Africa4Palestine “distorted and twisted” his Bible-based reflections in a webinar last month and sought to take away his constitutional rights to freedom of religion and expression despite failing to highlight any constitutional value or provision that he violated, Chief Justice Mogoeng Mogoeng says in his response to their complaint against him before the Judicial Conduct Committee.
“Woe to our constitutional democracy and our freedoms if these narratives were to prevail. It would almost be as if Christians would in the future have to practice Christianity and obey Biblical commandments subject to the approval of the likes of Africa4Palestine,” he says of the pro-Palestine organisation’s arguments in support of their claims that he breached the judicial code of conduct through his webinar remarks and failure to recuse himself from a hate speech matter against a backdrop of the Israel-Palestine conflict in which judgment has not yet been delivered by the Constitutional Court.
In its complaint filed three weeks ago, Africa4Palestine, which was formerly known as BDS South Africa, says that Mogoeng’s webinar comments on Israel and Palestine breached the judicial code of conduct as he became involved in a political controversy or activity. Regarding the hate speech matter they say the chief justice should have recused himself because he is conflicted because of his strong pro-Israel views.
In his 19-page response [which can be downloaded here] Mogoeng defends his remarks during a webinar hosted by the Jerusalem Post newspaper, saying “it can never be scandalous or unbecoming of a Judicial Officer to believe the Biblical commandment to pray for the peace of Jerusalem, to embrace love for all rather than hatred, peace rather than war, the possibility for mediation rather than self-exclusion.”
He says it is unthinkable in an open and free society that his remarks ought to attract disciplinary measures or punishment
“It would, in my opinion, only make sense for these palpably innocent utterances to attract incidents of acute anger-management incapacity or unrestrained irrationality and vitriol, if they have inadvertently yet effectively dislodged or devastatingly undermined some undisclosed monumental agenda(s),” he says.
“What must be guarded against,” he says, “is a desperation to enforce own or sectional agenda, by singling out a public figure to make an example of him or her, almost as if to say to all: ‘you better watch out. If we can deal with this one so viciously, just imagine what would become of you if you were to disagree with us’,” he says.
At the outset of his response Mogoeng states that he believes in the Bible in its totality and that “embracing, professing and ordering one’s affairs in line with the Holy Bible is a fundamental human right entrenched in the supreme law of the Republic — the Constitution. And so is the free expression of one’s opinion, belief or thought. These freedoms are doubly-guaranteed by sections 15 and 16 of the Constitution”.
He says these constitutional freedoms are “not to be lightly interfered with” just because their exercise irritates or “is at variance with the agendas or popularised views of some”.
“Their exercise is not to be overly controversialised or weaponised to beat some citizens into ‘line’ or force them to conform to the viewpoints of others like pressure groups, the media, analysts or Government. Nobody should thus be allowed to easily get away with campaigning or enforcing their project/agenda/world-outlook, which unconstitutionally’ negates constitutional rights of others, into the national psyche so as to prime all, including would-be decision-makers, into a fear-induced acceptance of a popularised line of command to escape untold reputational damage or other conceivable risks that could otherwise eventuate.,” he says.
Addressing Africa4Palestine’s formal complaint against him, Mogoeng says that crucial parts of his remarks “that best contextualise my views on the webinar, have been tactfully or strategically left out. The first was on love and advance-forgiveness based on Matthew 5:44 that says:‘But I say unto you, love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you and persecute you.’
“It was in relation to this Biblical injunction that I also said that those who are planning or conspiring to destroy or kill me, I forgive them. Even those who would plot to do so in ten years to come are already forgiven. You can’t have this conviction or belief and still harbour a jaundiced disposition towards anybody, including Palestine.
“Conveniently, Africa4Palestine also left the following remarks out of contention, presumably because they militate against their campaign against me:
“I love the Jews. I love Israel. I love Palestine. I love the Palestinians. I love everybody. One, because it is a commandment from the God in whom I believe, but also because when you love, when you pursue peace with all human beings, you allow yourself the opportunity to be a critical role player whenever there is a dispute”.
“It was in this context and after referring to Psalm 122:6 and Genesis 12:1-3 in the Holy Bible that I said: ‘I am under an obligation as a Christian to love Israel, to pray for the peace of Jerusalem, which actually means the peace of Israel. And I cannot, as a Christian, do anything other than love and pray for Israel, because I know hatred for Israel by me and for my nation can only attract unprecedented curses upon our nation. So what do I think should happen?’
“I think, as a citizen of this great country, that we are denying ourselves a wonderful opportunity of being a game changer in the Israeli-Palestinian situation. We know what it means to be at loggerheads; to be a nation at war with itself. And therefore the forgiveness that was demonstrated, the understanding, the big heart that was displayed by President Nelson Mandela, and we the people of SA following his leadership, is an asset that we must use around the world to bring about peace where there is no peace, to mediate effectively based on our rich experience”.
He says: “Somehow Africa4Palestine has, in my view, found a way to build a case by taking these remarks completely out of their obvious context to achieve its goal of making an example of me to any who would ever dare to knowingly or unknowingly differ with them. The love for all, the pursuit of peace, forgiveness, mediation and prayer are disregarded in the furtherance of their objective. Bible-based prayers for the peace of Jerusalem and the refusal to hate or curse are now being made out to look like a preference of Israel over Palestine, as support for everything that the Israeli government has done, is doing or is yet to do, and the rejection of, if not hatred for Palestine. In sum, these are all being weaponised against me, and made to look like conduct so unbecoming of a Judge as to justify the imposition of some form of punishment on me. And all this, in the name of human rights.”
Mogoeng says that as citizens with rights and freedoms judges should not be needlessly muzzled but ought to be free to write articles or books, deliver lectures, participate in media and share reflections on any subject of public interest.
“They are not to be confined to judgment-writing responsibilities as some, either out of sheer ignorance, mischief-making or stone age conservatism, have consistently advocated for,” he says.
He discusses in some detail what is proscribed in terms of the judicial code of conduct, and concludes that article 12(1) is not intended to land judges in trouble for expressing anything that smacks of politics, but rather to deter local party political controversy that could bring the impartiality of a judge into question. He cites several examples of Constitutional Court judges and former judges who were not the subject of complaints by Africa4Palestine, despite taking a stand on various issues in the broader political arena.
“Article 12 is about ensuring neutrality on justiciable issues — not a blind and purposeless banning order on Judges,” he says.
Dealing with his webinar comments on SA-Israel policy, he says he made it clear that he regards that policy as binding on him. However, he says policy must not be conflated with politics, even if it touches on political issues, and as a citizen he is “entitled to criticise the Constitution, the laws and even policies of my country”.
Mogoeng dismissed Africa4Palestine’s complaint that he should recuse himself from the ongoing hate speech case as a “red herring”. He says that to avoid hypocrisy and corruption judges owe it to the public to be transparent about matters on which they hold strong views. He has always been open about his faith and has at times been under vitriolic attack “precisely because I am a Christian and a Pastor. The worst mockery was triggered by my disclosure that God wanted me to be the Chief Justice. It became headline or breaking news material. Yet, where Christian principles conflict with the Constitution I have been demonstrably loyal to my oath of office.”
He says that as recently as last year, in the judgment which outlawed corporal punishment at home, he wrote a judgment that goes against cherished biblical principles “because I believed that I was constitutionally and legally so enjoined”.
“Integrity and the force of my oath of office always dictate that I do not contort the law or facts in order to enforce my beliefs, however deeply held. It is either I honour my oath of office or resign if the conflict between the Constitution and my faith becomes unbearable,” he says.
Mogoeng concludes his argument with a strong affirmation of his biblical faith in the face of those who would wish to attack him for that very reason. He says: “I believe that to some, my reliance on the Holy Bible and the next paragraph amounts to foolishness or sheer madness and the much-awaited lubricating material for the vilification or smear machinery. But to me and many others, particularly genuine, standing and uncaptured Bible-believers (those who believe the Bible in its totality) it is the necessary profession of faith and the power of God (Romans 1:16-17; 1 Corinthians 1:18-19 and 24-29; and Hebrews 4:12).
“The God of Abraham, Isaac and Jacob, Jehovahnissi (Exodus 17:15) Who has commanded me to love Him and all human beings including my persecutors (Matthew 22:37-40 and 5:44; Romans 13:10); the God Who has commanded me to forgive 490 ‘times in one day (Matthew 18:22 and Mark 11:24-25); the God Who has commanded me to pursue peace with all human beings (Hebrews 12:14); the God Who still guides His own with great precision (Jeremiah 33:3; Daniel 2:17-23 and Romans 8:14) the God Who I dare not deny (Matthew 10:33; Romans 8:35-36 and 38-39); is the God for Whom this battle is (Exodus 14:14; Esther 7:10 and 2 Chronicles 20:1-25). He is the God who will never leave me nor forsake me (Hebrews 13:5) and to Whom all power (Psalm 62:11) and vengeance belongs (Psalm 94:1 and Romans 12:19). He is the God who will make me more than a conqueror through Jesus Christ who loves me (Romans 8:37) in Jesus Mighty Name, AMEN!”
Mogoeng has submitted his response to the Africa4Palestine complaint to the judicial conduct committee (JCC) which is being headed in the investigation by Gauteng deputy judge president Phineas Mojapelo.