11 Aug The Bill of Rights – a new golden calf?
“Are the Constitutional Court justices making the South African Bill of Rights a new golden calf?”
And they made a calf in those days, and offered sacrifice unto the idol, and rejoiced in the works of their own hands
Acts 7 verse 41
A few years back I was invited to speak at the Grahamstown Festival. My topic was whether or not our Bill of Rights was a new golden calf. In other words, whether we had allowed it to usurp the role of God.
My preparation for it took me on an unexpected personal journey back in time.
The South Africa I grew up in 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?
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 those portions of Scripture referred to as the Law and the Prophets, and of course the Gospels.
As I prepared for the 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. 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 defence 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 first refused to stand for or sing “Die Stem”. Given my personal history it was an extremely difficult and emotional decision. But also enormously liberating.
At this time I also vowed never again to sing any national anthem, nor again to be manipulated and hoodwinked by “the mob” or anything under the guise of
patriotism, nationalism or whatever other label it was given. (To this day I refuse to sing any national anthem.)
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 a fair distribution of wealth – concepts, as I understood them, very dear to the heart and ministry of Christ and the Jewish prophets. And the Bill of Rights and its application was to be 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 three to four years personal experience of the Ciskei High Court’s application of Ciskei’s Bill of Rights, referred to in the previous chapter. 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.
Then in 1998 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 human life. Perhaps the most defenceless persons of all, thus received no protection from the Bill of Rights.
A few years later I was part of another attempt to use the Bill of Rights, this time to compel the state to do more to assist girl children who fell pregnant, and were considering an abortion. Once again we were unsuccessful.
Subsequent to my talk at the Festival, and for the sake of completion, I was involved in yet another court application aimed at obtaining some recognition and protection for unborn children. I did not ask the court to outlaw abortion. All I asked of the court was to declare that unborn children were human life worthy of dignity, and thus had to be considered when it came to balancing the respective claims to life and dignity of the mom and her unborn child. This in stark contrast to the Abortion Act which describes an unborn child as the “contents of the woman’s uterus.”
Once again I was unsuccessful. The justices of the Constitutional Court disposed of the claim of unborn children for such affirmation in one sentence, giving no reasons for their decision. This choice by them not to give reasons clearly was a strategic and/or a utilitarian decision, and for me exposed the moral bankruptcy of those Constitutional Court justices. This same court had in 1995 gone to great lengths to explain why the dignity and life of a vicious and cruel murderer was protected by the same Bill of Rights, yet now chose to give no reasons why it saw no problem with millions of unborn babies who had been intentionally killed since the inception of the Abortion Act, being treated as medical waste.
(Since the Abortion Act has been put in place, according to official statistics, some three million unborn children have had their lives lawfully “terminated” simply on the demand of their mothers.)
In my talk I stated:
“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 courts used the concepts of freedom, dignity and equality to justify their findings, I started to re-evaluate my unquestioning embracing of the new Bill of Rights’ dispensation. (This re-evaluation became even more intense after the reprehensible conduct of the justices of the Constitutional Court, referred to above.)
The question I asked myself was whether I once again was 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!” Most of the leaders in the legal fraternity dealing with constitutional law, are clear.
The Bill of Rights has to be seen as a moral document. The first Chief Justice in fact entitled one of his talks: “From wickedness to equality: The moral Transformation of South African Law”. In it he wrote: “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 Constitutional Court justices Ackerman and Goldstone have written:
”Our Constitution is not merely a formal document regulating public power. It also embodies, … an objective normative value system.”
Other prominent leaders in the country have been of the same view. The late Prof Kader Asmal said that we must “internalize the moral values of the Constitution”, in the process borrowing from Nelson Mandela’s expression, “the RDP” of the soul.
Professor Badat at his inaugural address as Vice Chancellor of Rhodes University said that “the Constitution is the fundamental bedrock that informs my responsibilities, guides my conduct and animates my social relationships and existence”.
An erstwhile General Secretary of the South African Council of Churches has spoken of his belief that South Africa was a nation founded on moral principles enshrined in the Bill of Rights.
I find myself asking whether it is acceptable for politicians, judges and theologians to use the Bill of Rights in this way. Whether in principle this is any different to how politicians, judges and some theologians pre 1994 used “christian” nationalism.
As I reflect back on my talk, of course the obvious difference is that concepts such as freedom, dignity and equality are as old as Genesis and central to the teaching of the Judeo-Christian Faith.
However, the fundamental difference between the Bill of Rights and the Judeo-Christian Faith, is that this Faith believes it has an objective normative moral reference point outside of something authored by people – the Holy Scriptures.
And the Bill of Rights at the end of the day is no more or less than a political document, authored by people after negotiations and bargaining.
This brought me to the crux of the question posed to me in my preparation for the talk.
I asked myself – in placing trust in something which people have authored, to morally transform and inspire our society, was this not to allow the Bill of Rights to usurp the role which Christians (and indeed Jews and Muslims), believe rightfully belongs to God? Was this not the divide it should not cross?
There is of course an obvious question flowing from the argument that we now have “an objective normative value system” contained in the Bill of Rights. By what standard does our Constitutional Court 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. This I learnt in the abortion matters.
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 Constitution, and that the aim must be to use the Bill of Rights morally to transform South Africa, then the intrusion of one’s own value system is inevitable. (I have dealt at length with these and associated questions in my research referred to in footnote 7, above.)
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?
Towards the end of my talk I opined:
“However, at the very least, what I do believe is that, as we enter the next few 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”. …
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 – …, 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.
Of course there is another danger for all of us, namely, unlike in the Interim Constitution, where lawyers were in the majority, the JSC which appoints judges, is now dominated by politicians. If we ascribe a role to the Bill of Rights greater than is warranted or prudent, there is no guarantee that in years to come judges will not be appointed by these politicians to ensure that their views of equality, dignity and freedom are foisted onto South Africans, irrespective of their own personal moral and spiritual reference points, under the guise of a much needed “moral transformation” or “political re-education” of the country.
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 Peter in asking the Constitutional Court and the state the rhetorical question:
‘Are we to obey man rather than God?’ ”
Subsequent to my talk at the Festival, the Constitutional Court has in fact gone where it ought not to have gone. Reminiscent of Nazi Germany it has ruled on what human life is worthy of dignity and protection, so attaching more value to some human life than other human life. It has criminalised parents who use reasonable and moderate chastisement in the discipline of their children. It has redefined marriage. It has undermined marriage by making adultery lawful. In effect, it is well on the way to declaring that parts of Scripture should be seen as “hate speech”, inclusive of some teachings of Jesus and the prophets.
I concluded my talk as follows:
“Let me 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 hearts and 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:
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 humanist’s 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 man’s capacity to sin.”
My lived reality these past 67 years tells me that at best, the Bill of Rights can curb the abuses of our sinful natures and societal structures. However to transform our hearts and societal structures, we need to look elsewhere. To look to the Bill of Rights for this, or rather the subjective interpretation of it by justices of the Constitutional Court, is to make it a new golden calf, to worship the works of our own hands. To create a god and a society in our own image, or in the image of the 11 justices of the Constitutional Court.
And that clearly is idol worship.