TRANSCRIPT OF ADDRESS BY SIPHO PITYANA, CHAIRMAN OF CASAC TO THE FW DE KLERK FOUNDATION CONFERENCE ON UNITING BEHIND THE CONSTITUTION, PROTEA PRESIDENT HOTEL, CAPE TOWN, February 2 2013
THE CONSTITUTION AFTER 19 YEARS
Well, I am sure I speak on behalf of all of you in wishing Bafana Bafana well. I nearly came in a Bafana Bafana T-shirt. To make up for it I thought I would dress in the colours of Bafana Bafana. So this is a proxy for the T-shirt.
Premier Zille and former President FW de Klerk, Mr Steward and the leadership of the Foundation, Dr Dix of the Konrad Adenauer Foundation, distinguished guests, ladies and gentlemen, it is a singular honour to have been invited to be part of this important conversation of the journey of transformation and reconstruction of our country as a progressive constitutional state.
Not insignificantly, this is the 23rd anniversary of crossing of the Rubicon when President FW de Klerk, on 2 February 1990, invited his people to turn their backs on an undemocratic system of governance that is intrinsically corrupt and bereft of any ethical and moral foundation or influence, an assault on human dignity and the Rule of Law, a crime against humanity. He did this at great risk to his person, career and the future of his people. He, together with President Nelson Mandela, can legitimately and without fear of contradiction claim to have been midwifes of our constitutional democracy which was born of heroic struggles of our people.
You rightly invite us to not only reflect on the Constitution 19 years hence, but also call on us to unite behind the great vision it proffers. Its preamble sums up its unambiguous mission and reads thus. And I quote:
"We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives adopt this Constitution as the supreme law of the Republic so as to -
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people, and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in a family of nations."
This clearly sets out the Constitution as a fundamental transformative framework intended to guide us from a repressive and divided past to a peaceful, inclusive, diverse and prosperous future based on mutual respect and a commitment to basic tenets of democracy.
Without exonerating government failings which have been well documented, our time perhaps may be better served reflecting on failure of broader society's leadership in certain regards in advancing the Constitution. We must deliberate on the denialism about the continued legacy of apartheid and pronouncements that often come across as a defence of the past and its privileges.
This great contract willingly and freely entered between our people, the Constitution, may have been betrayed by some among us who proclaim commitment to it. This, in some instances, is done when government measures and policies, and government efforts to redress the legacy of our fractured past are decried with no meaningful alternatives proposed. In the circumstances often a sense of lack of commitment to our common vision sets in.
It is important to recognise that respect for and promotion of civil and political rights - civil liberties - are an important but insufficient component of freedom. It creates the conditions for economic and social freedom to be realised. But much more needs to be done. It is dangerous to merely focus on civil liberties and not take action to meaningfully deal with inequalities and legacies of our past.
Failure to do so will undermine social cohesion and fray the fabric of society. Inequalities, which according to most indices, continue to take the form of the apartheid hierarchy, suggest that while apartheid may be dead, its doggedly persistent legacy is a blight on an alternative society we are trying to build. Inequalities which continue to marginalise black South Africans are the most serious threat to our constitutional democracy and undermine its credibility.
According to the latest Census released last year, African household income averaged R60 000 per annum, for Coloureds R112 000, Indians and Whites R250 000 and R365 000 respectively. This clearly shows the stubborn legacy of our past. Africans continue to dominate the ranks of the poor.
A report of the World Bank released in 2010 noted South Africa as one of the most unequal countries in the world, with a Gini coefficient of 0.7 in 2008, a marginal increase from 0.66 in 1993. The report further highlighted that South Africa's Gini index - which measures the extent to which the distribution of income among individuals or household within an economy deviates from a perfectly equal distribution - was 63.14 in 2009.
The Bank further reported that the top 10% of the population accounted for as much as 58% of South Africa's income. The bottom 10% accounted for just a mere 0.5% of income, and the bottom 50% less than 8%. Some indeed expressed the view that the new dispensation has benefited the old order more than those who were oppressed. Some argue, based on these and other statistics, that black South Africans are financially worse off now than they were under apartheid, the previously disadvantaged continued to be disadvantaged even under a new democracy. South Africa's white minority is even better off now than it was under apartheid, so they argue.
These sentiments undermine social cohesion, raise levels of resentment with the unfulfilled dreams of liberation, and result in calls for an alternative order. There is a cynical agenda to create an impression that these inequalities persist largely because government's redress initiatives are about the enrichment of the black elite through such policies of black economic empowerment. Empirical evidence suggests otherwise. Further evidence shows, however, that even these policies have not been successful in redressing the past, largely as a result of circumventive behaviour. Such behaviour includes fronting, corruption, tokenism, misrepresentation to government, and many other similar measures.
Approximately 21% of black people own shares in the top 100 listed JSE companies, with only 8.9% of this 21% being direct ownership. It is not blaming the ghost of the past to remind each other that the laws of the land, for many years, restricted black people from full participation in the economy. Consequently the wealth and capital accumulation was due to assuming the apartheid hierarchy of discrimination. It stands to reason that removing discriminatory laws alone would not be enough, but that redress measures aimed at levelling the playing field are necessary, hence black economic empowerment. According to the Employment Equity Commission report of last year, only 18.5% of black people are in top management roles in the economy, 19 years into our democracy.
Is it possible to convince anyone that it is not a result of racial discrimination in the workplace that is allegedly quite rampant? This is despite the fact that section 9(3) of the Constitution proscribes discrimination including that based on race. Section 9(5) of the Constitution states, and I quote:
"Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair."
If we understand the significance of this in our constitutional democracy and our efforts to redress inequality and to build common citizenship in all its manifestation, we ought to embrace the principle of fair discrimination that informs these policies. However, if we choose deniaIism and the erasure of apartheid's legacy in the present, we will feel uncomfortable with this principle and undermine the very objective of transformation in our society.
We must have the courage of our convictions to support and commit to these transformative values of our Constitution. Among the issues that need to be addressed is the impact of the education system on the transformation process. We must accept as an unpleasant but true reality that our education system continues to fail the society. This failure also accounts for the persistent inequalities in our society.
It is indeed a betrayal of the Constitution to have returned only about 7% of land since 1996 to black people as a result of the restitution programme. It is in this context that we welcome the inclusion of CASAC's recommendation in government's National Development Plan on land reform. In our submission to the National Planning Commission entitled, Subject to Citizen, let the People Govern, we pose the question: how does the Constitution's recognition in section 25 of respecting private property bear on the prospects for successful pursuit of a social transformative commitment? And I think that is the debate that is so central amongst us South Africans today. We postulate thus, and I will quote directly from what we said in our submission:
"The Constitutional Court has not yet been called on for answers to the heart questions about application of section 25(2) and (3) requiring just and equitable compensation, reflecting an equitable balance between public interests and the interests of those affected, having regard to all relevant circumstances. For any expropriation of property it might be the case that the Constitution land reform commitment can not be carried out without resort to substantial expropriations. Supposing that this is the case, then a constitutional requirement of substantial just and equitable compensation might stand practically in the way. How far this might be so will depend on how the just and equitable standard is construed and applied by the Constitutional Court in light of whatever relevant legislation Parliament might present to court."
We believe that the Constitution points the way to the transformation-friendly body of property law but leaves the matter in the end for South Africans to resolve politically and democratically. The centenary of the 1913 Land Act is an appropriate opportunity to test our resolve to heal this wound that has been at the heart of our divisive past. It is for this reason that we support the view that a universal land restitution policy of 'willing buyer' - 'willing seller' may be a conservative and limited interpretation of our Constitution, inhibiting its transformative intentions. Where there may be instances that justify such an approach, it may very well be that it can not be so in all cases.
There can be no doubt that the three most important policy instruments to lift our people out of poverty and inequality in our society are: education and training, employment, and social security in the medium term. The latter is where government's greater successes have been registered. In 1996/97, over 2 million of the population benefited from social grants, compared to 2012 where over 16 million benefited - over a quarter of the population, that is. According to findings from the Stats SA 2001 Community Survey, Africans are the largest recipients of social grants at 90%, followed by Coloureds at 6%, Indians and Whites at 1% and 3% respectively. There is do doubt that while it is an important mitigating factor against poverty, these levels of dependence on social grants are unsustainable in the long run.
The National Development Plan's focus on employment is therefore critical. Employment is the most effective and sustainable intervention for poverty alleviation in pursuit of an inclusive and redistributive economy. Despite two job summits, which sought to focus on employment, there has been a negative growth in employment since 1994, even though new jobs were created in the period of economic growth. This was outstripped by jobs lost, a 26% unemployment. Clearly these levels of unemployment are unsustainable and too high. The income gap between the top echelons and junior employees in the corporate environment, and the phenomenon of poverty in employment is undermining stable labour relations, as shown in the mining and agricultural industries in the recent months.
There can be no doubt that an infrastructure-led economic stimulation package is pivotal, especially with the backing of a clear articulated industrial policy that IPAP represents. The greatest fear is that corrupt practices around these projects might unduly raise their costs, alienate strategic players and undermine their impact. After the Arms Deal, I would suggest, this is likely to attract the most interests from the vultures of corruption.
The other concern is a weak and deteriorating capacity of the state to execute these programmes. This highlights the urgency for an effective, independent anti-corruption capacity, and the enhancement of the competency of the state. An incompetent state and a corrupt state can never be able to contain run-away escalations that are often associated with big projects, as we have seen in numerous instances in our country.
Effective, efficient and transparent procurement processes, free from greasing of palms, would ensure that the R1.3 trillion budgeted for infrastructure spending has a meaningful empowerment effect, by providing infrastructure that is critical for sustained economic growth, employment and reduced poverty. These outcomes are not inevitable but conditional on good governance. Without good governance we may be throwing good money after bad.
In CASAC's founding principles we argue thus, and I quote:
"The realisation of socio-economic rights is intertwined with civil liberties and political freedoms. Social and economic marginalisation deprives people of their fundamental right to live with security and dignity and is a betrayal of the Constitution. Endemic poverty and inequality render South Africa a fragile society where the poor and vulnerable, especially women and children, are condemned to the fringes and easily exploited. There is an unacceptable and unsustainable gap between the vision of the Constitution and the lived reality of too many citizens. This gap must be closed, providing people with access to education, adequate housing and health care, and, with the protection of the social security net, is essential for a cohesive society and a future of prosperity of the nation. As traditional orthodoxies are being questioned in the global economy, so too must the Constitution take into consideration the socio-economic context in which it exists, and be responsive to the scale, urgency and interconnectiveness of challenges of globalisation and sustainable development."
It is in this context that we believe we need to bravely and unapologetically tackle sensitive issues such as equal opportunities and affirmative action in employment, black economic empowerment and land reform. It is our seeming inability to agree on how to tackle these vexed issues that has led to calls for an economic CODESA. What we clearly need is a rational and candid national dialogue to confront these issues, without pretending that only apartheid accounts for where we are but also recognise that the shortcomings of a post-apartheid state are also responsible. The premise for such a conversation is that we must acknowledge that, without addressing these issues, we cannot as a nation make progress. The status quo is unsustainable.
The values that contribute to building a society with effective systems of open governance, ethical behaviour, accountability, competence, hard work, a spirit of public service with consequences for poor performance or corrupt conduct, non-violent resolution of dispute, and non-partisanship also need to be respected. A rights-baced culture must also focus on responsibilities and obligations that go with these rights, encouraging citizens to be active in improving their own lives, and communities in holding government to account through participative processes and sustained social dialogue. The principle of the Rule of Law is a critical building block in seeking to pursue the concept of constitutionalism.
Public and private power must be exercised within the law in order to retain legitimacy and to enhance a culture of responsibility and accountability, and guard against the arbitrary use and abuse of authority. Judicial independence is in turn an indispensable element, if not a prerequisite, for the Rule of Law and the integrity of the court system if it is to dispense justice that promotes substantive quality as well as procedural fairness.
And I would like to conclude and leave you with food for thought. Frederick Douglass in 1886 had these words to say:
"Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organised conspiracy to oppress, rob and degrade them, neither person nor property is safe."
Thank you.
Issued by The FW de Klerk Foundation. To sign up for the Foundation's free online newsletter click here.
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