Tuesday, May 01, 2007

Will affirmative action ever end?

By far the most compelling argument against affirmative action – I think – is that it may entrench racial categorisation and racial thinking in our society and so will lead to a kind of “reverse apartheid” in which whites will suffer from relentless discrimination until the end of time.

In reaction to my previous posts on the topic, one contributor to the Legal Brief website make exactly that point, while another wants to know whether affirmative action will ever end.

These are fair and difficult questions, which deserve answers, so I will give it a shot.

For me, the starting point for any discussion on affirmative action must be the equality clause in the Constitution. This clause refers to the “achievement” of equality, signalling that – despite our sleek and progressive Constitution – equality is something still to be achieved in the future. It underlines that equality is not about the equal treatment of all people who are similarly situated, but about the achievement of a more fair society in which everyone would be able to enjoy the rights in the Constitution equally – something that is not going to happen in the near future.

In the Constitutional Court judgment in the case of Minister of Finance v Van Heerden, Deputy Chief Justice Dikgang Moseneke said that the Constitution imposes a positive duty on all state institutions – including the judiciary and the executive – to take steps to promote the “achievement” of equality. This means affirmative action will not only remain constitutionally permissible, but will also remain constitutionally required for quite some time to come.

Does this mean we are stuck with a race-based programme until the end of time? What happens when – like in India – affirmative action has been in force for 50 years and we are confronted with what they quaintly in India call ”the problem of the creamy layer”. (For example, after three generations of affirmative action, the children and grandchildren of those who benefited from the Indian affirmative action programmes still qualify for affirmative action places at universities and are described as the “creamy layer” on top of the black coffee!)

Reading the judgment by Moseneke, I think the CC’s jurisprudence potentially answer this question in a surprisingly subtle way. Moseneke says that we must look at affirmative action contextually, which means as the context changes, so will the legal rules around affirmative action. This means that as soon as we are unable to say that the “overwhelming majority” of persons from a specific racial group have been disadvantaged by unfair discrimination, we will get to the end of constitutionally mandated affirmative action solely based on the race of the individual. In that way, we will avoid the “problem of the creamy layer”, and may be forced to think of affirmative action in, say, class terms..

Moseneke explicitly stated that the long-term goal of our constitution is to achieve a truly “non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity”, then continues:

Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision.

This means that a slavish and bloody-minded adherence to racial classification in perpetuity will be constitutionally obnoxious. Meanwhile, it is also clear that the Constitution places limits to existing affirmative action. As Moseneke indicated, an affirmative action measure “should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened”.

I suspect the way in which many government Departments have implemented what they called affirmative action probably would not comply with the Moseneke test. The tragedy is that debates about affirmative action so easily deteriorate into discussions of these abuses and not of the principle itself.


Michael Osborne said...

I suggest that AA as we know it is afflicted with three principle problems:

1. It is almost inevitable that, as in India (to which Pierre refers), AA will be abused, as a cover for cronyism, nepotism and tribalism. That is why it is essential that AA be subject to careful judicial scrutiny -- as it has been in some good Court decisions. (I agree with Pierre that the Van Heerden decision is thoughtful and well-crafted).

2. Benatar’s best point is that the major beneficiaries of AA are those already relatively privileged. (Be assured that most impoverished women eking out a living on a small patch of land in rural Transkei are not going to benefit one iota.) AA has an unbudgable constituency in the black bourgeoisie that -- in alliance with white big business -- forms the new ruling class. The new hegemons would rather not face a stark fact: That the worsening poverty of blacks permanently locked out of the formal economy is a scandal that makes the barriers faced by privileged blacks pale by comparison

3. AA is bound to trigger racism in those who perceive themselves as its “victims.” It helps not to point out (as is quite true), that the job opportunities of an average young white man remain incomparably better than those of his black counterpart. It remains true that less well qualified whites will be disproportionably hit. (I can now see that my suggestion that white incumbents should resign and reapply for their posts is unlikely to gather much support from white incumbents, their enthusiastic support for AA notwithstanding.)

Three ways to make AA more workable (and defensible):

1. Focus AA programs overwhelmingly on education.

2. As much as possible, make AA class rather that race-based. (Although, in the short term, that will make little difference, given the still overwhelming correlation between race and class).

3. Foster open and honest debate. Start by dropping the pretence that there are not difficult trade-offs. Admit that, if one pushes AA too far, delivery (and, yes, “quality”), may suffer. Some short term delivery sacrifices will be worth it. But do not deny the cost -- which will, as always --tend to be borne by the less privileged. Finally, admit that, given the gulf, AA will be necessary at least for our lifetimes.

Michael Osborne

Unknown said...

I agree with sentiments shared by both my Prof and Advocate. It is true that the poor of the poor will continue to suffer and never see the dawn of day of this AA concept - how many years again down the democratic south africa.
Even those that hussle to change their situations will always be cought in the racist web created by the past well ochastrated regime of apartheid that always puts a ceiling too close to far too many hard working black population of this country - here i am reminded of the recent Investec "incident" should we call it so widely reported even in the Financial Mail.

Of issue to me is the proposed legal services charter. From the begining - Ab initio - the legal community knew that their turn would come to declare their program on how the want to tranform this profession. 12 years later when the government finally takes a lead on it they cry faul at a horrible piece of paper produced by the government, lack of information on which it was based on etc etc etc.
I attended the briefing session organised by the Law Society in CT in their attempt to take the Charter to the "people". A bad turn out of some 50 attorneys who by far had no idea what has been happening but to save the day one professional pointed out that the Charter seeks to criminalise and punish any form on non compliance with the Charter. The dead house immediately became alive at "how dare" the government even think of such a measure.

If you ask me, this is where it should have started by DME in their Charter, by making it a criminal and civil offence not to comply with the CORRECT program of governmemnt to distribute skills, knowledge and wealth on equitable basis.

But for the legal profession that upheld and mercilessly enforced every piece of oppressive legislation, the sanctions proposed in the Charter (to be enforced under the equality legislation) is just what this country needs. We need to see the mass support and rallying of the legal profession around what is for a change good and fair. Mind you, this is the profession that had nothing to say to the TRC in admitting and apologising for its wrong doings.

AA to me is no longer sufficient but rather a system that will be brutal to those that refuse to change or to those that merely think their lip service to the course is sufficient. We have been though negotiations, reconciliation and all sorts including land distribution processes all in an attempt to continue to be the the miracle country - the honeymoon days are over and the country must be hard at work in reversing the tide.

just my take on the AA issue.
zodwa zenzile

Anonymous said...

When it comes to the trade off between "Freedom" and "Equality", it is impossible to find a point that everyone will agree with.
Personally i advocate fredom to choose and freedom to act over market manipulation.

Anonymous said...

As a recruiter, I can state that AA has some issues. In order to keep my job (or be considered for promotion), I need to rack up 300 points (I will refrain from mentioning what kind of recruiting business I am in). A white male is worth 25 points, a white female is worth 200 points, an African American female is worth 300 points. I see many people taking advantage of this, and sometimes it is really depressing to watch. Just an extra two cents from my point of view.