MEC Zikalala’s desire to exclude other races is clearly unconstitutional
IT WAS recently prominently reported in the media that KwaZuluNatal MEC for Economic Development Sihle Zikalala has been slammed for favouring the exclusion of Indians and coloureds from being the recipients of state contracts. He is apparently spearheading a political and economic move to radically reshape BEE policies in order to ensure that only Africans benefit from tenders.
This controversial statement is in clear violation of section 1 of the Constitution, which sets out founding provisions and seminal values. It is correct that section 9(2) of the Constitution permits affirmative action for those persons who are disadvantaged.
However, affirmative action does not in any way justify a complete exclusion on the basis of race of persons other than Africans. This move is being propagated under the policy of “Radical Economic Transformation”. It was reported in the Sunday Times of October 15 that Zikalala has already sent his proposal for changes to Black Economic Empowerment (BEE) to the National Treasury to be considered as a template for a sweeping change for such economic transformation. Furthermore, according to a report in the Daily News of October 16, an ANC spokesperson, Mdumiseni Ntuli, said this view would indeed be advanced at the December ANC electoral conference.
It is most unfortunate that there are persons in leadership positions who are advocating an exclusive African nationalism that in conflict with both the letter and spirit of the constitution.
These persons and their views need to be challenged. South Africa is a non-racial constitutional democracy requiring that all its citizens are treated with both equality and dignity. Any policy aimed at undermining non-racialism must be exposed for what it actually is, as unequivocal violation of the foundational principles of our highly esteemed constitution.
The legendary Freedom Charter declared that “The rights of the people shall be the same regardless of race, colour or sex.” This was taken so seriously by the ANC to the extent that it provoked a split in the organisation. In 1959, a small group of nationalist-minded persons opposed the non-racial policy of the Congress Alliance, especially the clause in the Charter which declared that “The country belongs to all who live in it, both black and white.” This group broke away and formed the Pan African Congress, basing their philosophy on “Africa for the Africans.” Furthermore, as indicated, section 1 of the Constitution declares that it is based on the values of inter alia: “non-racialism and non-sexism.” Also section 9 states that the state may not unfairly discriminate indirectly or indirectly on, inter alia, “race, culture, language and birth.”
Non-racialism is like a golden thread that is woven into the warp and woof of our constitution and body politic. It is the essence of a true humanity. Unfortunately there are at present manifestations of a blatant disregard for non-racialism.
For example, Julius Malema, who at the time in 2011 was still an ANC member, made an unqualified pronouncements, that all the whites are criminals because they stole the land and therefore should be treated as such.
His negative comments on Indians in KZN at the Judicial Service Commission had the same prejudicial effect.
Also it is most unfortunate when a leading member of the ANC, a movement that is historically and intrinsically rooted in equality and non-racialism, such as Jimmy Manyi, declared in a highly publicised and notorious comment in 2011, that coloured people are over-concentrated in the Western Cape and need to move to other provinces to find jobs elsewhere and that in KwaZulu-Natal Indians are bargaining their way to the top.
These statements are patently racist and make regrettable inroads into our commitment, as a nation, to non-racialism. Although these statements have been repudiated by politicians, in particular by Trevor Manuel, a former finance minister, in relation to Manyi, much more is required.
It is cogently submitted that these statements reflect the idea of racial nationalism which is gaining support in the ANC, according to which, there must be racial representivity in all appointments in the civil service, in a way that Africans must dominate in all spheres and branches of government.
The responsibility for promoting non-racialism lies not only with the government and political leaders, but also with ordinary South Africans, civil society and religious organisations who are committed to social justice. If we fail to do this then in the words of Martin Luther King “history will have to record that the greatest tragedy of this period of social transformation was not the strident clamour of bad people, but the appalling silence of good people”.
South Africans, having achieved and created an exemplary democratic system of government, premised on the values of equality, non-racialism and liberty for all, at a sublimely great cost, need to deepen it and extend its benefits to all the people of this land. Political and social integrity and non-racialism must triumph over political expediency and naked political ambition, based on racial nationalism.
Devenish is retired professor of Public Law and one of the scholars that assisted in drafting the Interim Constitution of 1994.