To place ourselves “in humble submission to Almighty God” or not? This question faced the drafters of the preamble to South Africa’s Constitution during negotiations in the anteroom of its birth. Struggle hero and later Constitutional Court justice Albie Sachs recalls the incident in a memoir as yet another juncture of contentious debate during the negotiations process.
Those in favour of divine invocation argued that, without it, South Africa’s foundational document would lose force for the country’s religious majority. For those against, however, says Sachs, “the idea of opening the most worldly of all documents, the most people-centred, the most human-created, with an invocation of that kind would have been profoundly oppressive”.
The dilemma was resolved in part by Sachs himself. As a member of the Constitution-drafting committee, he proposed that the preamble contain the phrase Nkosi sikelel’iAfrika (God bless Africa) in all of South Africa’s 11 official languages. The proposal was adopted in full.
This was one of many principled compromises on which the Constitution was built. A transformative process that began with Pixley ka Seme’s Bill of Rights in the early 1900s through to the Women’s Charter, the “African claims” document and the Freedom Charter reached culmination in the Bill of Rights we have now.
The Constitution offers an empowering vision of social transformation that protects civil liberties, socioeconomic rights and ultimately even lays the basis for “third generation” rights such as access to a clean environment. As the product of broad public consultation and painstaking compromise, it is rightly among South Africa’s proudest – and hardest-won – achievements.
Against this backdrop, Chief Justice Mogoeng Mogoeng’s recent remarks on morality at a conference on religion and law in Stellenbosch struck a discordant note.
Although his views may (deservedly) attract vehement criticism, the chief justice must be lauded for ignoring the advice of legal academics such as Professor George Devenish, who would rather he keep his strongly held religious views private – purportedly as a way of appearing unbiased and thus upholding confidence in the judiciary. Yet it is by publicising his views, including in a two-hour press conference this week specifically on his speech, and by provoking debate on his religion’s relation to the law that Mogoeng opens himself – and, by extension, the office of the chief justice – to criticism, debate and engagement, which can only strengthen confidence in the judiciary.
Indeed, there is much to criticise in Mogoeng’s remarks.
Despite acknowledging, with some feeling, the importance of religious tolerance and freedom of conscience, Mogoeng believes “we can only become a better people if religion could be allowed to influence the laws that govern our daily lives, starting with the Constitution of any country”.
He sees the malaise afflicting the country, from crime and corruption to price-fixing and fronting, as likely to be vanquished if laws circumscribing them are “infused with religion”. In a telling illustration of his judicial philosophy, Mogoeng approvingly quotes the late British judge Lord Denning: “Without religion there can be no morality; and without morality there can be no law.”
“Religion”, here, and for Mogoeng, means Christianity (though he claims that most religions have a common core). Mogoeng fails, however, to define narrowly a Christian conception of how we ought to conduct our public and private lives as the basis for making laws. He ignores the fundamental tenets of the Constitution, which envisage the state’s role as facilitating an individual to determine and pursue her own conception of the good life, rather than imposing one upon her.
In part, the speech echoes the powerful, 2 000-year-old influence of Christianity on the moral intuitions of Western society. These intuitions, of course, have been instrumental in many aspects of religious individuals’ public life, from charity programmes, including hospitals and schools, to poverty-alleviation efforts.
Central to this version of the good life – as in the ethically correct life – is the notion that moral teachings simply hang in the air if left unanchored by religious belief. Without God, there can be no good. Yet this idea has been repudiated often in a rich and extensive body of scholarship dating back as far as Plato’s dialogues.
Morality cannot be dependent on the will of a god. Though it may be prudent to follow the dictates of a powerful person, including God (indeed, fear of divine wrath is critical to the success of Mogoeng’s prescripts), it does not follow that such obedience is morally obligatory.
This would render morality arbitrary and entirely dependent on the whims of a god. If morality were solely dependent on the will of a god and that god willed brutal mass rapes to be moral, then brutal mass rapes, according to the Denning formulation through Mogoeng, would be moral. And that is repulsive.
It is notable therefore that, when pressed to answer whether religion was essential for morality, Mogoeng emphatically – though not substantively – answered in the negative. “There are many people in the world who are not religious but when examined from all sides you can say ‘this person is good’.”
Although he may develop this point further, on this evidence the chief justice clearly contradicts Lord Denning’s and his own philosophical thinking on the matter.
Even if, as Mogoeng acknowledges, “[religion] cannot be imposed or legislated into the hearts and minds”, the result of “a legal framework that frowns upon adultery, fornication, separation and divorce” would result in precisely that – an imposition. In fact, this proposal is particularly troubling in a country where divorce or separation can provide, for many women, lasting refuge from perilously abusive marriages.
More broadly, Mogoeng’s public pronouncements suggest a disjunction between his religiously inspired judicial philosophy and the incipient jurisprudence of the Constitutional Court itself.
He characterises the doctrine of the separation of powers as one that requires “institutional parity in relation to allocation of resources” and suggests that “co-equal partners in governance … should [not] unduly intrude in the terrain of the other”.
Yet the purpose of the “people-oriented” Constitution, as described by another of its drafters, Kader Asmal, was to “check and balance” the legislative and executive branches of government, “not out of a lack of trust but in order to ensure that the principle of transformation is sustained and that the rights enshrined in the Constitution … are respected by all”.
Separation of powers does not mean that the judiciary should stay out of government’s way; it means, precisely, that it has the power to act as a constraint on any unconstitutional actions of government.
One of the Constitutional Court’s landmark judgments offers a profound rebuke to any proposal to infuse theology into South Africa’s legal framework. Writing for the court in Lesbian & Gay Equality Coalition vs the Minister for Home Affairs, Sachs’s majority judgment says: “It is one thing for the court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views …
“Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.”
Vinayak Bhardwaj is the advocacy co-ordinator for the M&G Centre for Investigative Journalism. He writes in his personal capacity