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Anthea Jeffery: Race-based empowerment sidelines majority – undermines Constitution

By Anthea Jeffery*

Dr. Anthea Jeffery is Head of Policy Research at the IRR and author of Patents and Prosperity: Invention + Investment = Growth + Jobs, published this week by the IRR and available on the IRR website.
Dr. Anthea Jeffery is Head of Policy Research at the IRR.

The African National Congress (ANC) seems determined to cling to race-based affirmative action and black economic empowerment (BEE) policies, and is steadily ratcheting up their requirements. But these interventions help only a relatively small black elite, rather than the great majority of poor South Africans. Using race as a proxy for disadvantage is also unnecessary when disadvantage can itself be measured in other ways. In addition, the use of race in this way contradicts the Constitution and distracts attention from key barriers to upward mobility.

In the absence of the growth and jobs needed for increased prosperity, the Government’s most effective intervention in ameliorating poverty has been its roll-out of social grants. These currently inject more than R120bn in cash into poor communities each year, and are awarded on the basis of a means test – without reference to race.

As the grant system shows, race is not a necessary indicator of disadvantage. Nor, increasingly, is it an accurate one. The country now has significant numbers of black upper and middle class households, whose situation is very different from that of the 19 million black South Africans still living in relative poverty on less than R1,500 a month.

See also: Anthea Jeffery: New BEE rules = “demographic” quotas for company management

A racial focus in policy also requires some form of racial classification. This breathes new life into the Population Registration Act of 1950, an apartheid-era law that required the racial classification of all South Africans and was repealed by the National Party government in June 1991 – almost a quarter of a century ago. Without race-based affirmative action and BEE laws, racial classification might by now have become a distant memory: something that older generations had been obliged to endure but which “born-free” South Africans could escape. Instead, current race-based rules keep racial tagging alive.

The current emphasis on race is also contrary to the Constitution, which explicitly identifies “non-racialism” as a core value of post-apartheid South Africa. Also relevant here is the equality clause (Section 9), which expressly requires equality before the law; bars discrimination on racial (and other) grounds; and requires those who nevertheless discriminate on the basis of race to prove the fairness of their conduct. As an exception to these general rules, the equality clause incorporates a sub-section authorising the taking of “legislative and other measures designed to protect or advance…persons disadvantaged by unfair discrimination”.

The Constitution’s emphasis here is on “disadvantage” and not on race. The Constitution neither requires nor authorises the rigid racial targets that are increasingly the hallmark of BEE laws. Instead, it makes it clear that its affirmative action provisions are exceptions to its general principles of non-racialism and equality before the law. Hence, like all derogations from general rules, these exceptions should be narrowly interpreted so as to limit the extent to which they detract from the wider principles in issue.

See also: Anthea Jeffery: ANC actions point towards 60yr old Freedom Charter – not the Constitution

The current racial focus in policy also distracts attention from key barriers to upward mobility that “anti-racism” laws simply cannot overcome. This is increasingly being recognised in the  United States, where a race-based system of affirmative action has been in place for more than 50 years but has done little to assist the truly disadvantaged among African-Americans. This is largely because racial preferences can do little to address major obstacles to black advancement in the US, among them:

  • a collapse in family life, making for worrying numbers of absent fathers;
  • high rates of violent crime in many areas;
  • widespread alcohol and drug abuse;
  • a “street” culture that celebrates violence and challenges authority;
  • bad public schools and often uncaring teachers;
  • a reliance on welfare and a more general dependence on government to provide;
  • debilitating perceptions of victimhood and entitlement; and
  • a mistaken reliance on affirmative action measures, which generally benefit a relative elite while bypassing the poor.

This list – compiled by Professor Dinesh D’Souza in a 1995 book entitled The End of Racism – is highly relevant to South Africa as well. However, whereas in the US the debate about these issues is vigorous and beginning to result in some policy shifts, in South Africa there is far too little recognition of equivalent barriers to upward mobility and far too much reliance on BEE instead.

In the US, the movement against race-based policies has also gained significant momentum over the past 20 years. The process began in the 1990s, when Ward Connerly, an African-American member of the University of California’s board of regents, urged the university to abolish racially-based admissions criteria and put more emphasis on socio-economic circumstances instead. Connerly also pushed for the state of California to abandon race-based preferences in state employment, contracting, and university admissions. In 1995, Proposition 209 – a measure to amend the Californian constitution along these lines – was endorsed by a 55% majority of the state’s voters.

Since then seven other states in the US have banned race-based affirmative action, while four more are considering bans too. The US Supreme Court has also indicated that race-based programmes should not be upheld as constitutional unless it can first be shown that “available, workable race-neutral alternatives do not suffice”.

Building at least in part on D’Souza’s work, other commentators are now arguing for a shift away from race-based affirmative action towards interventions that will be more effective in benefiting the truly disadvantaged. One of these is Sheryll Cashin, author of Place, Not Race, who argues that “race-based affirmative action is a blunt instrument that doesn’t help the vast majority of black and Latino kids”. Such children frequently come from impoverished neighbourhoods with bad schools, while black children, in particular, often grow up without two parents in their homes. Race-based affirmative action fails to take account of such considerations. Hence, affirmative action should be based on socio-economic factors such as income, neighbourhood, and family structure, which have the further advantage of being race-neutral.

As experience in the US confirms, race is neither a necessary nor an accurate indicator of disadvantage. Nor is it in keeping with our Constitution. South Africa needs to move away from race as part of an essential shift from BEE to “economic empowerment for the disadvantaged” or “EED”. EED would strengthen the economy and be far more effective than any amount of BEE in giving the marginalised real opportunities for upward mobility.

* Anthea Jeffery is the head of policy research at the Institute for Race Relations. She is also the author of People’s War: New Light on the Struggle for South Africa and BEE: Helping or Hurting?

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