By Greg Alexander Mashaba
In between joining family to celebrate Christmas and the ushering in of a new year, I have found time to reflect on the majority decision and the dissenting opinion of Chief Justice Mogoeng Mogoeng in the judgement of the Constitutional Court of South Africa on the application brought by opposition parties against the National Assembly of the republic which was delivered on 29 December 2017. In his dissenting opinion, Chief Justice Mogoeng described the majority view of the court as “a classical textbook case of judicial overreach”. His dissenting opinion was met with a tirade of insults on Twitter and condemnation, especially by members of the Economic Freedom Fighters (EFF). The mainstream media seemed content to focus more on the majority decision than that of Chief Justice Mogoeng, with many of their analysts, (with much apparent glee), drawing the conclusion that the demise of the administration of President Jacob Zuma was imminent.The fact that the majority decision of the Court set a dangerous constitutional precedent was seemingly lost to his critics, including non-governmental organisations and the clergy in the main-line Christian denominations. They were all blinded by the erroneous view that the majority decision only concerned the fate of their political nemesis, namely Jacob Zuma and, to a certain extent, the African National Congress (ANC) as a whole.
After much reflection, I came to the conclusion that selective morality, betrayal of one’s own moral principles, cowardice, prejudice and hatred were possibly the greatest threat to our hard-won democratic and constitutional dispensation. I further came to the two following conclusions, namely that:
- Decisions based on short-term political expedience can and do quite often bear adverse long-term political consequences;
- Maintaining silence or supporting such decisions would in all probability result in those guilty of such silence or support for such decisions living to regret such and being found on the wrong side of history.
It was within this context that I found myself pulling up the poem by the protestant pastor, Martin Niemoller ( 1892-1984 ). Pastor Martin Niemoller wrote his now famous poem after the defeat of the Nazis in the Second World War. He was motivated in doing so by his frank admission that he had failed humanity by initially supporting the policies of Adolf Hitler in the early 1930s. By the time the true nature of Hitler’s policies and the consequences of pursuing them became apparent, the world was engulfed in a war hitherto never seen. Millions of Jews, Slavs, Russians, together with socialists, Christians and peoples of other faiths who fell outside the Nazi definition of humanity had been massacred in the Holocaust and other acts of unparalleled genocide. Millions others, including 20 million people in the former Soviet Union, died as a direct result of the war.
Although there are many variations of Martin Niemoller’s poem, the common version is as follows:
“ First they came for the Communists and I did not speak out-
Because I was not a Communist.
Then they came for the Trade Unionists and I did not speak out –
Because I was not a Trade Unionist.
Then they came for the Jews and I did not speak out –
Because I was not a Jew.
Then they came for me – and there was no one left to speak for me.”
A lot has been written on the story of Pastor Martin Niemoller. However, for purposes of this particular discussion, I have opted to pull out an extract from an article by Robert Michael whom I quote at length :
“ The foremost leader of the most significant resistance to Nazism during the first five years of the Third Reich was the Protestant Pastor Martin Niemoller. He – as well as most of the rest of the leadership – agreed however with the Nazi regime in its position to the Jewish question. Both Nazis and their Protestant opponents were anti-Semitic, based on nearly two millennia of Judenhaass. They concurred that Jews were evil beings who deserved to suffer in this world. This agreement with anti-Jewish attitudes, together with other factors such as German nationalism and Lutheran Obrigkeit, weakened and nearly ruined the ability of the resisters to set themselves up as the moral opposition to Hitler. This kind of evil harmony between Nazis and anti-Nazis would prove fatal to the Jews . “ (1)
Coming back to the situation in our country South Africa, one of the most disturbing features of our political history is the abuse of our courts by opposition, their allied non-governmental organisations like Freedom Under The Law (FUL) and the Society For The Advancement of The Constitution, and the clergy in the so-called mainline Christian denominations to advance narrow political strategies under the guise of defending the constitution. This flawed and ill-conceived strategy will certainly one day see all involved in this unholy alliance to be on the wrong side of history. Even as the ink on this short piece begins to dry, large sections of our communities will find that the ability of these formations to position themselves as the moral opponents of corruption and as defenders of constitutional democracy to have been severely compromised. They will find that they chose to ignore the minority decision of Chief Justice Mogoeng Mogoeng to their own peril .
(1) Robert Michael “Theological Myth, German Antisemitism And The Holocaust : The Case of Martin Niemoller”-Holocaust And Genocide Studies, Volume 2, Issue 1, 1 January 1987. Pp 105-122
Greg Alexander Mashaba is an Additional BEC member of the ANC Branch in Ward 23 , Ekurhuleni. He writes in his personal capacity