Chief Justice Mogoeng’s freedom of speech could cost lives – a terrifying and yet not surprising final act
On Thursday and Friday, Chief Justice Mogoeng Mogoeng made comments about religion, God and vaccines. This has led to a heated, multipronged and nationwide discussion about the role of religion within the law, and whether it is right, or appropriate, for someone in his position to make such comments.
While there are some in our society who may be surprised that he has made such statements, in fact, he was always likely to end up in a controversy on these issues. And, like so many in our society at this moment, he is now basing his actions on the more important aspects of his personal identity, rather than his identity as the chief justice of the Republic of South Africa.
On Thursday, Chief Justice Mogoeng, speaking at Tembisa Hospital in Ekurhuleni, said:
“If there be any vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire in the name of Jesus.”
Then on Friday, he spoke again, saying:
“I don’t care about the consequences. We’ve been quiet for far too long, toeing the line. I’m not going to toe any line and it doesn’t matter how many people criticise me. When I believe that I need to address this issue, I’m going to do it.”
He also said:
“I don’t know anything about vaccines. I saw something that says it must be compulsory and you will need to have a vaccination certificate to travel. It must be voluntary. You can’t impose a vaccine on people. Why should I have the vaccine if I am not positive?”
Well. Where does one start in discussing the many issues and live wires CJ Mogoeng’s tripped in his exertions?
The first may be around the right to freedom of speech. Justice Mogoeng appears to believe that he has a right to express himself, and that his position should not be a hindrance to this. However, he himself has written, in his judgment involving Robert McBride’s defamation case against The Citizen:
“Freedom of expression is a right to be exercised with due deference to, among others, the pursuit of national unity and reconciliation…”
“The right to free expression must be balanced against the individual’s right to human dignity.”
It could be argued that this right must also be balanced against the potential harm that the comments cause, and whether they have a basis on scientific fact (in the case of vaccines during a pandemic).
His claim that some vaccines might be “666” cannot be based on scientific fact. He himself admits he has no understanding of vaccines. His comments may reasonably be construed to lead to harm, particularly in a context in which it is currently illegal, during the State of National Disaster, to spread falsehoods about the virus.
When it comes to his position, it may be important to ask what would have happened if he were speaking in his personal capacity. If that was the case, he would not have been invited to speak and pray at the hospital on Thursday in the first place. Consequently, he cannot divorce his own personal views from his position as chief justice when speaking on a public platform. It is insincere to accept an invite as chief justice and then proceed to play a role of private individual.
CJ Mogoeng also suggests that he is not concerned about the opinions of others, that he does not worry about the “media” or the “usual analysts”.
Apart from the cheap and quick attack on the media, why preach then if he is not concerned about others’ opinions? And why preach in public? If he is not worried about the opinions of others, then why state his opinion in public? Normally, the point of speaking in public is to either inform people of something, or to change the opinions of the people listening. If the opinions of others do not matter to him, then why do it in the first place, Sir?
Then there is the issue of vaccines, science and religion.
It is very likely that the biggest global issue of 2021 will be the availability of vaccines for Covid-19. Already, in many places, there is a growing movement of people who believe, without a shred of evidence, that vaccines are harmful. This is perhaps the most dangerous idea to grip large parts of the world since racism.
The evidence that properly formulated and tested vaccines work is immense. Life expectancy has grown around the world. As one scientific paper, published by the World Health Organisation, notes in its title, “Vaccination greatly reduces disease, disability, death and inequity worldwide”. To over-simply, life before vaccines compared with life now was often nasty, brutish and decidedly short.
To then claim in public that some vaccines may be “evil” or the “666” is just dangerous. It has already led to claims on Twitter about vaccines and race.
It is at least as dangerous as claiming that HIV/Aids can be cured by having a balanced diet of garlic and African potato (it cannot, but taking ARVs allows people living with HIV to live long, healthy lives). After the introduction of ARVs in South Africa, life expectancy jumped by nearly 10 years.
Certainly occupying the position of chief justice must come with the responsibility of knowing what the possible consequences of one’s comments could be. If one cannot be sure what one will say while praying, don’t pray in public. If one cannot reasonably predict one’s comments in public, don’t speak in public.
It would also appear the question of whether it is appropriate for a person occupying the position of chief justice to speak about religion in this way is likely to lead to heated debates in a country that does not need more fire right now.
Perhaps one way of considering this question is to ask what the consequences would be in a hypothetical example that does not involve politics or religion.
CJ Mogoeng was not under any particular pressure, he was not asked to put his reputation at stake for any scientific, or unscientific, position. And still he chose to make these comments which may lose him the respect of many in South Africa.
This may suggest that, in some ways, this is such a defining part of his identity, that he couldn’t see any other way than to express his position loudly and clearly.
It then may be important to attempt to explain his behaviour since he was nominated to the position by then president Jacob Zuma. While it is not possible to know anything for sure without actually having been in extremely close contact with the chief justice over the past decade it may be possible to examine certain aspects of his behaviour through his public actions.
In 2011 he was nominated by Zuma to the position of chief justice. He was seen as a relatively junior member of the Constitutional Court, having served as the judge president of North West for a decade before arriving at the court in 2008. As the person running the courts in Mahikeng, he had only been in charge of six courtrooms. And yet Zuma decided to overlook the then Deputy Chief Justice Dikgang Moseneke, whose track record before becoming a judge, and then as a judge, was seen by many as second to none. And yet Zuma, for his own reasons, picked Justice Mogoeng.
This led to a huge outcry.
Then he was interviewed by the Judicial Service Commission. In that meeting he was asked a question by the then IFP MP Koos van der Merwe: “Do you believe God wants you to be chief justice?” It was the key moment in the hearing.
In the end, the answer was “I think so”. Later, after taking the oath and occupying his position, he appeared to back away from any comments.
At one point, in 2014, he was asked whether he would protect the rights of gay and lesbian people, considering his religious views. His answer could not have been more dogmatic, “It’s my responsibility to ensure that every gay person, every lesbian person, enjoys their rights as protected under the Bill of Rights. There’s no question about that.”
For those who believed his religious views would trump his loyalty to the Constitution, this felt as if they had nothing to fear.
Then, a year later in 2015, Zuma invited then Sudanese leader Omar al-Bashir to be a part of an African Union event in Johannesburg. Under our obligations to the International Criminal Court (ICC), our government had an obligation to arrest Omar on allegations of genocide. A court order was issued to the effect that the government could not allow him to leave the country and that he must be arrested under the treaty we had signed as part of the ICC.
Instead, Zuma allowed Omar to leave the country.
This then meant that Zuma, as president, had defied the courts.
Justice Mogoeng was now in a complicated political position: He was the leader of a constituency – the judges of the country. They would look to him for leadership in an exceptional situation. At the same time, if he failed to act there might have been a risk that they would instead look to the deputy chief justice.
His response was to hold an unprecedented meeting of the Heads of Courts (the Supreme Court of Appeal, the labour court and the provincial courts) at a hotel at OR Tambo International. The representatives of lawyers’ associations, such as the Law Society, the Black Lawyers’ Association and the National Association of Democratic Lawyers, were there too. So was Deputy Chief Justice Moseneke.
At this meeting, all the judges agreed, together, that the chief justice would approach Zuma for a meeting about this issue.
This may be seen by some as Justice Mogoeng being in a position where he had to be seen to lead the judiciary. Otherwise, they would have looked elsewhere for leadership.
Then came Nkandla.
After a long argument around whether or not the remedial action of a Public Protector was binding, the Economic Freedom Fighters led a court action arguing that Zuma had to implement Thuli Madonsela’s findings on the money spent by the government (over R200-million) on Nkandla.
And the chief justice may have seen an opportunity to show that he could lead the judiciary. It must have been he who decided that the court’s unanimous Nkandla judgment would be delivered by him, in full. The theatre of the chief justice delivering, in full voice, a judgment that Zuma had failed to uphold the Constitution and his oath was incredibly powerful.
It led to Zuma having to make an address to the nation in which he still singularly failed to properly apologise.
For many, this was proof that the chief justice was fully independent, a man who spoke truth to power, a person prepared to take on Zuma when our institutions were under threat.
But this did not mean that himself, the man, Mogoeng Thomas Reetsang Mogoeng, had changed.
Now, as others have done, without the figure of Zuma to oppose, he is going back to what you might call his primary identity, presumably that of a Christian with strong beliefs.
And, with just 10 months of his term to go, he is now prepared to speak his mind.
One of the points Justice Mogoeng makes is that he is speaking of his faith and that no one can stop him from doing that. But actually, it may be that in fact, he is making political points that he cannot make personally, he may be speaking politically, through his faith. This makes it difficult to argue against him. But if he were to speak about corruption in the way in which he has without speaking through his faith there might be many politicians and people in positions of power who would publicly criticise him. It may be the speaking through his faith which is protecting him from this.
The chief justice makes much of his faith and says that he is speaking motivated by his beliefs. That is clearly so.
But, in a pandemic, with thousands of new cases of Covid-19 daily, as the United States has lost more people than it did in World War 2, as societies around the world re-enter lockdowns, as our nation is once more gripped by fear, as our continent fears more waves of death, the chief justice is questioning the one thing that could save us: a safe and effective vaccine.
Perhaps the question he should answer is this: Never mind the religion, Sir. Is your behaviour not immoral, after all? DM