The ConCourt and smacking

Mugabe Ratshikuni on the tension between a liberal, humanist constitution and a conservative society

The Constitutional Court judgement upholding a high court ruling that corporal punishment at home is unconstitutional, meaning that it is illegal for parents to use the common law defence of moderate and reasonable chastisement to discipline their children through spanking, has got South Africans talking and apart from silly, but funny social media jokes about things like, whether the judgement applies to spanking during consensual sex between two adults as couples often refer to each other as “baby”, there are a lot of serious issues that have arisen as a result of it.

Apart from the merits and demerits of the judgement, which I am not qualified nor inclined to comment on, what struck me the most was the fact that Chief Justice Mogoeng Mogoeng has once again proven himself to be a profound constitutionalist, able to pass a judgement which goes against his own Christian convictions but is in line with the values and ideals of our much celebrated constitution in a pluralistic, modern secular humanist state advancing liberal, as opposed to traditional conservative values.

One wonders what happened to all the naysayers who criticised Mogoeng’s appointment unfairly on the basis that he holds conservative, Christian values, as if to suggest that as a professional who just so happens to be Christian, he was incapable of separating his own value system inclinations from those of the Constitution of the Republic if needs be.

The judgement is in line with the sentiments expressed by American novelist Richelle E. Goodrich in her book Smile Anyway, “Our greatest duty to our children is to love them first. Secondly, it is to teach them. Not to frighten, force or intimidate our children into submission, but to effectively teach them so that they have the knowledge and tools to govern themselves.”

What intrigued me the most about the judgement was also what it said about modern South African society and its acclaimed constitution. It’s interesting to note how highly behavioural theories are influencing the type of society we live in. It’s also quite eye opening to realise how lacking in self-governance we are as a people, hence basic things such as principles of raising a child have to be regulated by a nanny state.

It is because of this lack of self-regulation for example that government has to spend so much money and resources dealing with behavioural issues such as practising safe sex. So, we see the state increasingly involving itself in private matters such as people’s sexual behaviour, because there is little or no self-governance in South African society. Hence the high crime rate amongst many of our other social ills. As blogger and author T.F Hodge puts it, “rules, laws and codes become obsolete amongst the self-governed.”

Now, I am no advocate for Bakunian anarchy, but all of this interests me in terms of how we as citizens relate to the state in this constitutional dispensation that we find ourselves in. Another aspect that I started thinking about when observing the discourse on this judgement, was how much of a disjuncture there is between some foundational principles of our constitution and a large part of the constituency in South Africa.

So you find things that are against the values of the constitution oft-times being at loggerheads with the values of the majority of the South African constituency. In simple terms, a constitution of liberal values of a secular humanist nature often finds itself at odds with the traditional, conservative values that most of the South African constituency espouses and hence you have such an uproar when such a judgement is given; apart from among intellectual, secular humanist elites who are the drivers of the current constitutional model anyway.

A good mate of mine reminded me that a constitution is idealistic in nature, representing where we want to go as a society not necessarily where we are, as an explanation for the current discrepancy. I asked whether or not there shouldn’t be an amalgamation of values and principles of what we want to be as a people, before setting this ideal? Now, holding traditional, conservative values doesn’t make one anti-constitutionalism, don’t get me wrong, but rather it is these liberal, secular humanist values that are underpinning our constitution that often create problems.

So as conservative and religious lobby groups are up in arms over this judgement, it behoves us to remind ourselves that what they represent, is the value system and interests of the majority of the South African population who have not yet adopted the values of this elite, secular humanist constitutional project of liberal values that we have embarked on.

Of course democracy is not akin to majoritarianism, as majorities can often be wrong as history has proven, but this is an interesting angle that we must interrogate even as we consider the merits and demerits of the Constitutional Court judgement.

Mugabe Ratshikuni works for the Gauteng provincial government; He is an activist with a passion for social justice and transformation. He writes here in his personal capacity.