09 Jun The Bill of Rights – a new golden calf?

Let me begin by reading from my bill of rights – Holy Scripture

Genesis 3 v 1- 6

“Now the serpent was more cunning than any of the wild animals the Lord God made. He said to the woman, ‘Did God really say’, ‘you must not eat from any tree in the garden?’ The woman said to the serpent, ‘We may eat fruit from the trees in the garden, but God did say, ‘you must not eat fruit from the tree that is in the middle of the garden, and you must not touch it, or you will die.’ ‘You surely will not die’, the serpent said to the woman. ‘For God knows that when you eat of it your eyes will be opened, and you will be like God, knowing good and evil.’ When the woman saw that the fruit of the tree was good for food and pleasing to the eye, and also desirable for gaining wisdom, she took some and ate it. She also gave some to her husband, who was with her, and he ate it.”

Introductory remarks

1.  For full references – give me your email addresses and I will forward them later

Preparation took me on an unexpected personal journey back in time – please indulge me in this regard

Assumed audience are folk from the three monotheistic faiths and “secular humanists” – the latter is a general description for a group of very able and compassionate lawyers who had a very significant role in the writing of the bill of rights and continue to have a very significant role in interpreting it, but have no particular faith in God to the best of my knowledge.

A huge topic – worthy of far more than this address – more questions than answers

An obvious starting point for this talk is, what is a golden calf?

The first Christian martyr, Stephen, in his address to the crowd before he was stoned, referring to Moses said: (Acts 7 v 38 – 41)

“He was in the assembly in the desert, with our fathers and with the angel who spoke to him on Mount Sinai; and he received living words to pass on to us, but our fathers refused to obey him. Instead, they rejected him and in their hearts turned back to Egypt. They told Aaron, ‘Make us gods who will go before us. As for this fellow Moses who led us out of Egypt – we don’t know what has happened to him!’ That was the time they made an idol in the form of a calf. They brought sacrifices to it and held a celebration in honour of what their hands had made.”

A golden calf is thus something which we allow to usurp the role/place of God.

There are few areas more in the domain of God’s authority than providing the reference point for, morally speaking, what is right and wrong and the inspiration to bring about an inward transformation of the heart so that a person can live a life consistent with such precepts.

For the Christian, the Old and New Testament and the Holy Spirit are key to this process. To the Jew, the Law and the Prophets, to the Muslim, the Koran.

With this in mind let us now briefly turn to the S.A. in which, I, and many of you, grew up in.

It was a country where every state institution and most of its officials, tragically, including many of its judges, were geared towards ensuring that we became citizens who unquestioningly placed our trust in the ideology of “christian” nationalism, amongst other things camouflaged as patriotism and our “christian” duty to fight godless communism and its allies.

How often did we not unquestioningly sing “ons sal lewe ons sal sterwe ons vir jou Suid Afrika”? How many young men unquestioningly killed and died for this ideology?

No matter these disguises, any sober assessment of what happened during those years will conclude that a significant portion of our population, particularly those who had  political and economic power, by omission or commission, for different motivations, allowed this ideology to usurp the role of God and the Scriptures, not least of all that portion of the Scriptures referred to as the Prophets + of course the Gospels.

And then 1994 dawned and all that changed.

As I prepared for this talk, it struck me again how much clearer things were as to who and what the enemy was, pre 1994. There was no grey, only black and white. To most Christians, Jews, Muslims and secular humanists, judging people on the colour of their skin as opposed to the content of their hearts, torture, detention without trial, forced separation of families, forced removals from the Cape Flats in the midst of the cold Cape winters, sending young men or old boys to kill or be killed in defense of this system, was clearly wrong and abhorrent.

I vividly remember one of the key moments in my own life – an SRC conference in 1976 at the University of Stellenbosch – where I refused to stand for or sing  “Die Stem” – given my personal background, not least of all being a policeman’s son and brother, it was an extremely difficult and emotional decision and yet enormously liberating. Thereafter I felt free to follow wherever Christ, His Scriptures and His Holy Spirit led me, irrespective of where that was.

I also vowed never again to sing any national anthem nor again to be manipulated and hoodwinked by anyone or anything under the guise of patriotism, nationalism or whatever other label it was given.

Some years later I discovered a poem by the First WW poet, Wilfred Owen, which resonated very strongly with my decision in 1976. In Dulce et Decorum est, he in a few words paints the full horror of war and its ravishes on young men and concludes: “My friend, you would not tell with such zest to children ardent for some desperate glory, the old lie: dulce et decorum est pro patria mori.”

Although shades of grey crept in during the 80’s, I in confidence was still able to say to a student Christian conference that the teaching of the Prophet Amos did not permit merely
the reformation of Apartheid and its economic dispensation, it demanded its total destruction.

And then 1994 and the bill of rights arrived and at one level everything changed. Now the people in power spoke not of nationalism but nation building, not of reforming society but transforming it, not of plural or separate development but of the freedom, dignity and equality of every person, not of free enterprise but of the need for the redistribution of wealth – concepts, as I understood them, very dear to the heart and ministry of Christ, the Jew and their prophets and, with my limited knowledge of it, the Koran. And the bill of rights and its application was fundamental to this new approach.

The political liberal in me, in the Alan Paton sense of the word, and the Christian socialist in me, rejoiced.

This response of mine was buttressed by my 3 – 4 year personal experience from 1991 – 1994, of the Ciskei High Court’s application of Ciskei’s bill of rights, where amongst other things, in law, detention without trial was outlawed, the death penalty remained abolished and the leader of the Ciskei, given one of the bill of rights’ clauses that all persons are equal before the law, was forced to stand trial for murder whilst in power. There was no doubt in my mind that creative lawyers and judges could use a bill of rights to curb the abuse of power and make our country a better place to live in.

It is now 13 years later and I am of the opinion that there is cause to revisit this initial response of mine.

My “dis-ease” first started in 1997 – 1998 when I was part of a team in a High Court application to declare the Abortion Act unconstitutional in that it gave no protection whatsoever to the unborn child.

The court found that our application was fatally defective as the bill of rights did not recognize the unborn child as a person and thus could not afford such unborn children any protection. In arriving at its decision the court also relied on, inter alia, the clauses referring to equality, freedom and dignity as applicable to women who make the choice to have an abortion. (Since that failed application, according to official statistics, in the region of 600 000 unborn children have had their lives lawfully terminated simply on the demand of their mothers.)

Faced with the Psalmist’s words : “Thou it was who didst fashion my inward parts; thou didst knit me together in my mother’s womb”, and that the court used the concepts of freedom, dignity and equality to justify its finding, I started to re evaluate my unquestioning embracing of the new bill of rights’ dispensation.

Two authors I had first read in the late 70’s early 80’s were of great help at this stage of my thinking, especially given the enormous political correctness pressure on one at the time, a pressure which is still ever present.

CS Lewis(p.37Great Divorce) – (sketch background to book and explain “Spirit” and “Ghost” characters)

[Spirit] …’We simply found ourselves in contact with a certain current of ideas and plunged into it because it seemed modern and successful.  At College, you know, we just started automatically writing the kind of essays that got good marks and saying the kind of things that won applause.  When, in our whole lives, did we honestly face, in solitude, the one question on which all turned:  whether after all the Supernatural might not in fact occur?  When did we put up one moment’s real resistance to the loss of our faith?’

[Ghost] ‘If this is meant to be a sketch of the genesis of liberal theology in general, I reply that it is a mere libel. Do you suggest that men like …’

[Spirit] ‘I have nothing to do with any generality. Nor with any man but you and me.  Oh, as you love your own soul, remember.  You know that you and I were playing with loaded dice.  We didn’t wantthe other to be true.  We were afraid of crude salvationism, afraid of a breach with the spirit of the age, afraid of ridicule, …

ZK Matthews,Freedom For My People(Adams College Head) (p83) – (Alexander Kerr’s advice – his son, Professor Kerr, is present with us today)

“You may be tempted into facile views of the difficulties around you … You may be tempted to cut yourself off from the rest of your people, or on the other hand to an unthinking advocacy of what the mob clamours for (my emphasis).

But I am sure you will examine all things with a clarity of intellectual vision, free from passions unless it be a moral passion for the good, and when you have thought things through to present your views with temperate courage.”

In the 70s and 80’s these authors helped me resist the unthinking advocacy of what my family, much of the business fraternity and the white nationalist “mob” clamoured for. In the 80’s it also helped me resist the unthinking advocacy of what part of the liberation “mob” clamoured for, not least of all the strategy of necklacing and other forms of violence against people.

The question I was faced with in 1998 was, was I once again being manipulated by the “mob”, only this time under the guise of nation building, freedom, dignity and equality?

If I was, then the serpent of Genesis 3 would have been most impressed with the subtlety of the temptation! It was then that I started to have a careful look at what our bill of rights is, at what the purpose of the bill of rights ought to be and at the divide it should not cross.

This exercise is obviously an ongoing process and this address today is very much still a work in progress.

As to what our bill of rights is

The constitutional court website states as follows:

“The interim constitution was the product of protracted negotiation between the National Party government, the ANC and other parties. The 1994 elections, held under the interim constitution, chose the Constituent Assembly whose task it was to write a final Constitution to replace the interim one.”

At one stage the authors Cachalia et alreferring to the Interim Constitution write , “… to ensure that the fledgling democratic order keeps to the lofty ideals and the messy compromises of this interim constitutional arrangement.”

In principle there is no difference of any substance between the bill of rights in the interim constitution and the final constitution.

The final constitution is also a combination of lofty ideals and compromises between the various interest groups, often not as a result of compromises but of very astute political manoeuvering and lobbying by specific interest groups.

The bill of rights is thus the product of a political process, designed to achieve a political end. To ascribe any other status to it, especially some vaguely spiritual status, would be a lie and revisionist history at its worst.

It is a document authored by people to achieve a specific political end.

Furthermore, unlike the German constitution referred to hereafter, and the interim constitution, it is subject to no one or nothing other than itself – in the interim constitution and German Constitution the opening words are a recognition that people are subject to and or responsible to God. There is no such reference in the final constitution.

As to what it should be or how it should be used.

In the Federalist Papers James Madison wrote:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed and in the next place oblige it to control itself”

Martin Luther King wrote:  “Laws cannot change the hearts of men, but they can restrain heartless men”

In contrast to this approach of Madison and King, the first president of the constitutional court, Arthur Chaskalson, in his paper “From wickedness to equality: The moral Transformation of SA Law” (the title itself is revealing) concluded as follows:

“The foundational values of the constitution – the rule of law, dignity, equality and freedom – are foundations on which we can build our future… they raise moral issues that can be addressed adequately only through a moral reading of the Constitution”.

Elsewhere he describes the constitution as a moral document.

Froneman J in a 1994 case stated:

“This means that both the purpose and method of statutory interpretation in our law should be different from what it was before April 1994.  The purpose now is to test legislation and administrative action against the values and principles imposed by the Constitution.”

He continued … “Constitutional interpretation in this sense is thus primarily concerned with the recognition and application of constitutional values and not with a search to find the literal meaning of statutes.”

In a 2001 Constitutional Court case Ackerman J and Goldstone J stated:

”Our constitution is not merely a formal document regulating public power.  It also embodies, like the German Constitution, an objective normative value system.  As was stated by the German Federal Constitutional Court:

‘The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the Legislature, Executive and Judiciary.’

The same is true of our Constitution. … It is within the matrix of this objective normative value system that the common law must be developed.”

This approach gives rise to the question – is it correct to use the bill of rights for social engineering just as the nationalists used its judges and laws for its social engineering? The obvious difference being that concepts such as freedom, dignity and equality are as old as Genesis and central to the teaching of the great monotheistic faiths of the world.

But the difference between the bill of rights and these great Faiths obviously is that these great Faiths of the world believe they have an objective normative moral reference point outside of something created/authored by people – Holy Scripture, the Law and the Prophets and the Koran.

And this brings me to the crux of the question which I am seeking to address today– in placing trust in something which people have authored, to morally transform and inspire our society, is this not to allow the bill of rights to usurp the role which Christians, Jews and Muslims believe rightfully belongs to God? Is this not the divide it should not cross?

At this point I share some short quotes in this regard to illustrate the role the bill of rights has assumed in the thinking of very influential South Africans.

Prof Kader Asmal

“We are then referring to Nelson Mandela’s evocative phrase, ‘the RDP of the soul’….
Post modernists deny the need to identify common values. We cannot afford the luxury of such intellectual anarchy because no one lives in a value free society….We do not have to embark on new exercises to draw up a charter of morals or complex ways as to how we can deal with some of our serious problems…. We do not have to go further than looking at the values implicit in the founding provisions of our constitution…. These values have been negotiated (my emphasis) painfully. They are not the victor’s law. We must now internalize(my emphasis) them”

Prof Badatat his inaugural address as vice chancellor of Rhodes University

“Our Constitution is the fundamental bedrock that informs my responsibilities, guides my conduct and animates my social relationships and existence.”

Gen Secretary of the SACC– (when Mr Zuma was dismissed by Pres Mbeki)

“It will be said that what we did these past days was to reaffirm our collective belief in SA as a nation founded on moral principles enshrined in our Bill of Rights….”

Of course there is also another problem with the argument that we now have an objective normative value system contained in the bill of rights viz, by what standard does our constitutional court and other courts decide what freedom, dignity and equality are in specific contexts? The words themselves are only words and only become more than empty shells when actual meaning is given to them.

And where there is no objective reference point outside of the bill of rights to measure whether one’s interpretation and application of these concepts are “correct”, where does one go other than one’s own reason and value system?

Yes, the interpretation of these words will to varying degrees be informed or assisted by international law, comparable foreign law and the common law, but when one adopts the view that interpreting the bill of rights is more than simply giving effect to the literal meaning of the act, and that the aim must be to use the bill of rights morally to transform SA, then the intrusion of one’s own value system is inevitable.

Thus it becomes even more troublesome to speak of “the objective normative value system contained in the bill of rights”,for with this approach, in effect is there not the danger of the men and women who make up the constitutional court becoming the new High Priests as they prescribe to us what morally is right and wrong with the bill of rights as their Scriptures?

In this regard the words of Kentridge AJ in one of the earliest constitutional court decisions are instructive:

“I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the language of which is to be respected. If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination.”

A brief case study of the approach to abortion in our courts and the German courts will help illustrate the problem of such subjectivity.

As referred to earlier, at this stage the SA court’s position is that under the constitution the foetus is not a legal personae – in other words is not a person and thus cannot rely on the right to life provision in the bill of rights for protection.

The German court’s position is summed up in the following extract:

“The interruption of pregnancy irrevocably destroys an existing human life. Abortion is an act of killing. The description now common, ‘interruption of pregnancy’, cannot camouflage this fact. No legal regulation can pass over the fact that this act offends against the fundamental inviolability and indisposability of human life protected by Article 2, para 2, sentence 1” (of the German constitution).

The germane provision in the SA bill of rights reads:

“Everyone has the right to life.”

The equivalent German provision reads:

“Everyone has the right to life and to the inviolability of his person”

As I said at the outset, in preparing this address it became clear to me that the issues this address raises are of such a nature that they cannot adequately be dealt with in a 45min address.

However, at the very least, what I do believe is that, as we enter the next 13 years of the new dispensation I believe we all need to be vigilant, whether we be believers in God or secular humanists, lest we by omission or commission replace one form of idol worship, “christian nationalism”, with another, “bill of rightism”.

As CS Lewis in effect so astutely observed in “The Screwtape Letters” – where crude temptation/evil no longer holds sway the more subtle satan becomes,  as is so graphically demonstrated in the Genesis 3 reading.

I have no doubt of the truth of Martin Luther King’s statement that although laws cannot change the hearts of men, they can restrain heartless men – and in this regard our bill of rights is a sound, albeit imperfect, tool.

My “dis – ease” enters when the bill of rights is ascribed a role and status greater than this.

When it is used to decide morally what is right and wrong, when it is approached as if it was a living document able in itself to grant insight into moral issues and also to inspire and strengthen one to live accordingly – ( to quote Prof Badat again – “animates my social relationships and existence”), when it in effect makes High Priests of judges as they pronounce on what is right and wrong, with the bill of rights as their Scriptures.

For me as a Christian that is uniquely the role of the Holy Scriptures and the Holy Spirit, to the Jew and Muslim primarily the Law and the Prophets and the Koran respectively.

Secular humanists constantly must remind themselves of this fact lest they unwittingly attempt to foist a golden calf, the bill of rights and their interpretation of it, onto such believers.

The secular state must not cross the line by creating a secular religion and then foisting it onto such believers under the guise of nation building, transformation or whatever other word it might use.

We must remember that words such as freedom and dignity were very much part of the rhetoric of many a dictator, and sadly still part of the vocabulary of modern day dictators.

The constitutional court must be extremely cautious as it interprets and applies the bill of rights lest they cross the line between church and state, as the nationalists and many of their judges did, so forcing Christians, Jews and Muslims once again to join St Peter in asking the constitutional court and the state the rhetorical question:

“Are we to obey man rather than God?”

Let me conclude.

In my days when I appeared in the Ciskei High Court, the then CJ of that court once in exasperation bellowed to me from the bench – “Mr Matthee this is not a church, you cannot preach here!”

Well the bill of rights does allow me to preach in court, and this is a church! – so I will conclude by sharing the thoughts of two great men which I believe have a direct bearing on what our expectations of the man made document, the bill of rights, should be, especially as regards its ability to transform our country.

In the early part of the twentieth century, that great Christian thinker, GK Chesterton, was asked by the Editor of the London Times to write an article on what was wrong with society. He responded as follows in a letter to the Editor:

“Dear Sir,

I am.

Yours faithfully,

CK Chesterton.”

Many years later in the sixties, Martin Luther King developed on this theme in a sermon entitled “The answer to a perplexing question”, wherein he addressed the question of why we cannot remove evil from earth. Towards the end of the sermon he said the following:

“But in spite of these new astounding scientific developments, the old evils continue and the age of reason has been transformed into an age of terror. Selfishness and hatred have not vanished with an enlargement of our educational system and the extension of our legislative policies. A once optimistic generation now asks in utter bewilderment, “why could we not cast it out?”

The answer is rather simple: Man by his own power can never cast evil from this world. The humanists hope is an illusion, based on too great an optimism concerning the inherent goodness of human nature.

I would be the last to condemn the thousands of sincere and dedicated people outside the churches who have laboured unselfishly through various humanitarian movements to cure the world of social evils, for I would rather a man be a committed humanist than an uncommitted Christian. But so many of these dedicated people, seeking salvation within the human context, have become understandably pessimistic and disillusioned, because their efforts are based on a kind of self delusion which ignores the fundamental facts about our mortal nature.

Nor would I minimize the importance of science and the great contributions which have come in the wake of the Renaissance. These have lifted us from the stagnating valleys of superstition and half-truth to the sunlit mountains of creative analysis and objective appraisal. The unquestioned authority of the church in scientific matters needed to be freed from paralyzing obscurationism, antiquated notions, and shameful inquisitions. But the exalted Renaissance optimism, while attempting to free the mind of man, forgot about mans capacity to sin.”

At best, the bill of rights can curb the abuses of our sinful natures and structures. However to transform us and our structures, we need to look elsewhere.

Thank you, Mr Chairman

Grahamstown Festival, The Cathedral, 2007