In a democratic order ostensibly founded on the principle of non-racialism, race-based policy is an absurd and shameful contradiction.
There is no disputing that South Africa’s deeply racialised past has left an unjust legacy and that corrective actions are required. It should however be utterly inconceivable that the use of mandatory government-sponsored racism is the appropriate solution. Yet here we are. We have simultaneously removed racial classifications from the statute books, whilst introducing a raft of legislative measures which require their use.
The moral concerns are obvious, but even were we to set those aside, objectively, race-based policy has been an absolute disaster.
The argument advanced by those in favour of state-sponsored racism is that the policies of South Africa’s previous dispensations have been so destructive that radical state intervention is required to return South Africa to its status quo. Racialism is somehow a necessary evil.
There are some clearly apparent flaws to this line of thinking, not least that the desired ‘status quo’ never actually existed and likely never will, but the underlying principle is not entirely wrong. For several decades the entire state apparatus was configured to favour one race, whilst disadvantaging others. That apparatus needed to be dismantled and reconstituted for a state now committed to non-racialism. The challenge was always going to be managing a seething resentment in those previously wronged, whilst maintaining a commitment to non-racial nation-building.
In this regard, South Africa has failed, and it is now resentment rather than empirical evidence which drives race-based policy.
Race-based policy has failed
Theoretically, the primary objectives of race-based policy are to reduce inequality and to provide access for those previously disadvantaged into the mainstream economy. It is therefore not difficult to determine whether race-based policy is working or not.
South Africa’s Gini coefficient has increased from 0.59 in 1994 to 0.63 2023, confirming South Africa has become more unequal rather than less, whilst implementing race-based policy. Meanwhile, the unemployment rate for black Africans, the demographic group most excluded historically, has increased from 22.0% in 1994 to 36.9% in 2024.
There is therefore no conceivable data-driven argument to justify the continuation of race-based policy as a means to tackle either inequality or economic exclusion. This makes the moral argument for its removal even more compelling.
Since 1994, the ANC has been the instigator of racialism. It has a destructive obsession with the concept of demographic representivity, which forms a cornerstone of its National Democratic Revolution (NDR). It is a utopian ideal which can never be achieved and assumes absolute equality across all demographic metrics, despite the participants coming from vastly differing educational and cultural backgrounds. The more it inevitably fails, the harder the ANC tries to force it to work by introducing ever more draconian measures. It is an unedifying downward spiral of failure.
The responsibility for confronting the ANC’s destructive ideology lies with the opposition parties.
Constitutional Court not ideologically neutral
Race-based policy (or racialism) should not be legally permissible in South Africa. Section 1(b) of the Constitution unequivocally establishes non-racialism as a founding value of the South African constitutional order.
The reason that, despite this, the ANC has been able to introduce more race-based laws than either the apartheid or colonial governments which preceded it, is the wording of section 9 of the Constitution and the Constitutional Court’s chosen interpretation thereof.
Section 9 is the section on equality, and subsection 2 allows the state to take actions designed to promote equality, which includes advancing persons or categories of persons disadvantaged by unfair discrimination.
The Constitutional Court is not a politically neutral institution. Judges are appointed through a political process which is steered by those holding political power. After 31 years of ANC government, the Constitutional Court is ideologically aligned to the party. Rather than ruling that race-based policy is incompatible with the founding value of non-racialism, the Constitutional Court has affirmed the use of race-based policy by the ANC. Shame on them.
One solution is to tighten up the wording of section 9 of the Constitution, and in doing so, remove the ideological wiggle-room which the Constitutional Court judges have exploited to ignore the provisions of section 1.
GNU partners weak
The formation of the GNU has fundamentally shifted the dynamics of political power, and theoretically, according to the GNU’s consensus clause, the DA now has veto powers over ANC decisions. The reality thus far has proved somewhat different. The GNU partners have been extremely weak and have allowed the ANC to walk over them seemingly at will. Race-based policy is an area where the ANC needs to be brought to heel.
Thus far, no opposition party has taken it upon itself to address the issues around section 9. At the Referendum Party (RP), we have decided to change that. If no-one else is willing to take up this battle, then we will.
Lessons from Sweden
We have written a Non-racialism Bill which amends Section 9 of the Constitution. We have in part drawn our inspiration from the Swedish Constitution which, like South Africa, has an equality clause. Notably, however, it focuses on the right of all people to be treated as individuals, and one outcome of this was the Supreme Court of Sweden ruling that race quotas for university admissions were unconstitutional because they violated this equality clause.
Our Bill introduces the principle of the equal worth of all individuals and their subsequent right to be treated with dignity, whilst removing the option of the government to take blanket discriminatory actions against entire categories of persons.
The RP recognises the necessity of the government being able to take actions to remedy the effects of unfair discrimination in the past, and our Bill purposefully leaves this possibility open. However, to ensure that this is done justly and not for ideological reasons, it requires that remedial actions comply with two principles; that the rights of all individuals affected are taken into consideration, and that actions to undo the effects of unfair discrimination in the past cannot themselves create unfair discrimination against individuals in the present.
A copy of the Bill can be read on the Referendum Party website (www.referendumparty.org).
We have consulted widely on the Bill before finalising it and we have received largely positive feedback from civic organisations. Concerningly, the political parties in the GNU have opted not to respond. It remains to be seen if this is political one-upmanship, or a further example of their being neutered by the GNU.
Public Participation
The Non-racialism Bill will now be introduced to the public, whereafter we at the Referendum Party will run a public participation campaign raising support for the Bill. At the conclusion of the campaign, the Bill will be submitted to the Parliamentary Committee on Justice and Constitutional Development, together with the signed petition.
Non-racialism must be something more than hollow words in our Constitution. It is time for those who agree with this sentiment to stand up and be counted.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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