Maimane and the Constitution

In the most direct test of Mmusi Maimane’s understanding of constitutionalism and liberty, the DA’s heir-presumptive has been found wanting.

Maimane is widely reported to have stated that he would allow issues like the death penalty and gay rights to be determined by the vote. Understandably, this has caused much upset, among Maimane’s supporters particularly. They argue that those who deem Maimane to be illiberal because of his Christianity are themselves committing illiberal policing. They are, at best, misrepresenting the attacks on Maimane or, at worst, wholly mistaken.

Firstly, Maimane has offered no justification of why he believes that fundamental rights — like the right to life — are negotiable. Maimane needs to explain why he believes an explicit entitlement created by the Constitution, consistently reaffirmed by the Constitutional Court as its supreme guardian, is negotiable by referendum.

In this case, his faith is irrelevant. Rather, his fundamental misunderstanding of the kind of liberal political order that was created in South Africa — one that maximises freedoms, particularly of minorities — leaves much to be desired. By agreeing that such matters could be (re)decided by Parliament/referendum, Maimane either suggests these rights are unworthy of protection and/or majoritarianism (in a socially conservative society) that could oppress minorities is acceptable. Both are problematic: on one hand, he is engaging in meretricious populism or, on the other, he is a hypocrite given how vigorously he opposes the majoritarian tendencies of the ANC.

One does not even have to engage in the specifics of the death penalty/equal rights debates to show that these are bad policies. They violate the first principle of liberal democracy: reducing the full enjoyment of rights (of a minority) where no reasonable justification exists.

Secondly, where faith is relevant, is the relationship between Maimane’s two sides: the religious prophet and the secular constitutionalist. It is legitimate for one to wonder whether Maimane’s willingness to have these rights derogated from stems from his (religious) beliefs. Equally, if South Africa were a majority Muslim country, one wonders whether he would accept the right of Christians to be protected and practice their faith being decided by a Parliament/people who may not think so.

Maimane’s supporters, ironically, use the liberal free speech principle to suggest they can support Maimane’s right to hold these views while not necessarily defending or agreeing with them.

Again, they miss the point: it is not how he can believe in these different things but how he failingly seems to reconcile them, especially where his personal faith may make him take policy decisions that violate our secular order. And where his personal beliefs may have the consequence of reducing the freedoms enjoyed by others.

Moreover, many would rightly argue that this warped ‘‘accommodation’’ narrative misrepresents liberalism. Liberalism has given opponents a wide berth to hold many views which liberals force themselves to accommodate. But liberalism would never support anything that undermines the right to life and liberty — to be alive and live life (sexually) as one pleases. It is why liberals have largely been sceptical of religion: not because of a belief in God, per se, but because religion tends to have a particular determinative world view of life and how it should be lived. This scepticism is both reasonable and justified in Maimane’s case — how can a man of the cloth, who some suggest could be President, divorce himself from the faith that he preaches when it determines that homosexuality is a sin. Whether Maimane likes it or not, that is a moral dilemma that he must answer and which we, as voters, are entitled to receive

It may be easy for Maimane’s supporters to paint this critique as ‘‘self-appointed custodians’’ of liberalism who are obsessed with ‘‘policing’’ what liberalism means. They aren’t altogether wrong. Who better to police an ideology than those who openly adhere to it? Who better to stand up for their beliefs when it is being hijacked to mean something else? This is not the first time that Maimane’s supporters have been eager to silence all forms of criticism against him. They believe that they stand on the brink of power and that all must be sacrificed to attain it. They should be warned against it. Demanding Maimane answer hard questions about principle is not trying to stop him from attaining power. It is about making him better understand what he can and cannot do should he win it.