Remarks of Ambassador Tony Leon to the Solidarity Conference on Shadow Report to the United Nations, Centurion, 13 May 2015

“Does South Africa fall foul of the UN Convention on Elimination of All Forms of Racial Discrimination? “

1. Introduction

Thank you for inviting me to participate in this important and timely conference. In terms of importance, there can be no doubt that the aspirations of our non-racial and democratic constitution is in reality and practise being undermined by a potent cocktail of events and forces. The recent xenophobic violence meted out to foreign nationals in our midst is one such indicator of the stark difference between lofty aspiration and the lived reality of our times.

The increasingly coarse, sometimes frankly, racist rhetoric which informs our national dialogue, everywhere from the universities to Parliament, is another indication of this regressive tendency.

1.1 Assaults on the Constitution

Among the custodians of the constitution - in both the ruling party and the national executive and beyond – there is impatience with the very parameters of our founding settlement. I was privileged to have played a role, during my career as a Member of Parliament in the drafting of both the interim (1993) and the final (1996) constitutions which today constitute the supreme law of South Africa. I therefore noted with dismay the remarks of a leading member of the African National Congress (ANC) in 2011, Mr Ngoaka Ramathlodi (before his elevation to full cabinet membership in 2014), which are apparently shared by others in his circle. He stated that –

The constitutional transition was a victory for ‘apartheid forces’ who wanted to retain white domination under a black government. (This was achieved) by emptying the legislature of real power and giving it to other constitutional institutions and civil society movements ii

This viewpoint was, in more recent circumstances and in respect of the constitutional protection (in terms of s 25 of the Constitution) of property rights given similar expression by the Secretary General of the ANC, Mr Gwede Mantashe, in August 2014, who stated-

Though property rights are protected they cannot be treated as absolute iii

As I will argue further on, there is persuasive evidence that the ruling party’s commitment to South Africa’s constitutional compromises is, at best, ambivalent .

Solidarity is, par excellence, a leading member of the civil society disparaged, in particular by Mr Ramathlodi’s statement; but the very concept of an independent non-government sector, of which the trades unions are such leading role players, is of course vitally important in both building and developing a durable and substantive democracy.

1.2 Economic Deterioration

The standout feature of the period (2015) in which both the South African government has reported to the United Nations Committee on the Elimination of all Forms of Racial Discrimination under article 9 of the Convention on the Elimination of Race Discrimination (“the Convention”) and Solidarity has prepared a ‘Shadow Report” is the significant economic deterioration in our national circumstances since the adoption of our constitution in 1996.

Unemployment stands, formally, at around 25% of the economically active population, and increases to 36% if the measure includes those ‘who have given up the search for work’; government debt now stands at 49.7% of Gross Domestic Product (GDP), and 2014 was ‘the worst year for the economy’ since the advent of the global financial crisis in 2009, characterised by growth barely of 2% inhibited by among other factors – crippling strikes, falling currency, a faltering energy grid and ‘’the bungling of unaccountable politicians”. iv

While both the shadow report and this conference are not, primarily, concerned with the economic backdrop to the largely legal-political issues central to the Convention and its prohibitions against racial discrimination, it is important to provide the context in which most of the contentious legislation, especially recent amendments and regulations, occurred.

It is trite to note that, as a minimum, government has set itself a growth target of 5% GDP to dent the huge unemployment issue in this country. If South Africa were on course toward that target, rather than being below half that stated goal, it is quite possible that the pressure to divide an ever smaller economic cake would lessen and indeed the sort of instruments under scrutiny at this conference and in the shadow report would be less impactful and injurious to targeted groups. But in the very straightened economic circumstances South Africa finds itself it, employment opportunities are shrinking not expanding, which means contentious measures such as employment equity become a ‘zero sum’ game.

1.3 Political Environment

Furthermore, the current debate and backdrop for recent amendments to the regulatory framework and judicial pronouncements governing many of the contentious items of legislation ( such as BEE and Employment Equity) which form the backbone of the Shadow Report, have to be seen in a political context. This was explicitly articulated by the President of the Republic, Jacob Zuma shortly before the 2014 South African general election. He advised Parliament that far from reconsidering any aspects of socio-economic transformation, such as race-based affirmative action, such measures would intensify going forward. He said-

South Africa (will) enter a new radical phase of accelerated socio-economic transformation…we have achieved political freedom, now we must achieve economic freedom and ensure that the ownership, management and control of the economy is further deracialised…We must therefore intensify the implementation of affirmative action policies in order to deepen reconciliation and social cohesion in our countryv

Of course what precisely constitutes ‘deracialising’ is the core of both this debate and is reflected in the conclusion of the Shadow Report in the table of ‘non racialism’, which is an agreed and worthy constitutional goal and societal imperative and ‘neo racialism’ which is its opposite. Exactly the same contradiction appears in the laudable and explicit commitments by the President and others to ‘reconciliation’ and ‘social inclusion’, whereas the means intended to achieve these goals appear to have the opposite effect, namely intensifying social and racial fracturing.

The central conclusion of the Shadow Report with which I am in respectful agreement, for the reasons which will follow, that simply clothing explicitly racist and discriminatory provisions in the language of ‘non racialism’ and ‘reconciliation ’ does not, except in an Alice In Wonderland manner, cure them of their defects. It will be recalled that in Lewis Caroll’s famous children’s story, the Red Queen said-

I make words mean exactly what I want them to mean

1.4 Using Public International Law Instruments to Peruse Domestic Grievances

In the shadow report it is also noted –

South Africa, as a member state of the United Nations, is part of the broader international community. Recognizing as much, the SA Constitution requires that, when interpreting the Bill of Rights, a court must consider international law, and when constructing statutes, must heed the country’s international law obligations.

I am in respectful agreement with that formulation which is indicative of why the Convention forms an explicit part of both our public international law and domestic legal obligations. It is thus also self-evident why Solidarity should indeed engage in this process in the correct international forums for its disposition, as it is doing with drafting the Shadow Report.

I can certainly confirm, from my recent engagement as a senior diplomatic representative of South Africa, that this government is mindful of its international obligations and places a primacy on the role and centrality of the United Nations and its conventions and committees as arbiters of international and domestic conflicts. As a signatory state to the

Convention it is both correct and proper that our national conduct under it is scrutinised. I therefore congratulate Solidarity on engaging in this important and necessary process.

2. The Shadow Report

2.1 Implications of the SA Government 4th to 8th Report under Article 9 of The Convention

In the limited time at my disposal, it is unnecessary to fully summarize the closely reasoned Shadow Report, except to highlight its central thrust, and note one reservation, before (under (3) below) suggesting certain additional matters for inclusion, in addition to those observations contained in (1) above.

The Shadow Report closely references two anchor pieces of legislation (The Broad Based Black Empowerment Act (BBBEE Act) and the Employment Equity Act (EEA) to refute the contention of the South African government in its own 4th-8th Periodic Report to the UN Committee charged with ensuring member states’ compliance with Article 9 of the Convention.

The government’s standpoint is that its policies and practices evidence

Dedication to the development of a non racial society.

In contrast, the Shadow Report states-

This stance is false (because) the Government pursues policies that are overtly race based in its determination to produce a society that is ‘demographically representative’. Its policies, in short, are not non-racial, but at best neo-racial, and at worst nakedly racialstic… the system is not concerned with affirmative action (explicitly sanctioned by both the South African Constitution and the UN Convention –author’s note), but with race.

2.2 Legislative and Jurisprudential Environment in South Africa

The Shadow Report also notes that the legislation, in the case of procurement mandated by the BBBEE Act ‘comes at high cost in terms of integrity, efficiency and investment’; whereas the EEA ‘universally determines matters of employment and promotion by reference to race. (This) has nothing to do with disadvantage, but instead (ensures) mandatory racial representivity.

Appropriately, since Solidarity has been at the forefront of litigation around the implementation of these instruments particularly in the realm of public sector appointments, the Shadow Report then considers whether the domestic courts, including the highest court in the land, the Constitutional Court, have provided relief to individual litigants whose rights have been adversely affected by the practical implementation of such policies and practises.

It concludes that the equal protection and non -discrimination provisions provided by the Constitution in terms of s.9 thereof, are to an extent blunted by the provision in the same clause allowing affirmative action measures designed to protect both persons and categories of persons disadvantaged by unfair discrimination.

In my view, and as a person intimately involved in the processes of drafting both the interim (1993) and the final (1996) Constitution, I regard both this clause and its qualification as being necessary to ensure individual rights and simultaneously ameliorate the systemic and systematic patterns and practices of racial discrimination which disfigured South African society prior to the adoption of the current Constitution and its democratic premises in 1996.

The Shadow Report sounds a sceptical note on the practical consequences of this balancing of rights, and notes

This ‘escape hatch’ has been used as ‘a cloak’ for a welter of legislation that uses race and gender as overwhelming requirements and justification of affirmative action and numerical targets.

It also notes that straying from the origins of constitutional intention, current legislation and practise means in reality -

Representation not reparation is the object, and quotas, not targets are the reality in terms of enforcement

However, it was certainly the intention of the drafters of the Constitution to ensure that the Courts would be the arbiters of contending claims between the interests of the group being affirmed or promoted and the rights of the individual to be protected against discrimination. In this regard, the Shadow Report finds that (especially with reference to the Constitutional Court judgment in Barnard v SAPS 2014) the Court -

..used a range of devices for wriggling off the hook

of striking a proper balance between individual and group interests and the court’s proclaimed intention of upholding human dignity, the requirements of efficiency and placing competence ahead of remedial employment measures.

2.3 Societal Implications

The Shadow Report then concludes with societal survey of both the legislative and judicial environment by noting the negative effects of both:

(It) advantages an elite and aggrandizes select individuals and reracialized the post- apartheid state by those means. In the process, old divisions are perpetuated, and indeed aggravated as the struggle for resources becomes more acute in this woefully misgoverned country.

As I elaborate below (in (3)) this section can be usefully elaborated upon.

2.4 Weighing South African Legislation and Practise in Terms of the Provisions of the Convention

The Shadow Report focuses on the right to affirmative action under clause (4) of the Convention which permits ‘special measures’ to secure ‘the advancement of certain racial and ethnic groups or individuals requiring such ‘protection as may be necessary to ensure such groups or individuals achieve ‘the equal enjoyment or exercise of such human rights and fundamental freedoms.’ Such measures shall not be deemed to constitute ‘racial discrimination’ under The Convention.

In my view, the Shadow Report should explicitly indicate that the 350 year practise of racial discrimination in South Africa prior to 1994, makes it imperative, in terms of ensuring proper redress and social justice and ameliorating the ravages of the past, that such positive measures –properly drawn and measured, be in fact adopted. There is no argument that non-white South Africans, especially Black citizens, suffered grievously under the previous order and the effects of that system will take considerable time to rectify.

One might argue, as the Shadow Report strenuously does, against the explicit measures taken since 1994 , but it would be appropriate to indicate at the same time, the need for appropriate action to address what is rightly termed by the government and others as ‘the legacy of apartheid’.

The Shadow Report concludes with the iterations of this affirmative action proviso (by ,inter alia, Unesco) to mean that such measures are permissible provided ‘they do not disadvantage any person arbitrarily‘ nor ‘contravene the provisions of non-discrimination’.

In essence, the Shadow Report contends (on the basis of elaborations under the Convention) that –

Affirmative Action measures (shall) not as a consequence lead to maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they have been taken have been achieved.

The Shadow Report concludes that the above proviso is –

being traduced by the South African State in all three of its branches.

3. Suggested Further Elaborations for Inclusion in the Shadow Report:

Both in elaboration of and in addition to the issues traversed in the Shadow Report, I would like to suggest certain key elements for possible inclusion. These include the following:

3.1 : The Incoherence and Self-Defeating Nature of Government Affirmative Action Measures in South Africa.

Free Market Foundation economist Loane Sharp recently highlighted what he termed the ‘self-defeating and incoherent nature’ of current affirmative action laws in South Africa. viThis is a useful departure point since, self-evidently, any legal measure to meet universal standards of justification requires both rationality and reasonableness. He suggests that key legislation and regulations offend both principles.

On the one hand, for example, most employment equity measures are designed to ‘increase the representation of Black South Africans in management positions; yet, on the other hand, only 9% of the work force is employed in such positions. Furthermore, even if Black South Africans were to constitute ‘100% of all such positions’ the effects on the vast majority of poor people (who in reality are the most in need of ameliorative action) who are in fact overwhelmingly Black, in terms of improved or effective rendering of public goods and services would be ‘negligible’ .

Indeed during the second reading debate of the Employment Equity Amendment Bill in the National Assembly in November 2013, ANC MP Buti Manamele was explicit on the intention of this legislation (which considerably intensifies the reach and penalties of the principal Act):

The intention of the Bill is to relegate to history the situation where more than 70% of the management in the workplaces are predominantly white. vii

Such a statement evidencing the animating spirit behind the legislation clearly falls foul of the provisions of the Convention. Likewise in a further debate (in the National Council of Provinces) on the same legislation, Minister of Labour Mildred Oliphant was equally explicit on the nature of such legislation-

Employers have to face coercive measures because they will not make the changes that are needed to transform the economy if left to themselves viii

Sharp also notes, with accuracy that -

Racial preferences tend to benefit primarily the most fortunate of preferred groups (such as Black millionaires or the children of upper middle class people often to the detriment of the least fortunate among non-preferred groups (such as poor whites).

While in 1994, there might well have been a case in practise, if not in principle, for using race as a crude measure and proxy for disadvantage, but for reasons elaborated upon below (see (3.2), this is no longer justifiable under current conditions.

3.2 Progress Made by Designated Groups in South Africa since 1994.

A persistent theme of advocates of race-based affirmative action measures in South Africa is that ‘not much progress has been made’ since their introduction. These were the exact words chosen by Labour Minister Oliphant , cited above, to justify the intensification of such measures contained in the EEA Amendment Bill, subsequently enacted.

This contention is vigorously contested by any number of experts and commentators. One accused the government of ‘acting in bad faith’ in this regardix; while others point to differences in how progress is measured. For example, Black ownership of equities in the JSE rises to 57% (rather than the single digits quoted recently by President Zuma) if the measurement includes the composition of pension funds.

In a wide-ranging review of progress in South Africa in the first twenty years of democracy,

The Economist, for example offered this observation in 2014 -

A Black middle class has emerged. For every Black engineering student in 1994 there were 44 Whites. Now their numbers have are broadly equal. More than half of Blacks have bank accounts compared with just a fifth twenty years ago. Black professionals are still a minority, but a much larger one. Around 40% of senior managers are Black compared with just 4% in 1994. x

Even higher patterns of Black access and entry are observable in the ranks of the civil service, the judiciary, the parastatals and so on. However whether such progress is attributable to government-mandated affirmative action policies is impossible to determine. In a separate and subsequent report, the same journal editorialised on such special measures elsewhere –

Malays are three times richer in Singapore, where they do not get special measures, than in next door Malaysia, where they do…xi

On the matter of racial occupation of management positions, the government uses a simple arithmetical colour coding to decry lack of progress without accounting for the underlying reality, which even more coercive and irrational instruments could not cure. This was well expressed by Dr Anthea Jeffery of the Institute of Race Relations:

(Black) Africans who work make up 75% of the economically active population (EAP). Yet those with the requisite age profile for management posts (35-64 years old) make up only 36% of the EAP and a mere 4.1% of Black Africans have the tertiary training generally also advisable for management jobs xii

On other words, the legislative instruments under scrutiny emphasise the demand-side of the issue, whereas rationality requires focus on the supply-side measures, uniquely within the powers of government to address which it has, in the realms of education and elsewhere, conspicuously failed to effect.

Furthermore, the Institute of Race Relations noted that while the EEA Amendment Act of 2013 is designed to increase the demand for Black people in management posts, in reality

This demand is already so high that skilled Black people command salary premiums of between 10% and 30% over white counterparts xiii

3.3 Negative Effects and Limitless Nature of such Measures

The costs of compliance with the array of measures elaborated upon in the Shadow Report is both high and very cumbersome, especially for small businesses (see for example Carol Paton report on “The Effect on Small Business”) xiv. The EAA amending legislation was described as “one of the worst red tape bills to be passed by Parliament.”

Further, while the same legislation intends to advance the interests of previously disadvantaged groups, in reality two previously disadvantaged groups, Coloureds in the Western Cape and Indians in Kwa Zulu Natal respectively, are potentially severely prejudiced by the Act since it confers a discretion on government not to account for differences in regional demographics , even in the Provinces where both those groups predominate.

It is also trite but necessary to note that while government intends to ratchet up the pressure on the private sector in terms of compliance, it does not require legislation to fashion state employment plans to achieve its own goals of demographic representitivity. Yet in this realm the results of applying such policies have been exceedingly negative, for both the economy and those most in need of state services.

The current crisis in the provision of electricity via the state monopoly supplier ESKOM are widely and balefully felt everywhere by everyone. This parastatal has aggressively pursued both race-based appointments and procurement policies. In general the situation in state owned enterprises (which have by and large pursued the same policies) has been described by Goldman Sachs Bank as “of serious concern with long term debilitating effects for the total economy “ in the words of its country and continental Managing Director Colin Coleman:

Widespread governance and management issues (at PetroSA, SAA, Eskom, Post Office, SABC), operating and balance sheet traumas (PetroSA, Eskom, SAA, SABC, Post Office)…and generally non delivery of services (Eskom, Post Office, some water boards) bedevils the very delivery of essential economic and social services on which the country depends and acts as a significant drag on growth and a dampener on the spirit of transformation. xv

In a wide ranging attack on affirmative action measures universally, the influential Economist magazine editorialised recently-

Such policies poison democracy by encouraging divisions along racial lines drawn by discriminatory rules. Angered stored by this fuelled bloody conflicts in India, Rwanda and Sri Lanka. xvi

Solidarity and others have been campaigning for several years now for a so-called ‘sunset clause’ to be placed on government mandated and racially based affirmative action measures. This would bring such measures within the limits prescribed by the Convention under article 4. However, there has been a negative response from government, suggesting that is with the global experience with such enactments (see, for example, India), such rules and regulations, ‘’once in place are almost impossible to get rid of.” xvii

3.4 The Pervasive Effects of Pursuing Demographic Representivity in Place of Affirmative Action

It is useful to distinguish (which the Shadow Report intimates without elaboration) between affirmative action and even race-preferencing on the one hand and race-based quotas on the other. Likewise, there is sufficient history in South Africa to justify the encouragement of corrective measures aimed at equality rather than punitive measures to impose racial representivity, the latter being the characteristic of the policies under review.

This important distinction then goes to the heart of the problem which the Shadow Report highlights and the contraventions to both the spirit and letter of the Convention . In essence current government policy and practise is not primarily about reparations or widening opportunity and access. It is primarily about the imposition of demographic representivity across all sectors of South African society.

In introducing the new BEE codes of good conduct in November 2013, Minister of Trade and Industry, Dr Rob Davies was very frank in his motivation:

Black economic empowerment is not just a social and political imperative. We need to make sure that that in the country’s economy, control, ownership and leadership are reflective of the demographics of society in the same way the political space does. xviii

This in turn goes way beyond restorative justice or affirmative action, properly conceived. In June 2004, in an address I delivered entitled Deconstructing the ANC’s Agenda xix, I closely elaborated on a range of policy documents published by the ruling party outlining its programme for ‘transformation’. Drawing entirely on their own texts (particularly three influential policy documents which prefigured the BEE legislation and the policy known as ‘cadre deployment’ xx) I concluded :

- The binding commitment of the ANC is primarily to what it terms the ‘National Democratic Revolution (NDR) which, inter alia, sees South Africa as a ‘colony of a special type.’ From this perspective, for example, the long-settled white minority here is not simply another ethnic group. Rather they are viewed as foreign colonisers who have become part of the permanent population, instead of going ‘home’.

- At one time , the leading intellectual theory in ANC circles, especially members of the SA Communist Party, regarded the advent of constitutionalism in South Africa from 1993 onward as the first in a ‘two stage revolution’, the second stage of which involved a transition to socialism.

- However, by 2004 (and amplified by events and enactments thereafter) the dominant faction in the ANC then, as now, is Africanist not Communist. The ANC goal is the ‘emancipation of the historically deprived black majority and the creation of a utopian society. This, the Party believes, can only be achieved through ‘democratisation’ which requires African ‘hegemony’.

- “Demographic representivity’ is the primary means for the ANC to achieve African hegemony in South African society. It is essential to understand the nationalistic and racist conception that underlies the linked ideas of African hegemony and demographic representiviity.

- In terms of this world view adjusted to local circumstances, black South Africans are not individuals with a unique outlook, particular interests and specific circumstances. Rather individual black South Africans represent a larger whole – ‘’the people’’ which itself is treated as an individual personality.

- It is a fatal flaw in any analysis to assume that ‘demographic representivity ‘ is the kind of affirmative action (such as the sort contemplated under the Convention), that is designed to eliminate imbalances and which, having achieved its aim, -a ‘normalisation’ that involves colour-blindness –should thereafter fall away.

- For demographic representivity specifically refuses to take into consideration the individuality of people –their different desires, skills, culture and so on. Instead under the ANC, demographics shapes destiny as a direct consequence of government policy.

4. Conclusion

The intensification of policy and practise guided by the approach which I deconstructed back in 2004, suggests that, eleven years later, this still remains the essential analysis and explanation for the legislative and regulatory framework detailed in the Shadow Report.

Thank you.

FOOTNOTES

i Tony Leon is Chairman of Resolve Communications (Pty) Ltd, a private sector consultancy; he was the Founding Leader of the Democratic Alliance until 2007 and thereafter served as South African Ambassador to Argentina, Uruguay and Paraguay. He was a Member of Parliament from 1989 to 2009 and was a delegate to the Multi Party Negotiations Process (1992-1993) and the Constitutional Assembly (1994-1996) which drafted the Constitution of the Republic of South Africa.

ii Quoted by Edwin Cameron Sunday Times 30 June 2013.

iii Business Day 14 August 2014

iv Financial Mail December 2014; The Economist May 3 2014.

v Business Day 21 February 2014

vi Business Day 20 April 2015

vii Business Day 22 November 2013

viii Ibid

ix Loane Sharp, op cit.

x The Economist May 3 2014

xi The Economist April 27 2013

xii Politcsweb 22 November 2013

xiii Sunday Argus 3 November 2013

xiv Business Day 22 November 2013

xv Speech of Colin Coleman 3 December 2014

xvi The Economist April 27 2013

xvii Ibid

xviii Quoted by Dave Steward. FW de Klerk Foundation, 6 November 2013.

xix Speech of Tony Leon MP, Leader of the Democratic Alliance, Johannesburg, 10 June 2004.

xx Nation Formation and Nation Building –The National Question in South Africa, July 1997; Challenges of Leadership in the Current Phase, July 1997, Strategy and Tactics, July 1997.