Racialism in law is incompatible with the Rule of Law

The Rule of Law was mostly absent during Apartheid when a system of parliamentary supremacy elevated the state's effectively absolute power above all else. It was this disregard for the Rule of Law that enabled the National Party to commit racist crimes against humanity. The transition to a constitutionally supreme democracy, however, ensured that the supremacy of the Rule of Law is enshrined in the 1996 Constitution as a founding value, and is supreme along with the Constitution itself.

According to English constitutional lawyer Albert Venn Dicey, the purpose of the Rule of Law is to protect individual rights by requiring the state to act in accordance with pre-announced, clear, and general rules.

On the Rule of Law, Friedrich August von Hayek wrote the following:
"The ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal".

Von Hayek thus points out that the Rule of Law is not a rule of the law but rather the Rule of Law. The former phrase refers to a particular legal rule, which is adopted by Parliament but is not necessarily consistent with the rule of law, whereas the latter refers to a Rule that permeates all law, is supreme and all good law must be consistent with it.

In the Constitutional Court case of Van der Walt v Metcash Trading Ltd, Madala J laid out some of the basic tenets of the Rule of Law which includes the absence of arbitrary power. The absence of arbitrary power, according to Madala J, means that no person in authority enjoys wide and unlimited discretionary or arbitrary powers.

The Good Law Project's Principles of Good Law report echoed the same sentiments and expanded them by specifically referring to concepts such as certainty and predictability, lack of ambiguity, prospectivity, and formal equality.

The Free Market Foundation's Rule of Law Project has also identified a range of imperatives consonant with the fundamental nature of the Rule of Law which include concepts such as clarity, discretionary powers curtailed by objective criteria, equality before the law, and reasonableness.

The South African state is currently not acting in accordance with the Rule of Law when it racially classifies individuals. I am not going to argue the merits of each of the cases before the judiciary where the courts effectively gave legitimacy to the notion of 'justifiable' racialism, even though the Constitution itself expressly states that non-racialism is a founding value of our democratic dispensation. Whatever justifications the court put forward, they are all axiomatically flawed.

The legitimate need for redress in post-Apartheid South Africa has led to the enactment of the Broad-Based Black Economic Empowerment (BBBEE) Act as well as the Employment Equity (EE) Act. Both acts define the phrase "black people" as a "generic term which means Africans, Coloureds and Indians".

This definition, whilst making 'street-level' sense, is inherently flawed because it is defined in terms of other legally undefined concepts, meaning there is a lack of clarity present within those acts. It is thus up to the discretion of state bureaucrats to determine whether a person qualifies as black. One might argue that it is obvious to what socially constructed racial group an individual is likely to belong to and that the ambiguity present in these laws should be allowed, but it is of vital importance that the law be as clear and precise as possible. Such ambiguity is also problematic because there are indeed instances, however rare, where it is not clear whether someone will indeed qualify as "black" or not.

Any discretionary powers conferred upon officials should be accompanied by criteria that guide, and, most importantly, limit their exercise of the discretionary powers conferred upon them. If the state is to racially classify people under the BBBEE and EE acts, it requires that the law lays out how this must be done by whomever is tasked with doing it.

However, the very process of attempting to determine objective criteria forces the implementer of the legislation to wade into the dirty waters of pseudoscientific race classification, or racialism, just as the Apartheid government did. Smuggling racialism into a determination under the guise of transformative constitutionalism ironically gives a certain form of legitimacy to racialism. It legitimises the idea that it is acceptable for the state to undertake racialist exercises as long as their intentions are good. The problem, however, is that racialism is inherently problematic irrespective of intentions and renders all policies based on it as fruits of a poisonous tree in a society where the Rule of Law is supposed to prevail.

People who prefer racialist policies are faced with a dilemma: either government must enact clear yet inherently pseudoscientific racial classifications, or government must continue to rely on discretionary powers conferred upon public officials, without any guiding criteria. Allowing government officials, entirely at their own discretion, to make such important decisions would be entirely unreasonable and in conflict with a founding value of our constitutional dispensation. Such a decision would entrench ambiguity, open-ended discretionary powers for unelected public officials, and create outright lawlessness. Race classification is thus impossible in the context of the Rule of Law.

We simply cannot strive to rectify structural injustices, a commendable and necessary action, by perpetuating one of the pillars of the racist system that brought the injustices about in the first place.

What is required in South Africa are policies that have the effect of uplifting the poor and destitute, irrespective of characteristics which they have no control over. But how would it be possible to implement redress and attain justice for the people of colour marginalised by the Apartheid regime's fascist economic regimentation if the law itself is to ignore skin pigmentation?

Black and coloured people constitute a disproportionate majority of socioeconomically disadvantaged South Africans, a direct legacy of Apartheid, but which is also perpetuated by an incompetent government in democratic South Africa. It does not make sense to argue that policies aimed at addressing disadvantages and marginalisation would not be effective in uplifting disadvantaged people of colour unless they are expressly based on race if the vast majority of disadvantaged people are, in fact, people of colour. Colour-blind upliftment policies that apply mutatis mutandis to a socioeconomic group, by default, benefits all members of that group.

Incorporating racialism into policies of redress does not stand up to scrutiny in the face of the Rule of Law. If we are truly going to try to realise the ideal of non-racialism, it is imperative that the racialist system of the past be completely done away with. Racialism cannot be used to cure the negative results of racialism.
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