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Warning to EFF MPs who voted against the Civil Union Bill: Doing your job well can get you fired – best not to!

By Ryan Smit

This opinion piece first appeared on News24 on 24 August 2020 – available at: https://www.news24.com/news24/columnists/guestcolumn/opinion-civil-union-bill-doing-your-job-as-an-mp-could-land-you-up-in-hot-water-20200824

Since the adoption of the Civil Union Amendment Billby the National Council of Provinces (NCoP) last month, the nation is holding its breath for President Ramaphosa’s next step.

The Bill proposes the repeal of section 6 of the Civil Union Act – the so-called conscientious objection clause – which was included in the original Act to avoid putting these officials to“extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”(Christian Education South Africa v Minister of Education) This repeal eliminates the exemption of state-employed marriage officers from solemnising same-sex marriage unions if they have sincere conscientious or religious objections to officiating at such unions.

In terms of the Constitution, the Bill will only become law after the President signs it and the President can only sign it after having considered its constitutionality. If the President has any reservations about the constitutionality of the Bill, he must refer it back to Parliament for reconsideration.

While we await the President’s next move in the constitutional process, the politics surrounding the Bill is taking centre stage. Perhaps the most provocative sub-plot of the political gamesmanship is the internal squabbles within the EFF, following revelations that their MPs in the NCoP voted against the Bill.  The EFF’s reactionto these revelations has been to affirm its support for the Bill in the media, reinforce (multiple times) its support for the LGBTQI+ community and for the normalising of LGBTQI+ sexual preferences.

Even more sensational has been the EFF’s unreserved apology to LGBTQI+ activists and their undertaking to take action against their MPs who voted against the Bill.  The EFF statement on the Bill also included calling on President Ramaphosa to urgently sign the Bill into law and calling for active participation by all in society to advance and defend the rights of all people, regardless of gender or sexual orientation. The approach of the partyexhibits either deep ignorance of or complete disregard for the constitutional obligations of individual MPs, and displays a mistaken understanding of the application of the Bill of Rights to the Civil Union legislation.

MPs oath of office is found in Item 4(1) of Schedule 2 to the Constitution. In terms of this oath, each MP has sworn, for the duration of his/her tenure, to –

1. Be faithful to the Republic of South Africa;
2. Obey, respect and uphold the Constitution and all other law of the Republic;
3. Perform his/her functions as a member of the legislature to the best of his/her ability.

The crisp question, with reference to the second oath/affirmation above, is – What is an MP to do when his/her party’s policy conflicts with the Constitution? Should the MP “obey, respect and uphold the Constitution” in defiance of party policy? The answer here is rather straightforward – not only shouldMPs uphold the Constitution rather than party policy – they must.

Herein lies the rub: In 2005, in the ‘Same-sex marriage case’ (Minister of Home Affairs and Another v Fourie and Another), the Constitutional Court expressed the opinion that it was possible to find a solution which respects, protects, promotes and fulfils the rights of both the same-sex couple andthose marriage officers who have sincere religious objections to solemnising such unions – by not compelling them to act in violation of their conscience.

The Court expressed it thus:

“The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience.”

With reference to the constitutional rights of same-sex couples and the rights of believers to have their religious freedom respected, the Court further noted that – “The two sets of interests involved do not collide, they co-exist in a constitutional realm based on accommodation of diversity.”

The above quoted pronouncements of the Constitutional Court formed the basis for including section 6 (the conscientious objection clause) in the Civil Union Act in 2006. Both houses of Parliament passed the Act and the President assented to and signed it into law – obviously without reservations about its constitutionality because section 6 had (and still has) Constitutional Court backing. Evidently this section does not amount to unfair discrimination against same-sex couples, otherwise the Constitutional Court would not have proposed it in its judgmentin the ‘Same-sex marriage case’.

Contrary to the constitutional requirement that the state shows equal respect and concern for the rights and freedoms of both same-sex couples and marriage officers in its employ who are conscientious objectors, the proposed repeal of section 6 does something else entirely. It onlyshows concern and respect for the rights of same-sex couples while eliminating completely the rights of state-employed marriage officers who are conscientious objectors. In doing so, the Bill crosses a threshold – the threshold of unconstitutionality.

The EFF MPs who voted against the Bill in the NCoP, sided with the Constitution and upheld their oath of office by obeying, respecting and upholding the Constitution in the face of conflicting party policy, and for this they should be lauded. However, if their disciplinary proceedings within the partyresult in disciplinary action against these MPs, it will be yet another instance of the Marxist machinery, with its affinity for identity politics and political correctness, trumping and trampling on the Constitution. Through its public pronouncements since the passing of the Bill by the NCoP, the EFF has showed that it does not want “to advance and defend the rights of all people”, only some people. Because, as George Orwellaptly put it –“All animals are equal, but some animals are more equal than others.”

We’ve seen this movie before – upholding your oath of office in contradiction with party policy can get you fired. Best not to do your job well!

Ryan Smit is an attorney and Legal Counsel of Cause for Justice, a human rights and public interest organisation that has been actively participating in the legislative process of the Civil Union Amendment Bill. Most recently, he wrote to President Ramaphosa about the unconstitutionality of the Bill and requested the President to refer the Bill back to Parliament for reconsideration.