THERE is something abhorrent and disturbingly ironic about the Gauteng legislature’s portfolio committee on health and social development trying to take the moral high ground in answering the tough humanitarian question of what to do with Zimbabwean refugees at the Central Methodist Church (CMC) in downtown Johannesburg.
Removing children from the site seems to be their hasty short-term solution. A longer- term solution is not clear but a recommended closure is not ruled out. What is ironic and abhorrent about all this is the shameless attempt by the politicians to rock up with moral platitudes at hand and, with the help of a bevy of broadcast journalists, send out a message of deep and genuine care about the refugees’ wellbeing. How convenient — as if the crisis happened overnight and they did not or could not have reasonably been aware of it. The truth is that the nature and causes of the unfolding humanitarian crisis in downtown Johannesburg are more complex.
Unsurprisingly, the most appropriate interventions are not so obvious either.
First, Bishop Paul Verryn, who runs the place, is doing what the state is not doing but should be doing — attempting to give practical meaning to the human rights of refugees. Instead of acknowledging that this worsening crisis is symptomatic of a tissue of policy failures on the government’s part, the portfolio committee is trying to get brownie points for wanting to remove the most vulnerable among the refugees, the children.
But what is needed is not the arrangement of a photo opportunity. This, to be sure, will gain the state some political mileage. After all, who in their right mind would want to see children living in such desperately unsafe conditions? Objectively speaking, the unpleasant conditions at the church are not even appropriate for confident, healthy adults capable of looking after themselves, let alone vulnerable children who are exposed to potential sexual abuse and other forms of human rights violations.
However, recognising the nature of a problem is only the first step towards solving it. The second step is to understand the causes of the problem. These are , at least, twofold.
On the one hand, refugees are by definition foreign nationals who have escaped their country of origin because they are threatened in some or other way. The political violence that has been perpetrated in Zimbabwe by President Robert Mugabe for many years now has, as is well known, morphed into an equally, if not worse, protracted economic and social crisis.
The situation in Zimbabwe, despite the Global Political Agreement between the main parties, has not changed materially. In the absence of a safe political environment and one that is socioeconomically attractive by minimal standards of decency in terms of international humanitarian law, there is little reason for refugees to return. It would be imprudent and we would be immoral to compel them to.
On the other hand, government responses fuelled by a mixture of systemic xenophobia and sheer incompetence have worsened the conditions under which refugees survive in spaces such as the rough streets of Johannesburg. The simple fact is that harassment by police (well documented) of refugees living on the streets have forced many of them to seek shelter inside places such as the CMC.
Rightly or wrongly, the CMC responded to the moral dilemma by housing the large numbers of needy people rather than pushing them back into the den of an uncaring, xenophobic police force and local city. And herein lies the deep hypocrisy, abhorrence and irony of the Johnny-come-lately attitude of the politicians: they failed to show responsible political leadership in dealing with the refugee crisis in the first place and now attempt to look like moral saints while people with no political or legal responsibility to care about refugees, such as Verryn, come across inadvertently as unthinking citizens worsening the plight of foreign nationals.
In reality, but for the actions of people such as Verryn and spaces such as the CMC — imperfect though they are — the refugee crisis would be even worse.
So, with two major causes identified — continuing political instability within Zimbabwe and continued ill-considered state responses to refugees within SA’s borders — what are the best possible interventions?
First, the government should acknowledge that it would worsen the plight of the refugees to have them pushed out on to the streets. Doing so is not a feasible short-term intervention.
A feasible short-term intervention would be to make the space more safe, sanitary and secure by assisting the CMC with more effective security and material aid to meet the needs of the refugees while a more long-term solution is sought.
This commitment to not immediately shut the facility or to push people out must include a commitment to remove only children from the site in accordance with a properly drawn- up plan that includes a mechanism for independent oversight.
Second, a more permanent solution should then be sought. This cannot not be done in haste if the solution sought is to be sustainable. It might therefore entail the same politicians hitting the pause button and setting up an investigative committee with relevant stakeholders, who could come up with fact-based recommendations.
Crucially, the habit in social justice work of superimposing solutions on vulnerable groups can be sidestepped by involving the refugees in such a consultative process. This will ensure that their needs are reflected in the solutions that are developed.
Verryn and the CMC have made mistakes. No doubt it is overly ambitious to offer so many people shelter, but this situation did not come about intentionally. It resulted in part from the fact that after the July 3 arrests of refugees on the streets, these vulnerable people naturally felt it safer to seek accommodation within the CMC.
Further, it is possible that the CMC could have been more vigilant and open about potential abuses that such an undesirable space might enable. But to conclude from these facts that a quick visit, some tough words and removal of children to an unknown place will solve the underlying drivers of the crisis is unforgivably short-sighted.
Instead, the church should be helped to improve conditions in the short term and the very same politicians can prove their sincerity beyond that by putting their energies into seeking longer-term solutions through trustworthy consultative processes involving all the stakeholders.
http://www.businessday.co.za/articles/Content.aspx?id=88963
Tuesday, December 8, 2009
Friday, December 4, 2009
Deciding which experts to follow can be a puzzle
HOW should we respond to our own ignorance? If you are ignorant about a technical subject — such as the efficacy of antiretroviral drugs — and experts disagree about the issue, then how should you, as a lay person, decide whose views to follow?
The question is brought into even sharper focus when you imagine being a president at the end of the ’90s — say, for example, one who is short, smokes a pipe, and has a penchant for Shakespeare — who is forced by the nature of your job to decide who among disagreeing experts to follow.
The mainstream AIDS lobby thinks it is obvious for a leader to take a decision on technical issues. Yet, this is not so and it is worth understanding why.
But first one should note that the puzzle of which experts to follow does not arise when the experts are fake. I am therefore not referring to traditional healers on the streets of Cape Town selling nonsense as remedies for HIV, or the likes of Matthias Rath who, despite being a medical doctor, is not a medical expert on HIV/AIDS.
No leader should take seriously someone like Rath, who says vitamin tablets will cure HIV. We can set aside those who promote quack remedies as unethical egomaniacs. One can’t imagine why a government would want to take them seriously. To the extent that our government humoured these folks, it displayed inexcusably poor leadership.
However, among the AIDS dissidents, there are many award-winning international scientists, as much as many of us do not like them. These include Prof Peter Duesberg and Dr David Rasnick. Now, before anyone gets upset after the satisfying display of rationality on President Jacob Zuma ’s part on World AIDS Day, it is worth stating that the point, in the first instance, is not that these dissidents are right in their convictions about the relationship between HIV and AIDS or the efficacy of antiretroviral drugs.
The point is that many of us, myself most definitely included, know very little or nothing about science and so have no honest basis for adjudicating these disputes. I hardly understand more than one or two lines in the articles that flow between orthodox scientists and these dissidents. That is the heart of my own nonexpertise and ignorance. And, truth be told, this extends to the ultimate policy chiefs very often, including the minister of health and the president.
All of this implies that it was acceptable for former president Thabo Mbeki to take seriously the existence of expert dissidents on an issue of such magnitude as an unfolding pandemic. Of course, only Mbeki’s shrink would know whether this kind of leadership angst, based on an appreciation of the existence of expert disagreement , was the actual reason for his denialism.
More than likely — though here I am speculating — the real drivers of Mbeki’s dalliance with denialism had to do with the now well-rehearsed pop theories about his irrational concern that negative stereotypes about African sexuality motivate the case for the virus’s presence.
Still, the general point remains: it is proper for a responsible leader who knows nothing about a technical issue to reflect on how to respond to disagreement among experts. The situation is not unique to AIDS policy. No leader anywhere in the world will be an expert on more than one or two out of a thousand issues on which he or she will have to adopt a view and policy.
A sensible principle to follow in such circumstances is surely the following: adopt the view endorsed by the majority of experts. This principle is obviously somewhat dissatisfying. It suggests that numbers are indicative of academic or intellectual strength. There is no reason in principle that the majority of scientists cannot be wrong on an issue. So the application of the principle can, indeed, lead to the odd disastrous result. This is particularly serious in the context of a pandemic where the wrong intervention can cause society massive harm.
However, the point about one’s own ignorance necessitates this principle. Given that I have no basis for assessing the challenges of Rasnick or Duesberg as an outsider, I cannot but accept that for purposes of decision-making, the best procedure is to trust that there is a higher likelihood (even if no guarantee) that the majority of experts are right. Even if this turns out false, as a leader my decision to follow the majority remains rational, even with hindsight.
So, given this principle, Mbeki ought to have followed orthodox views on HIV/AIDS rather than to give dissidents a platform. After all, such a platform would not have improved Mbeki’s own chances of deciding who to follow. Presidents are not experts on these issues and so they had better get on with trusting the majority of experts.
History will forgive them if the majority of experts turn out wrong. As it happens, history will not forgive Mbeki for the alternative attitude he settled for.
http://www.businessday.co.za/articles/Content.aspx?id=88803
The question is brought into even sharper focus when you imagine being a president at the end of the ’90s — say, for example, one who is short, smokes a pipe, and has a penchant for Shakespeare — who is forced by the nature of your job to decide who among disagreeing experts to follow.
The mainstream AIDS lobby thinks it is obvious for a leader to take a decision on technical issues. Yet, this is not so and it is worth understanding why.
But first one should note that the puzzle of which experts to follow does not arise when the experts are fake. I am therefore not referring to traditional healers on the streets of Cape Town selling nonsense as remedies for HIV, or the likes of Matthias Rath who, despite being a medical doctor, is not a medical expert on HIV/AIDS.
No leader should take seriously someone like Rath, who says vitamin tablets will cure HIV. We can set aside those who promote quack remedies as unethical egomaniacs. One can’t imagine why a government would want to take them seriously. To the extent that our government humoured these folks, it displayed inexcusably poor leadership.
However, among the AIDS dissidents, there are many award-winning international scientists, as much as many of us do not like them. These include Prof Peter Duesberg and Dr David Rasnick. Now, before anyone gets upset after the satisfying display of rationality on President Jacob Zuma ’s part on World AIDS Day, it is worth stating that the point, in the first instance, is not that these dissidents are right in their convictions about the relationship between HIV and AIDS or the efficacy of antiretroviral drugs.
The point is that many of us, myself most definitely included, know very little or nothing about science and so have no honest basis for adjudicating these disputes. I hardly understand more than one or two lines in the articles that flow between orthodox scientists and these dissidents. That is the heart of my own nonexpertise and ignorance. And, truth be told, this extends to the ultimate policy chiefs very often, including the minister of health and the president.
All of this implies that it was acceptable for former president Thabo Mbeki to take seriously the existence of expert dissidents on an issue of such magnitude as an unfolding pandemic. Of course, only Mbeki’s shrink would know whether this kind of leadership angst, based on an appreciation of the existence of expert disagreement , was the actual reason for his denialism.
More than likely — though here I am speculating — the real drivers of Mbeki’s dalliance with denialism had to do with the now well-rehearsed pop theories about his irrational concern that negative stereotypes about African sexuality motivate the case for the virus’s presence.
Still, the general point remains: it is proper for a responsible leader who knows nothing about a technical issue to reflect on how to respond to disagreement among experts. The situation is not unique to AIDS policy. No leader anywhere in the world will be an expert on more than one or two out of a thousand issues on which he or she will have to adopt a view and policy.
A sensible principle to follow in such circumstances is surely the following: adopt the view endorsed by the majority of experts. This principle is obviously somewhat dissatisfying. It suggests that numbers are indicative of academic or intellectual strength. There is no reason in principle that the majority of scientists cannot be wrong on an issue. So the application of the principle can, indeed, lead to the odd disastrous result. This is particularly serious in the context of a pandemic where the wrong intervention can cause society massive harm.
However, the point about one’s own ignorance necessitates this principle. Given that I have no basis for assessing the challenges of Rasnick or Duesberg as an outsider, I cannot but accept that for purposes of decision-making, the best procedure is to trust that there is a higher likelihood (even if no guarantee) that the majority of experts are right. Even if this turns out false, as a leader my decision to follow the majority remains rational, even with hindsight.
So, given this principle, Mbeki ought to have followed orthodox views on HIV/AIDS rather than to give dissidents a platform. After all, such a platform would not have improved Mbeki’s own chances of deciding who to follow. Presidents are not experts on these issues and so they had better get on with trusting the majority of experts.
History will forgive them if the majority of experts turn out wrong. As it happens, history will not forgive Mbeki for the alternative attitude he settled for.
http://www.businessday.co.za/articles/Content.aspx?id=88803
Tuesday, December 1, 2009
Now is not the time for inaction on AIDS
Democracy is both irritating and rewarding. This is brought into sharp focus when one talks about democracy in the context of a pandemic like HIV/AIDS. On the one hand, the norms of deliberative democracy require that all stakeholders be consulted in the policy formation processes. On the other, such consultation processes, if not managed properly, deliver us democracy at the expense of necessary action.
That, in a nutshell, is the state of the South African National Aids Council (SANAC), the most important body that is meant to help President Zuma in his visible and justified quest to depart from years of Mbeki denialism. But in order to succeed he must think through how to avoid a democratic deficit that will haunt him at the polls (should he not consult widely) while, nonetheless, showcasing decisive leadership by making sure policy decisions get taken and implemented (by learning when to stop consulting).
The problem is this. Many policies get debated at a forum like SANAC. The body, comprising various stakeholders including both government and civil society, is supposed to make recommendations that could eventually become policy. Unfortunately, SANAC's efficacy is increasingly being hampered. The bottleneck is a tough one to complain about - deliberative democracy. Or so it would seem.
First, it is important that all voices be heard in processes that can lead to policy outcomes. Civil society organisations have fought in our courts to reverse policy processes undertaken by government that failed to do so. It would be bizarre to suddenly moan that citizens are getting too much attention from government.
Second, input from various organisations have substantive merit in designing policies. As a citizen of a country you have a legal and political entitlement to influencing policy to reflect your wishes. If that means lobbying government to prevent the legalisation of sex work then so be it.
Furthermore, policy processes are not perfect. It is only through having tough, open debate and disagreement that we can maximise the chances of decisions being taken that are based both in fact and which reflects the ideological convictions of the population. A process that does not have these elements does not have full legitimacy.
These qualifications about the need for deliberation are important to avert any misinterpretation of this article's contention that too much of a good thing can be bad. The fact of the matter is that public deliberation is not an end in itself. It is a means to the various ends outlined. If, for example, deliberation results in policy inertia, then deliberation has become a pointless exercise. So it is important that we gauge deliberation's success relative to practical standards such as whether or not, in the case of an outfit like SANAC, practical goals and legal mandates are achieved. This, unfortunately, does not seem to be the case.
Two examples are illustrative. Male circumcision can reduce a man's chances of contracting HIV by about 60%. It also slightly reduces the chances of infecting another person. These are established medical facts. They are the basis for why other countries in the region such as Botswana, Zimbabwe and Swaziland are promoting circumcision.
In SA, no policy on circumcisions exists. One objection is located within initiatives to fight the pandemic. It is the fear that more irresponsible behaviour, such as abandoning condom use, will follow.
Another objection is delivered through a wider socio-cultural prism: traditional circumcision is important on the cultural landscape of SA and publically promoted medical circumcision will simply subvert rights to cultural practise. If, for example, a Xhosa boy were circumcised when very young, in the name of fighting the AIDS pandemic, that would make it impossible for him to also undergo traditional circumcision later in life.
The objections to publically promoting medical circumcisions are not sound. However, it is less interesting to rehearse the weaknesses of these objections than it is to ask the question at the heart of this analysis. How much deliberation should a leader preside over? The answer, as challenging as it might be for someone who enjoys coming across as ‘giving a hearing' to all who want to listen to him or her, is that in the context of a pandemic, your context practically demands of you to take urgent action - any action.
This means that an organisation like SANAC, and its ultimate political head, president Zuma, must get on with deciding whether or not it will go with a fact-based intervention to help reduce the HIV transmissions rate or whether it will consider the surrounding socio-cultural sensitivities as overriding. Whatever the decision, inaction is symptomatic of crippling leadership.
The second example is that of sex work. The SA law reform commission has long ago made available a very comprehensive report into different possible responses to sex work ranging from retaining the status quo to having controlled areas within which sex work can legally take place.
In terms of the AIDS pandemic, there is unquestionable evidence that the criminalisation of sex work exacerbates the AIDS pandemic. This logically implies that one of the many tools needed to reduce the transmission of HIV is to bring sex workers into the legal fold so that the state can empower them and their industry to be better equipped to practise their work while taking the best possible precautions to minimise the contraction and spreading of the virus.
Obviously it is not politically easy to endorse this policy. If the success criterion is only the reduction of HIV transmission then it would be a no-brainer. Politicians are right, however, to take into account moral and social sensitivities. The debate on sex work is as much about HIV/AIDS as it is about whether or not sex work is morally acceptable and whether or not the SA government should take account of the views of the majority.
Again, however, the critical issue is not what position is ultimately taken on these substantive areas of disagreement. Some of us would lobby for a liberal attitude based in part on medical fact and in part on liberal ideologies. Others are entitled to lobby for more conservative decisions. As with circumcision, however, leadership inertia with respect to taking a position - any position - is unacceptable.
A body such as SANAC needs a political head that can pull together the strands of different viewpoints that have been debated, lay them on the table, and propose a solid policy position that can then be developed. Failure to do will reduce SANAC to a high school debate chamber: fun, but with no impact.
Deliberative processes are crucial for developing our democracy. We should continue to hear all views on major policy issues. But when facing a pandemic, sensible political leadership requires someone - call him Jacob Zuma or Kgalema Mothlanthe? - to demonstrate an understanding of the need to balance deliberation with urgent action. Time is not on our side.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=152986&sn=Detail
That, in a nutshell, is the state of the South African National Aids Council (SANAC), the most important body that is meant to help President Zuma in his visible and justified quest to depart from years of Mbeki denialism. But in order to succeed he must think through how to avoid a democratic deficit that will haunt him at the polls (should he not consult widely) while, nonetheless, showcasing decisive leadership by making sure policy decisions get taken and implemented (by learning when to stop consulting).
The problem is this. Many policies get debated at a forum like SANAC. The body, comprising various stakeholders including both government and civil society, is supposed to make recommendations that could eventually become policy. Unfortunately, SANAC's efficacy is increasingly being hampered. The bottleneck is a tough one to complain about - deliberative democracy. Or so it would seem.
First, it is important that all voices be heard in processes that can lead to policy outcomes. Civil society organisations have fought in our courts to reverse policy processes undertaken by government that failed to do so. It would be bizarre to suddenly moan that citizens are getting too much attention from government.
Second, input from various organisations have substantive merit in designing policies. As a citizen of a country you have a legal and political entitlement to influencing policy to reflect your wishes. If that means lobbying government to prevent the legalisation of sex work then so be it.
Furthermore, policy processes are not perfect. It is only through having tough, open debate and disagreement that we can maximise the chances of decisions being taken that are based both in fact and which reflects the ideological convictions of the population. A process that does not have these elements does not have full legitimacy.
These qualifications about the need for deliberation are important to avert any misinterpretation of this article's contention that too much of a good thing can be bad. The fact of the matter is that public deliberation is not an end in itself. It is a means to the various ends outlined. If, for example, deliberation results in policy inertia, then deliberation has become a pointless exercise. So it is important that we gauge deliberation's success relative to practical standards such as whether or not, in the case of an outfit like SANAC, practical goals and legal mandates are achieved. This, unfortunately, does not seem to be the case.
Two examples are illustrative. Male circumcision can reduce a man's chances of contracting HIV by about 60%. It also slightly reduces the chances of infecting another person. These are established medical facts. They are the basis for why other countries in the region such as Botswana, Zimbabwe and Swaziland are promoting circumcision.
In SA, no policy on circumcisions exists. One objection is located within initiatives to fight the pandemic. It is the fear that more irresponsible behaviour, such as abandoning condom use, will follow.
Another objection is delivered through a wider socio-cultural prism: traditional circumcision is important on the cultural landscape of SA and publically promoted medical circumcision will simply subvert rights to cultural practise. If, for example, a Xhosa boy were circumcised when very young, in the name of fighting the AIDS pandemic, that would make it impossible for him to also undergo traditional circumcision later in life.
The objections to publically promoting medical circumcisions are not sound. However, it is less interesting to rehearse the weaknesses of these objections than it is to ask the question at the heart of this analysis. How much deliberation should a leader preside over? The answer, as challenging as it might be for someone who enjoys coming across as ‘giving a hearing' to all who want to listen to him or her, is that in the context of a pandemic, your context practically demands of you to take urgent action - any action.
This means that an organisation like SANAC, and its ultimate political head, president Zuma, must get on with deciding whether or not it will go with a fact-based intervention to help reduce the HIV transmissions rate or whether it will consider the surrounding socio-cultural sensitivities as overriding. Whatever the decision, inaction is symptomatic of crippling leadership.
The second example is that of sex work. The SA law reform commission has long ago made available a very comprehensive report into different possible responses to sex work ranging from retaining the status quo to having controlled areas within which sex work can legally take place.
In terms of the AIDS pandemic, there is unquestionable evidence that the criminalisation of sex work exacerbates the AIDS pandemic. This logically implies that one of the many tools needed to reduce the transmission of HIV is to bring sex workers into the legal fold so that the state can empower them and their industry to be better equipped to practise their work while taking the best possible precautions to minimise the contraction and spreading of the virus.
Obviously it is not politically easy to endorse this policy. If the success criterion is only the reduction of HIV transmission then it would be a no-brainer. Politicians are right, however, to take into account moral and social sensitivities. The debate on sex work is as much about HIV/AIDS as it is about whether or not sex work is morally acceptable and whether or not the SA government should take account of the views of the majority.
Again, however, the critical issue is not what position is ultimately taken on these substantive areas of disagreement. Some of us would lobby for a liberal attitude based in part on medical fact and in part on liberal ideologies. Others are entitled to lobby for more conservative decisions. As with circumcision, however, leadership inertia with respect to taking a position - any position - is unacceptable.
A body such as SANAC needs a political head that can pull together the strands of different viewpoints that have been debated, lay them on the table, and propose a solid policy position that can then be developed. Failure to do will reduce SANAC to a high school debate chamber: fun, but with no impact.
Deliberative processes are crucial for developing our democracy. We should continue to hear all views on major policy issues. But when facing a pandemic, sensible political leadership requires someone - call him Jacob Zuma or Kgalema Mothlanthe? - to demonstrate an understanding of the need to balance deliberation with urgent action. Time is not on our side.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=152986&sn=Detail
Sunday, November 29, 2009
Remembering apartheid with fondness
What does it mean for black South Africans to remember life under apartheid with fondness? This is the question Jacob Dlamini explores in his debut book aptly entitled Native Nostalgia. Dlamini is the most lyrical South African writer since Johnny Steinberg drifted off to New York. Like Steinberg, he delivers reflective insights with rhythmic beauty. It is worth reflecting on his main claim - which will surely stimulate debate in the months ahead - that many black South Africans harbour nostalgic memories of life under Verwoerd's government.
His key premise is that life within South African townships during apartheid was rich and complex, contrary to widespread descriptions of them as mere sites of socioeconomic depravity. Life happened in the township both despite apartheid and in complex relation to apartheid. Fond recollections by blacks are not an inadvertent legitimation of an immoral political system. Of course, fear of being seen to retrospectively endorse apartheid explains why a book like Dlamini's might not have been written before - it invites a lazy accusation that the writer wishes apartheid had never ended.
By arguing that not all aspects of life in townships were hell, Native Nostalgia humanises township residents. It recognises that township residents have always exhibited complex agencies with which they built and negotiated daily life during apartheid. These lived realities - lying at the heart of nostalgic recollections by blacks - include music, art, games, partying and other markers of normalcy that showcase the human spirit's defiance of the psychological insult that was apartheid. Dlamini adds to this rich characterisation with a number of thought provoking related claims.
He claims that Afrikaans is the language of nostalgia for many black South Africans. Phrases such as a ‘Waar was jy?' - which also became the title of a hit song for the outfit Skeem - and ‘Toeka!' and many others instantly evoke a litany of fond memories. A jazz track may invite a lover or friend, for example, to implore another to ‘Hoor net daar!' The appearance of Afrikaans across the cultural landscape of township life means that there is an Afrikaans cultural grammar that white Afrikaans speakers might never recognise. This is not to deny the fact that Afrikaans still has an oppressive resonance for many black South Africans. The salient point is that the relationship between black South Africans and the ‘oppressors' language' is more ambiguous than simplistic accounts of that relationship that start and stop with the 1976 Soweto uprisings.
There are interesting academic insights too that flow from this analysis. There is often a temptation in the social sciences to trot out an overarching narrative that can explain human behaviour particularly at a group level. This is why many liberal researchers mistakenly think they are doing township inhabitants a favour by viewing the township as an object of pity. It is, as Dlamini points out, telling that townships are often referred to as ‘sites' to be examined rather than as ‘places' to be experienced. Sites can be placed under an outsider's microscope for a couple of weeks and then written about as a social science thesis project.
Places, on the other hand, are a challenge to be avoided. They imply the existence of irreducible complexities in the details of a community's life and the lives of its individual members. Few theses and books engage South African townships as places of ordinariness. Even contemporary black writers like Eric Miyeni unreflectively assume that the ultimate marker of upward mobility is whether one can run from a Johannesburg township to Melville or Sandton more quickly than one's township friends can kill one of those township rats that look like a cat.
A moment of critical reflection should reveal an implicit assumption that township life is one dimensional. As Dlamini puts it, many wrongly assume that township life is poor just because many of those who live in the township are poor. He urges researchers to put the senses at the heart of their research methodology. In order to understand the inner lives of communities, it is important to live with them- through the senses.
One cannot help but feel, smell, listen, touch and see with Dlamini as he locates us successfully within his world. It reminded me of Fhazel Johennesse's poem Living in a flat in Eldorado Park which also succeeds in using mere words on a page to evoke in the reader the full range of experiences that constitute the messy, busy life in the block of flats in Eldorado Park that the poem focuses on.
Dlamini recounts his stories with the same kind of linguistic magic. He also describes it with honesty reminiscent of Dambudzo Marechera's account of Zimbabwean township life in the classic novella House of Hunger. Unlike Marachera, we are painted a picture of South African township life in nonviolent language that helps to keep an ignorant reader's prejudices at bay. Academics chipping away in the social sciences would do well to take Dlamini's methodological challenge seriously.
The overall analysis suffers two shortcomings. First, Dlamini promised too much. The book initially gives the impression that hard answers will be provided to the question of why many black South Africans remember life under apartheid with fondness. We never quite arrive at an actual answer. The book is better described as a bouquet of insightful anecdotes that render township lives more complex and more human than countless outsiders assume.
Of course, it was always going to be difficult to step back from such an account of township life and ask, "Have I succeeded in accounting for native nostalgia or did I create something else?" The answer is, "Something else of equal value." That "something else" just is a rich narration of life in the township. But that is very different from delving into philosophical and psychological territory about memory which a more genuine account of nostalgia anywhere would have to provide.
This connects with the second weakness. Dlamini does not explore the real possibility that there is ultimately nothing special or puzzling about black South Africans remembering the past with fondness. It may simply be a universal human tendency. The English saying "the summers were hotter when we were kids!" captures that universal tendency to think nostalgically about the past. Of course, in the context of life under an oppressive regime, this tendency seems somewhat bizarre. But ultimately it might still say more about the general psychology of remembering than about anything peculiar about black South Africans.
No doubt many Germans have fond memories of life before the fall of the Berlin wall. And it would not take long to elicit some charming stories from Ugandans about elements of normal life during Idi Amin's reign. The thrust of Dlamini's book provide material for ‘remembering' to be explored. But the full exploration of the act of remembering, with all its conceptual, psychological and philosophical complexity, awaits another day.
These weaknesses are not jarring. It is a magnificent achievement to detail the tapestry of township life so completely. Dlamini forces us to ponder uncomfortable truths. In the end many of these truths do not (as some readers will wrongly claim) invite us to review our moral assessment of apartheid.
Instead, these uncomfortable truths disturb the racist spirit of Verwoerd by adding to his defeat with memories that scream, "Despite your violent apartheid evil, we've got news for you! Our humanity and agencies were never entirely within your racist control!" We have no reason to fear native nostalgia.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=152786&sn=Detail
His key premise is that life within South African townships during apartheid was rich and complex, contrary to widespread descriptions of them as mere sites of socioeconomic depravity. Life happened in the township both despite apartheid and in complex relation to apartheid. Fond recollections by blacks are not an inadvertent legitimation of an immoral political system. Of course, fear of being seen to retrospectively endorse apartheid explains why a book like Dlamini's might not have been written before - it invites a lazy accusation that the writer wishes apartheid had never ended.
By arguing that not all aspects of life in townships were hell, Native Nostalgia humanises township residents. It recognises that township residents have always exhibited complex agencies with which they built and negotiated daily life during apartheid. These lived realities - lying at the heart of nostalgic recollections by blacks - include music, art, games, partying and other markers of normalcy that showcase the human spirit's defiance of the psychological insult that was apartheid. Dlamini adds to this rich characterisation with a number of thought provoking related claims.
He claims that Afrikaans is the language of nostalgia for many black South Africans. Phrases such as a ‘Waar was jy?' - which also became the title of a hit song for the outfit Skeem - and ‘Toeka!' and many others instantly evoke a litany of fond memories. A jazz track may invite a lover or friend, for example, to implore another to ‘Hoor net daar!' The appearance of Afrikaans across the cultural landscape of township life means that there is an Afrikaans cultural grammar that white Afrikaans speakers might never recognise. This is not to deny the fact that Afrikaans still has an oppressive resonance for many black South Africans. The salient point is that the relationship between black South Africans and the ‘oppressors' language' is more ambiguous than simplistic accounts of that relationship that start and stop with the 1976 Soweto uprisings.
There are interesting academic insights too that flow from this analysis. There is often a temptation in the social sciences to trot out an overarching narrative that can explain human behaviour particularly at a group level. This is why many liberal researchers mistakenly think they are doing township inhabitants a favour by viewing the township as an object of pity. It is, as Dlamini points out, telling that townships are often referred to as ‘sites' to be examined rather than as ‘places' to be experienced. Sites can be placed under an outsider's microscope for a couple of weeks and then written about as a social science thesis project.
Places, on the other hand, are a challenge to be avoided. They imply the existence of irreducible complexities in the details of a community's life and the lives of its individual members. Few theses and books engage South African townships as places of ordinariness. Even contemporary black writers like Eric Miyeni unreflectively assume that the ultimate marker of upward mobility is whether one can run from a Johannesburg township to Melville or Sandton more quickly than one's township friends can kill one of those township rats that look like a cat.
A moment of critical reflection should reveal an implicit assumption that township life is one dimensional. As Dlamini puts it, many wrongly assume that township life is poor just because many of those who live in the township are poor. He urges researchers to put the senses at the heart of their research methodology. In order to understand the inner lives of communities, it is important to live with them- through the senses.
One cannot help but feel, smell, listen, touch and see with Dlamini as he locates us successfully within his world. It reminded me of Fhazel Johennesse's poem Living in a flat in Eldorado Park which also succeeds in using mere words on a page to evoke in the reader the full range of experiences that constitute the messy, busy life in the block of flats in Eldorado Park that the poem focuses on.
Dlamini recounts his stories with the same kind of linguistic magic. He also describes it with honesty reminiscent of Dambudzo Marechera's account of Zimbabwean township life in the classic novella House of Hunger. Unlike Marachera, we are painted a picture of South African township life in nonviolent language that helps to keep an ignorant reader's prejudices at bay. Academics chipping away in the social sciences would do well to take Dlamini's methodological challenge seriously.
The overall analysis suffers two shortcomings. First, Dlamini promised too much. The book initially gives the impression that hard answers will be provided to the question of why many black South Africans remember life under apartheid with fondness. We never quite arrive at an actual answer. The book is better described as a bouquet of insightful anecdotes that render township lives more complex and more human than countless outsiders assume.
Of course, it was always going to be difficult to step back from such an account of township life and ask, "Have I succeeded in accounting for native nostalgia or did I create something else?" The answer is, "Something else of equal value." That "something else" just is a rich narration of life in the township. But that is very different from delving into philosophical and psychological territory about memory which a more genuine account of nostalgia anywhere would have to provide.
This connects with the second weakness. Dlamini does not explore the real possibility that there is ultimately nothing special or puzzling about black South Africans remembering the past with fondness. It may simply be a universal human tendency. The English saying "the summers were hotter when we were kids!" captures that universal tendency to think nostalgically about the past. Of course, in the context of life under an oppressive regime, this tendency seems somewhat bizarre. But ultimately it might still say more about the general psychology of remembering than about anything peculiar about black South Africans.
No doubt many Germans have fond memories of life before the fall of the Berlin wall. And it would not take long to elicit some charming stories from Ugandans about elements of normal life during Idi Amin's reign. The thrust of Dlamini's book provide material for ‘remembering' to be explored. But the full exploration of the act of remembering, with all its conceptual, psychological and philosophical complexity, awaits another day.
These weaknesses are not jarring. It is a magnificent achievement to detail the tapestry of township life so completely. Dlamini forces us to ponder uncomfortable truths. In the end many of these truths do not (as some readers will wrongly claim) invite us to review our moral assessment of apartheid.
Instead, these uncomfortable truths disturb the racist spirit of Verwoerd by adding to his defeat with memories that scream, "Despite your violent apartheid evil, we've got news for you! Our humanity and agencies were never entirely within your racist control!" We have no reason to fear native nostalgia.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=152786&sn=Detail
Friday, November 27, 2009
Even a multiculturalist must sometimes say no
WHY would anyone in their right mind try to kill a bull with their bare hands? I am not Zulu enough to know the answer. I am certainly not brave enough to have a go either. But this ritual appears to be a part of the fresh fruits festival called Ukweshwana, which takes place in early December in Nongoma, northern KwaZulu-Natal.
Animal rights groups, such as People for the Ethical Treatment of Animals and Animal Rights Africa, are predictably up in arms. They are desperately trying to convince the courts and the government that animals are people too. Or rather that animals have feelings too. The government is responding with loud silence. The silence is not surprising. How does one decide between upholding cultural rights and criticising the deliberate infliction of violent pain against animals?
The answer, in fact, is simple. Cultural practices that are unethical should not be allowed. They should be banned rather than being protected just because we are too cowardly to admit that ethical relativism is a poor moral theory from which to take our cue for what is right and what is wrong.
Ethical relativism does not flow logically from multiculturalism. People wrongly think that if they are committed to diversity then they have no basis for criticising the cultural norms of others. We need to look at each cultural practice independently and determine objectively whether or not the moral arguments for that cultural practice are sound.
The relationship between relativism and multiculturalism needs to be unpacked. Ethical relativism is the view that there are no objective moral truths. When you and I express ethical views, we are simply reflecting our individual moral preferences or those of the society within which we were raised.
Multiculturalism is a description of a society in which there are diverse cultural groups. It can be also be a moral principle that says we should respect these different cultural outfits.
So here is the critical question. Does a commitment to multiculturalism mean that we must be ethical relativists? No. I can respect the right of cultural groups to exist while also criticising the content of particular norms and practices that are objectively wrong. Respect for difference does not translate into “anything goes”. Torture, for example, is immoral because all people have an equal entitlement to respect. This implies that we have equal rights to freedom from the deliberate infliction of pain.
One can be a multiculturalist and still engage in crosscultural moral criticism. Such criticism just needs to be based in sound moral reasoning, such as the example of why torture is bad, in order for it to be valid. A grand theory of moral objectivity is not necessary for particular instances of moral criticism to get off the ground.
Furthermore, if we took ethical relativism too seriously, moral criticism would never be possible. So we had better make sense of how to make progress in moral debate while still respecting differences between groups.
With the right to criticise firmly established, what can we say about the business of killing bulls? Is this a cultural practice that can be defended on grounds of the general right to cultural practice?
It is important to note that the general right to participate in cultural practices is not actually at stake here. Such rights are very important. This must be the case because cultural practices constitute a critically important part of the identities of millions of South Africans. However, just as the right to free speech can reasonably be infringed, so too can the right to cultural practice.
In this case, animal rights activists are right to demand a moral entitlement to dignified treatment on behalf of bulls against Zulus. The basis for why you and I demand that we treat each other decently is because we can experience pain and pleasure. We have sentience. Nothing more, nothing less. If it was about much more than sentience, then some human beings would be in trouble. Yet if sentience is the basis of our moral status, then why do animals not have equal right to be treated decently? A failure to extend such moral entitlement to nonhuman animals is an arbitrary exclusion of those animals from the group entitled to moral consideration.
This exclusion is logically identical to racism. Just as it is arbitrary and therefore wrong to spend less on a black kid’s public education than a white kid’s, so too it is arbitrary to regard some sentient creatures as less worthy of moral concern than others — “just because”.
It is patently clear then that the deliberate infliction of pain against a bull amounts to not respecting its moral entitlement as a sentient creature to be treated with dignity. This makes the Zulu practice of bull killing during Ukweshwana unethical. Since it is unethical, it is a reasonable infringement on the general right to cultural practice to stop this unethical infliction of violence.
Animal rights activists may be the last remaining hippies but this is no reason to dismiss their arguments as equally dated or uncool. Those who think that these kinds of cultural practices are acceptable are hereby challenged to offer me an ethical rejoinder instead.
http://www.businessday.co.za/articles/Content.aspx?id=88254
Animal rights groups, such as People for the Ethical Treatment of Animals and Animal Rights Africa, are predictably up in arms. They are desperately trying to convince the courts and the government that animals are people too. Or rather that animals have feelings too. The government is responding with loud silence. The silence is not surprising. How does one decide between upholding cultural rights and criticising the deliberate infliction of violent pain against animals?
The answer, in fact, is simple. Cultural practices that are unethical should not be allowed. They should be banned rather than being protected just because we are too cowardly to admit that ethical relativism is a poor moral theory from which to take our cue for what is right and what is wrong.
Ethical relativism does not flow logically from multiculturalism. People wrongly think that if they are committed to diversity then they have no basis for criticising the cultural norms of others. We need to look at each cultural practice independently and determine objectively whether or not the moral arguments for that cultural practice are sound.
The relationship between relativism and multiculturalism needs to be unpacked. Ethical relativism is the view that there are no objective moral truths. When you and I express ethical views, we are simply reflecting our individual moral preferences or those of the society within which we were raised.
Multiculturalism is a description of a society in which there are diverse cultural groups. It can be also be a moral principle that says we should respect these different cultural outfits.
So here is the critical question. Does a commitment to multiculturalism mean that we must be ethical relativists? No. I can respect the right of cultural groups to exist while also criticising the content of particular norms and practices that are objectively wrong. Respect for difference does not translate into “anything goes”. Torture, for example, is immoral because all people have an equal entitlement to respect. This implies that we have equal rights to freedom from the deliberate infliction of pain.
One can be a multiculturalist and still engage in crosscultural moral criticism. Such criticism just needs to be based in sound moral reasoning, such as the example of why torture is bad, in order for it to be valid. A grand theory of moral objectivity is not necessary for particular instances of moral criticism to get off the ground.
Furthermore, if we took ethical relativism too seriously, moral criticism would never be possible. So we had better make sense of how to make progress in moral debate while still respecting differences between groups.
With the right to criticise firmly established, what can we say about the business of killing bulls? Is this a cultural practice that can be defended on grounds of the general right to cultural practice?
It is important to note that the general right to participate in cultural practices is not actually at stake here. Such rights are very important. This must be the case because cultural practices constitute a critically important part of the identities of millions of South Africans. However, just as the right to free speech can reasonably be infringed, so too can the right to cultural practice.
In this case, animal rights activists are right to demand a moral entitlement to dignified treatment on behalf of bulls against Zulus. The basis for why you and I demand that we treat each other decently is because we can experience pain and pleasure. We have sentience. Nothing more, nothing less. If it was about much more than sentience, then some human beings would be in trouble. Yet if sentience is the basis of our moral status, then why do animals not have equal right to be treated decently? A failure to extend such moral entitlement to nonhuman animals is an arbitrary exclusion of those animals from the group entitled to moral consideration.
This exclusion is logically identical to racism. Just as it is arbitrary and therefore wrong to spend less on a black kid’s public education than a white kid’s, so too it is arbitrary to regard some sentient creatures as less worthy of moral concern than others — “just because”.
It is patently clear then that the deliberate infliction of pain against a bull amounts to not respecting its moral entitlement as a sentient creature to be treated with dignity. This makes the Zulu practice of bull killing during Ukweshwana unethical. Since it is unethical, it is a reasonable infringement on the general right to cultural practice to stop this unethical infliction of violence.
Animal rights activists may be the last remaining hippies but this is no reason to dismiss their arguments as equally dated or uncool. Those who think that these kinds of cultural practices are acceptable are hereby challenged to offer me an ethical rejoinder instead.
http://www.businessday.co.za/articles/Content.aspx?id=88254
Friday, November 20, 2009
Challenger or bargainer? - the thin black line
SOME white folks feel that it is tough being white in the new SA. Well, try being a black writer. We have it tough too. This self-indulgent thought struck me last week as I was following the discussion unfolding online and in my inbox around two articles that appeared on these pages. In the first, fellow columnist Jacob Dlamini articulated the insightful thesis that too many black people think that blackness is a profession. In the other, I took a dig at the abuse of the race card by the Julius Malemas of this world. The sterling endorsement by white readers made me uncomfortable. My discomfort, almost certainly not justified, again underscores the complexities of race and identity.
One dilemma is whether or not to qualify hard-hitting criticism of fellow blacks. While writing furiously about the abuse of the race card, I found myself continuously wanting to qualify my critique by foregrounding the fact that white racism remains pervasive. (The logic student in me convinced the anxious black in me that my argument does not presuppose the nonexistence of white racism.)
Relying on formal logic alone can miss the point that we are psychological creatures, who live in a morass of sociological complexity where rationality is not always present. My urge to scold the (imagined) sneering white reader, who might enjoy my black-on-black critique just a little bit too much, shows that not even a writer aspiring to be untainted by the merest whiff of racism can fully escape racism’s reach.
My reaction to these imagined readers is partly irrational. In the absence of robust evidence, it is certainly premature to attribute racist motives to all white readers. Furthermore, I recognise that opportunistic behaviour by black people needs to be exposed, even if the odd reader conveniently finds a new “favourite writer” in the black person who dares to speak truth to power.
But part of my reaction is justified. I do not doubt that there are many white people who conveniently and suddenly start loving a black writer just because the black writer articulates viewpoints that a white person supposedly dare not speak.
In a piece in one of the Afrikaans dailies, Tim du Plessis takes his cue from Antjie Krog (courtesy of her reflections on her latest book, Begging To Be Black), who asserts that the words of whites (when they criticise the government) die in their mouths. And so he quotes black critics of the government right back at Krog — people such as Barney Mthombothi, who is Financial Mail’s editor, Lucas Ntyintyane (a “regular letter writer in Business Day”, a description intended to confer credibility) and Dlamini, a “thinker and writer of the highest order”. What these writers have in common is their fearless criticism of professional blacks. Is this what makes them all “brilliant black thinkers”?
I am not suggesting Du Plessis is a closet conservative pretending to enjoy these writers’ work — I have not even met him. The point is about me, not him. It is this: as a black person writing about the black community, I am bedevilled by considering, perhaps too closely, the unintended effect of argument, word and tone choice. This is ordinarily not a bad thing. Shooting too eagerly from one’s writing hip can kill innocent bystanders and not only criminal bastards. But when racialism’s reach affects these choices, how free am I in my writing act?
All this transported me back to a theory of race by one of my favourite self-hating black writers in America, Shelby Steele. Steele argues that black Americans who gain some measure of professional success in mainstream US society adopt one of two strategies. They become challengers or bargainers. Challengers say to white America, “Look, you buggers messed up our black lives with your racism. We are still angry. If you want to redeem yourselves, make some concessions like supporting affirmative action.”
This tactic is employed by angry black people such as Al Sharpton. People who could never, for example, become president of America. Ask Jesse Jackson.
Bargainers are craftier. They say to whites, “Let’s make a deal. I’ll pretend racism never happened. In return, I want you to promise that you will never hold my blackness against me. Deal?” The most successful bargainer in entertainment is Oprah Winfrey. In politics, it’s Barack Obama. That is why some challenger-blacks doubted his black credentials along the way. Unlike them, Obama knew the strategy that could open most doors to the White House.
Sometimes, despite being part of a numerical majority, being black in culturally white structures in post-democratic SA presents one with similar strategic dilemmas. Do you challenge your way through newsrooms, media debates and public discourse? Or do you increase your chances of accolades and popularity by bargaining with readers, colleagues and fellow writers? And that really is the nub of the issue.
Being a black writer in a majority black country with deep racial fissures but many white-dominated organisational structures and cultures requires fancy identity footwork behind the writing scenes that many readers may not see.
If Krog had understood these lived realities, she would start begging to remain white, rather than hoping to wake up in a black birthday suit.
http://www.businessday.co.za/articles/Content.aspx?id=87615
One dilemma is whether or not to qualify hard-hitting criticism of fellow blacks. While writing furiously about the abuse of the race card, I found myself continuously wanting to qualify my critique by foregrounding the fact that white racism remains pervasive. (The logic student in me convinced the anxious black in me that my argument does not presuppose the nonexistence of white racism.)
Relying on formal logic alone can miss the point that we are psychological creatures, who live in a morass of sociological complexity where rationality is not always present. My urge to scold the (imagined) sneering white reader, who might enjoy my black-on-black critique just a little bit too much, shows that not even a writer aspiring to be untainted by the merest whiff of racism can fully escape racism’s reach.
My reaction to these imagined readers is partly irrational. In the absence of robust evidence, it is certainly premature to attribute racist motives to all white readers. Furthermore, I recognise that opportunistic behaviour by black people needs to be exposed, even if the odd reader conveniently finds a new “favourite writer” in the black person who dares to speak truth to power.
But part of my reaction is justified. I do not doubt that there are many white people who conveniently and suddenly start loving a black writer just because the black writer articulates viewpoints that a white person supposedly dare not speak.
In a piece in one of the Afrikaans dailies, Tim du Plessis takes his cue from Antjie Krog (courtesy of her reflections on her latest book, Begging To Be Black), who asserts that the words of whites (when they criticise the government) die in their mouths. And so he quotes black critics of the government right back at Krog — people such as Barney Mthombothi, who is Financial Mail’s editor, Lucas Ntyintyane (a “regular letter writer in Business Day”, a description intended to confer credibility) and Dlamini, a “thinker and writer of the highest order”. What these writers have in common is their fearless criticism of professional blacks. Is this what makes them all “brilliant black thinkers”?
I am not suggesting Du Plessis is a closet conservative pretending to enjoy these writers’ work — I have not even met him. The point is about me, not him. It is this: as a black person writing about the black community, I am bedevilled by considering, perhaps too closely, the unintended effect of argument, word and tone choice. This is ordinarily not a bad thing. Shooting too eagerly from one’s writing hip can kill innocent bystanders and not only criminal bastards. But when racialism’s reach affects these choices, how free am I in my writing act?
All this transported me back to a theory of race by one of my favourite self-hating black writers in America, Shelby Steele. Steele argues that black Americans who gain some measure of professional success in mainstream US society adopt one of two strategies. They become challengers or bargainers. Challengers say to white America, “Look, you buggers messed up our black lives with your racism. We are still angry. If you want to redeem yourselves, make some concessions like supporting affirmative action.”
This tactic is employed by angry black people such as Al Sharpton. People who could never, for example, become president of America. Ask Jesse Jackson.
Bargainers are craftier. They say to whites, “Let’s make a deal. I’ll pretend racism never happened. In return, I want you to promise that you will never hold my blackness against me. Deal?” The most successful bargainer in entertainment is Oprah Winfrey. In politics, it’s Barack Obama. That is why some challenger-blacks doubted his black credentials along the way. Unlike them, Obama knew the strategy that could open most doors to the White House.
Sometimes, despite being part of a numerical majority, being black in culturally white structures in post-democratic SA presents one with similar strategic dilemmas. Do you challenge your way through newsrooms, media debates and public discourse? Or do you increase your chances of accolades and popularity by bargaining with readers, colleagues and fellow writers? And that really is the nub of the issue.
Being a black writer in a majority black country with deep racial fissures but many white-dominated organisational structures and cultures requires fancy identity footwork behind the writing scenes that many readers may not see.
If Krog had understood these lived realities, she would start begging to remain white, rather than hoping to wake up in a black birthday suit.
http://www.businessday.co.za/articles/Content.aspx?id=87615
Wednesday, November 18, 2009
Solidarity will fail if it puts affirmative action on trial
SOLIDARITY has compiled a raft of cases which, if successful, will expose the irrationality of employment decisions by the state. Yet it also seems Solidarity is casting its strategic net way too wide. It is wrong if it thinks it can put affirmative action on trial. That will fail, legally and politically.
The smarter, narrower strategy should be to challenge state decisions that do not meet legally required standards of rationality. That matters particularly with public-service employment decisions that speak to the security of our society. But calling the state’s bluff on irrationality in these instances does not amount to a moral or legal challenge of affirmative action in general. Here is why.
First, let us take as an illustrative example the case of the police captain Renata Barnard, who was, by her account, overlooked twice for promotion to superintendent, despite being qualified for the job she applied for. Her contention is that she was overlooked because she is white.
The post for which she applied is essentially frozen until a suitable black candidate arrives, however long that might take.
It is worth stating that material facts are disputed by the state, so for purposes of analysis we are here assuming the captain’s version to be true. If this is true, it seems the state has taken a decision that is not rational.
If the rationale is there is no suitable black candidate, but after a few years no such candidate is found or head-hunted, then in reality it seems to be a case of exclusion by racial fiat rather than one grounded in a legitimate end that is served by the exclusion.
If the state could prove the management position for which Barnard applied is not important (and hence there is no public risk in waiting to fill it), and that it had, say, some sort of programme through which suitable candidates from other underrepresented designated groups are shortly to pass, then perhaps the freezing of the post could be legally defended. But in the absence of such facts, it is an irrational decision and one whose legality surely cannot be sustained in light of section 9(1) of the constitution, which imposes such a requirement.
Still, the legal case will be difficult to prove. There is constitutional precedent (in the case of former Grahamstown police station commissioner Vuyile Gcaba) establishing the principle that employment and labour relationship matters do not generally amount to administrative action, and so are not governed by the Promotion of Administrative Justice Act. This means the case cannot be fought on grounds of administrative injustice.
Of course, the legal folks engaged by Solidarity understand all this, which is why Barnard’s case found itself in the Labour Court on Monday. However, while sitting in the right jurisdictional space, the legal arguments mounted must now be chosen carefully. This is where distinguishing between affirmative action in general and the facts of particular cases is crucial.
Affirmative action, quite apart from the moral justification in its favour, is constitutionally provided for in terms of section 9(2) of the bill of rights. For better or worse, such policies are legally unassailable.
So while it is politically tempting for Solidarity to use these cases (despite claiming otherwise) as a way of stimulating public debate on affirmative action in general, it is barking up the wrong tree.
Ten cases — even if all succeed, which is unlikely — do not amount to either a moral or legal defeat of affirmative action.
Solidarity’s argument should be more nuanced. It should be based on the fact that in cases where affirmative action decisions are not at issue, and where the alternative is to leave important public posts empty, excluding whites is irrational and so illegal.
In such cases, affirmative action is not at issue because the employer is not faced with candidates from designated groups who might otherwise be up for employment or promotion.
But it is worth noting that even if the real genesis of such injustices might be some state official’s wrongful understanding of affirmative action, or even such an official’s racist interpretation of affirmative action, the gist of the legal challenge is a demand for state rationality in cases in which affirmative action is not at stake. This kind of legal challenge is likely to succeed.
First, it does not dispute the legal and moral legitimacy of affirmative action in general.
Second, it does not fundamentally tie the case to demands that the state should take an employment decision based on the Promotion of Administrative Justice Act.
Third, the requirement of fair labour practice provides a sufficient basis to demand a rational justification from the state.
Fourth, the Gcaba case does offer a small window of constitutional opportunity. A key element of the court’s rationale for its decision was that an employment decision not directly affecting other citizens is a labour matter between the complaining party and the state. If a case can be mounted that some of these decisions do indeed affect other citizens directly — not an unreasonable contention — we may well be interestingly back on constitutional ground.
It is still not likely that the Constitutional Court (should it have to consider this strand of argumentation) would declare affirmative action unconstitutional, but it might well have to provide further guidance on the general application of affirmative-action principles in cases where direct effects on other citizens (unlike the Gcaba case) do come into possible play. Barnard’s case may not fall within such a line of argument, but the assessment of candidates for a post such as national police commissioner, for example, surely does.
So what should we make of this legal ping- pong match?
Solidarity deserves credit for highlighting these cases and stimulating public debate on the application of affirmative action. Of course the organisation has its own ideological agenda, but it is a legitimate voice in a political landscape dominated all too often by centre-left politics.
However, these cases will not succeed in morally, legally or politically defeating affirmative action in general. What they should hopefully do is to force the state to be more rational when it takes decisions that affect you and me individually and all of us collectively.
Furthermore, the blanket exclusion of a group on the basis of race, in cases in which affirmative action decisions are not even at stake, should be legally condemned.
But for these positive outcomes to be realised, Solidarity and its lawyers should be careful which legal arguments they choose. They should also not overreach politically.
Nuanced, narrower arguments about the irrationality of particular decisions are more likely to stand the test of time than rehearsals of general, tired and defeated arguments on affirmative action’s overall desirability.
http://www.businessday.co.za/articles/Content.aspx?id=87370
The smarter, narrower strategy should be to challenge state decisions that do not meet legally required standards of rationality. That matters particularly with public-service employment decisions that speak to the security of our society. But calling the state’s bluff on irrationality in these instances does not amount to a moral or legal challenge of affirmative action in general. Here is why.
First, let us take as an illustrative example the case of the police captain Renata Barnard, who was, by her account, overlooked twice for promotion to superintendent, despite being qualified for the job she applied for. Her contention is that she was overlooked because she is white.
The post for which she applied is essentially frozen until a suitable black candidate arrives, however long that might take.
It is worth stating that material facts are disputed by the state, so for purposes of analysis we are here assuming the captain’s version to be true. If this is true, it seems the state has taken a decision that is not rational.
If the rationale is there is no suitable black candidate, but after a few years no such candidate is found or head-hunted, then in reality it seems to be a case of exclusion by racial fiat rather than one grounded in a legitimate end that is served by the exclusion.
If the state could prove the management position for which Barnard applied is not important (and hence there is no public risk in waiting to fill it), and that it had, say, some sort of programme through which suitable candidates from other underrepresented designated groups are shortly to pass, then perhaps the freezing of the post could be legally defended. But in the absence of such facts, it is an irrational decision and one whose legality surely cannot be sustained in light of section 9(1) of the constitution, which imposes such a requirement.
Still, the legal case will be difficult to prove. There is constitutional precedent (in the case of former Grahamstown police station commissioner Vuyile Gcaba) establishing the principle that employment and labour relationship matters do not generally amount to administrative action, and so are not governed by the Promotion of Administrative Justice Act. This means the case cannot be fought on grounds of administrative injustice.
Of course, the legal folks engaged by Solidarity understand all this, which is why Barnard’s case found itself in the Labour Court on Monday. However, while sitting in the right jurisdictional space, the legal arguments mounted must now be chosen carefully. This is where distinguishing between affirmative action in general and the facts of particular cases is crucial.
Affirmative action, quite apart from the moral justification in its favour, is constitutionally provided for in terms of section 9(2) of the bill of rights. For better or worse, such policies are legally unassailable.
So while it is politically tempting for Solidarity to use these cases (despite claiming otherwise) as a way of stimulating public debate on affirmative action in general, it is barking up the wrong tree.
Ten cases — even if all succeed, which is unlikely — do not amount to either a moral or legal defeat of affirmative action.
Solidarity’s argument should be more nuanced. It should be based on the fact that in cases where affirmative action decisions are not at issue, and where the alternative is to leave important public posts empty, excluding whites is irrational and so illegal.
In such cases, affirmative action is not at issue because the employer is not faced with candidates from designated groups who might otherwise be up for employment or promotion.
But it is worth noting that even if the real genesis of such injustices might be some state official’s wrongful understanding of affirmative action, or even such an official’s racist interpretation of affirmative action, the gist of the legal challenge is a demand for state rationality in cases in which affirmative action is not at stake. This kind of legal challenge is likely to succeed.
First, it does not dispute the legal and moral legitimacy of affirmative action in general.
Second, it does not fundamentally tie the case to demands that the state should take an employment decision based on the Promotion of Administrative Justice Act.
Third, the requirement of fair labour practice provides a sufficient basis to demand a rational justification from the state.
Fourth, the Gcaba case does offer a small window of constitutional opportunity. A key element of the court’s rationale for its decision was that an employment decision not directly affecting other citizens is a labour matter between the complaining party and the state. If a case can be mounted that some of these decisions do indeed affect other citizens directly — not an unreasonable contention — we may well be interestingly back on constitutional ground.
It is still not likely that the Constitutional Court (should it have to consider this strand of argumentation) would declare affirmative action unconstitutional, but it might well have to provide further guidance on the general application of affirmative-action principles in cases where direct effects on other citizens (unlike the Gcaba case) do come into possible play. Barnard’s case may not fall within such a line of argument, but the assessment of candidates for a post such as national police commissioner, for example, surely does.
So what should we make of this legal ping- pong match?
Solidarity deserves credit for highlighting these cases and stimulating public debate on the application of affirmative action. Of course the organisation has its own ideological agenda, but it is a legitimate voice in a political landscape dominated all too often by centre-left politics.
However, these cases will not succeed in morally, legally or politically defeating affirmative action in general. What they should hopefully do is to force the state to be more rational when it takes decisions that affect you and me individually and all of us collectively.
Furthermore, the blanket exclusion of a group on the basis of race, in cases in which affirmative action decisions are not even at stake, should be legally condemned.
But for these positive outcomes to be realised, Solidarity and its lawyers should be careful which legal arguments they choose. They should also not overreach politically.
Nuanced, narrower arguments about the irrationality of particular decisions are more likely to stand the test of time than rehearsals of general, tired and defeated arguments on affirmative action’s overall desirability.
http://www.businessday.co.za/articles/Content.aspx?id=87370
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