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Non-Racial Constitutionalism: Transcendent Utopia or Colour-Blind Fiction?

2021; Taylor & Francis; Volume: 11; Issue: 1 Linguagem: Inglês

10.2989/ccr.2021.0011

2521-5183

Kevin Minofu,

Judicial and Constitutional Studies

Open AccessNon-Racial Constitutionalism: Transcendent Utopia or Colour-Blind Fiction? Kevin Minofu Kevin Minofu1 Affiliations 1African American Policy Forum and Center for Intersectionality and Social Policy Studies, Columbia University, New York, USA Published Online:21 Dec 2021https://doi.org/10.2989/CCR.2021.0011https://hdl.handle.net/10520/ejc-jlc_conrev1_v11_n1_a11SectionsPDFAbstract ToolsAdd to favouritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InRedditGMailOutlookYammermore AboutAbstractThis article considers non-racialism in the South African Constitution. It locates non-racialism as a founding provision of the South African constitutional order and then proceeds to trace its history in the anti-apartheid movement up until its inclusion in the Constitution. An understanding of this history clearly shows that the most prominent proponents of non-racialism have always rejected the existence of race on an ontological level, while accepting its salience in social reality. The article then analyses a string of decisions in affirmative action cases where the Court has had to contend with the principle of non-racialism in circumstances where race-conscious remedial action has been affirmed by the Court. The article contends that a proper understanding of these cases and, moreover, the entire constitutional scheme indicates that non-racialism in the Constitution does not stand as an impediment to race-conscious redistributive efforts – it instead rejects colour-blindness and acts as a powerful licence to dismantle all forms of racial hierarchy by being actively attentive to race in decision-making.I INTRODUCTIONThe Republic of South Africa is one, sovereign, democratic state founded on the following values: […]b. Non-racialism and non-sexism.1The Constitution underpins the new Republic of South Africa that emerged from the racially divided system of apartheid and centuries of colonialism. In establishing the new South Africa, the Constitution declares that one of the values which underlies this new Republic is 'non-racialism.'However, what does 'non-racialism' mean? And how should this founding constitutional value shape our commitment against not only the continued historical consequences of centuries of colonialism and apartheid but also the contemporary strife of South Africa's intractable relationship with race? What role does it play in constitutional law cases that deal with race? Does it operate as a neutral value that does not have any determinative effect on cases, or does it place demands on cases that implicate race? In this article, I attempt to answer some of these questions.Non-racialism as a phrase and a concept abounds across contemporary South African life and is invoked in politics, culture and media often to mean contradictory things. Considering it is a value defended by the Constitution, it is also the subject-matter of constitutional litigation. One recent example is the Masuku case, the outcome of which was awaited at the time of writing in November 2021.2 The case deals with an allegation of hate speech made in the context of protests related to the conflict between Palestine and Israel. In advocating for a particular construction of s 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 ('Equality Act'), one of the amicus parties contended that non-racialism demands that the government 'will not treat individuals of different races differently for that reason alone'.3 This assertion offers one view of what non-racialism means in a constitutional sense. The opportunity to make such an argument exists precisely because, unlike some of the other founding values in the Constitution such as the 'rule of law,' 'constitutional supremacy' and 'human dignity,' non-racialism is an international concern,4 but it has a particular history in South Africa. Furthermore, it has never been expressly pronounced upon by our courts. In an increasingly strained South African landscape, where we are likely to see a growing contestation about the continued salience of race in our society, our courts are going to have to confront what the founding value of 'non-racialism' means in the constitutional setting and what bearing it has on difficult cases dealing with racial conflict.To address the questions raised above, I propose to proceed as follows. Firstly, I will explore an interpretation of the concept of non-racialism as it is provided for by the Constitution and consider the bearing that the concept has as a founding provision. Secondly, I will look back to explore the history of non-racialism in South African politics, with specific reference to its roots and, at times, its competing conceptions. In this exercise, I hope to show that non-racialism is a praxis which demands a commitment to dismantle the material consequences that continue to give race such importance in South African life. I argue that both the particular pre-1994 understanding of non-racialism, together with its contemporary articulation, have relevance for how the Constitutional Court must view the concept within the Constitution. I will then analyse a particular line of cases which bring to bear some of the competing considerations of race, non-racialism and discrimination. I focus on a series of affirmative action cases before the Constitutional Court to assess how the Court itself has theorised non-racialism in the Constitution and the bearing it has on some of these difficult cases. Lastly, I contend that the Court has undervalued the substantive obligations of non-racialism, which would mean that a commitment to non-racialism does not stand in opposition to race-based affirmative action policies and redistribution efforts. In this regard, non-racialism stands not as empty neutral platitude but as a powerful and potentially transformative ideal that authorises far-reaching measures to challenge and dismantle all instances of racial subordination.II NON-RACIALISM AS A FOUNDING PROVISIONAs described above, 'non-racialism' is ensconced in the Constitution, in a section which the National Assembly may not amend without a 75 per cent majority.5 What are the implications for non-racialism's prominence in the Constitution?As Fowkes notes, the structure of section 1 of the Constitution shares similarities with the document submitted by the Panel of Constitutional Experts (an independent panel of seven members set up to advise the Constitutional Assembly on constitution drafting) on the criteria that should be applied when considering issues for inclusion in the constitution.6 Fowkes argues that given that these ideas were considered to be framing principles, which undergirded the writing of the entire Constitution, the values set out in section 1 operate as 'descriptions of particularly important aspects of what other parts of the Constitution already protect and uphold.'7This understanding of the founding provisions is important as it aims to reconcile some of the debate that exists as to the role of the values listed in section 1 in the Constitution. One interpretation which was defended in the NICRO case is that, in the Court's parlance, the section does not 'give rise to discrete and enforceable rights in themselves'.8 However, there are contrary approaches which contend that section 1 may act as a source of independent and justiciable obligations, such as the apparent approach in the Modderklip case, which considered the rule of law in section 1(c).9 This is buttressed by the Court's jurisprudence on the principle of legality which also draws its authority from the founding provisions in section 1(c).10Fowkes contends that these two positions may be reconciled if one considers that the founding provisions constitute 'descriptive principles' which 'describe basic features of South Africa's constitutional order.'11 It follows then that they operate by indicating certain values that the Constitution itself aims to uphold and protect. Thought of the other way, particular features of the Constitution – both in its structure and specific provisions – are designed to live up to the values set out in section 1. That means that the obligations set out in section 1 do not exist independently purely because of section 1 but are given life and effect by the provisions of the Constitution.Thinking about this in terms of non-racialism, as a value, it is given effect by specific provisions in the Constitution. Thus, when aiming to determine what non-racialism means in the context of the Constitution, the most defensible approach would be to define non-racialism with reference to how the Constitution provides for its inclusion as a value. In a Dworkonian sense, this requires us to determine the best concept of non-racialism which fits our case law.12 In addition, on a normative basis, what conception of non-racialism best justifies the provisions of the Constitution and our existing case law?The challenge, however, is that courts have left the value of non-racialism sufficiently vague that numerous conflicting conceptions of it could constitute a 'best fit'. As such, there is the further task of adjudicating which of these conceptions we should adopt as the meaning of non-racialism. In accomplishing this, I believe that reference to the history of the concept's development is instructive. I do not believe that this is a capitulation to originalism – the American school of interpretation which looks at what the words meant at the time they were drafted – a proposition which our courts have largely rejected.13 However, studying the history of non-racialism helps inform an understanding of a particular philosophy around race that is able to justify the way the Constitution treats race and what non-racialism therefore entails.Non-racialism implicates how we understand race and its role in society, both historically and in the present. In addition, it provides a vision for the future of South African society and race's role (if any) in that future. It also contends with the strategies and means by which we reconcile with our past and move from the present to that future. In many respects, the key contestations around non-racialism exist because it is used equivocally in different contexts. Yet, the Constitution's founding values are presumed to have definitive meaning; a meaning which accords with the Constitution as a whole. In tracing the concept's history, a history which no doubt substantiated its inclusion in the Constitution, I hope to identify the interpretation that best accords with South Africa's foundational law.III HISTORY OF NON-RACIALISMA The 1950s and multi-racialismNon-racialism has had a long and complicated life in South African political history and has been articulated in different ways by disparate groups. In its modern prefiguration, it was developed in the 1950s by groups opposing apartheid.14Non-racialism had its first emergence in South Africa in the argument that the franchise in the Cape Province should not be restricted by race.15 However, in the 1950s, non-racialism was appropriated in response to a number of developments in both South Africa and the decolonisation movement across the African continent.16 Non-racialism owes its contemporary meaning to the theorising around a different term that began in the 1930s, namely, 'multi-racialism'. At that time, white South African liberals began to speak of a 'multi-racial society' as a new vision for South Africa. The new perspective was seen as a middle-ground approach which would respond to demands for increased power from the Black African majority, while still ensuring that whites maintained their disproportionate dominance in South African life.17 This form of multi-racialism would consist of separate qualified franchises for each of the racial groups based on a federalist model. Meanwhile, as the calls for decolonisation spread across the continent, there was much debate about what these post-colonial societies would look like, as they comprised native populations, Asian populations and white settler communities. In what is now Zimbabwe, colonial officials argued for a Central African Federation of the two Rhodesias (North and South) with Nyasaland into a multi-racial partnership of the territories now known as Zimbabwe, Zambia and Malawi.18 A similar configuration in the Kenyan Constitution of 1954 saw increases in the representation of Black Kenyans and Indian Kenyans with the consolidation of power by whites.19 As Soske adds, these configurations of multi-racial society were seen by their proponents 'as the only alternative to barbarism'.20In South Africa, the tumult of the Defiance campaign (launched in 1952 as a large-scale mobilisation against apartheid laws) reinvigorated debate about an alternate anti-apartheid vision for South Africa. The national unity and racial diversity that coalesced in the Congress Alliance saw an inclusive vision of South African society where everyone would have a claim to the territory. This culminated in the adoption of the Freedom Charter in 1955. In contrast to the premise that the separate racial groups needed separate representation, Chief Albert Luthuli began speaking of a multi-racial, but united, people of South Africa and the need for a 'common society'.21 Later on Luthuli himself began to use the phrase 'non-racial' to describe his vision for South African society.22 In this early theorising non-racialism was understood as a vision of a universal, generic humanism.23 This form of humanism rejects the biological essentialism of race as a category of human difference. The central justification for the ruling National Party's race classification was based on the alleged importance of biological, social and observable characteristics which were considered objective and therefore scientifically verifiable.24 As such, the policy of apartheid was predicated on the idea that because of these distinctions between racial groups, it was necessary to keep them separate in all spheres of life. By arguing that, ontologically, race was an illusion, non-racialism attacked one of the key pillars of apartheid thought.25Theorisation about non-racialism was indebted to the powerful critiques of multi-racialism made by anti-colonial critics such as Tom Mboya in Kenya, who argued that multi-racialism was effectively a form of segregation.26 Non-racialism was asserted as a means to oppose the multi-racialism of apartheid and white liberal thought.27 This was picked up by the African nationalist wing of the ANC and what effectively became the PAC, as Robert Sobukwe noted, 'we reject multi-racialism in favour of a non-racial democracy because multi-racialism suggests a maintenance of racial groups'.28 Rejecting biological essentialism, they argued that race was a consequence of divisions wrought by settler colonialism. For Sobukwe this meant that it was of paramount importance that African liberation should be led by Black Africans.However, non-racialism's proponents did concede that while race was not biologically determinative, its social construction had material consequences. This was self-evident in apartheid South Africa, where depending on the colour of your skin, and how you were subsequently classified, your entire life trajectory would be shaped and determined. In that way, race was very real. As Suttner notes, an analogy could be drawn with classification based on class, which is also a social construction without any biological truth, but which had real world effects.29B The 1960s and onwards: challenging the meaning of non-racialismThis conception of non-racialism as the antithesis of the multi-racialism of the apartheid project became a crucial pillar of the liberation movement after the 1950s. It became a key organising praxis for the Congress Alliance which comprised coalitions of different racial groups opposing apartheid. The ANC began to conceive of a 'multi-racial society and non-racial democracy.' Oliver Tambo would later describe the commitment to non-racialism as robust anti-racism: There must be a difference. That is why we say non-racial. We could have said multi-racial if we wanted to. There is a difference. We mean non-racial, rather than multi-racial. We mean non-racial – there is no racism. Multi-racial does not address the question of racism. Non-racial does. There will be no racism of any kind and therefore no discrimination that proceeds from the fact that people happen to be members of different races. That is what we understood by non-racial.30Non-racialism became a rallying cry for the entire movement and this reached its apotheosis with the formation of the United Democratic Front in 1983, which, with its diverse membership of organisations, saw non-racialism as a response to the fragmentation of the anti-apartheid movement at the time.31 However, some adherents of non-racialism who emanated from the Unity Movement such as Neville Alexander warned that any vision of non-racialism could not capitulate to the language of race.32 This amounted to an insignificant negation of apartheid's 'herrenvolkism'.33 In his view, non-racialism had to amount to a 'complete deconstruction of the category of race, and a refusal to allow its re-emergence in any form, particularly in progressive politics'.34There were other theorists of race and non-racialism, who noticed Sobukwe's more radical understanding of non-racialism, namely, Steve Biko with his theorisation of Black Consciousness (BC). For him, the liberal adoption of the concept of non-racialism was merely a fig leaf for purportedly multi-racial collaboration that would only lead to white domination in organising spaces – as his experiences in multi-racial student politics had demonstrated convincingly.35 For Biko, non-racialism was an end and not a means.36 As he said, 'I think what we want is a non-racial society. That is non-racial within the context of the country and peoples where we are.'37 As Biko writes, BC would be unnecessary in a society which was not exploitative and did not stratify on the basis of race.38 Biko's vision of race, and thus non-racialism, was material in that race was not merely the problem of classification by race but also applied to the distribution of material resources resulting from that classification. Moreover, Biko saw race not as a question of skin colour, but one of law, economics, politics and sociology. This is shown in how he described people who were 'Black': 'those who are by law or tradition politically, economically and socially discriminated against as a group in the South African society and identifying themselves as a unit in the struggle towards the realisation of their aspirations'.39 The journey to this process required passage through Black Consciousness which would liberate the oppressed racialised groups in South Africa from the material and psychological oppression of racism. As Modiri writes: It is worth recalling the classic Black Consciousness dual formulation of liberation in terms of the 'psychological' and the 'physical'. Freedom from psychological oppression entails 'emancipation from mental slavery' and from an inferiority complex. It extends also to epistemological and cultural liberation. On the other hand, 'physical' liberation from the material oppression suffered by Blacks in a racist society includes freedom from economic deprivation, social death, political disenfranchisement and legally sanctioned discrimination. It is only once Blacks are liberated in this manner, that a truly non-racial post-colonial nation can come into being. That is to say that for Biko, liberation must entail both respect for plurality and difference as well as the restoration of material and symbolic parity between whites and Blacks such that those categories cease to be of any meaning or value.40 (emphasis added).In fact, anything short of that material commitment to upending racial hierarchy by recourse to colour-blindness would merely entrench racism, and as Biko deliberately labeled it, 'white racism.'41 As such, Biko's conception of non-racialism was fully emancipatory of the lived conditions of racial oppression, and he wrote against versions of the ideology which would have resorted to colour-blind concessions to the status quo. Moreover, the dismantling of race would require attending to its legal, economic, political and social manifestations too.Posel argues that non-racialism can be understood as both an ethical and a strategic imperative. The ethical motivation is, as described above, a theory of humanism which worked to transcend the artificial barriers which race erected. As Posel argues, this was not merely a reincarnation of Enlightenment principles which had seen humanism as only adhering to white European males but one which drew upon the racialised and colonised experience of South Africa. Drawing from interviews with Ahmed Kathrada, it was a 'mode of mutual recognition as human beings notwithstanding historical and contextual differences of race.'42 This was an inheritance from the Congress movement which had taken up non-racialism in the 1950s without ever denying the social fact of race. From a strategic standpoint, the recognition that there was a need to galvanise and unite the disparate groups which formed the liberation movement. Although Kathrada conceded that the term was under-theorised even then, he argues that it was effective as an organising tool to bring the different factions together for a common goal – which was toppling the apartheid system.By the dying days of the apartheid regime, non-racialism had emerged as an organising political ideal among a broad swathe of the anti-apartheid groups. In 1991, the African National Congress produced a guiding document for the constitutional negotiation process called the 'Constitutional Principles for a Democratic South Africa.' In terms of that document, the ANC set out that: A non-racial South Africa means a South Africa in which all the artificial barriers and assumptions which kept people apart and maintained domination, are removed. In its negative sense, non-racial means the elimination of all colour bars. In positive terms it means the affirmation of equal rights for all … A non-racial Constitution can be adopted rapidly but a non-racial South Africa would take many years to evolve … the Constitution must provide the positive means to reduce progressively the imbalances and inequalities and to ensure that everybody has an equal chance in life.43This gives an indication of at least what the ANC, which had a great influence over the constitutional negotiations, understood non-racialism to mean. Given the trajectory of the ANC's embrace of non-racialism over the previous 40 years, this understanding of non-racialism was to inform the constitutionalisation of the concept. It is telling that the ANC's understanding involved the removal of barriers that not only separated South African but importantly, 'maintained domination.' This understanding, at the very least, seems to extend beyond a bare rejection of race but also the power relations that race had created. This is also corroborated by the fact that ANC was embracing non-racialism but espousing policies that would use race to reshape economic, political and social relations in South Africa. As described earlier, it was this journey from the ANC's guiding document to the paper submitted by the Constitutional Experts that brought non-racialism as a founding provision of the Constitution. However, as Everatt describes: Unfortunately, the drafters of the Constitution took no time to define what non-racialism meant, how it ought to be realised in practice, how behaviours need to change or – most importantly – how to amend the economic underpinning of both racism and apartheid, a necessary precondition for realising any kind of nonracialism in practice.44Even though non-racialism is not expressly defined in the Constitution, I argue that an analysis of how the Constitutional Court has dealt with affirmative action cases illuminates a particular vision of non-racialism. It is one which accords with its radical understanding of race as part III on the history of non-racialism has attempted to uncover. However, before I proceed with the analysis of the Court's affirmative action judgments, I need to briefly sketch some of the contemporary challenges to non-racialism that have been prevalent since the inception of the Constitution. These challenges, I believe, will have to be faced as the Court begins to deepen its theorisation of non-racialism.C The 1990s, constitutionalism and new challengesIn the early 1990s, non-racialism was eclipsed by the frantic attempts at reconciliation on a policy level. This culminated in the idea of South Africa as a 'rainbow nation'. It is at the very least debatable whether we must consider the idea of the rainbow nation as a version of non-racialism. As Posel argues, the idea of a rainbow seems to concede that there is some racial plurality.45 As opposed to contesting the idea of race it accepts it because of our multi-racial history. As has been detailed above, while non-racialism is an ethical pursuit which aims to create a society where the concept of race does not have material consequences, it very much accepts race as an existing social fact that cannot be ignored in any attempt to transcend race.The limits of this rainbow nation rhetoric can be seen in the challenge brought about by the 'Rhodes Must Fall' and 'Fees Must Fall' movements of the last five years. These student movements reacted directly to the persistence of racism in white-dominated university spaces 20 years after the end of apartheid. The critique that these movements made of the rainbow nation concept was that it merely acted as an illusion of transformation while not fundamentally modifying the privileging of whiteness in South African university spaces. However, this critique does not seem to me to be one which is fundamentally irreconcilable with the concept of non-racialism. One of the strands of the 'Fallist' thinking was that whiteness was not a natural consequence of varying phenotypes but a social construction which resulted in those who were deemed not to be white to suffer material consequences. Similarly, non-racialism as an ethical concept also regards the dismantling of the concept and privileging of whiteness as a key element in moving towards a non-racial society.From the other side, however, non-racialism has been taken up by political forces to effectively argue for colour-blindness. In particular, at a conference in 2020 the Democratic Alliance (DA) proposed to adopt a policy of 'non-racialism over multi-racialism'.46 While conceding that race is a social construct, the DA asserted that this new policy would aim to move past the apartheid classifications of race that prevented economic redress to the millions of impoverished South Africans. As discussed in detail above, the main protagonists of non-racialism have understood it not only to recognise that race is a social construct, but also to use race to dismantle itself. The DA's policy seems to attempt to dispense with race as a means of understanding South African society while glossing over the fact that South Africans have been disadvantaged by centuries of white supremacy. Colour-blindness most often has the effect of freezing the material racial resource allocations at a particular point and being unsuitable to create the transformative society that the country has committed itself to. This articulation of non-racialism was like the one contended by the amicus in the Masuku case I described above.In this regard, Petersen identifies four conceptions of non-racialism which serve as a useful frame for uncovering non-racialism in the Constitution.1 Non-racialism as a deconstruction of raceIn this conception of non-racialism, the notion of race as a scientific category is rejected, together with any other essentialist arguments for its salience.47 As Petersen describes in this regard, 'non-racialism is a radical project, therefore, that at once confronts racial domination and essentialist notions of difference and identity'.48 Race is therefore seen not as skin colour but as systems of domination and subordination that render whiteness as proximate to power. As such, dismantling 'race' as a category requires opposing these systems that delineate resources along racial lines.492 Non-racialism as anti-racismNon-racialism as anti-racism could appropriately be seen as a closely linked, yet broader, concept to non-racialism as a deconstruction of race. As anti-racism, non-racialism is a key theoretical underpinning to the idea of racism and racial domination. As espoused by Biko, this is a frontal attack against the multi-racialism of apartheid but also the liberal theorising around race that emerged from the Freedom Charter. As discussed above, in this vision, non-racialism was not the means of transformation but the end. As such, it was a critique of the Unity Movement's argument that any discussion of race was a slippery-slope to the reification of racial categories, because any deconstruction of race had to fully tackle race and its physical and psychological wages now.50 The sophistication of Biko's argument is that he theorises the category of Black not as a settler-colonial and apartheid category but one which is linked to the struggles of all racialised and oppressed groups.51 Further, this also charted the history of race not back to apartheid but to the first colonial encounter and the dispossession and pillage that followed thereafter.523 Non-racialism as cross-racial alliance and co-operationIn this conception, non-racialism as described above by Kathrada was used as an organising tool for various anti-apartheid groups attempting to form alliances and networks across ra