for with Mogoeng: a hyper-conservative Zuma yes-man with a Jesus Jones. He was a furiously rightist judge who displayed a remarkable understanding of sexual miscreants, especially those who tampered with children. In one of his more famous and thoroughly representative rulings, he stated:
“One can safely assume that [the accused] must have been mindful of [the victim’s] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and R30.”*
Processed snack food may not have bought a bad guy leniency in a rape trial, but the judgment provides an interesting insight into Mogoeng’s outlook, and by “interesting” I mean “terrifying”. In ruling after ruling, his judicial mind bent toward whomever is older and male, and in the case of child rape, there really was no contest. Women’s groups were horrified at his appointment, and not only because of the State vs. Mothabe (2001), in which he whittled a two-year prison sentence down to a R4,000 fine for a man who tied his girlfriend to his car and dragged her for 50 metres.
Time and again, Mogoeng tends to favour the power of the state over the power of the state’s handbrake, i.e. the Constitution he was sworn to uphold and protect. But perhaps the most damning blot on his CV is the fact that Jacob Zuma appointed him. In the case of Mogoeng, his fathomless personal lacuna is filled with the teachings of the Pentecostal Winner’s Chapel, a KFC franchise of mega-churches that traces its origins to Lagos, Nigeria, in 1981. Its founder, David O. Oyedepo, is reportedly worth $150 million, making him the richest pastor in a country of rich pastors. (Which is merely to say that Winner’s is a successful outfit with a committed global congregation, most of whom appear to be remarkably generous with their tithes. So far so good.)
Now here I’ll ask you to fill in for yourself all the usual caveats: Jesus = Love, religion ? crazy etc. The issue is not that Mogoeng Mogoeng spends his Sundays lay preaching at Winner’s Chapel, because lay preaching at Winner’s Chapel is a consensual social activity protected under the Constitution. The issue is that Mogoeng Mogoeng wants to use the substance of what he preaches in order to amend, and in his eyes, improve the Constitution. And because there are many of us who may find what is preached inside Winner’s Chapel to be irrational and objectionable, the Constitution dodges the specifics of any one faith by drawing on thousands of years of human thinking in order to set precedent.
Yes, much of that thinking comes from the Judeo-Christian tradition. No, it doesn’t need a spiffy update issued from the bowels of a mega church.
When Mogoeng spoke at Stellenbosch, no one who had followed his remarkable career could claim to be surprised. But there was something disturbing about it all, mostly because the Constitution’s first line of defence made it clear that he had no great admiration for the Constitution in its current iteration. It’s sort of like a docent at the Louvre wielding a set of crayons, while explaining to visitors why the Mona Lisa needs a facelift.
Let us delve into the substance of his recent fulminations. “The critical question that we are called upon to grapple with,” intoned the pastor/Chief Justice, “[is] how the interplay between law and religion could yield a product that is for the common good of all in Africa’s pluralistic societies.”
In South Africa, we’ve answered that question. It’s called the Constitution. He went on to quote Thomas Jefferson—as these type of people do—and reminded us that, “the intersection between religion and the law has been the subject matter of some controversy for many years now.” The only reason it’s been a “subject matter” at all is because hardcore religious conservatives have made it so. For the rest of us, including those who framed the Constitution, there is no controversy. Prayer is prayer. And law is law.
But one does begin to think that Mogoeng may have problems other than his narrow outlook. Try to worm your way through the logic of the following: “Peace, stability, sustainable economic development, good governance and poverty eradication depend largely on the elimination of all factors known to be ordinarily instrumental to their absence.” His circumlocutions are weaponised by a rather unhealthy obsession with sexual morality, which of course doesn’t extend to harsh sentences for child rapists, or those who drag women behind cars:
“If a way could be found to elevate the role of love and the sensible discouragement of divorce, through legal mechanisms, marital and family sanctity, and stability would be enhanced. A legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.”
But there is no way to “elevate the role of love and the sensible discouragement of divorce,” because in a moral society adults are free to behave immorally within the bounds of the law. The key word here is choice. Who is the Chief Justice to insist that South Africans refrain from shagging their neighbour’s spouse because of some religiously mandated edict?
It gets worse. “Theft is the semen that breeds fraud and corruption,” insisted Mogoeng. Perjury, he claimed, “is on all fours with the […] biblical injunction that ‘thou shalt not bear false witness’”.
What does that even mean? And while I’m at it:
“An oath in the Name of God must be taken seriously or else. Law and religion blend so well in this regard. An understanding of the scriptural consequences of making promises and breaking them would help many to live up to their promises. All this can be done to benefit the nation and nations without undermining the rights of those who do not believe in anything.”
Note the or else.
Does Mogoeng Mogoeng want to turn South Africa into a Pentecostal Christian theocracy that adheres to the authority of God, for whom Jacob Zuma currently acts as earthbound proxy? Or is he just ruminating about how it would be nice if we all read the Bible more? Either way, his Stellenbosch address is the noisome result of a pluralistic religious environment in which the Chief Justice is free to espouse his views. He is not free, however, to follow up on them. His job is not to make laws—that’s for our elected representatives. And while the Constitution may indeed require amendments, while it is not a document carved in rock, one thing is certain: it doesn’t need to go to church.
Freedom of religion has encountered very few hiccups in the history of democratic South Africa. Mogoeng Mogoeng warns us otherwise.
“Failure to respect and entrench the culture of religious freedom could result in a climate of intolerance and impunity that emboldens those who ferment hatred and violence within ours societies. This is the best and only way of ensuring the common good of Africans in our pluralistic societies.”
I’m almost sure that the Chief Justice is blind to the bullshit in that statement. The miracle of this country is that we have a document that protects us all under the law equally. It’s the one miracle the man in charge of its sanctity should be thanking his God for.
But there was something even more ominous embedded in this address, in that it fed into the We’ll Govern Until Jesus Comes underpinnings of Jacob Zuma’s ANC, an institution that has been happy in the past to use its own version of religion as a cudgel. Zuma’s ultimate Yes Man was simply espousing the views his appointees knew that he would espouse—a Jesus-first approach to governance; a laissez-faire view of the Constitution, so long as it is tampered with under the cover of some iron-clad religious morality. We should not forget that Mogoeng Mogoeng cut his teeth as a justice during the Apartheid years, and his intellectual home is stuffed with the old Calvinist furniture that belonged to the previous inhabitants.
He knows what religion can do. He knows how it can be used. And while Mogoeng Mogoeng has full right to scribble in the margins of his Bible, he has no right to fiddle with the Constitution. Because if he does, this country is without a prayer. DM
*The original version of this now amended story stated that Chief Justice Mogoeng Mogoeng proved lenient and reduced sentences in several cases of child rape. The full judgment, while still fabulously creepy, makes it clear that there was no reduction in sentencing on the appeal. Here’s an interesting perspective and a very good piece on how the press has failed to properly contextualise the Chief Justice’s judgments.
Graffiti is actually the plural of graffito.