The South African Racial Non-Racial Constitution

The South African Constitution is fatally flawed.

The Constitution of the Republic of South Africa circa 1996 consists of many sections. One of the most important sections is the Equality section, as this is the section that deals with discrimination. This section is as follows:

Equality

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Let’s look at clause 9(2). Here it is stated that equality must be “promoted” by “measures taken” if required to counter unfair discrimination. Here the concept stated as “unfair discrimination” is introduced. This implies that there is a concept such as “fair discrimination”.

Let’s also look at clause 9(5). It says that any discrimination in above clauses, specifically 9(3) is unfair (of course, all discrimination is unfair). UNLESS (and this is the kicker) IT IS ESTABLISHED THAT THE DISCRIMINATION IS FAIR.

So that implies that the “measures taken” in 9(2) may be discriminatory, and if this discrimination is deemed to be FAIR DISCRIMINATION then this is quite acceptable in the context of the constitution.

So what exactly is fair? Well this isn’t defined anywhere in the constitution, so in practice, what is fair is anything that government (the state) decides is fair.

But doesn’t clause 9(3), the main DISCRIMINATION clause, protect you from discrimination? No it doesn’t. Clause 9(2) allows for “LEGISLATIVE or other MEASURES to be DESIGNED” to be taken to “PROMOTE EQUALITY”, and if these measures include discrimination, then so be it. It just needs to be FAIR DISCRIMINATION. This so-called Fair Discrimination is there to PROTECT or ADVANCE people, (PREVIOUSLY) DISADVANTAGED by Unfair Discrimination.

Let’s just let that one sink in for a moment – FAIR DISCRIMINATION! What is this fair discrimination exactly? Let’s look at the definition of discrimination.

discrimination

discrimination [di skrímmi náysh’n] noun

treating people differently through prejudice: unfair treatment of one person or group, usually because of prejudice about race, ethnic group, age group, religion, or gender^[1]

So discrimination means the same as UNFAIR TREATMENT. So what about the concept of “fair” discrimination? Well for one it’s an OXIMORON (something that contradicts itself, like military intelligence or legal murder). All discrimination is by definition UNFAIR TREATMENT, so how in the world can you have such a thing as fair discrimination? FAIR UNFAIR TREATMENT? What a load of utter nonsense! And this load of utter nonsense is very subtly hidden in the most important section of the most important document in the whole of the country of South Africa, the constitution!

In any case the whole principle is based on the premise of FAIRNESS. And who will decide what is fair or not? This is also not well defined, and that effectively means that the state (government) will decide what is fair or not fair.

So let’s look at this constitution in context with an example from our recent past. For arguments sake, let’s say my name is BJ Vorster, and I have the power of the state to decide what is fair or not in terms of the constitution. So what do I, BJ Vorster, think is fair? Well let’s make it so that only whites can vote, and I can ship all the blacks away to some godforsaken faraway places, and the blacks that I can’t ship away by forced removal if necessary, will live in designated areas that I decide upon, carry passbooks, and if they don’t do what I want them to do I’ll throw them in jail and beat them and in some cases even kill them. Let’s also protect the rights of workers, but let’s define that a black person cannot be a worker. That’s seems nice and fair doesn’t it? OK, good, I’m glad that you all agree. There shouldn’t be too much of a problem to get that lot through my parliament. Cool, we’re good to go with our nice new constitution.

Another example, a bit further back in history, lets say for instance my name is, wait for it, Adolf Hitler. So what do I, Adolf Hitler, think is fair? Well, let me think a bit. OK, I have an idea. Let’s take all the Jews and round them up, ship them to concentration camps, and either burn, gas or shoot them. That’s nice and fair isn’t it? OK cool! Not too much of a problem to get that one approved by my government. So again we’re good to go with our nice new constitution.

An example a bit closer to home. Let’s assume I’m now known by the name of Robert Mugabe. So what is fair in this case for our nice new constitution? Simple. Let’s take the white farmers’ property (farms) by force, and distribute them under the population, of which a very large portion is my ministerial friends. Let’s also manage the economy to enrich me, my other friends and my loyal military and state police, up to the point where there is almost nothing left, and the country is totally devastated. Let’s now manage the food supply in order that the part of the population that opposes me goes hungry. And then finally let’s also bulldoze the houses of all the 300,000 or so bastards living close by that don’t want to vote for me. That’ll teach them! That is fair, isn’t it? So let’s go.

But wait, I hear you say, clause 9(3) says the state may not discriminate against anybody for any reason, unless it is “fair” discrimination. And what you just described clearly isn’t fair. Well, this is exactly the problem, like beauty is in the eyes of the beholder, fairness is in the mind of the beholder. What Stalin thinks is fair, might not exactly agree with what you and I think is fair. What a religious extremist that would blow himself and others up with a terrorist bomb might think is fair, might also not be totally fair.

But one must assume that the government will always be fair, not so? After all this is a democracy. There are checks and balances built into the system. Yes? Well, not really. One of the main functions of the constitution is that it must protect the citizenry against the excesses of the state. But in the case of equality and discrimination the state decides what is fair or not fair. So here we have a major paradox or contradiction. The constitution has to protect the citizenry against the state’s decisions, but the state decides what those decisions will be. So to allow the state to decide what is fair and what is not fair is so obviously nonsense, it’s laughable.

It goes even further that that. The ANC government has also an absolute monopoly on power; they can do what they want, when they want, and how they want, with nobody to stop them. They can even change or suspend the constitution if they want to. So the state isn’t effectively subject to the control of the constitution, but exactly the reverse, the constitution is subject to the will of the state. So there are no real checks and balances to protect the democracy or indeed the citizens of the democracy against the excesses of the state.

It has been shown through history over and over again, that absolute power corrupts absolutely. Every time, with no exceptions. This is especially true in Africa. So in theory, if the state wants to declare that it is fair that all male babies below the age of one year must be painted red with blue spots, then that will be deemed to be fair. If they were to decide that murder is legal, there is nothing to stop them. If they would decide to ban all other political parties, it will be done. If they should decide that to impose strict media censorship is fair, then so be it. And if they would decide that racist and discriminatory legislation is fair, then it will be so. In the case of the last example, they don’t even have to change the constitution to implement it, they can do that today.

So 9(2) is the PAYBACK clause of the constitution. It means that the state is allowed to implement legalization that advances (previously) disadvantaged people, and by implication discriminate against (previously) advantaged people. The word “previously” is conveniently omitted from the clause, because that would make it more clear that this clause implements a time element that points to the past, before the constitution existed, and that is not usually how constitutions work. Constitutions usually talk about the Here and Now, and what should happen in the future. They don’t usually talk about the past, but this one does.

With its clever word usage, it attempts to hide the real meaning of this clause: PREVIOUSLY ADVANTAGED people that obtained their advantage through the policy of APARTHEID will be punished by LEGISLATION that will implement DISCRIMINATION against these previously advantaged people.

So instead of starting off with a BLANK SLATE, and determining how a society should function from that point in time and onwards in time, this constitution reaches back to the PAST and seeks RETRIBUTION and REVENGE for the sins committed in the past by the people that implemented Apartheid and then profited from this policy. Most of the people that obtained an advantage from the past Apartheid policies would be WHITE people, and most of the previously disadvantaged people would be NON-WHITE people. So this clause is a blatantly RACIST clause, that entrenches DISCRIMINATION, and in particular RACE DISCRIMINATION in the constitution. This entrenched racial discrimination is hidden in the constitution by the use of very clever wording.

Note: The whole purpose of the Truth and Reconciliation process that the country embarked on was so that closure could be found with regards to past injustices, and thereafter the country could start over with a Blank Slate and move forward from that point onwards. This constitution was supposed to be part of this process of starting with a Blank Slate and moving forward. It is clear that it is not so.

So much for a non-discrimination and non-racist “race and gender neutral” free and fair democratic constitution. It is just a smokescreen for the real intent of the state. “Previously you discriminated against us, but now we are in power, and now we will discriminate against you.”

But now we also have another problem with the constitution. A second paradox or contradiction. You’re encouraged to promote equality, even if that includes discrimination (9(2)). If you are allowed to discriminate, then everybody isn’t equal before the law, and equality doesn’t hold anymore (9(1)), but everybody must be equal before the law, so you’re not allowed to discriminate, but you are encouraged to promote equality, even if that includes discrimination. If you are allowed to discriminate – well I think you get the idea. This is known as a circular definition paradox.

Put in a different way:

EQUALITY implies NO DISCRIMINATION.

DISCRIMINATION implies NO EQUALITY.

This means that this constitution is FATALLY FLAWED.

This isn’t a very difficult concept to grasp. So it is very difficult to understand why the constitutional court with its highly acclaimed justices, as well as the ANC government with its access to the best legal resources in the world has such a problem understanding it. And all the other so-called brilliant legal minds in the country also seemed to have conveniently missed it. Unless, of course, they choose to misunderstand it, which is of course the most likely scenario. The ANC government wants to be able to use the incredible power of discrimination to govern, but they also want to be able to say that they have this fantastic discrimination-free racist-free free and fair democratic constitution, so they try and hide it with clever word usage. They want the best of both worlds. So they leave this racial discrimination/payback clause “sleeping”, for a few years, just waiting for the right moment so they can use it. And so far they have succeeded very well with this deception. But the wait is now over, and they are starting to use this powerful racial discrimination/payback clause in very clever ways.

The thing is, you cannot have it both ways. Either you are pregnant or you’re not. You can’t be halfway pregnant. Either you have discrimination entrenched in your constitution or you don’t. There are no halfway measures. And unfortunately my dear friends, the situation is that we South Africans DO have discrimination entrenched in our non-discriminatory constitution. Just as the previous Apartheid government had discrimination entrenched in their Bill of Rights.

As a matter of fact it is even worse than that, we have a constitution that makes no logic sense whatsoever where discrimination is concerned. Clause 9(1) to clause 9(5) is based on an equality principle that is based on a discrimination principle that is based on a fairness principle. And if all these are taken together, it turns out to contain an oxymoron and a paradox. This paradox, together with the oxymoron, has a particular function in the constitution, and that is to effectively confuse the issue and effectively hide the fact that there is discrimination entrenched in the constitution.

So what is the difference in the discrimination of our current constitution, and the discrimination in the previous Apartheid government’s Bill of Rights? One big difference is that the ANC government uses deception and subterfuge to hide the fact that they are a racist non-democratic government behind oxymorons and paradoxes in the so-called discrimination-free and racist-free democratic constitution. At least with the Apartheid government it was common knowledge that they were a racist discriminatory non-democratic government. Apart from this deception there is not too much difference.

I’ve heard some people call the discrimination in the constitution “good” discrimination versus “bad” discrimination of the previous Apartheid regime, and I’ve heard other people, including Tim Sebastian of BBC World, call it “positive” discrimination versus “negative” discrimination. This idiot also seems to think it is a very good idea. So by implication all discrimination that had anything to do with the previous Apartheid government was negative or bad discrimination, and all discrimination that is dreamt up by the “seen to be” inherently fair and morally incorruptible ANC government is by default positive or good discrimination.

Other people just simply refuse to acknowledge the fact that there is any discrimination in the constitution at all. There are none so blind as those that refuse to see.

This is of course pure unadulterated nonsense. Discrimination is like cancer. You don’t get “good” cancer and “bad” cancer, or “positive” cancer and “negative” cancer. You just get cancer, and all cancer is inherently bad cancer. So you just get discrimination, and all discrimination is inherently bad discrimination.

At least the ANC government finds itself in some notorious historical company of other famous people and organizations that also seemed to believe that racial discrimination is fair. Such as Stalin, Hitler and of course the previous Apartheid regime.

So what does this mean in practice? In the past the black population was discriminated against by a racist Apartheid government, everyone with an IQ even in the low double digits should know that (well you’ll be surprised how many don’t understand or want to understand that, but that is another topic).

So how can we do a “quick fix” on this discrimination that happened in the past? Easy. We now have this constitution that has this sleeper discrimination “Payback” clause that says we are allowed to discriminate if we really want to, we can decide what’s fair or not, and then we make a nice law/bill/act that we call the Black Economic Empowerment (BEE) Bill, and with this bill, we now “promote” equality as we are allowed to by the constitution. This sounds fair enough, doesn’t it? Well does it? Really?

A bill with a reference to RACE in its TITLE that blatantly discriminate on the basis of race and gender in a country that is governed by a supposedly non-racial non-discrimination democratic “race and gender neutral” free and fair constitution? No problem, the government just declares it to be FAIR, and now it IS FAIR. The constitution allows for exactly that. Just like Hitler declared the extermination of 6,000,000 Jews to be FAIR. It is just the magnitude of the act that is different; exactly the same underlying principle applies.

Note: This is similar to Thabo Mbeki declaring that HIV doesn’t cause AIDS, slap bang in the face of the top medical experts in the world. Even up to this day he refuses to back down. After this declaration this is how it was, and this is how the Department of Health conducted their business. And this is the president of the ANC government that has to decide what is fair or not.

If we go into the gory details of this BEE bill we find that one particular race and gender group, and that is the White Male, is effectively by implication singled out for special treatment. With all the racial quotas and other provisions contained by implication in this bill, it means that in practice the white male is, well, sort of standing at the rear of the racial queue when “Equality before the Law” is handed out.

For instance, suppose I am a white male. Let’s say I’m very well qualified and have years of experience in the ICT sector. Also assume that I used to make my business to act as an independent contractor Solution/Systems Architect/Engineer in the IT departments of financial institutions, and in particular banks. Over the past year or so my business has gone down steadily, up to the present point where for all intents and purposes it is zero. So why is this? Suppose I know some of the HR people in the business so I ask them. Well, they don’t really want to tell me, because it’s not official policy, because if it was, they would get into trouble with the South African labour legislation that is also supposed to be “non-racial and fair”, but the “unofficial” policy, that isn’t really a policy, because they’ll deny it if you say that it is their policy, is as follows:

a) There will be NO white males appointed in permanent positions.

b) There will be NO white males appointed as independent contractors.

c) There will be NO white males appointed as contractor supplied personnel, unless the contractor company is an approved BEE company.

This is of course because the bank needs to be BEE approved, or qualified, in order to get any government contracts.

So what does that mean for me. It means my friends, that my little business is royally doomed. And so am I, Why, well because I’m being discriminated against. What else can it be?

The fact that this policy cannot be the official policy of the bank, and has to be whispered about in the hallways, and never be written down or published, and denied if anyone should talk about it, just shows the level of deception that is implemented by the BEE bill and the constitution. If one should draw the labour legislation into this discussion, you will find the same contradictions, disparities and deception.

OK, but that’s not the end of the world. I can still seek employment at the contractors that supplies personnel for these institutions, so even if I have to put my pride in my pocket and take a hefty salary cut, I’m still OK, right? Wrong. These companies must be BEE approved as well to get any contracts from the financial institutions. And that means:

d) There will be NO white males appointed in permanent positions, unless there is a serious crisis of epic proportions

e) There will be NO white males appointed in contractor positions, unless there is even a more serious crisis of even more epic proportions.

In practical terms, it makes it more difficult to reach the racial quotas implied by the BEE bill the more white males you have in your employ. So it is actually better in certain instances to rather employ no one, than to employ a white male, and to rather keep a position vacant, if you can’t get a suitable non-(white male) employee immediately. This has also caused the market for non-(white male) employees to shoot through the roof, because there just aren’t enough qualified non-(white male) personnel to go around. This has caused some job-hopping to result, and also caused less qualified, and under qualified personnel to be employed, just to fill vacant positions in order to get BEE qualified. This BEE bill therefore forces the economy to implement a less than optimum personnel resource policy, where you are forced to use a resource in short supply, and you are not allowed to use a resource where there is an ample supply. This is in general not a good policy for a developing country to follow. This also forces highly qualified white males that should be an important resource for a developing country, to up and leave and seek employment in foreign countries. In general this is also not a good thing, but the “unofficial policy” of the ANC with respect to this brain drain is: GOOD RIDDANCE to bad rubbish.

As an aside an interesting thing happened just recently, there was a position in a bank’s IT division that an actual living white male was eminently qualified for, and they just couldn’t get someone to fill that position that wasn’t a white male. In the end they found a Chinese person, who couldn’t speak English all that well, and wasn’t all that well qualified for the job, and here’s the shocker: HE WASN’T A SOUTH AFRICAN CITIZEN! So they had to jump through all kinds of hoops with the Department of Home Affairs to get him employed, but eventually they did, by bending some rules and just keeping quiet about it. As long as he wasn’t a white male, it was possible to do.

So that means a non-South African person (an alien) gets better treatment under our constitution than a South African citizen. Just because this South African citizen happens have the wrong skin colour and the wrong gender.

The following questions need to be asked. Am I treated equally under the law? NO. Am I discriminated against? YES. Is the discrimination against me based on race? YES. Is the discrimination against me based on gender? YES. Is it “fair” discrimination, “good” discrimination, or “positive” discrimination? I don’t think so, I think it sucks!

“Don’t you come and talk to me about discrimination. I sat in a stinking jail for ten/fifteen/twenty years of my life while you lived like a prince. You can’t tell me anything about discrimination. Go away you fool!” This was very much the reaction of an ANC government minister on SABC national television when some white male students at a prominent university actually had the gall to protest against what they considered to be discrimination.

What does this mean? Was Apartheid was my fault? Is it my fault that a majority of the countries wealth is still in the hands of mainly white males running the large corporations? And now I have to pay retribution because of it?

The fact is that Apartheid was in place when I was born, and there wasn’t really all that much I could do about it. I never supported it, but just because I didn’t join the ANC and actively took part in the “Freedom Struggle” means that now I just have to shut up and accept the most vile type of government sponsored discrimination against me? This isn’t fair by any type of distorted kind of definition of fairness you might want to conjure up. And this while I’m supposed to live in a non-racial non-discriminatory free and fair democratic society governed by a non-racial non-discriminatory free and fair constitution?

The question has to be asked: Isn’t this entire constitution and BEE legislation nothing more than thinly disguised revenge? It sounds more like an “eye for an eye and a tooth for a tooth” society and constitution we’re living in. Or “the sins of the fathers will be visited upon the children to the 3^rd and 4^th generation” society and constitution. Well the government is using the PAYBACK clause in the constitution to do exactly this, so the answers to the above questions are rather obvious. The answer to all these questions is a resounding YES.

No, I hear you say, you have to look at the bigger picture. There are millions of very poor black people that this “positive” and “fair” discrimination promoted by the BEE will help. It is supposed to uplift them and create a large black middle class. A very good and noble ideal.

And how is it working so far?

Truth of the matter is that a few select people with firm ANC connections have cottoned on to this BEE bill, and they are making themselves stinking rich. There are many instances of “instant millionaires”, by just putting your signature on a piece of paper. If you live in the Gauteng area, you probably have seen some of these Nouve Riche driving around in their million Rand Mercedes Benz S55 AMG vehicles and parking them in the driveway of their multi-million Rand Houghton houses. While their wives dressed up like an international Gucci fashion show drives the 4.8i BMW X5 to the Sandton City shopping mall to pick up a few little things.

Even archbishop Desmond Tutu that just happens to be a Nobel Peace Prize winner has spoken out against this phenomenon, but he got himself a verbal assault from Thabo Mbeki as a result. In a recent Time magazine there was an in depth article about this phenomenon, and the conclusion was the same. A select few well-connected people are enriching themselves, with the help and approval of the government, and the millions of poor people are if anything just getting poorer. This sounds very much like the bane of the African experience, a corrupt few getting very rich by raping the resources of the country while the majority despairs in abject poverty and misery.

So who is in charge of this supposedly non-racial and non-discriminatory free and fair democratic constitution? The constitutional court is in charge. This is the highest court in the country. Equivalent to the High Court in the UK and the Supreme Court in the USA. And this court consists of a building and a number of constitutional judges, with these judges supposed to be the cream of the crop as far as judges go, the best and the brightest.

And what do these judges do? Well they have to see that the constitution is maintained and kept in good order, and that its provisions are enforced. So what is the definition of good order? Does that mean that at least it must make sense, and not contradict itself? Well one would think so, but then one would be totally wrong. Does it mean that this constitution must be devoid of misleading and inherently unfair clauses? One would hope so. So why don’t these judges fix this oxymoron and paradoxes? Why don’t they remove the confusing and hidden meanings, unfairness and deception, that hides the fact that discrimination is entrenched in it? Well they must be using a different kind of logic than you and me are using, that doesn’t care about cause and effect and such trivial nonsense such as universal rights and wrongs, and with their logic there is no oxymoron, no paradoxes, no hidden meaning and no deception in the constitution. So if they just don’t acknowledge that there is any problem with the constitution at all, of course it can’t be fixed. Or perhaps they aren’t qualified to be constitutional judges. Or perhaps they do exactly what their ANC paymasters require from them, and they are part of the deception.

And what about these judges, can they belong to a political party, or be part of the government? No they must be completely independent. Completely independent? Let’s have a look at constitutional court judge Albie Sachs, a dyed in the wool ANC member of many years that participated in the “Struggle” for many decades, lost a limb and eye in a Apartheid government sponsored bomb attack, and spent some time in jail under the Apartheid government.

This judge, Albie Sachs, was interviewed on the BBC World television show Hard Talk in July 2005, and the BBC presenter Stephen Sachur asked a few pointed questions, such as:

Q. South Africa is effectively run by a one party state government, what are your comments?

A. No this isn’t true; we have a very vibrant opposition, blah blah blah blah.

Comment: Anybody that knows anything about the politics of South Africa knows that we have a hopelessly divided and totally ineffective opposition. The ANC government can do exactly what it wants, when it wants, without any meaningful opposition, including changing the constitution exactly how they want to when they want to. Well it seems everybody except this judge knows this.

Q. It seems that in the ANC there is lot of nepotism and cronyism? In fact the new deputy president is the wife of the person that got the old deputy president fired.

A. No this isn’t true, blah blah blah blah.

Comment: Is this judge living on the same planet as the rest of us? Has he lost his other eye as well and now he is totally blind? There are countless examples of nepotism and cronyism. How is it possible that he doesn’t know about this? The most successful female businesswoman in the country is the wife of an ANC official. And there’s much much more! Judge, you are lying! How do we know that you aren’t just another beneficiary of this corrupt system?

Q. You were an ANC member for many years, how can you be independent from the ANC government?

A. I am totally independent because blah blah blah (well just because I say so) blah blah blah blah.

Comment: Yea right. Because you say so? Based on the answers to the other questions so far I have some difficulty in believing anything you say.

Q. What about corruption?

A. Well as you know the deputy president blah blah blah, and corruption is effectively blah blah blah blah.

Comment: No judge, corruption is rife in the ANC government. The Zuma affair is just the tip of the iceberg. You still have the rest of the arms deal to investigate, and will that happen? No it probably won’t. Why? Because it will then become abundantly clear to the whole world that your favorite political party is corrupt to the core. There is also Oil-gate that the government is trying very hard to sweep under the carpet. And these are just the few things that we know about. What about the myriad of other things that we don’t know about? Things continue to bubble up, such as the Travel-gate scandal. How many other gates are there?

Q. The BEE is by definition a racist bill, how can that go together with a supposedly non-racial society and constitution.

A. No you have it wrong. The BEE bill is not racist, it is in fact anti-racist – it promotes non racism bla bla bla and in any case it is voluntary bla bla bla…

Comment: Judge, you are being extremely dishonest! This bill is 100% racist, it has race in its title, and it specifies and implies racial quotas. How can it not be racist? Voluntary? Voluntary in the sense that if you do not impose racial quotas as implied by BEE you exclude yourself from a major portion of the business opportunities that is available to your company. If you don’t impose racial quotas you will go out of business! Forced Voluntary Participation, another oxymoron?

Q. It is said that the BEE bill just enrich a very select few black people that is part of the ANC network, and that this is in effect part of corruption and bad governance.

A. No this isn’t true blah….

Comment: Oh please, give me a break! Judge, you have just lost the last bit of credibility that you might have retained up to now. I’ve listened to your ANC propaganda drivel and blatant lies for long enough.

So this guy, and his judge pals, is supposed to protect me against discrimination with their constitution. This “supposed to be” INDEPENDENT constitutional judge can’t speak two words without spewing ANC government propaganda and ideology. He sounds like a typical ANC “spin-doctor” politician and not like an independent judge. So can I trust him and his co-judges to help me if I should have a constitutional discrimination problem? I somehow doubt it. In my opinion this judge is not independent from the government in the least, and is therefore not qualified to act as a constitutional judge.

Summary:

One of the main functions of the constitution is to protect the citizenry of the country against government excesses. Our constitution does not do this in any way or form as far as discrimination goes. We are living in a country that has a constitution that has discrimination and particularly racial discrimination entrenched in it. This is done by clever word usage and deception.

Constitutional judges that apparently don’t understand, or don’t care to understand, that there is any problem with this constitution, control this constitution. There is a big question mark concerning some of these judges’ independence from government and their ideology. The constitution Equality Clause has a built in oxymoron as well as a number of paradoxes. This leaves a big question mark concerning the competence of these judges that can allow such a situation to exist.

The governing party has an overwhelming majority that means we are effectively living in a one party state. This one party state government has the right to alter the constitution. They also have a culture that believes that they are perfect, morally pure, make no mistakes, and they accept no criticism. So by implication any determination that they make concerning fairness with respect to fair discrimination in the constitution is by default fair, even if it might be the biggest nonsense in the world. If one points this out it is seen as criticism. Where the press criticism gets too bad, they start talking about press censorship. When they make mistakes, they blame it on the “Legacy of Apartheid”.

This one party state government is inherently racist and uses the Payback Clause in the constitution to promulgate blatantly racist laws such as BEE that negatively affects some citizens’ rights that are supposed to be protected under the constitution. The constitution does not protect these citizens’ rights and nothing gets done about it. In fact the act of racial and gender discrimination against certain citizens is not even acknowledged.

The constitutional court, that is supposed to be the final recourse for constitutional problems such as this, is actually part of the problem, and not part of the solution. The constitutional court is in practical terms not accessible to the citizens affected by the discrimination.

The BEE bill enriches a small select number of persons that is part of the ANC inner network, and these people are deemed to be more equal than others, and again the constitutional court is powerless or unwilling to do anything about this. The BEE bill discriminates in practice against the human rights of millions of poor black people, as well as discriminates against specific racial and gender groups and in particular white males. Again the constitutional court does nothing to prevent this.

The ANC government is deeply racist, rife with corruption, cronyism, nepotism and bad governance that directly affect the human rights of the citizens of the country, and the constitutional court does nothing to address this situation. It seems that the constitutional court may be part and parcel of this racism, corruption, cronyism, nepotism and bad governance.

The conclusion:

The South African Constitution is nonsense, and not worth the paper it is written on. It fatally flawed and is in effect a big albeit tragic joke. The constitutional court is totally ineffective and a waste of good resources.

Final comments:

A South African citizen, that happens to be a white male, can find himself the victim of race and gender discrimination. He won’t find himself protected by the constitution that is supposed to be race and gender neutral. If he speaks up about this situation, it is seen as criticism. As soon as this white male criticizes anything concerning the government or constitution he is immediately branded as a racist, and severely lambasted.

It is very dangerous to be in this position, because the level of discrimination against this white male may increase, he may lose his job, or get overlooked for promotion, if of course he has a job. If he is a company owner or director this might make an impact on his future earning capacity or the earning capacity of the company. This is the reason why many people decide just to keep quiet about this state of affairs, even if this discrimination affects them directly or indirectly. Others would keep quiet because this discrimination put them in an advantageous position.

Others would join in this lambasting because they don’t want to lose their privileged and advantageous positions. Others would join in the lambasting due to the fact that they feel guilty because of the past injustices done. Others would join in the lambasting because they might feel that there is an advantage to “suck up” to the powers that be. And again others would join in the lambasting due to the fact that they just are plain ignorant of the situation, and they believe the ANC propaganda that everything is going perfectly well in our new non-racial and non-discriminatory free and fair society. And finally others would join in the lambasting just due to the fact that it is the POLITICALLY CORRECT thing to do, and they are just too ignorant or uninformed to know any better.

In the event that any criticism is proven to be valid, or any other mistake or inconsistency is discovered, it is typically blamed on the “Legacy of Apartheid”, and effectively the fault of the said white male and “his” previous government, and in most cases, not much is done about it.

We have seen that the constitution as it’s currently implemented allows the state to blatantly discriminate against its subjects. The BEE is just the thin edge of the wedge. So what is the danger for the future? We know that the ANC Youth League holds up Robert Mugabe as some kind of a hero, and his ZANU-PF party as a role model for the ANC. We also know that Thabo Mbeki refuses to condemn the tyrannical actions taken by Mugabe in the past years. The ANC government is one of the very few governments in the world that stated that the obviously rigged previous election in Zimbabwe was free and fair. Quite a few local and overseas political commentators have started to speculate that Mbeki and the ANC inherently approves of what Mugabe is doing.

We also know that Robert Mugabe has massacred thousands of this citizens, he has confiscated (stolen) property from his citizens, he is blatantly racist, he has devastated the economy of his country, he has used food shortage as a weapon, he has thrown his opposition in jail, and he has destroyed the living spaces of hundreds of thousands of his citizens. Mugabe can go and give Saddam Hussein some lessons on how to run a dictatorship.

So what can the current constitution do to prevent tyranny. Well, not much as far as racial discrimination is concerned, we have seen that with the BEE legislation. So what would stop the ANC to follow in ZANU-PF’s footsteps? Well nothing. If there is something the constitution in its current form could do to prevent it, the ANC government can just go ahead and change the constitution. So there is a fair chance that South Africa will devolve into a situation that is even far worse than the Apartheid situation we had before, and our current constitution, that is supposed to prevent this from happening, has no power to stop it.

Remedy:

Currently we have an ANC government constitution. We need a neutral South African constitution. How can we get a South African constitution? Well it’s quite simple in theory.

The constitution must be amended by the constitutional court to get rid of the concept of FAIR DISCRIMINATION, a concept that makes no sense in any way of form, and that can only exist in a twisted and demented mind. The constitution must only address DISCRIMINATION, and ensure that this does not take place, against ANY citizen. When this has been done, the paradox of who has to decide what is fair will automatically disappear. And finally the paradox between discrimination and equality before the law will also disappear. As soon as this happens the BEE bill will have to be amended to remove any reference to race and gender. The labour legislation will also need to be amended to remove any reference to race and unfairness that includes aspects about Employment Equity and Affirmative Action.

Secondly it has to be ensured that the constitution is not used as a tool to exact revenge from previous wrongdoings. Therefore all references to the past and the injustices done in the past must be deleted. The constitution must just ensure that these injustices do not occur again in future (and this is exactly what it currently does not do).

Thirdly the constitution must do more to protect the citizen against the excesses of the state. This means a better method must be found to check the government for corruption, nepotism, cronyism, bad government and specifically ineptness and incompetence.

Fourthly, clauses implementing antitrust concepts must be included in the constitution to protect citizens against government and privately inspired monopolies that indulge in price gouging and conflicts of interest.

Note: The monopoly incumbent telephone operator Telkom is a typical example here. It is partially owned by the state, and has currently some of the most expensive tariff structures in the world, and every year makes an excessive profit, and pay millions of Rands in salaries and bonuses to its top executives, all of them members of the ANC inner circle. All this while at one time the country was one of the top Internet acceptance countries in the world. Today it’s not even under the top 100.

Finally a mechanism must be found that makes it very difficult, if not impossible for the ANC to change the constitution if they feel like doing so. Ideally the construction must only be amendable by truly independent constitutional judges. A way must be found to ensure that these judges are truly INDEPENDENT, as it is quite clear that this is not the case at present.

Solutions:

So, what is one to do? The current situation is clearly untenable, but what are the options? A private person can’t sue the constitution court. You can effectively overturn the decision of a lower court in the constitution court, but you need a higher court than the constitutional court to overturn a decision of the constitutional court. And there is no such higher court. And even if you could you would have absolutely zero chance of even being listened to.

Maybe the UN based World Court? The world court has no jurisdiction in South Africa, and only states are allowed to submit cases to this court, so that won’t get you very far.

It is possible to request the constitutional court for a decision regarding the discrimination aspect discussed here, but what will that help, the judges have already decided on this aspect, and this is why it is in the constitution the way it is. This is like asking the foxes for a decision regarding the disappearance of chickens from the chicken coop. So that won’t get you too far either.

The Public Protector is supposed to be able to investigate the violation of a human right, but due to the nature of the complaint, i.e. a complaint that the constitution itself is discriminatory, might present a problem. There is also a question mark concerning the true independence of this office. This office also has the ANC government as its paymaster and follows its same ideology. I have serious doubts that the public protector will take on the constitutional court as well as the ANC government on such a high profile case such as the BEE bill, that is seen as SACRED in the eyes of the ANC, on the request of a single citizen, especially if this citizen is a “racist” white male that benefited greatly from “his” previous racist regime.

It seems that there is some small level of sensitivity in the ANC to international opinion. On the other hand this sensitivity mustn’t be overemphasised as for instance the ANC refuses to effectively condemn the actions of the tyrannical Zimbabwean president, Robert Mugabe, and his ZANU-PF party, even though this is causing some negative opinion forming in the overseas media. Even so it is believed that the course of action to inform the overseas media to the state of the constitution will probably be the most effective, primarily due to the fact that most other courses of action wouldn’t produce any meaningful results. Something small might be better than nothing.

Another avenue that may be followed would be to use the same instruments the ANC used against the previous government, such as Amnesty International, and the United Nations Commission of Human Rights. It’s not clear how successful these attempts would be because the complainant in this case is white (i.e. racist by default) and the supposed perpetrator is black (i.e. the victim by default).

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