Mogoeng Mogoeng’s comments can wait until his retirement

Chief justice Mogoeng Mogoeng is not the first judge in the world to get himself entangled in politics. It rarely ends well.

In the US, for example, Supreme Court justice Ruth Bader Ginsburg got herself into a mess in 2016 by describing Donald Trump, the future president, as a “faker” and questioning, among other things, his lack of consistency and failure to turn over his tax returns.

Four years later, president Trump, ahead of a case in front of the country’s highest court related to his financial affairs, called on the judge to recuse herself on any cases involving him, citing alleged bias, though she had quickly apologised for comments that she accepted were “ill-advised”.

Though SA is used to Mogoeng being vocal, he seemed to have crossed a line during a webinar hosted by the Jerusalem Post in which he expressed his personal feelings on the political hot potato that is the Israel-Palestinian conflict, contradicting SA’s foreign policy.

In a secular democracy and a culturally and religiously diverse country such as SA, there has long been an uneasiness with Mogoeng’s public displays of his Christianity, but this has not previously resulted in the outcry we have seen since last week. To his credit, there isn’t any evidence that this swayed his judgment on important cases that have come to the court.

But he still shouldn’t have dragged the court into politics, leading to the ANC issuing an extraordinary statement calling on speaker of parliament Thandi Modise to discuss the comments with him. The party argued that while Mogoeng was indeed a citizen and entitled to his views, he had a bigger responsibility as the primary protector of the constitution of SA.

“We respect his religious choices but SA is [a] secular state and its judiciary must be secular,” the ANC said.

The situation is made even more problematic because the Constitutional Court is yet to deliver judgment on a hate speech case that has the Israel and Palestinian issue at its heart. This saga could well end in demands for Mogoeng to recuse himself, while a complaint may be laid at the Judicial Service Commission.  

While much of the commentary on Mogoeng’s intervention has centred on the validity of his views with regard to Israel, this is not the point of the critique. The facts are that Mogoeng openly contradicted SA’s foreign policy and firmly placed himself in the terrain of the executive — and by extension the political space, in which fights are far from collegial.  

This is dangerous because the nature of the office he holds means it is imperative that he keeps his personal views to himself or risk having the impartiality of the courts questioned.

As leader of the judiciary in a constitutional democracy in which there is a clear separation of powers, it is not possible to be just Mogoeng Mogoeng, who can speak out on all and sundry.

The code of judicial conduct is clear on what judges can’t do. It says that they can’t become involved in political controversy or activity “unless it is necessary for the discharge of judicial office”. It would be hard to argue that getting himself involved in the politics of a foreign country is necessary for the discharge of his duty towards SA.

While some may argue that it is much ado about nothing, it is not a narrative that is sustainable, because there are responsibilities that you have when you head the judiciary. It also means giving up certain “freedoms”, such as that of representing a political party.

That the judiciary has been under pressure as it hears more and more politically sensitive cases makes it even more necessary that its objectivity cannot be questioned.

The chief justice cannot be judge, pastor and politician concurrently. Like all of us, he is entitled to have his personal views on the Israel-Palestine conflict and he will be free to express them when his term finishes.