Affirmative action: It’s time to up the ante in constitutional discourse
In “The Rule of Law vs the Constitution” (7 August 2018) Sydney Kaye writes of how the Constitution of South Africa itself falls foul of its own commitment to the supremacy of the Rule of Law, as expressed in section 1(c) of the text. This is because the Constitution has allowed wide-ranging racial discrimination by the State, something the Rule of Law proscribes.
In this article, I wish to challenge Kaye’s take on the Constitution, and encourage those who regard themselves as committed to a constitutionalist order predicated on private property rights and equal protection of the law to engage in a constitutional discourse aimed at constitutionalising the Constitution.
The courts and the Constitution
A recurring error in South Africa’s impoverished constitutional discourse is the conflation of the often-flawed jurisprudence of the courts, specifically that of the Constitutional Court, with the Constitution itself.
Since the Constitution is what we have and is what we will have for some time to come, it is very unfortunate that many are willing to throw the Constitution out the window in frustration better aimed at the judiciary. Barring some kind of revolution, South Africans have to get used to having this Constitution, and, as a result, must engage with it and appreciate its nature, independently of the opinions of judges.
One needs to distinguish between the operational and the correct interpretation of the Constitution. Operationally, or functionally, the Constitutional Court’s word is law. The Constitution bestows on the court the last say in what its provisions mean. This is not an aberration. Any constitutional order, if it wishes to maintain legal certainty and a strong separation of powers, has an apex court that in effect has a monopoly on constitutional interpretation and adjudication. Without this, it is conceivable for government to set aside whatever the courts are ordering it to do, and say “we disagree about what the law means, so we will not comply”.
But this does not mean the judgments of the courts are always legally or morally correct. The Constitution recognises this, hence why South Africa subscribes to a system of stare decisis, where higher courts can overrule the decisions of lower courts, and the highest court – the Constitutional Court – can reverse its own past decisions when it becomes clear that the court erred. The courts can be, and are, often wrong.
Section 1 – non-racialism and the Rule of Law
That the courts are often wrong is nowhere more apparent than in the jurisprudence surrounding legalised racial discrimination, in the form of affirmative action, in South Africa.
Indeed, a holistic reading of the Constitution – without the taint of incorrect Constitutional Court interpretations – can only return one reasonable understanding: racial discrimination by government, given our history, is prohibited.
Section 1, a provision in the Constitution that can only be amended with 75% of the votes in the National Assembly, provides that the South African state is founded on non-racialism and on the supremacy of the Rule of Law. The Rule of Law, as a constitutional doctrine, is an aversion to arbitrariness in governance, and, specifically, states that the law will apply equally to everyone subject to it.
Every other provision in the Constitution must be read in accordance with section 1, since this section sets the theme, tone, and foundation for the remainder of our highest law. The values in this section are engrained within the fabric of the whole constitutional text, and in the fabric of every other provision. No other provision in the Constitution, thus, can be incompatible with section 1, and as such they must be read in such a way that renders them compatible in text and spirit. Only where another provision is unambiguous and explicit in its departure from the values of section 1, can it be considered legally valid, but these provisions can be counted on one hand and have themselves not led to our current state of legal inequality.
Equality as a principle of the Constitution
When equality and the Constitution are discussed, most of the focus is understandably on section 9 – the right to equality – but equality as a principle of the Constitution is wider. When courts are thus asked to interpret what the meaning of notions of “unfair” and “fair” discrimination are, they must look at these other provisions to appreciate what equality means within the constitutional context; in other words, what section 9 actually means when it uses these words.
The ANC and Ramaphosa: interpreting the Constitution
A common and immediate retort to the theory I have outlined above is that the African National Congress (ANC), and particularly Cyril Ramaphosa, have time and time again “clarified” what they meant when they wrote section 9 in the 1990s. One can also point to a myriad of legal scholars who have written about what the ostensible intentions and goals of framers of the Constitution were when they wrote provisions like section 9.
Then-Deputy President Ramaphosa, for instance, has written that “The equality clause is in fact fundamental to the transformation agenda and is not contradictory to the National Democratic Revolution.” Ramaphosa correctly notes that the right to equality means full and equal enjoyment of all rights and freedoms, but he makes the fallacious leap from the provision’s obligation on government to take steps to achieve this equality, to sanctioning government racial affirmative action programmes. He says “Those who wrote the constitution understood that equality cannot be achieved by proclamation. It is something that has to be achieved progressively through deliberate and sustained action.”
The intentions and goals of those who wrote the Constitution, however, are irrelevant. What is relevant is the text that finally made it into our highest law.
As Professor Stephen Macedo wrote, those engaged in constitutional interpretation are supposed to “begin with the text itself and seek to understand not only the words but the structure of the document as a whole, the nature of the institutions it sets up, the powers and rights it enumerates, and the principles and purposes implicit in these words, structures, institutions, powers, and rights”. He continues, writing that “the Constitution declares itself to be supreme and requires that judges take an oath to support the document itself, rather than past judicial interpretations of it”. (10)
Macedo writes at length about the problems inherent in appealing to the intentions and goals of those who wrote or formulated the Constitution. Firstly, out of all the parties, drafters, and influencers who participated in the constitution-making process, whose intent is authoritative? Writing in the American context, he asserts that it was ratification by state legislatures “that gave the Constitution the force of fundamental law, so why should the intentions of the Philadelphia delegates be counted but not the intentions of participants in the state ratifying conventions?” (12)
In South Africa’s case, the 1996 Constitution was the product of a relatively complex process. First the Codesa negotiations took place, which led to the adoption, by the last white Parliament, of the so-called interim Constitution in 1993. The interim Constitution included a set of principles agreed upon at Codesa, which had to be entrenched in the eventual “final” Constitution. Without adequately encapsulating these principles, the final Constitution could not be adopted. The last white Parliament, composed of directly-elected representatives of the white electorate, could have rejected the interim Constitution, but did not. This parliament was then replaced by a group of new, democratically elected parliamentarians who sat as the Constitutional Assembly, and went about drafting and adopting the final Constitution. When the first draft Constitution was submitted to the Constitutional Court for certification, it was rejected. The Constitutional Court approved the second draft Constitution.
In this whole scheme, whose intention must be considered authoritative on what a constitutional provision was meant to do? The Codesa negotiators as a whole? The specific Codesa committee which drafted the clause, or the specific member of the committee who dominated the proceedings? The last white Parliament which adopted the interim Constitution? The Constitutional Assembly? Its subcommittee that drafted the new clause? The Constitutional Court which could decide to certify or not certify?
Macedo poses another pertinent question: “Should the intentions of those who seem to have misunderstood what was being voted on be discounted?” (12) Is the intention of the whole series of “drafters” the authoritative intention, or that of individual drafters? If either of these two, why? If both, how and why? There will, inevitably, be conflicting and complex intentions.
The second problem Macedo identifies is what is to be considered evidence of intent. Would it be the explicit statements made by Codesa negotiators, members of the last white Parliament, and the Constitutional Assembly, or is it their subjective intentions? Intention and expression are not always the same thing. Furthermore, not all the goings-on at Codesa were recorded. For instance, the Free Market Foundation engaged in many behind the scenes meetings, especially with negotiators from the ANC to craft what would eventually become section 25 of the Constitution – the property provision – which today stands under threat. Since these meetings were not recorded, are they disregarded from determining the intention of the Codesa drafters?
“The notion that specific but unstated intentions ought to supplant the interpreter’s best understanding of the general words and structure of the document,” writes Macedo, “represents a devaluation of the status of the document itself.” (22-23)
Professor Trevor Allan has also written that “The distinctions between literal, intended (or purposive), and true (or legal) meanings are of fundamental importance to the rule of law. They explain the irrelevance of any particular legislators' (or draftsman's) hopes or expectations; and, most importantly, they show why the intentions of a bill's government sponsors lack any special authority in the elucidation of the statute's meaning.” Allan continues, saying that instead, “The citizen should, in principle, be bound by the formally enacted text, reasonably construed in the light of the apparent legislative context [the principles of the Constitution and society’s legal tradition]. The rule of law is plainly distinct from the rule of the legislator whose intentions lack firm moorings in the pertinent text.” (696)
Indeed, from a jurisprudential perspective, the intentions of the drafter of a statute are at best irrelevant and at worst distracting. Only what actually ends up making it into the statute is what the interpreter should concern themselves with. Furthermore, nothing that Ramaphosa said provides a legal justification for affirmative action under our constitutional regime. The Constitution nowhere states, for instance, that to advance some, it must be at the expense of others. Indeed, the Constitution does not entrench a legal zero-sum game. Yet this is what government has made it out to be, especially on matters of equality and wealth creation. One can make a very strong argument that the values and provisions of the Constitution in fact prohibit treating advancement as a zero-sum game.
The Constitution is properly interpreted by looking at the text, and specifically at the Founding Provisions which explicitly state what the foundational values of South Africa are. And the reasonable conclusion one must draw from this is that racial affirmative action is proscribed; intentions of the drafters notwithstanding.
It’s time to reverse our impoverished constitutional discourse
I know that most advocates and attorneys trained in our law schools will balk at the picture I have painted above and exclaim that “there is no precedent for this argument!” But herein lies the problem.
South Africa has a very deferential legal community and civil society, especially when it comes to jurisprudence. The positivist history of the South African legal order may be partly to blame for this.
For more than a century, South African legal education taught one key principle: Parliament is sovereign, and the ‘rule of law’ is whatever Parliament deems it to be. There was no true education on the inherent features of constitutionalism, such as limited government, a strong civil society, property rights, and individual freedom. Constitutionalism in South Africa simply meant ‘the will of government’.
But there was another problematic feature of legal education which, unlike parliamentary sovereignty, has persisted to the current day: uncritical deference to the courts.
The type of respect for judges and the judiciary that has been taught in South Africa is obsessive. It’s not ordinary respect, but adulation. Thus, for instance, in the popular 1955 textbook The South African Constitution by Henry John May (a must-read for anyone interested in constitutionalism in South Africa), the author criticised the National Party government for its role in the 1950s constitutional crisis when it proposed to stack the Appellate Division bench with judges loyal to its Apartheid ideology. This criticism, however, was qualified with May saying that the judges themselves were beyond question. They would apply the law fairly and competently, and nobody must or can doubt this absolute fact (xiii). This bizarre defence of judges was not limited to May, and is still seen today, to the point of judges being seen as invariably sagelike and beyond criticism.
Precedent (that is, prior decisions by our superior courts) is not the be-all and end-all of constitutional discourse. Constitutionalism has inherent principles and doctrines that transcend the opinions of judges or even the text of the Constitution itself. The idea of limited government, for example, is not severable from the notion of constitutionalism. It is an inherent component thereof.
The courts’ recognition and endorsement of racial affirmative action in South Africa is thus perfectly questionable and should be questioned and then rejected on the basis of constitutional reasoning rather than blind deference to precedent.
Only once this principle is adopted by civil society can we start our journey toward creating a constitutional jurisprudence where everyone of whatever race is seen as equal in the eyes of the law, especially when it comes to our personal and economic affairs with which government has no business to interfere in the first place.
Martin van Staden is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria. He is the author of the upcoming book, The Constitution and the Rule of Law: An Introduction.
Allan TRS. “Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and Authority”. (2004). 63 Cambridge Law Journal 3.
Macedo S. The New Right v. The Constitution. (1987). Washington, DC: Cato Institute.
May HJ. The South African Constitution. (1955, 3rd edition). Cape Town: Juta.