CONCERN AS CHIEF JUSTICE URGES INCLUDING RELIGION IN SA LAW

News that South Africa’s Constitutional Court Chief Justice Mogoeng Mogoeng has called for religion to be brought into the law should be concerning to all South Africans, but especially the LGBT community.

According to SABC News, Mogoeng made the disturbing statement at the second Annual African Law and Religion conference at the University of Stellenbosch.

The controversial judge reportedly stated that high levels of maladministration, crime and corruption in South Africa could be tackled through a more religious approach to the law.

“The lackadaisical attitude of many government functionaries in the execution of their duties, price fixing and fronting included, would in my view be effectively turned around significantly if religion were to be factored into the law making process,” said Mogoeng.

While we have not been able to source his full speech or comments, it is deeply troubling that the head of the country’s Constitutional Court might believe that it would be appropriate to introduce religion into our legal system, undermining the very foundations of the Constitution and of modern democratic values.

Mogoeng is a lay pastor in the Winner’s Chapel International church, a Nigerian based Christian church that believes that homosexuality is a disease that can be cured. His appointment to the position of Chief Justice by President Zuma in 2011 was fraught with controversy after civil society and LGBTI groups condemned his nomination.

It was pointed out that his past judgements suggested a conservative stance towards LGBTI equality and women’s rights. In one case, Mogoeng disagreed with a majority decision by his fellow judges that there is nothing wrong with being gay or lesbian and thus being described as gay is not grounds for defamation.

During public Judicial Services Commission interviews on his suitability as a candidate, Mogoeng denied that he was homophobic.

“I would like to rebut any suggestion that I am insensitive to gender-based violence, that I am homophobic, that I have little or no regard for judicial ethics and that I do not subscribe to freedom of expression,” Mogoeng said at the time.

He further insisted that he is “mindful of the fact that our Constitution was not meant to benefit Christians to the exclusion of all other people who either belong to other faiths or do not subscribe to any religion at all”.

His latest comments, however, suggest that those statements may not reflect his true views and were made for the benefit of placating opposition to his nomination and facilitating his appointment by Zuma. It also suggests that civil society groups and other critics may well have been right about his unsuitability for his position.

UPDATE

I have watched the Chief Justice’s full speech and remain convinced that his views are incompatible with a modern constitutional democracy. He clearly states that: “I believe that we can only become a better people if religion could be allowed to influence the laws that govern our family lives, starting with the Constitution of any country.”

He goes on, for example, to call for the law to discourage “adultery, fornication, separation and divorce” to enhance “family and marital activity and stability” as this would help “curb the murders that follow from adultery, help us reduce the number of broken families and the consequent lost and bitter generation that seems to be on the rise.”

Do we really want laws to once again dictate what happens in our bedrooms and in our relationships? It is an extreme version of this position that today still sees adulterous women being stoned to death in some Islamic communities. Many have fought to see these kinds of morally prescriptive laws removed from our statute books. Mogoeng now wishes to reintroduce them.

Mogoeng’s conflation of religion (especially “Christian Biblical principles”) and basic universal morality and his unwillingness to distinguish between the two is troubling. It is this confusion that leads many to believe that without religion society would invariable collapse into moral chaos. In fact, history is replete with examples that show that when religion is allowed to rise, it is often morality that suffers.

While Mogoeng briefly mentions the fear of “the marginalisation of minority groups,” and acknowledges how religion can lead to intolerance, he fails to miss the point: that religion has no role in the making of laws in the 21st century. Our Chief Justice should know this.

Watch Chief Justice Mogoeng Mogoeng’s full speech below.