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| Chief Justice Mogoeng Mogoeng Photo from Mail & Guardian - Madelene Cronje |
On Wednesday this week the Chief Justice of South Africa, Mogoeng Mogoeng,
gave a speech entitled “Law and Religion in Africa”, which resulted in numerous
expressions of outrage. Not surprising in today's world where the mere mention of God is considered by many to be Taboo.
Richard Poplak responded by saying that “Mogoeng
Mogoeng wants us to be governed by the laws of his God, whomever his God may be.”
Chris Roper, editor of the Mail & Guardian, expressed his outrage in a column entitled "Christianity is the enemy of Christianity" wherein he stated that: “The enemy is religion, all religions, and in
the case of Mogoeng Mogoeng, the specific enemy is Christianity.” (Ryan Peter has written a brilliant response to Chris Roper entitled "Are Today's Secularists Really Secular". It is well worth reading.)
Below is the full speech of the Chief Justice of South Africa so that you
can decide for yourself whether you agree with these expressions of outrage. I
certainly do not believe there is anything to be outraged about. What do you think?
Related Post: Chief Justice Obsessed With Sex?
Related Post: Chief Justice Obsessed With Sex?
LAW
AND RELIGION IN AFRICA
The
Quest for the Common Good in Pluralistic Societies
University of Stellenbosch
27
May 2014
By Mogoeng wa Mogoeng
Chief Justice of the
Republic of South Africa
Prof C S
Human, Dean of the Faculty of Law, Prof N Koopman, Dean of the Faculty of
Law, Members of the Organising Committee
of this Conference, International guests, esteemed speakers, distinguished
guests, ladies and gentlemen, I greet you.
I wish to
thank Prof Human, the University of Stellenbosch and the organisers of the
Second Annual African Law and Religion Conference for extending the invitation
to me to deliver a keynote address at this historic occasion. The theme of this Conference “Law and Religion in Africa: The Quest for
the Common Good in pluralistic Societies”, is quite apposite in the light
of the challenges we face as a continent, and the urgent need for all of us to
contribute to the renaissance of Africa.
Africa yearns
for peace, stability, good governance, sustainable economic development and
prosperity for all, now more than ever before. Several factors have an
important role to play in facilitating the attainment of these noble objectives.
Law and religion are some of those factors.
The critical
question that we are called upon to grapple with how the interplay between law
and religion could yield a product that is for the common good of all in Africa’s
pluralistic societies.
The former
President of the United States of America, Thomas Jefferson had this to say
about religious tolerance:
“I
never will, by any word or act, bow to the shrine of intolerance, or admit a
right of inquiry into the religious opinions of others.”[i]
Africa and
her people must desist from worshipping the idol of religious and thought
intolerance. And that is an essential ingredient to the renaissance of Africa.
About the
sanctity of religious freedom he said:
“The
rights to religious freedom are of the natural rights of mankind and if any Act
shall be passed to repeal an Act granting those rights or to narrow its
operation, such Act will be an infringement of natural rights.”[ii]
Laws must be
enacted to advance and not to narrow the operation of, the right to freedom of
religion.
As you know,
the intersection between religion and the law has been the subject-matter of
some controversy for many years now. The resistance for allowing the legal
content to be constantly fertilized by religion is understandable, although
many could justifiably argue that it is based on a misapprehension of the true
nature of religion and the treasures that religion generally has to offer in
shaping a peaceful and prosperous society, a nation and a community of nations.
Some of the
predicable objections to the influence of religion in shaping a legal and
constitutional dispensation might be the potential marginalization of minority
groups, that subscribe to other possibly less influential religions, those who
do not subscribe to any religion, and those whose sexual orientation and
philosophies of life are in direct conflict with the mainstream religions like
Christianity, Judaism and Islam. Furthermore, there is a belief out there that
religion has failed to keep pace with the developments of this new age and may
therefore compromise the quality and speed with which programmes in several key
areas of life or society must be driven.
I believe
that 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 county. I hope to support this conclusion with particular reference to
principles drawn from the Christian
faith. I do so, not because I have no regard for other religions, but because
it is the only faith in which I have invested a lot of time and energy to familiarize
myself with. It is the faith I subscribe to and can therefore articulate issues
that relate to it, with a measure of authority.
The levels of
maladministration, crime and corruption, the extremely low levels to which
morality has degenerated, the lackadaisical attitude of many government
functionaries in the execution of their duties, the dishonesty as well as
injustices that have permeated all facets of society, 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. More importantly,
there is a strong correlation already, between
law and religion.
Religion is
very important to many of us[iii]. But, like any good
thing, it is also open to abuse. As matter of fact, many have distorted religion
and used it as the basis for the oppression of others. The law influenced by a
dominant faith has at times been adulterated to serve as the tool for the
extinction of smaller religions. In other jurisdictions, it is even an offence
to subscribe to other faiths. Worse still, the death penalty is readily imposed
on those who choose a religion other than the dominant one.
We have
witnessed large-scale killings, strife, socio-political instability, economic
under-development, disregard for human rights and the rule of law and the
consequential poor governance. They are at times given rise to by religious
intolerance where the law has not been appropriately used to regulate the
enjoyment of diverse faiths. Think about what is happening in the Central African
Republic, Sudan, Nigeria, Mali, DRC Congo, Israel and Palestine. Religious
intolerance is a significant factor in this sad state of affairs.
Before South
Africa became a constitutional democracy, Christianity was adulterated and
contorted by successive white regimes to achieve the evil objective of
justifying the oppression of black people. Other religions like Islam, Buddhism
and African religion, to mention but some, were marginalized to the point of
not recognizing their marriages. Law and religion conspired to “justify” and
enforce institutionalised wickedness and
a crime against humanity known as apartheid. Not only were they synchronised to
prohibit the sharing of the residential areas by different race groups, it was
a serious act of immorality for a black person and a white person to love one
another. That love was legislated against. Because this was not for the common
good of all South Africans in our pluralistic society, strife and war ensued.
Multitudes of black and white South Africans lost their lives, because law and
religion were not allowed to serve their original and legitimate purpose, the
common good of all[iv]
They were corrupted.
Laws must be
enacted with the full realization that religion is a matter of conscience and
conviction. It cannot be imposed or legislated into the hearts and minds of the
people. I believe that it is an appreciation of this reality, the decisive
rejection of the suppression of other religions that moved South Africans to
provide, not just in an Act of Parliament, but in our supreme law, for freedom
of religion in these terms:
“15(1) Everyone
has the right to freedom of conscience, religion, thought, belief and opinion”
(2) Religions
observances may be conducted at State or state-aided institutions provided that:
(a) those
observances follow rules made by appropriate public authorities;
(b) they
are conducted on an equitable basis; and
(c) attendance
at them is free and voluntary.
(3)
(a) This
section does not prevent Legislation recognising –
(i) marriages
conducted under any tradition, or a system of religions of personal and family
law’ or
(ii) systems
of personal and family law under any tradition, or adhered to by persons
professing a particular religion.
(b) Recognition
in terms of paragraph (a) must be consistent with this section and the other
provision of the Constitution.”
Additionally,
section 9(3) of the Constitution provides that “the State may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including . . . religion . . . .”[v]
Our courts
have expressed themselves on the significance of religion in the pluralistic
society that we are. In S v
Lawrence[vi]
Chief Justice Chaskalson said:
“The
essence of the concept of freedom of religion is the right to entertain such
religious beliefs as a person chooses, the right to declare religious beliefs
openly and without fear of hindrance or reprisal, and the right to manifest
religious belief by worship and practice or by teaching and dissemination.”[vii]
From this
definition, the Court laid it bare that freedom of religion in the South
African context includes the right to express one’s belief publicly and to
manifest that belief by worship and practice, teaching and dissemination.
The
pluralistic nature of the South African society was recognised in Prince in these terms:
“The
right to freedom of religion is especially important for our constitutional
democracy which is based on human dignity, equality and freedom. Our society is
diverse. It is comprised of men and women of different cultural, social,
religious and linguistic backgrounds. Our Constitution recognises this
diversity. This is apparent in the recognition of the different languages, the
prohibition of discrimination on the grounds of, amongst other things, religion,
ethnic and social origin; and the recognition of freedom of religion and
worship. The protection of diversity is the hallmark of a free and open
society. It is the recognition of the inherent dignity of all human beings.
Freedom is an indispensable ingredient of human dignity.”[viii]
The
entrenchment of these rights in the Constitution marked a clear break from the
repressive and biased policies of the past.
It also served as a clear commitment to build a society that is tolerant
of diversity. The drafters of our Constitution recognised that South Africa is
a religiously plural society and aimed to protect our rights to belong to any
religion without fear of being discriminated against or persecuted. The
entrenchment of this right in the Bill of Rights means that no law may be
passed that militates against the exercise of the right of freedom of religion,
conscience, thought and belief.
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. Alive to this reality, South Africans
took a conscious decision to use the supreme law as the instrument that would
create a platform for the peaceful co-existence of our people in our
pluralistic society. South Africa has used the law commendably, to quench the
centuries old quest to recognise the right of all our people to enjoy the
fundamental right of freedom of religion, conscience, thought, belief and
opinion. Hitherto unrecognised marriages and partnerships have since been
recognised by section 15(3) of our Constitution.
That we do
not have killings that are designed to promote any religion at the expense of
the other, is largely due to the appropriate use of the law to regulate the
enjoyment of all religions. It does not and should never matter how strongly
opposed you are to the existence of a particular religion. All genuine
religions must in law be left to co-exist with yours, for the common good of
all. The creation of this constitutional
possibility with a view to ensuring that all people always feel at home in
their own country, reduce unnecessary tensions and facilitate the enjoyment
of freedom and diversity.
In a
democratic society comprising different religions or shades of the same
religion, it may be necessary to impose constitutionally justifiable
limitations on freedom of religion in order to reconcile the interests of the
various groups and ensure that everyone’s religion, thoughts or beliefs are
respected. After all, no right is absolute.
That said,
religion has a very important role to play in enriching and strengthening our
laws to ensure that overall governance augurs well for the common good of all
in our pluralistic societies. I believe that there are sound principles that
cut across the religious divide which blend well with the existing legal
architecture and philosophy that could further improve our legal systems. The
relationship between law and religion was aptly captured by Lord Denning, a
committed Christian himself, in the following words:
“. . . They say law governs one’s dealing with
one’s fellows, religion concerns one’s dealings with God, but the two are quite
separate. Likewise they say the law has nothing to do with morality. It lays
down rigid rules which must be obeyed without questioning whether they are
right or wrong. Its function is to keep
order, not to do justice.
.
. . Although religion, laws and morals can be separated, they are nevertheless
still very much dependent on each other. Without religion there can be no
morality; and without morality there can be no law.”[ix]
As we know
all democratic orders rest on three pillars of government the Executive,
Legislative and Judicial Branches although it is often made out to look like
government rest on two. And the Bible says in Isaiah 33:22 that “ The Lord is
our Judge, the Lord is our Lawgiver, the Lord is our King. He will save us”.
Our safety and well-being as nations
equally depends on the realisation and acceptance of the fact, that just as God
the Father, God the Son and God the Holy Spirit are co-equal Personalities of
the Trinity, so should the Executive, Legislative and Judicial Arms of the
State be co-equal partners in the governance of any democratic country. None
should unduly intrude in the terrain of the other, avoidable tensions should
not be allowed to develop and institutional parity in relation to the
allocation of resources, as well as the dignity with which members of each Arm
are treated should be observed. The uncurbed dominance of one or some over the
others or the other, is a recipe for undermining our constitutional
democracies.
Romans
13:1-3 implore us to “do that which is
good”. Verse 7’s particularly striking. It says:
“Render
to all men their dues, pay taxes to whom taxes are due, revenue to whom revenue
is due, respect to whom respect is due and honour to whom honour is due”.
A vibrant
partnership between law and religion would thus facilitate even revenue
collection because religion touches every facet of life. And I want to believe
that other religions also espouse equivalent principles in this and other
respects discussed elsewhere in this paper.
A great deal
of benefit stands to be derived from a realisation of the profound similarity
of purpose sought to be achieved, by religion and the law. The Constitution and
pieces of legislation already in place generally bear a striking resemblance to
Christian principles in many respects. The question should perhaps be, which
other areas of the law could be enhanced to the benefit of all our people, by
allowing religion to play a greater role than it has hitherto been allowed to
play.
To buttress
my belief that there really cannot be laws in place, designed to advance the
best interests of a nation, that run against the essence religion, I refer to
Romans 13:8-10 which says:
“8. Owe no
man any thing, but to love one another: for he that loveth another has
fulfilled the law.
9. For
this, thou not shalt not commit adultery, thou shalt not kill, thou shalt not
steal, thou shalt not bear false witness, thou shalt not covet and if there be
any other commandment, it is briefly comprehended in this saying, namely, thou
shalt love they neighbour as thyself.
10. Love worketh no ill to his neighbour:
therefore love is the fulfilling of the law.”
If love is
allowed to be foundational to the laws we enact and their enforcement is
effective, then peace, stability and prosperity would be the inevitable long
term outcome. 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.
Another
biblical principle listed above that coincides with our legal framework is
“thou shalt not kill”. But it is not enough to merely prohibit killing.
Measures must be in place to create an environment that is ‘hostile’ towards
murder and militates against the existence of practices conducive to its
commission.
Theft is the
semen that breeds fraud and corruption. The Bible forbids it and so does our
common law. As in the case of all other prohibitions, the question that does
not always seems to receive adequate attention and currency is, what systems do
we establish and what widespread habits do we cultivate to eradicate the causes
of theft, fraud, and corruption. Corruption is now endemic in our part of the
world. Do we take advantage of the potency of religion to make the profound
difference that it can make in sharpening the teeth of our legal instruments
against corruption, or do we desist from doing so for fear of being accused of
being either backward or fundamentalist?
Perjury is an
offence. It is on all fours with the above biblical injunction that ‘thou shalt not bear false witness’. Additional biblical
principles could be built into our daily living and broader legal landscape to
render lying reprehensible, as a matter of practice.
An unwavering
commitment to the actualization of the nation building and reconciliation
project and what is in the best interest of all our people must be made by all
leaders and key opinion-makers in our continent. It must be in the form of an
irrevocable vow, a covenant with the people.
That
unbreakable undertaking is to be made in the form of an oath in the case of
Christians. The oath is so powerful that to assure Abraham that He would surely
bless Abraham as He was promising to do, God Himself said: “By myself I have sworn”
(Genesis 22:16). The oath prescribed by our Constitutions and laws for senior
government functionaries, is provided for in the Bible. You are not to mention
the name of the Lord in vain. If you do punishment will ensue. (Exodus 20;7)
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.
It takes a
person of integrity to treat the oath with the seriousness it deserves. Our
moral compass therefore needs to be serviced through some legal mechanism, such
as scripture-based properly enforced ethical code of conduct, to facilitate
adherence to the dictates of the oath.
If States and
all of us commit ourselves to respect each other’s religion and recognise and
reconcile ourselves with the differences in our belief systems, most of the
religious conflicts that have been plaguing our continent to the detriment of
peace, stability and sustainable economic development would be a thing of the
past. We owe it to ourselves and
posterity to speak and work against the cruelty that have been perpetrated over the centuries, in
the name of religion. Many people have endured persecution for their beliefs by
those who hold different beliefs and others have been forced to join other
religions. Truly the ‘hallmark of an open and democratic society is its
capacity to accommodate and manage differences of intensely-held world views
and life styles in a reasonable and fair manner’.[x]
It bears
emphasis, that the world we ought to strive to create is a ‘democratic,
universalistic, caring and aspirationally egalitarian society which embraces
everyone and accepts people for who they are irrespective of their religious
beliefs’.[xi]
This blends well with the Preamble to
the South African Constitution which says: South
Africa belongs to all who live in it, united in diversity.
Religious
freedom is indeed a bulwark against violent extremism. 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 THANK YOU
Related Post: Chief Justice Obsessed With Sex?
[i] Thomas
Jefferson, Letter to Edward Dowse, April 1803
[ii] Thomas
Jefferson, Statute for Religious Freedom 1779, Papers 2: 546.
[iii]The
importance of religion was captured by the Constitutional Court in Minister of Home Affairs v Fourie; Lesbian
and Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524at para
90 in the following terms:
“Religion is
not just a question of belief or doctrine. It is part of the people’s temper
and culture, and for many believers a significant part of their way of life.
Religious organisations constitute important sectors of national life and
accordingly have aright to express themselves to governmentand thecourts on the
great issues of the day. They are active participants in public affairs fully
entitled to have their say with regard to the way law is made and applied.”
[iv]
Examples of this include the Prohibition of Mixed Marriages Act 55 of 1949
which prohibited marriages between couples from different race groups; the
Immorality Amendment Act 21 of 1950; Sexual Offences Act 23 of 1957; the Group
Areas Act 77 of 1957; and the Native Laws Amendment Act 36 of 1957 with the
so-called church section (section 29(c)). According to this section, non-whites
could be prohibited from attending church services in white areas. Later it was
explained that the intention was not to prohibit bona fide church
meetings as long as these meetings were not used to disturb the public
order. The fact remains that religion
and elements of the freedom of religion were controlled by the policies of the
government. See Van Der Watt 1987: 84-86 and P Coertzen “Freedom of Religion in
South Africa” Then and Now 1652 -2008.
[v] See also
section 31 of the Constitution which provides:
“31.
Cultural, religious and linguistic communities.
(1) Persons
belonging to a cultural, religious or linguistic community may not be denied
the right, with other members of that community-
(a) to enjoy their culture, practise
their religion and use their language; and
(h) to form, join and maintain cultural,
religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.”
[vi] S v
Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC).
[vii]Id at para 92
quoting Dickson CJC in R v Big M Drug Mart [1985] 1 SCR 295 at 336.
[viii]Prince v
President, Cape Law Society and Others 2002 (2) SA 794 at para 49. See also
Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)
at para 36 where the Court said:
“There can be
no doubt that the right to freedom of religion, belief and opinion in an open
and democratic society contemplated by the Constitution is important. The right
to believe or not to believe, and to act or not to act according to his or her
beliefs or non-beliefs, is one of the key ingredients of any person’s dignity.
Yet freedom of religion goes beyond protecting the inviolability of the
individual conscience. For many believers, their relationship with God or
creation is central to all their activities. It concerns their capacity to
relate in an intensely meaningful fashion to their sense of themselves, their
community and their universe. For millions in all walks of life, religion
provides support and nurture and a framework for individual and social
stability and growth. Religious belief has the capacity to awake concepts of
self-worth and human dignity which form the cornerstone of human rights. It
affects the believer’s view of society and founds the distinction between right
and wrong. It expresses itself in the affirmation and continuity of powerful
traditions that frequently have an ancient character transcending historical
epochs and national boundaries.”
[ix] Lord
Denning’s address delivered at the Annual Service in the Temple Church in
October 1977.
[x] Minister of Home Affairs v Fourie; Lesbian
and Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524 at
para 95.
[xi] Id para 60.
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