The F-word: Right or wrong vs legal and illegal

2013-10-15 10:00

When news broke that President Jacob Zuma had fathered a child with a woman who wasn’t one of his wives, those around him defended him by saying he had not committed a crime.

They were right, of course.

The issue was not so much whether he had committed an offence in terms of the criminal code of the nation but rather that his conduct was less than what society expects – even if it is not a crime.

The furore around the Constitutional Court decision declaring that sex between consenting teens was not a crime takes us back to this fixation by some who think that the social mores dictating whether a particular action is wrong or right is the same as saying it is criminal or not.

With South Africa becoming a Constitutional democracy, we can add those who think that just because something is constitutional or unconstitutional means that it is socially acceptable or unacceptable.

I am still struggling to understand why anyone would have read the Constitutional Court ruling to mean that the court justices gave youngsters the right to have sex to their hearts’ merriment.

It appears so obvious that certain interferences by the state in what is generally seen as the moral conduct of citizens may be unconstitutional or outside of the crime purview, without this meaning that such behaviour must now be deemed to be acceptable.

It is one thing to agree that it is wrong and socially unacceptable for children, including teens, to not have sex.

It is another to say they should be jailed for that.

There are many precedents where socially unacceptable behaviour does not lead to jail without making such behaviour any more acceptable.

Take infidelity in a marriage, for example. Most people accept that it is wrong, but not even Reverend Kenneth Meshoe of the African Christian Democratic Party is lobbying that straying spouses should be jailed.

The Constitution and the criminal code have become the new bogeymen.

Adults are refusing to think for themselves and decide whether something is right or wrong by wanting to make everything pass the muster of being constitutional or criminal.

This when there is another way that people have regulated their societies long before they even knew of the concept of constitutions or even believed in jailing the socially deviant.

The Constitution and the criminal code have become for many in modern South Africa what religion used to be before the Enlightenment in Europe, when citizens assumed that the clergy had answers to everything.

Thanks to the Enlightenment, ordinary people who had deferred all their thinking to the church and its agents started to question some of the assumptions about right and wrong relating to their own existence or even that of gods.

The Constitution has joined “it is our culture” as the retreat that the lazy hide behind when confronted with key questions about whether they think their behaviour towards others is acceptable or unacceptable.

We need our own era of enlightenment in South Africa, where individuals will regain the confidence to take the responsibility of deciding what is right or wrong, and not make it the job of police or the judges to make this determination.

Just as Europe did not totally abandon the leadership of the clergy and religious texts when embracing the fruits of the Enlightenment, we have to be careful to not replace our time-honed sense of right and wrong with what is constitutional or criminal.

The principles underpinning the Constitution are noble, but so are many other unwritten rules that have regulated societies, even when human beings lived in caves.

As the teen-sex case and Zuma’s own personal indiscretions have shown, life is just too complex to want to limit or confuse right or wrong with constitutional or unconstitutional, criminal or not criminal.

»?Moya is a member of the Midrand Group. Follow him on Twitter @fikelelo

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