It is most regrettable that the Chief Justice of South Africa, Mogoeng Mogoeng, who upon entry into office as a judge of the high court of South Africa swore to uphold and protect the Constitution, could during his webinar interview with the right-wing Jerusalem Post, have seen fit to unconditionally express his love and support for Israel, a country well-known for its violation of the fundamental and basic human rights of the Palestinians.
The timing of his remarks is all the more regrettable, since Israel is attempting to unlawfully annex approximately 30% of the occupied West Bank and Jordan Valley.
It is also troubling that in the face of serious criticism being levelled against him, that he should openly reaffirm his support for Israel, which he apparently did at a virtual Africa prayer meeting, a few days ago.
It is quite manifest that the chief justice’s refusal to apologise or retract what he said during his interview with the Jerusalem Post, is founded upon his belief that his conduct is consonant with his religious faith and the essential articles underpinning it.
This, however, is where the rub lies, since while one cannot reasonably expect the chief justice to abjure his faith on the one hand, he cannot on the other, in relying on such faith, adopt an eclectic approach to the application of basic and fundamental human rights, embodied in our Constitution and also in International Law and International Humanitarian Law.
A core value in our Constitution is that each person is equal before the law. This requires judges to administer the law with an even hand.
The remarks by the chief justice as regards Israel seems strongly to indicate that he considers Israel as a special nation state which is not equally amenable before the law.
The necessary corollary to this, is that the basic and fundamental human rights of the Palestinians, in the view of the chief justice, must yield to the special status accorded to Israel.
This, unfortunately, is the dilemma in which the chief justice has plunged himself and it is not going to go away merely because he, as has been recently reported, considers the matter to be closed. Both the chief justice and others who support him, have argued that when he made his pronouncements on Israel, he did so as an ordinary citizen, relying as such on his right to freedom of speech and expression and belief, and not in his capacity as chief justice. His reliance on his rights as an ordinary citizen, is however, specious, given the fact that he was not invited to participate in the webinar with the Jerusalem Post, as an ordinary citizen, but rather in his capacity as the head of South Africa’s judiciary.
Even if he had been invited as an ordinary citizen, he would undoubtedly have known that as the head of the South African judiciary, he should at all times comport himself in such a way as not to trench on the rights of another arm of government (in the instant case, the executive), and, not in any way to compromise the core values in our Constitution, more particularly, the right to equality before the law and concomitantly, the equal application of the fundamental and basic human rights. On this score, he must have been acutely aware that:
When he criticised the foreign policy of the government towards Israel, that he was infringing upon a core value of the Constitution, namely, the doctrine of separation of powers, which guarantees separate spheres of competencies for each of the three arms of government, namely, the executive, the legislature and the judiciary (the adoption of foreign policy is the exclusive preserve of the executive).
When he expressed his antipathy towards the application of disinvestment and sanctions against Israel, there was documented evidence in the form of reports and findings garnered under the auspices of the UN, Amnesty International and other accredited human rights agencies, which indisputably show that Israel has been guilty of war crimes and crimes against humanity as regards its many and diverse depredations committed against the Palestinians and its policy of collective punishment of the Palestinian people.
When he expressed his total love of Israel and his antipathy towards the application of sanctions against Israel, there was in existence countless resolutions passed by the General Assembly of the UN and the Security Council, condemning Israel for its many depredations committed against the Palestinians, as well as the ruling by the International Court of Justice in 2004 that the wall built by Israel on Palestinian territory, was unlawful in terms of international law and international humanitarian law, and wherein it directed Israel to dismantle it, which to this day, Israel has refused to do.
When he refused to denounce Israel, there was documented evidence garnered under the auspices of the UN, Amnesty International and other rights agencies, which show that Israel has committed egregious violations of the basic and fundamental human rights of the Palestinians, inter alia, their right to life, freedom of the person, freedom from torture and inhumane treatment, freedom of movement and association and the right to dignity, all of which are enshrined in our Constitution and international covenants.
It is astonishing that with knowledge of these facts, the chief justice could have seen fit (whether based on biblical scriptures or otherwise), to criticise and hector groupings in South Africa which seek to advance a policy of boycotting, disinvestment and sanctions against Israel. His argument that Israel did not steal our land nor our mineral and other resources, is not only a pallid excuse for not criticising Israel, but also betrays a monumental ignorance of the fact that Israel was one of the very few staunch supporters of the apartheid regime.
How can the chief justice honestly seek to apply the law equally in cases which may come before him and the Concourt, when he refuses to apply the law equally in the case of the Palestinians? How can the chief justice honestly and sincerely draw upon international law and international humanitarian law, including resolutions of the UN General Assembly and the Security Council, as well as rulings of the International Court of Justice, as interpretive tools, in any case human rights case which may come before him and the Constitutional Court, when blinded by his own religious fervour, he refuses to acknowledge those sources of law in their application to Israel and the Palestinians?
What chance is there that the chief justice’s fundamental articles of faith will not operate subliminally to influence his conclusion, in matters involving human rights and where the persons or groups involved in
the matter, are not of his particular faith?
Since the chief justice is selective in his approach to the human rights of the Palestinians, this must seriously impair his fitness to continue to act as the chief justice of South Africa.
The chief justice may well have breached his oath of office by his
pronouncements on Israel, given the fact that there is ample ongoing evidence that Israel’s continued occupation of Palestine is a breach of the Rome Statute, to which South Africa is a signatory. As shown in the Omar Hassan Ahmad Al-Bashir matter, International Law excludes indemnities
as a defence and a jurisdictional bar to criminal conduct.
The open and unconditional support of Israel can hardly be said to be consistent with an undertaking to uphold the law.
* MA Albertus SC is a practising advocate at the Cape Bar.
** The views expressed here are not necessarily those of IOL.