Mind the Mogoeng gap

2011-09-03 20:12

In the debate about whether Mogoeng Mogoeng will make a good chief justice, we are bedevilled by the gap between political intentions and outcome; the gap between past and present, and, fundamentally, the gap between our ideals and reality.

The heated Mogoeng nomination debate exposed three areas of disjuncture in our society.

They are that between so-called progressives in the professions; between the values enshrined in the Constitution and those held by society at large; and that most vexing disjuncture of what the Constitution recognises and that which it can remedy.

Constitutional law Professor Pierre de Vos asked with palpable frustration: “What happened to reasoned debate?” on his Constitutionally Speaking blog.

He was puzzled by what appeared to be the defence of Mogoeng by progressive black legal professionals, such as Dumisa Ntsebeza (chairperson of the Judicial Service Commission and of Advocates for Transformation) on the basis of black solidarity.

De Vos further asked: “Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the ongoing propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best chief justice, who just happens to be Deputy Chief Justice Dikgang Moseneke?”

I was annoyed at the initial vituperation against Mogoeng which revolved around unconvincing arguments about his age, religion, lack of experience and something a bright-spark celeb-analyst allegedly called “intellectual laziness”.

Even fans of the cartoonist Zapiro could not fathom why his creativity had failed him with the hatchet-job cartoon of Mogoeng as the lapdog on the leash of the beady-eyed Jacob Zuma.

Credible evidence of Mogoeng’s misogynistic jurisprudence began to emerge days into the noise and I swear I heard a palpable “there you go”.

His judgments on conjugal rape and beating are outrageous.

But we need to ask more fundamental questions. Why was Mogoeng allowed to join the Constitutional Court in the first place?

Shouldn’t all judges embody our constitutional values at all levels of our judiciary?

Are there more misogynists and anti-gay rights judges lurking in the system, especially in our magistrates courts – first port of call for most?

Who are the other apartheid-era judges presiding over our courts today?

How many of them hanged people and what were the circumstances?

What were the circumstances when all they did was lock people up?

What about the other judges who hold conservative views on race, the economy, the working class, the unemployed, the disabled and the elderly?

The answers to these questions are vital to understanding the gaps between us. Critics miss that Ntsebeza, for example, was practising Biko in his viewpoint.

He did not defend Mogoeng because he is black, but buttressed his argument by referring to the continued marginalisation of black legal professionals.

He criticised the tone and terms of the Mogoeng debate which he believed were held on the basis of a white gaze, in similar vein to the argument writer Lewis Gordon put forward recently in the Mail & Guardian regarding the debate on affirmative action.

Mogoeng and Moseneke occupy the same racialised space in the profession, although they hold polar-opposite ideological views.

Ntsebeza wrote about the ease with which the credibility of a black judge was eviscerated with scant evidence by people who considered him a legal non-entity.

The intellectual landscape is littered with political analysts who run about in the same professional networks, creating self-referential circles of knowledge about what or whom are significant or acceptable in the political realm.

It’s an incestuous relationship among columnists, editors, analysts and sections of civil society who feed a tiresome liberal consensus on South African political affairs.

 And they’ve done it again with Mogoeng. We need to re-examine what constitutes the embodiment of a good judge in the new South Africa and how to come to terms with the diversity inherent in our society, which is inevitably reflected in the judiciary.

I can think of numerous public professionals who go to churches like Mogoeng’s in conservative South African urban enclaves and who share his beliefs – but they do not necessarily oppose the spirit of the Constitution on the basis of their faith.

They know when to render to Caesar what is Caesar’s and to God what is God’s in the course of their daily business.

The Constitutional Court must be able to abide this diversity if it is to be worth more than the paper it is written on.

The Constitution and the judiciary itself must withstand both the whims of the executive and the beliefs of individual judges.

I believe the contestation around Mogoeng was worth more than the polarisation itself, for he needs to account to the citizenry.

What we ultimately want to know is how Mogoeng will uphold the right to equality in the Constitution?

Can he separate his faith from his duties?

If he feels that he cannot, then he must, with all due respect, decline the nomination.

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