Religion and the law: Responses to the remarks of the Chief Justice

Delivering a speech at the Second Annual African Law and Religion Conference at Stellenbosch University, Chief Justice Mogoeng Mogoeng’s controversial statements that infusing our laws with religion would lead to a high moral fibre in society, has caused a stir over the past few days.

“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… The Constitution and pieces of legislation already in place generally bear a striking resemblance to Christian principles in many respects,” Chief Justice Mogoeng said.

As well as looking at some of the criticism in the press, People’s Assembly decided to seek out a supporter for Chief Justice Mogoeng’s sentiments. We asked South Africa’s biggest religious political party, the African Christian Democratic Party (ACDP) how they saw the relationship between religion, Christian principles in particular, and the law, panning out.

When asked what she thinks the Chief Justice meant when he said the Constitution bears a striking resemblance to the Christian principles, the ACDP’s Cheryllyn Dudley replied: “There are many similarities but I suppose the most obvious one is ‘Thou shalt not kill’.”

Dudley went on to say that despite religious freedom being guaranteed by the Constitution, “this has not stopped escalating threats against freedom of religion… many pieces of legislation, in trying to realise a purpose, undermines religion.”

She also added that proposed amendments to the Children's Act are problematic, namely with regards to restricting parents rights to discipline their children by “spanking” them and telling a church that they cannot teach parents certain principles that they think are important to raising children.

When asked what other laws might be impinging on freedom of religion, Dudley said that the ACDP had concerns about the Women’s Empowerment and Gender Equality (WEGE) Bill.

“What we don’t want to see is women being empowered by disempowering men as the proposed quotas were over 50%. There were also certain regulations that were going to apply to churches and charities about the number of men working for a church or religious organisation and this was going to have an impact on the male head of churches, but we managed to get that changed in the bill.” Dudley said.

She was also concerned about small enterprises that didn’t meet the 50% women or above quota, shutting down.

Both Chief Justice Mogoeng and Dudley admitted that there are certain dangers of religion, citing the use of religion during apartheid as an example. Both added that intolerance and discrimination was a huge problem, as could currently be seen in other countries in the world like the Central African Republic, the Democratic Republic of Congo, and Israel-Palestine. Therefore, religious freedom needed to be protected in South Africa.

“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,” said Mogoeng.

However, in a recent Daily Maverick article, Richard Poplak said it is not merely about respecting freedom of religion. “The issue is not that Mogoeng Mogoeng spends his Sundays lay preaching at Winner’s Chapel, because lay preaching at Winner’s Chapel is a consensual social activity protected under the Constitution. The issue is that Mogoeng Mogoeng wants to use the substance of what he preaches in order to amend, and in his eyes, improve the Constitution… many of us may find what is preached inside Winner’s Chapel to be irrational and objectionable”.

Dudley obviously disagrees. “We have a multi-party democracy and our proportional representation system does allow a voice for every section of society. That is something we have to look after as it takes away the need to violently demonstrate to be heard,” she said.

In yesterday’s Mail and Guardian editorial, Chris Roper argued against religion influencing the law making procedure, as religions are designed to oppress other religions. However, he defended the Chief Justice, saying, “To his credit, Mogoeng has not, to our knowledge, allowed his Christianity to interfere with any of the judgments of the Constitutional Court. This could be because he is a man of high moral fibre, a morality derived in part from the religion he loves. But can he guarantee that all religious people will be as professional if they are freed to impose their belief system on the law?”

Later, in his article Poplak goes on to say that while the Stellenbosch address is “the noisome result of a pluralistic religious environment in which the Chief Justice is free to espouse his views. He is not free, however, to follow up on them. His job is not to make law - that’s for our elected representatives.”