FW De Klerk needs a lesson on the Constitution

Former President FW de Klerk is said to be a lawyer. He studied law at Potchefstroom University for Christian Higher Education (they forgot to add the “Nationalist” in that name) at a time when our constitution law was based on the Westminster system and only white people were represented in Parliament.

So perhaps he should be forgiven for embarrassing himself by making uninformed, deceitful and legally just plain wrong statements about affirmative action. According to Die Burger De Klerk said that affirmative action was ‘racist’ and ‘unconstitutional’.  He said those who drafted the Constitution never intended affirmative action to apply to private actions.

Affirmative action was only to be implemented in the judiciary and civil service, De Klerk said, noting Section 9(2) of the Constitution was ‘distorted’ to justify affirmative action in the business environment, civil society and cultural sphere, which he labels as ‘ridiculous’ and ‘silly’. He said the relevant part of the Constitution should be amended ‘to make affirmative action less racist’ and to ensure that it is implemented regardless of race or colour. ‘One cannot implement it in the case of somebody who is already advantaged and qualifies purely on racial grounds, can one,’ he asked.

He asked how it could possibly be that the management and workforce of the Afrikaner Christian Women’s Society could be required to represent the demographic make-up of South Africa when it served a specific audience.

Mr De Klerk should take some time off from his busy schedule gallivanting across the world as a celebrated Nobel Prize winner, and  should rather spend some time re-read section 9 of our Constitution – especially sections 9(2) and 9(4). As our Constitutional Court has stated in the Van Heerden case, section 9(2) – which deals with affirmative action – should not be read as an exception to the rest of section 9 (which guarantees equal treatment for everyone regardless of race, sex, gender, sexual orientation or any other ground), but a requirement for its full achievement.

Section 9(2) – thus affirmative action – is a requirement for the achievement of equality, not an exception to it and may place a positive duty on the state to implement corrective measures to eradicate past injustice. This is because our Constitution embraces a substantive notion of equality – not a formal one – and focuses not on the equal treatment, but rather on the effects or outcomes of laws and policies to ask whether they are fair, given our history of racial oppression and the marginalisations of women and other minorities.

Section 9(4) clearly states that this unfairness test must also be applied to private individuals and organisations and required Parliament to adopt legislation to ensure the prohibition of unfair discrimination. Mr De Klerk is therefore misguided when he says affirmative action was never intended to apply in the business environment or other private relations.

One may well decry the sometimes illegal abuse of affirmative action to justify nepotism or corruption, but De Klerk does not understand that legal affirmative action as required by the Constitution and the relevant legislation places limits on affirmative action and at all times requires the application of a kind of contextual fairness test. He conflates the principle with its application – very sloppy for a supposedly clever lawyer.

I am also shocked that he suggests that the Constitution should be amended to make affirmative action “less racist”. His remarks undermine the legitimacy of a respect for the Constitutional Court. He should also be careful to advocate amendments to the substantive provisions of the Bill of Rights. Do we really want to open that can of worms? If we are going to debate amendments to the Bill of Rights, we will also have to discuss the abolition of the right to property or a fair trial, the re-introduction of the death penalty or the removal of protection for gay and lesbian members of society. Surely this is a very dangerous road to embark upon?

By using the example of the Afrikaner Christian Women’s Society he also demonstrates a lack of knowledge and understanding of the Constitution. The right to freedom of association is guaranteed in section 18 of the Constitution while section 31 guarantees for everyone the right to belong to a cultural, religious or linguistic community and to form, join and maintain organisations that reflect these interests.

Where these rights are in conflict with the equality guarantee, the latter would often trump the former. The more private the organisation I belong to and the less it intrudes on the public sphere, the more likely it is that the Constitutional Court would find that freedom of association trumps the requirement to achieve equality.

If I form a book club for Afrikaner Christian Women, for example, and the aim and effect of this book club is merely to provide a safe space for women to discuss the latest book by Maretha Maartens on the duties of a good white Christian wife, this club would not be subjected to the requirements of affirmative action. It might be different if this Book Club was really a political front for the promotion of Afrikaner economic interest and women used it to make contacts and friends to help them land government contracts in the Western Cape.

It is true that affirmative action is often abused, but this is not the fault of the Constitution or the other laws aimed at rectifying past injustice. But opponents of affirmative action argue in an a-historical manner and conflate the principle with its practice to try and win an argument that seems ethically dubious at best and reprehensible at worst.

Let us forget the past, Mr De Klerk seems to say, when we stole the land from the original inhabitants of South Africa, exploited and oppressed black people, tortured and killed them and did so in the name of Christianity and Western civilization. (As Gandhi once remarked when asked what he thought of Western civilization: “it is a good idea”.) Let us look only to the future, because that will allow us white people to keep everything we have stolen and never having to take responsibility for our disgraceful past actions. After all, we have always been right and “these people” have always been wrong.

To think the Nobel committee gave this guy a peace prize.

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