President Cyril Ramaphosa will have to choose between siding with constitutionalism or with the ANC’s Radical Economic Transformation faction when he considers whether or not to veto the controversial Employment Equity Amendment Bill (EEB), says the Institute of Race Relations (IRR).
The EEB has been approved by the National Assembly – but President Ramaphosa has been challenged veto it on the grounds of its unconstitutionality.
In a statement yesterday, the IRR said: ‘A piece of legislation soon to cross the president’s desk gives South Africans a chance to see if Cyril Ramaphosa is aligned with the ANC’s Radical Economic Transformation faction – or the Constitution.
‘On Human Rights Day, KZN Premier Sihle Zikalala called for constitutional norms to be replaced by parliamentary majoritarianism. His comments are widely understood to espouse Radical Economic Transformation (RET), an ideology that is hostile to non-racialism, the separation of powers, and the Rule of Law.
‘But Premier Zikalala’s demand also represents a direct challenge to President Cyril Ramaphosa’s veto power, which comes from Section 79 of the Constitution and requires the president to not sign into power any law if he doubts its constitutionality.’
Zikalala, the IRR pointed out, had argued that ‘laws enacted by Parliament should be above all, and not reviewed by any organ” of state, which meant ‘trumping the President’s veto and the courts if they get in the way of unconstitutional RET demands’.
Ramaphosa’s response to the employment equity bill ‘will show whether the President prefers to follow his constitutional duty or to align himself with the RET faction’.
The IRR said: ‘The EEB would forbid businesses from offering more value for less money to government buyers if those businesses happen to be owned by white people. The EEB would impose sector-specific race quotas on private firms through a minister’s discretion while reinstating pre-disqualification criteria for government tenders based on race.’
IRR Head of Policy Research Dr Anthea Jeffery has demonstrated that the EEB is unconstitutional on multiple levels, including conflicts with the following sections of the Constitution:
- Section 1, the Founding Provisions of South Africa,
- Section 9, Equality before the law,
- Section 195, Basic values and principles governing public administration,
- Section 217, Procurement, and
- Tests for Constitutionality found in ConCourt judgment on the case between Minister of Finance versus van Heerden (2004).
(For more detail on the EEB’s unconstitutionality – and to put your name to the petition opposing it – go to: https://irr.org.za/campaigns/stop-race-quotas)
Thus, the IRR said, ‘President Ramaphosa finds himself in an illuminating position’.
‘The Constitution empowers him to block EEB, but RET requires that he approve it. What will he do?
‘Exercising his veto would deflect pressure from the Court, which has been under attack from the president’s own administration. It is worth recalling that Minister of Tourism Lindiwe Sisulu insulted the judiciary by saying its “high echelons” are occupied by “mentally colonised Africans” who are wrong to “rule against their own”, risible claims in line with RET ideology.
‘By contrast Treasury Minister Enoch Godongwana granted exemptions from race-based procurement limitations to Eskom and Transnet last week, as the IRR had recommended in line with reasoning from the State Capture Report.’
The IRR argued that Godongwana ‘showed the path that the president might choose to follow by facing down RET ideologues who insult black people for upholding the Rule of Law’.
Ramaphosa’s EEB decision ‘will depend on his personal views. Does he agree with the RET position that businesses should not offer more for less if they happen to be owned by white people? Or does he agree with Chief Justice Raymond Zondo’s position that the national interest is best served by maximising value for money in public procurement?’
IRR Head of Campaigns Gabriel Crouse commented: ‘President Ramaphosa has a basic choice to make. He can dodge the issue, as RET requires, or he can stand up as President against RET by blocking this new race law. Which comes first, party or country? The EEB issue will show the president’s answer.’
[Image: ITU Pictures from Geneva, Switzerland, https://commons.wikimedia.org/w/index.php?curid=72842838]