It's a blatant distortion of the facts!

Wednesday, 24 August 2011

I am against the death penalty. I strongly support gay rights. I’m firmly in the pro-choice camp around reproductive rights. I’m an atheist. And I don’t particularly like Mac Maharaj. (We have clashed in the past, but that’s a story for another day.)

I’m needing to say all of these things up front in case anyone makes assumptions to the contrary because I’m finding myself siding with Mac Maharaj around the response of the chattering classes to the nominee for President of the Constitutional Court.

If you’ve missed the sequence of events, here’s a summary: Judge Sandile Ngcobo declined President Jacob Zuma’s attempts to extend his term as head of the Constitutional Court; this after many people complained (correctly) that President Zuma had acted unprocedurally. There followed a period of speculation as to whom the new head of the Constitutional Court would be with the names of Judges Dikgang Moseneke, Lex Mpati, and Edwin Cameron being frequently mentioned.

However, the president confounded speculation by nominating Judge Mogoeng Mogoeng.

“Who?” You may ask.

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To quote Mac Maharaj: “Justice Mogoeng was appointed a judge of the North West High Court in June 1997, as Judge of the Labour Appeal Court in April 2000 and in October 2002 he became the Judge President of the North West High Court. He was appointed to the Constitutional Court in 2009. Justice Mogoeng is the only Judge in the Concourt who has been a leader of a Court.”

“So what’s the problem?” you may ask. It’s this: Since Judge Mogoeng’s nomination, there have been niggardly commentaries from a number of sources suggesting that he is less than suitable for the job.

The problem with innuendo is that one does not need to back up one’s commentary with fact – one simply has to imply, and trust that the audience will fill in the gaps. In the case of Judge Mogoeng, the innuendo suggests that he is inexperienced, that he is anti-gay rights, that he is soft on abuse of women, and that he is likely to put his own religious convictions ahead of the law of the land.

Graeme Smith made his test debut against Australia at age 21 in March 2002 and was named captain of the national team a year later at age 22. I do not recall there being a hue and cry around his lack of experience. But that’s not the point: what matters is that Judge Ngcobo was appointed as a judge in 1996, and Judge Mogoeng in 1997 – which makes the question of experience quite ridiculous.

Then there’s the supposed anti-gay stance: Two schoolchildren had distributed a computer-created image in which the face of the deputy principal of their school was super-imposed alongside that of the school principal on an image of two naked men sitting in a sexually suggestive posture. The school crests were super-imposed over the genital areas of the two men. The deputy principal sued that he had been defamed and his dignity impaired.

The High Court agreed that the pictures were defamatory.

The Supreme Court of Appeal agreed that the pictures were defamatory.

The case found its way to the Constitutional Court. Judges Cameron, Froneman, and Yacoob said the pictures were not defamatory. Judges Brand, Ngcobo, Moseneke, Khampepe, Mogoeng and Nkabinde said the pictures were defamatory.

Almost every news source in this country has reported that Mogoeng disagreed with Cameron and Froneman and suggests that this makes him anti-gay. Not one of those reports mentions that he was joined in this by five other judges.

Am I the only person outraged at this blatant distortion of facts?

Then there is the suggestion that because Mogoeng is a lay preacher in an evangelical church, he is going to let his Christianity cloud his judgements. I just don’t get this. There are no howls of outrage when Archbishop Emeritus Desmond Tutu uses Christianity to push particular political positions. The former and late Chief Justice Ismail Mohamed never brought Islam into his judgements.

So, I concur with Mac Maharaj that “there are disappointing inaccuracies and distortions in the responses and commentary on the nomination of Justice Mogoeng Mogoeng. The debate must be balanced and be within the rules of common decency.”

It is the prerogative of the President of the Republic to nominate the President of the Constitutional Court after consultation with the Judicial Services Commission and with parliament. “Consultation” does not mean that they get to vote on his choice.

History has shown us that even conservative jurists will balk at government interference in judicial processes. The fact that Mogoeng might be less than liberal does not make him a government stooge.

And finally, we should never undermine the integrity of our courts – they are the last line of defence for our hard-won freedoms. If we in the media treat them as morons or flunkies, who will bat for us? Graeme Smith?