Homosexuality is reprehensible and same-sex marriages should be outlawed, the Constitutional Court heard in May 2005.
A certain John Smyth, representing lobby group Doctors for Life, argued with great passion on how the Bible is clear on the matter and that allowing same-sex marriages would cause Christians “violence to the mind and spirit”.
“There is no escaping the fact that in both testaments, homosexual acts are condemned in very strong language,” he said.
Then Justice Albie Sachs, a renowned human rights lawyer, pointed to Smyth that it is not desirable for jurists to give meaning to religious texts. I concur.
In December 2005, the apex court handed down a unanimous decision that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage, were unfairly discriminatory, unjustifiable and unconstitutional.
The rest is history.
Two years after this landmark ruling, which declined an invitation for judges to give meaning to religious text, Mjabuliseni Isaac Madondo got his first judicial appointment at the KwaZulu-Natal High Court. Fast forward to 2016, Madondo was elevated to the esteemed position of deputy judge president of the KwaZulu-Natal High Court.
You must be asking yourself why am I boring you with Judge Madondo’s brief CV and a 17-year-old case?
Well, Madondo this month messed up a chance of a lifetime to become the judge president of the division, despite being the only candidate interviewed. His sin? Publishing his homophobic beliefs in 2019.
In the book, Revelation of God’s Truth and Plan, Madondo lays bare his staunch religious views.
“The book … is aimed at imparting knowledge of the gospel to the whole world and thereby serves to reveal, discern and propagate the truth of God and His plan of redemption to all mankind, especially those who desire to become His true worshippers and inherit His eternal kingdom,” according to Amazon’s promotion of Madondo’s masterpiece.
One passage in the book is particularly telling. “Homosexuals are clinging to their perversion, and there is nothing one can do to change them.” Poor God.
Madondo, in his interview for the top post, said it was an insult to refer to him as a homophobe. The 69-year-old jurist was not recommended for the vacant post he is acting in. Thank God. It is, however, worrying that a judge who believes that God is above “all human laws”, is still on the bench.
Judges, like all of us, are products of societies that nurture them. They grow up in and are socialised by a largely homophobic society. It must not come as a surprise that some in the judiciary embrace and uphold its dominant, conservative social values.
However, when judges, who must exercise impartial justice, air their religious beliefs and give meaning to biblical text in a secular state, then we have begun a dangerous descend.
A popular argument by supporters of Madondo’s sympathisers is that their opponents are trying to remove religion and its influence from public life.
From a historical perspective, the authors of our constitution considered it in the best interests of democracy and sincere religious belief to establish a government that is neutral on religion.
Such conduct gives a strong inference that the judge’s decisions are predicated on a basis other than the law of the land.
Madondo’s faux pas reminds one of former Alabama Supreme Court Chief Justice Roy Moore, who was chucked out from office in 2003 after he placed a 5,300-pound monument of the Ten Commandments in the rotunda of the state judicial building and refused to remove it despite being ordered to do so.
At the time, Moore said it was proper to have the monument at the house of justice “in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo-Christian God over both the state and the church”.
Need I say more?
I am a Christian. I have been for the past 19 years. Its teachings are good and sincere. But like Desmond Tutu, I would not worship a homophobic God.
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