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A critique of Moroka J’s abolition of the delict of Adultery

Ndulamo Anthony Morima
EAGLE WATCH

In a recent land mark judgement in Precious Kgaje v Oreneile Phindile Mhotsha, CVHFT-000237/17, Moroka J made two Orders which may, unless the judgment is appealed and quashed by the Court of Appeal, forever change Batswana’s family institution.

Moroka J’s judgment is undoubtedly of historical moment in our jurisprudence. His Orders were short, yet far reaching. His first Order was that “the delict of adultery is no longer consistent with the boni mores (good morals) of contemporary Botswana.” In other words, according to Moroka J, Batswana’s general sense of justice and legal convictions today view adultery favorably and condone it and such evolution of Batswana’s culture should be reflected in our law.

The second was that “the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia (insult to the self-esteem) and loss of consortium ( comfort and society) is no longer wrongful and thus no longer available as part of our law.” In resolving the question whether the delict of adultery is still valid given the change in the boni mores of society, Moroka J answered in the negative influenced, inter alia, by the fact that many countries including England, Namibia, South Africa and Seychelles have abolished the delict of adultery.

Moroka J was also persuaded by the argument that highly personal relations should not be regulated by the law but should be left to the sphere of ethical self-regulation of the community through unwritten norms and values. According to Moroka J it is the quality of the citizen, his or her integrity and voluntary respect for the marital institution and not the fear of sanction that sustains tranquility in the marriage.

Moroka J cites the Setswana proverb which says ‘matlo a na otlhe’, translated to mean all houses have leaky roofs, to demonstrate that Batswana accept adultery since the proverb is often used to counsel the innocent spouse in cases of adultery. This, he says, shows that while Batswana condemn adultery family preservation is encouraged as opposed to impulsive breakdown through divorce, stating that marriage is a union of forgivers.

He also cites the Setswana saying ‘Nyatsi e tiisa lelwapa’, translated to mean that an adulterer strengthens a marriage, to demonstrate Batswana’s tolerance of adultery. But, in admitting that Batswana regard adultery as wrong he states that “this is by no means an encouragement of an otherwise reprehensible conduct but an expression of attitudes towards it.” Before critiquing the judgment, it is apposite that I address some of the things that have been said about the judgment itself and the judge generally.

Some have wondered why one person, a judge, can change a law, arguing that only Parliament should have the preserve to make and change law. Judges have the power to develop the common law provided they do so in a manner that promotes the spirit, purport and objects of the Constitution, and in accordance with public policy. I, however, suggest that the law be amended to provide that decisions of the lower courts which have constitutional implications, as this one does, should be referred to a panel of three judges to confirm it before they have effect.

Others have, while accepting that Moroka J had the power to change the law, argued that he became overzealous and considered matters that were not before him, arguing that it is as if he had been waiting for the case to make a land mark judgment for his own legacy. At paragraph 1 of the judgment, the judge states that “the Defendant has invited this court to evaluate the constitutional and common law validity of the third party delictual actio iniuriarum claim based on adultery pertaining to a civil marriage, in the light of the changing mores of our society.”

The question is: did the judge do that and nothing more? Though one is not privy to the evidence led during the trial and the heads of arguments submitted by the parties, one wonders at the judge’s conclusion that Batswana’s morals have changed to the extent that they no longer consider adultery as wrongful. There is no reference, in the judgment, of evidence led during the trial which supports such a conclusion. There is also no reference to any empirical report or survey which supports such a conclusion.

Moroka J also, at paragraphs 53 and 54 of the judgment, refers to reasons for the support of the remedy and reasons against, which he says are, in part, from the readings of legal and sociological books and material, but such books and material are not referenced in the judgment. It has also been asked whether Moroka J’s judgment abolished the delict of adultery for both civil and customary marriages. Some argue that it only abolished adultery in civil marriages because the case dealt with the actio iniuriarum based on adultery which relates to civil marriages and not customary marriages.

If that interpretation is correct, does it mean the claim is still available for those who contracted their marriage under customary law? If that is the case, won’t we see those who are in support of the continued outlawing of adultery opting for customary marriages? But, some say because the judgment said the actio iniuriarum based on adultery which affords the innocent spouse a claim for contumelia and loss of consortium is no longer wrongful and thus no longer available as part of our law means that it applies to both customary and civil marriages because they are both ‘part of our law.’

But, was the issue before the court adultery in customary marriages? Did the judge make his enquiry in relation to customary marriages? Now, back to the substantive critique of Moroka J’s judgment. The question is: was Moroka J right in holding that there is no longer need for the continued existence of the delict of adultery.

Mandla J, in DE v RH [2015] ZACC 18, was right in concluding that, in essence, this is the only issue to be determined. The question is whether or not in contemporary Botswana the act of adultery meets the element of wrongfulness in order for delictual liability to attach. In determining whether or not the act complained of is wrongful the Court applies the criterion of reasonableness.

As was held in the case of Delange v Costa 1989 (2) SA 857 (A), this is an objective test which requires the conduct complained of to be tested against the prevailing norms of society in order to determine whether such conduct can be classified as wrongful.  Since the element of wrongfulness is cardinal for delictual liability, by holding that the delict of adultery is no longer consistent with the boni mores of contemporary Botswana Moroka J is effectively saying adultery no longer meets the element of wrongfulness for delictual liability to attach. I disagree.

Moroka J is saying the majority of Batswana no longer find adultery wrong and distasteful; they find it right. This cannot be correct. Below I give examples of practices and sayings that demonstrate that adultery is as much abominable for Batswana today as it was in the past. In Tswana culture, when newlyweds go through ‘go laiwa’, that is, when they are counselled by elders on how to conduct themselves in marriage one of the things that is emphasized is faithfulness to their spouse.

In Setswana, the third party adulterer is called Nyatsi, which is from the word go nyatsega which means something which is to be belittled. I disagree with Moroka J’s statement that the fact that the Childrens’ Act, Cap.28:04 does not permit discrimination of children born of adultery means that in Botswana both adultery and its fruits are no longer regarded with sort of inflexible moral fundamentalism.

Firstly, the Childrens’ Act was meant to protect the innocent child, not the adulterer. Secondly, despite the Childrens’ Act’s existence children born of adultery still face discrimination. Thirdly, even in cases where such children face no discrimination it does not mean that the adultery itself is condoned. Moroka J has held that the continued existence of the delict of adultery does not protect the marital institution, holding that it is only the parties themselves who, through fidelity, should protect their marriage.

I disagree with the judge’s assertion that adultery has nothing to do with the culpability of the third party and that it is the adulterous spouse that would have pierced the veil of unavailability. Granted, married persons should themselves abide by their marital vows. But, are we saying a third party who, knowing full well that a person is married, gets involved in an adulterous relationship with such person does no wrong and should not suffer any recrimination?

I agree with Moroka J that the fact that the actio iniuriarum of adultery renders the guilty spouse beyond the reach of the law despite clear culpability is an anomaly and that there are instances where the guilty spouse assists the third party to pay damages. But, should such anomaly warrant abolition of the actio iniuriarum of adultery itself?

Shouldn’t Moroka J have developed the common law to provide that both the third party and guilty spouse are liable in damages to the innocent spouse? Of course some would argue that that would be of no effect because the guilty spouse would pay from the joint estate. I take the point, but a provision could be made that the guilty spouse pays from sources other than the joint estate. But, can a spouse married in community of property own anything not part of the joint estate? No.

Or, a provision could be made that a guilty spouse’ share of the joint estate is reduced, and such would have consequence in the division of the joint estate during divorce. But, what if the spouses never divorce? Moroka J states that no threat of sanction may protect the marriage from a spouse who is no longer willing to live by the marriage vows. That is not wholly correct. Some marriages have been saved by the fear of the delict of adultery.

Imagine a situation where, as a result of this judgment, adulterers would fear no legal repercussion! It would result in anarchy, the so-called passion killings, murder-suicides and all manner of immorality. Moroka J argues that because of the principle of Botho which is based on self-respect, self-restraint and respect for others and sacred institutions, Batswana respect the law not out of fear of sanctions, but out of self-respect.

But, the very Batswana, governed by the very Botho still commit rape, murder, theft, e.t.c and laws exist for punishment, deterrence, reform, rehabilitation and even retribution. Where is their self-respect and self-restraint in such cases? Why should we only talk of self-respect and self-restraint in the case of marriage?         

I am aware that there is an adage which says ‘monna ke selepe oa hapaanelwa’, loosely translated to mean a man is an axe who is exchanged, which has been used to justify adultery, stating that it means that like an axe which is exchanged a man or husband can be shared by women. This interpretation is erroneous. Tradition has it that the adage means that a man should be of assistance in the community so that even unmarried women or families without a male should not suffer when it comes to male related duties when there is a male in the community.

I am also aware of the adage which says ‘monna ga a botswe ko a tswang teng’, loosely translated to mean that a man or husband is not asked where he is from, which is interpreted to mean that a man or husband can leave the home or even spend a night away from home, even for adulterous escapades, and he should not be asked where he is from.

This too is an erroneous interpretation. The correct interpretation is that a responsible man or husband always communicates his whereabouts or is, if away from home, does so for the family’s good such that there is no need for him to be asked about his whereabouts. Even today, in some cultures a guilty spouse is regarded as not only having defiled his or her body, but also brought insult to the innocent spouse, and, as a pre-condition for  forgiveness, is required to compensate the innocent spouse by giving him or her a cow. In some cultures, a cleansing ceremony is performed to cleanse the adulterer of the evil and filth that is adultery.           

Moroka J canvassed the changing societal norms mainly in terms of such new forms of sexual indiscretions as sexting and cybersex which are neither regarded as moral by the majority of Batswana nor are they forms of adultery. Besides, these sexual indiscretions were not before the court. Neither was the issue of adultery with a prostitute. What was before the court was adultery in relation to an ordinary married person and a third party.

Moroka J’s argument that the fact that the lurid details of adultery have become a source of amusement in tabloids and social media platforms means that adultery has ceased to be regarded with shock and revulsion cannot be sustained. On the contrary, it shows that it is not condoned, hence the desire to name and shame the culprits. The same applies to his argument that the right to privacy, entrenched in section 9 of the Constitution, which recognizes that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion, should be used to protect adulterers.  

Moroka J talked of consortium and society of the spouses, today, being lost to multiple sources and adultery being just a small percentage of these threats. But, that was not the issue before him. The issue before him was consortium and society of the spouses lost through adultery.

When the CoA, in Mabote and another v Mabote [1999] 1 BLR 386 (HC), approved Watermeyer JA’s views that “…in modern times and in the so-called permissive age there is now no inherent improbability per se about two persons in love, although not married to each other, committing adultery…”, it did not say Batswana no longer regarded adultery as wrongful. It was merely commenting on the increased existence of the vice.

Also, when the CoA said “…there can be no doubt that in many modern societies adultery no longer carries the stigma that it did 50 years ago. This in turn has impact on the loss of dignity sustained by the innocent party…” it was talking of the reduction in stigma, not that adultery was no longer wrong. Also, the comment was made not mainly in relation to the moral blameworthiness of adultery, but mainly in relation to the determination of the quantum of damages against the third party. In my view, therefore, this judgment would better be served by an appeal or referral by the Attorney General, failing which the legislature should intervene by legislation. I may be wrong. 

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Herod Remands His Sons

1st February 2021
Herod

Alexander and Aristobulus thrown behind bars on charges of treason against their own father

Of Herod the Great’s sons, General Atiku, the principal one was Antipater II. Born in 46 BC, he was named after his grandfather Antipater I and was Herod’s only child with his first wife Doris. As firstborn son, he should have been first in line to the Herodian throne but he was sidelined after Herod divorced Doris around 43 BC to hitch Mariamne I, the Hasmonean princess who was more politically expedient.

Doris was banished from the palace along with the then three-year-old Antipater. With Mariamne now elevated to wife No. 1 and having been espoused at the time of Herod’s coronation, it followed at least theoretically that it was her male offspring who would be the presumptive heir. That was how Alexander came into the frame.

Alexander, Herod’s first child with Mariamne, was born in 35 BC. Upon turning 22, he was sent to Rome to pursue studies in sciences at the Imperial Court, where he was under the tutelage of Caesar Augustus. He was later joined by his younger brother Aristobulus IV, who was born in in 31 BC. Because of their pedigree, the lads made a splash from the get-go. “As soon as the young men were come from Italy,” Flavius Josephus writes, “the multitude were very desirous to see them, and they became conspicuous among them all, as adorned with great blessings of fortune, and having the countenances of persons of royal dignity.”

Alexander and Aristobulus graduated in 17 BC and 12 BC respectively and upon their return to Judea, marriages were speedily arranged for them by their father, with Alexander tying the knot with Glaphyra, a daughter of King Archelaus of Cappadocia (in modern-day Turkey), and Aristobulus leading his cousin Berenice, a daughter of Herod’s youngest and most beloved sister Salome, to the altar.

The charismatic and good-looking Alexander cast a spell over the Jewish masses. Notes one chronicler: “Alexander’s handsome presence and frank bearing made him a favourite with the people, and they longed for the day when the House of the Maccabees should mount the throne instead of the half-Jew Herod.”

PHERORAS ESCAPES BROTHER’S WRATH

The heir and the spare, however, were unable to come to terms with the murder of their mother by their father way back in 29 BC, when they were only 6 and 3 years old respectively. They immensely abhorred their father for this unconscionable act and were themselves unsure of their continued wellbeing, for if their father could not hesitate to kill his own wife, what would stop him from eliminating his own children since to him nobody was sacred?

Then there was the Salome factor, General, Salome being Herod’s youngest and most cherished sister. Salome had hated Mariamne with a vengeance and this same visceral loathing she extended to Mariamne’s kids. Salome’s hatred for the two young princes stemmed from an obsessive feeling of insecurity on behalf of her brother. She just could not contemplate the possibility of Alexander ousting his father and the throne reverting to the Hasmoneans, who were more popular to the Jews compared to Herod.

Salome’s concern was not far off the mark, for that was exactly what the two princes set out to do – to scheme the death of their father both to avenge their mother’s death and to secure their own lives. In plotting their father’s demise, the two kids were not without sympathisers and willing collaborators, who included Pheroras, Herod’s youngest brother.

Exactly what beef Pheroras had with Herod is not clear. Herod had gone to every length to win his loyalty but to no avail. First, Herod had him marry his sister-in-law, Mariamne’s younger sister. Upon her death, he offered him his own eldest daughter Salampiso but Pheroras rejected her in favour of one slave girl who had melted his heart. At some stage, Herod tried to get Pheroras to hitch Salampsio’s younger sister Cypros and Pheroras acceded, only to renege on the act sooner rather than later.

That Pheroras was involved in the weaving of machinations against him Herod learnt from Alexander himself in one of the four letters Alexander wrote his father imploring him to desist from his habit of subjecting many a people to torture in a bid to extract confessions of treason from them. Upon learning of this, Herod braced to punish his brother but later relented thanks to Archelaus’ fruitful mediation efforts though only after Pheroras had owned up to his guilt.

It seemed Herod’s forgiveness of his brother was genuine as in 20 BC he persuaded Caesar Augustus to make Pheroras tetrarchy of Perea (part of today’s Jordan) with a tidy yearly allowance. It was there Pheroras was banished after his conspiracies against Herod were unearthed.

ROMAN EMPEROR ACQUITS HEROD’S SONS

Not very long after the execution of Mariamne I, General, Herod’s second and most adored wife, in 29 BC, Salome and Pheroras prevailed over Herod to reinstate his first wife Doris and her son Antipater, who was now 11 years old, to his good graces.

Their motive was two-fold. First, they thought Herod desperately needed her to lift his gravely sagged spirits following the demise of Mariamne and whose loss he just was unable to come to terms with. Second and even more crucial, they hoped that Antipater would serve as a bulwark against the thronal ambitions of Alexander and Aristobulus, who they hated being of part- Hasmonean blood, unlike Antipater whose mother was a full-blooded Arab and therefore much closer to them kinshipwise. Herod, however, did not pay heed to this entreaty until 15 years later, when he had his divorce with Doris rescinded and mother and son restored to the palace in 14 BC.

Like Alexander and Aristobulus before him, Antipater was straight off sent to Rome too to receive an education befitting a prince and patrician. Now, Antipater, General, was a clever political operator. Although he was effectively his father’s principal spy against his half-brothers, he at the same time egged on the latter to scheme against their father without Herod suspecting it in the least.

He told Herod that Alexander and Aristobulus were sworn never to rest until they had avenged their mother’s death by liquidating Herod. Salome too had with Antipater’s contrivance set a booby trap for Alexander by enticing him into bedding her, though this auntie-nephew sexual dalliance was perfectly normal in the culture of the times: it scarcely mattered that Salome was 30 years Alexander’s senior and was at the time 50 years old, though still glitteringly gorgeous anyway given the invariably plush circumstances of the nobility.

She would pretend to abhor her own brother over pillow talk, hear Alexander’s take on the matter and the length to which he was prepared to go just to get rid of his father, and feed all this dope to a raptly attentive Herod.

Thus it was, General, that sometime in 13 BC, Herod had Alexander and Aristobulus indicted before the court of Caesar Augustus for plotting to overthrow him (Herod). Though Herod sought the death penalty for his kids, Augustus found no hard enough facts that the kids were guilty of the charge preferred against them. He thus ruled that Herod and his sons should kiss and make up.

Herod was also mandated to name a heir and if it pleased him to parcel off pieces of territory to his seniormost sons. In order to placate Herod for the setback in respect of his sons’ acquittal, Augustus had him richly rewarded. Says Flavius Josephus: “Caesar made him a present of half the revenue of the copper mines in Cyprus, and committed the care of the other half to him, and honoured him with other gifts and incomes; and as to his (Herod) own kingdom, he left it in his own power to appoint which of his sons he pleased for his successor, or to distribute it in parts to each one of them, that the dignity might thereby come to them all. And when Herod was disposed to make such a settlement immediately, Caesar said he would not give him leave to deprive himself, while he was alive, of the power over his kingdom, or over his sons.”

Soon after this episode, Herod, General, announced before a congregation in Judea that further to Caesar’s ruling, he had designated Antipater as his heir. However, he was not in position yet to apportion parts of his kingdom to his sons as Augustus had suggested: that had to wait until he was on his death bed, which was a long way off anyway as he still was in physically good shape.

Herod was 60 years old at the time and eager to look evergreen, he even took to dying his year to disguise a shock of grey. He however reneged on this undertaking and allotted a territory to Antipater which generated a sizeable annual GDP.

HEROD IMPRISONS HIS TWO SONS

Now that Alexander and Aristobulus had been bypassed as heirs, General, they became even more emboldened in their desire to erase their father from the face of the earth so deeply resentful were they. This time around, they had a wide array of sympathisers, who included Herod’s most trusted confidantes and some kings of neighbouring nations. The manner of death they conceived of Herod ranged from poisoned food to a lancing with a spear in an ambush deep in the woods.

Although Herod had spies and tipsters all around, General, he just could not gather tangible enough incriminating evidence against his sons that would stand up before a notoriously perspicacious Augustus, before whom he was obliged to appear and argue whatever case he had against his children that prima facie entailed capital punishment.

As such, he resorted to his well-honed device – excruciating torture to elicit confessions or pointers to the merest intrigue against him. In the process, one of three eunuchs who served him as butler, cupbearer, and palatial chief of staff respectively avowed to him that Alexander had given them sizeable bribes to see to it that the poison weapon got into their father’s system.

He even produced evidence of the very poison that was to be employed in the murder. And sometime in 10 BC, A famed skilled marksman also confessed that he had been detailed by Aristobulus to “lie in wait for their (Alexander and Aristobulus) father, as they were hunting, and kill him”. The same marksman even presented a cache of letters Alexander had written to Aristobulus carping about Herod’s partiality toward Antipater.

When Herod confronted his two sons over these developments, General, Alexander on his part owned up to it all and even besought his father to refrain from torturing people unduly and focus on him only. Now that Herod had heard it from the horse’s mouth, he ordered that Alexander and Aristobulus be detained whilst he took steps to again indict them before Augustus.

Meanwhile, a number of people, about 300 in all, were rounded up in connection with the same conspiracy and everybody who was deemed close to or simply matey with Alexander both historically and contemporaneously were banished in one way or the other. Writes Josephus: “He (Herod) expelled Andromachus and Gamellus, men who had of old been his friends, and been very useful to him in the affairs of his kingdom, and been of advantage to his family, by their embassages and counsels; and had been tutors to his sons, and had in a manner the first degree of freedom with him.

He expelled Andromachus, because his son Demetrius was a companion to Alexander; and Gamellus, because he knew that he wished him well, which arose from his having been with him in his youth, when he was at school, and absent at Rome. These he expelled out of his palace, and was willing enough to have done worse by them; but that he might not seem to take such liberty against men of so great reputation, he contented himself with depriving them of their dignity, and of their power to hinder his wicked proceedings.”

Once again, General, King Archelaus of Cappadocia, Alexander’s father-in-law, prostrated himself before Herod and begged him to pardon his sons. Once again, Herod paid heed, only for his rancour to resurface in 8 BC, when this time around he put the two sons behind bars and refused to grant Archelaus an audience to plead for clemency.
Did the two boys have a prayer, General?

NEXT WEEK: FATE OF HEROD, FATE OF HIS SONS

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Getting down to the nitwitty-gritty

1st February 2021

Before I get started on this week’s rant I want to put it out there that I am a tolerant guy, believe that black lives matter, common decency and I am sensitive that there is some privilege associated with being a white male although more so in Europe than ,Africa these days (smiley face in case I offend anyone).

But, I find myself staring at my children’s bookshelf wondering if I can still read books like Peter Pan, Dumbo and The Jungle Book since Disney slapped racism warnings on these and other classic stories due to ‘negative racial depictions and mistreatment of people or cultures.’ Disney is remaking them so that they can be more correct.

For example Aladdin’s story is effectively changed so that Jasmine is no longer a helpless damsel who is a trophy to be won. In today’s politically correct Disney movie she’s a strong independent “girl boss” who sings about how she  won’t be silenced although this doesn’t stop the main villain capturing her shortly afterwards. I guess at least she did not go down without a fight! There are other examples…in Dumbo  the “racist” singing crows are gone, in Beauty and the Beast remake, Belle tries to teach little girls how to read.

This is all good and I have no problem that Ariel in the little mermaid is now black but cancelling old movies as if they didn’t happen and dismissing Aladdin as racist, well let’s get down to the nitty gritty.  And if I offended you by the use of the term nitty gritty then you are not alone (although I suspect you’re in the vast minority).

News flash – don’t be throwing that around anymore in case the politically correct censors catch you and you land up in trouble. That’s what happened to political editor Laura Kuenssberg who used the term during a BBC talk show. The remark sparked a complaint from a listener about the use of the phrase which some anti-racism campaigners claim originates from Transatlantic slave ships, used by slave traders to refer either to the women or to the remains at the bottom of the transport ships that were covered in lice and grit.

Not according to the respected Chambers dictionary, which states that its origin is ‘ETYMOLOGY: 1960s: originally US; perhaps rhyming compound of grit’. That others dispute this is neither here not there for this story but the fact that the BBC complaints even investigated the issue is in my opinion, asinine. But whether its BBC or Disney, being politically correct(or PC) is very much in vogue.

The problem with living in this age of political correctness is you have to double think before any word comes out of your mouth for fear of offending someone. It a phenomenon to get people to “mind what they say” and is directed mainly at language that refers to women, black people, gay and disabled people – groups traditionally disempowered by the dominant white male and physically able majority, as the oppression these groups endured, it is said, was perpetuated in the very language used to describe them.

Fair enough! Obviously being PC is a noble cause against which no sane, rational 21st century man, white or other would disagree. So, we can no longer say “jump the dyke”, “manhole cover” and “accident blackspot”. You can no longer use the terms “rule of thumb” because of its racist and sexist origins (a law that said you couldn’t beat your wife with an instrument bigger than your thumb) and so it continues, all the way down to the nitty gritty.

What amazes me is the outrage that it seems to cause with people and how companies, governments, and people like overreacting for fear of being on the wrong side of public fashion opinion.  But before you argue that being PC it is just being polite, it’s more like a weapon used to destroy normal people who display normal behaviour and say normal things – even when the haters want to package it as a hate crime. Just think about James Damore, the Google engineer who was fired a few years back for simply publicly musing about the differences between the sexes.

Just last week in the most famous office in the planet Joe Biden removed a Churchill bust. Maybe not so much of a surprise as in the UK the statue of Winston Churchill in Parliament square in London is repeatedly covered in graffiti and attacked by people claiming that he was a racist and that his statue, should be no more ignoring the period he found himself in and the norms of those days – the fact that he was arguably the worlds most ardent anti-fascist leader and the role he played in defeating the Nazi’s, is forgotten. Had they won the war there certainly wouldn’t have been any tolerance at all. Just saying.

In 2015 The University of Michigan spent $16,000 advising students not to say “I want to die” because it’s offensive to the suicidal, nor “That test raped me” because some people actually have been raped, although probably not by calculus exams. At Minnesota’s Macalester College, posters and social media warned in 2014 against using the words “crazy,” “psycho,” “schizo” and “derp.” Excuse the pun but that’s nuts!

This year, ending the prayer opening the new session of Congress in the US, Rep. Emanuel Cleaver (D-Mo.) intoned, “ Amen and a-woman.” Eyeroll. Last week the Democratic-controlled lower chamber voted along party lines to approve new official language guidelines. Words such as “himself” and “herself” are to be replaced by “themself.” Out with “father,” “mother,” “son,” “daughter,” “brother,” “sister,” “uncle,” “aunt” and other familial terms, and in with “parent,” “child,” “sibling” and so forth.  Madness.

The ridiculousness of it all was emphasised when the speaker of the house Nancy Pelosi made a speech a few days later where she referred to herself as ‘mother, daughter, woman’. She clearly didn’t get the memo! But when erasing “mothers,” and “women,” because the concepts are insufficiently inclusive to gender ideologues, the irony is not lost about the rights which women struggled to attain a vote, much less enter politics.

Salman Rushdie, author of the of the controversial The Satanic Verses, states that ‘No-one has the right not to be offended’ but the core of the ‘woke’ argument appears to be the exact opposite. Yet there is always another side to any argument and in the interests of free speech it has been the accepted norm to ‘agree to disagree’. This new culture of silencing that freedom is insidious and menacing – look to any dictatorship past and present and that is the dictator’s first move – silence the press, silence any voice of dissent, and punish the transgressor.

I suspect that poor old Walt Disney is spinning in his grave, unable to plead the case for his supposed sins but if new-age Disney wants to take this whitewashing (probably shouldn’t say that) to its logical conclusion, rather than worrying about Belle having a do-gooder occupation, let’s start with the title, Beauty and the Beast.

So Belle should no longer be the quintessential fair maiden and thus she can no longer be described as beautiful. As for the poor old Beast, i.e. ugly monster, that word is about as non PC as it comes, so better to steer clear of any and all ancient fables and fairy stories.

I would tell those Disney suits to put that in their pipe and smoke it but I suspect that’s off limits too as it is a clear reference to the Red Indians’ (oops again, Native Americans’) smoking of the peace pipe.  In the words of Hamlet’s Ophelia ‘That way madness lies’, though I suppose even that should probably be ‘mental illness’!

I give up.

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Parricide at Herod’s Court

25th January 2021
SAILI

A wife, uncle, and two in-laws fall at the hands of Judah’s despot

The pre-eminent Jewish chronicler, Flavius Josephus, said of Herod the Great that he was “blessed with every gift of looks, body, and mind” but he was a “slave to his passions”. This was in the context of a gloating bloodlust.

His sword knew no sacred cows: neither his own kids, wives, in-laws, next of kin, nor bosom friends were immune from it. He is on record as pestering Caesar Augustus with a barrage of letters seeking permission to execute his own flesh and blood, prompting the Roman emperor to at one time quip that, “It is better to be Herod’s pig than his son”, which was apt: as a “Jew”, Herod did not eat pork and therefore in the event that he kept any pigs, they would never have to be killed.

You are by now well-apprised of the death of Hyrcanus II by the same Herod, General Atiku, in 30 BC. Hyrcanus, a Hasmonean ruler of Judah twice over, was actually the grandfather of Mariamne I, Herod’s most beloved wife and his second of up to 10 wives. It was Mariamne’s own mother Salome, who dreading Herod’s pathological savagery, pitched Mariamne to Herod in the hope that that would insure her family from Herod’s murderous caprices.

Now, Mariamne, General, was as much a stunning beauty as her younger brother Aristobulus III was breathtakingly good-looking. Having tied the knot with Herod in 37 BC, Mariamne had prevailed over her husband to install Aristobulus as High Priest. The post had fallen vacant on the death of Antigonus in 37 BC and Herod had appointed one Ananel, who had no ties whatsoever to the Hasmoneans, the first such in more than a century, in his place. Unable to resist the spirited entreaties of his beloved wife, who had also lobbied Queen Cleopatra of Egypt and her beau Mark Anthony, Herod gave in and replaced Ananel with Aristobulus, who was only 16 years old, in 36 BC.

Because of his enormous charisma and overall affability, Aristobulus was a hit with the masses despite his tender age and Herod was envious of the young man’s rock star-like popularity. To make doubly sure the young man did not harbour a seditious ace up his sleeve, the morbidly paranoid Herod had his spooks watch on both Aristobulus and his mother round the clock. Sensing imminent danger, Aristobulus contacted Cleopatra, asking for a pre-emptive safe passage to Egypt and there enjoy absolute freedom. When Herod got wind of this, he decided to get rid of Aristobulus as he did not wish him to be a perennial thorn in his flesh from the utter safety of self-imposed exile.

The opportunity came at a banquet in Jericho which was organised by Aristobulus’ mother. There, Herod had one of his henchmen cause Aristobulus to drown during a dusk time horseplay in a swimming pool. Of course Herod would forever maintain the drowning was accidental when everybody knew it was in truth a tactical elimination. Poor Aristobulus was only 17 years old having been born in 56 BC. He was the last Hasmonean High Priest and was replaced by the previously deposed Ananel, who was to remain in that position till 29 BC.

HEROD ACQUITTED OVER THE ARISTOBULUS DEATH

It need not be over-emphasised, General, that Mariamne and her mother Alexandra did not take Herod’s line over the all too untimely demise of Aristobulus lying down. If he had reckoned that with the death of Aristobulus he had gotten rid of potentially the most potent threat to his omnipotence, he was totally mistaken. Herod had actually simply fanned the flames of intrigue against him, for mother and daughter confronted him and accused him of murdering their boy in cold blood.

Nor did the two Iron Ladies end matters there: Alexandra wrote a lachrymal letter to Cleopatra to get her to bring her influence to bear on Mark Anthony so that Herod paid dearly and likewise for his nefarious act. Anthony, who at the time was the Roman colossus in charge of the whole of the Middle East, was persuaded and during a visit to Laodicea (in modern-day Turkey, though some accounts say it was Rhodes in Cyprus), he commanded Herod to report to him forthwith and exculpate himself over the affair.

Although Herod put a brave face on the matter, General, he was rather unsure of his eventual fate after the trial. He also suspected rightly or wrongly that Anthony had a thing for the voluptuously beautiful Mariamne and the last thing Herod wanted was for any other man to bed his beloved Mariamne even in death. So before he set off for Laodicea, Herod instructed his uncle Joseph, who was married to his sister Salome, to make sure that in the event that Anthony sentenced him to death, he should immediately put her to the sword. He also detailed a certain Sohemus, a most trusted aide, to stand sentry over the entire womenfolk at the palace.

Herod, however, had the nine lives of a cat, General. Using his immense rhetorical skills and the time-honoured palm greasing, he won himself an acquittal. Meanwhile, the Judean rumourville was abuzz with chatter that Herod had been summarily executed by Anthony, as a result of which people became spendthrifts of their tongues.

Both Joseph and Sohemus disclosed to Mariamne the instructions Herod had left them with in relation to her fate once he was no more. Mariamne was both livid and distraught that her husband regarded her as so easily expendable when outwardly he cherished her beyond words. To her mind, his arrangements with Joseph had nothing to do with love but sprang from sheer monstrosity. She probably thanked God that he was dead, but the fact of the matter was that he was not and when he at long last turned up, she did not want to have anything to do with him, including the conjugation which he so eagerly pined for after such an extended absence.

HEROD KILLS HIS WIFE AND HIS UNCLE

Now, if Herod had a kind of Svengali, General, it was his youngest sister Salome. Salome (65 BC-10 AD) was the most powerful woman at Herod’s court. A sly, scheming, and manipulating vixen, she arguably more than any other living being had the most sway in a negative sense on her brother, who took practically whatever she said as gospel truth.

Let us nevertheless, General, take stock of the fact that the bulk of what we learn about Salome comes from Flavius Josephus, who himself relied on the writings of Herod’s court historian Nicolaus of Damascus. For one reason or the other, Nicolaus did not see eye to eye with Salome and it is therefore possible that much of what Nicolaus relates of her is embellished to smear her before the court of history.
Upon his return, Herod was told of the rumours of his death and so was surprised to find Mariamne alive when Joseph and Sohemus should in the circumstances have had her killed if indeed they were loyal to him. In fact, Joseph had even put Mariamne and Alexandra into the safe custody of Roman legions stationed in Judea just in case Jewish malcontents who abhorred Herod turned their wrath on them.

But there was more. Salome reported to Herod that Mariamne, who she hated like the plague, had had sexual relations with both Joseph and Sohemus, this being Mariamne’s reward to them for dishing out to her the dirt on Herod, and that she had on several occasions before attempted to poison him. Now, no one would hump Herod’s most beloved wife and get away scotfree. It is therefore small wonder that Herod straightaway ordered the execution of Joseph and Sohemus. Joseph was 61 years old at the time of his death in 34 BC, having been born in 95 BC. In the case of Mariamne herself though, he had her subjected to a formal court trial not on charges of adultery but of attempted regicide.

Herod had hoped that the court would acquit her, whereupon he would make bygones be bygones so great was his love for the woman, but sadly for him, General, she was found guilty and sentenced to death. Even then, Herod tactfully dilly-dallied on signing the writ of execution and simply had his wife detained at a fortress for some time until Salome prevailed over him to execute her at long last. Writes Josephus: “Thus, with the death of the noble and lovely Mariamne ended the glorious history of the Hasmonean High Priest Mattathias and his descendants.”

For a long time to come though, General, Herod was haunted by the death of his wife to the point of even sometimes coming across as if he had lost his mind. “When Herod realised what this meant (the death sentence passed on Mariamne), he tried in vain to have the verdict changed, but Salome did not rest until the death penalty was carried out,” Josephus informs us. “Herod was heartbroken; nothing could comfort him for the loss of his lovely wife.

For seven years he refused to have her body buried, and held it, embalmed, in his palace. Afterwards, he became so melancholy and despondent, nothing interested him or could arouse any enthusiasm in him for living … He was so far conquered by his passion, that he would order his servants to call for Mariamne, as if she were still alive, and could still hear them … He tried hard to forget his trouble by going hunting and banqueting, but nothing helped. Herod built new cities and erected temples and palaces. He also named a tower in honour of Mariamne.”

HEROD SLAYS SISTER’S EX-HUBBY

Mariamne’s death was not the only one which Herod perpetrated through the instrumentality of Salome. There were actually several and included those of her own husband Costobarus. Salome was married four times, to her uncle Joseph (45 BC); Costobarus (34 BC); Sylleus (circa 27 BC); and Alexas (20 BC).

Like the Herod clan, Costobarus was of Idumean stock. It was Costobarus Herod had made governor of Idumea and Gaza and upon Joseph’s death had him tie the knot with Salome, with the couple eventually siring two children, Berenice and Antipater III. Costobarus, though, soon began to harbour monarchical ambitions of his own and wrote to Cleopatra beseeching her to persuade Mark Anthony to make Idumea independent of Herod and install him (Costobarus) as Rome’s client King of the territory.

Of course upon learning of this, Herod was not amused. It was Salome who pleaded with him not to put her husband to the sword. Next time, however, a dumped Costobarus was not so lucky. Seven years after their marriage, Salome and Costobarus parted ways and a possibly hurt Salome decided to exact vengeance. She informed her brother that he had been harbouring two fugitives from Herodian justice for a full 12 years at his own farm.

The two were simply known as the Sons of Baba. Baba ben Babuta, their father and clan patriarch, was related to the Hasmonean ruler Antigonus, who Herod had replaced and killed in 37 BC with the help of Roman legions. Baba and his sons had resisted Herod at the time, with his sons henceforth persisted in insurrectionist activity against Herod. Baba himself had been captured and blinded by Herod but spared anyway as he no longer posed any threat. Writes Josephus: “Now the Sons of Babas were of great dignity, and had power among the multitude, and were faithful to Antigonus, and were always raising calumnies against Herod, and encouraged the people to preserve the government to that royal family (the Hasmoneans) which held it by inheritance.”

Costobarus had provided the Sons of Baba an indefinite lair “supposing that their preservation might be of great advantage to him in the changes of government afterward”. Following the Salome tip, Herod had Costobarus and the Sons of Baba summarily executed “so that none was left alive of the family of Hyrcanus (the Hasmonean), and the kingdom was wholly in Herod’s power, there being no one of high rank to stand in the way of his unlawful acts” per Josephus.

NEXT WEEK: HEROD’S WRATH ON HIS OWN SONS

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