A CASE OF UNDERMINING JUDICIAL ETHICS

THE Chief Justice of South Africa, Mogoeng Mogoeng, attracted serious criticism over his comments made in a webinar organised by the Jerusalem Post.

Mogoeng said, among other things, that “The first verse I give is in Psalms 122 verse 6 which says: ‘Pray for the peace of Jerusalem, they shall prosper that love thee”. Also Genesis 12 verses 1 to 3 “says to me as a Christian, if I curse Abraham and Israel the Almighty God will curse me too.

“So, I am under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel. I cannot, as a Christian, do anything other than love and pray for Israel because I know hatred for Israel by me and my nation can only attract unprecedented curses upon our nation”.

Widely and, in my opinion, correctly condemned by political parties, prominent individuals and human rights organisations for his utterances, the criticism was largely based on the evidently apartheid nature of the Israeli state and its gross violation of the human rights of Palestinians which Mogoeng neglected to mention, nor did he reflect critically on the historical relationship between Israel and apartheid South Africa.

The fundamental question however is: can any judge, let alone the Chief Justice of the country, who subscribes to a fundamentalist, literalist interpretation of scripture, as opposed to one who may rely on the underlying civilisational values common to all religions, be impartial in delivering judgment?

Stated differently, can such a judge in an era of human rights and a secular state, underpinned by progressive values embedded in constitutional democracy and international law, be objective and separate his views as a “citizen” from his role as a judge?

The question is especially relevant when a judge’s personal views are founded on an interpretation of apparently relevant texts first written two millennia ago, which ignore 2000 years of subsequent history, including the carnage caused by such debatable texts, and arrives at a conclusion because of the belief that he (and our nation) will be cursed by God.

So to extrapolate further: how will a Christian judge, a Muslim judge and a Hindu judge come to the same impartial conclusion in matters such as the death penalty, land claims, abortion, divorce, polygamy, gender violence and other societal matters that the religious texts have already pronounced on by “divine injunction”?

Dion Foster noted in The Conversation in 2016 that “The rise of apartheid politics in South Africa was inextricably linked to apartheid theology. It was the heretical theological views about how society should be structured, and whom God favoured, that gave the moral and religious sanction for a so-called “Christian” nation to perpetrate unimaginable human rights abuses”.

And here we go again, this time from the head of an apex institution, the Constitutional Court, albeit in relation to human rights abuses in Palestine. Whatever happened to the principle that government must maintain an attitude of neutrality toward religion, that there be “a wall of separation between church and state” as described by Thomas Jefferson in 1802. I knew we had a problem when, in his interview for the position of Chief Justice, Mogoeng said that God wanted him to be Chief Justice. Such an outrageous claim should have raised more than just eyebrows.

In fact, he was roundly ridiculed in those days, all of which changed and he became the establishment darling after delivering a judgment that forced Zuma to sign for Chelsea. Don’t read this literally. But, he has shown his hand once again by opining on a political matter through a reliance on ahistorical, questionable records thereby eroding public trust in what ought to be an independent judiciary.

It may be argued that the views and judgments of any such judge could hardly be seen as independent if steeped in religious dogma.

Mogoeng’s judicial over-creep seemingly undermines judicial ethics and disregards accepted customary patterns of thought and action, since 1994 at least, for those serving on the Bench in South Africa.

Chetty is Visiting Professor at University of Wuppertal (Germany), Adjunct Professor at Durban University of Technology and president of the International Sociological Association’s Research Committee on Participation, Organisational Democracy and Self-Management.