At the end of last year the South African Human Rights Commission hosted a conversation on affirmative action.
It presented an opportunity to assess, consider and comment on some of the concerns whirling around the concept. It is opportune to deal with certain misconceptions about affirmative action at the outset.
Affirmative action is sanctioned and required by the constitutional imperative to achieve substantive or real equality.
It is not reverse discrimination as it seeks to achieve an objectively defendable goal. It is designed to reduce the dangerous levels of inequality in our society and thus ease the pressure on our social order.
There is a moral imperative on all of us to work towards the achievement of a more equitable society. Racial discrimination, in contrast, has no rational and objective premise and simply appeals to the basest of human instincts.
Our Constitution is not colour-blind and recognises the need to take race and gender into account in making certain decisions. It sanctions the use of restorative measures such as affirmative action.
By entrenching the duty to realise certain socioeconomic rights progressively, such as health, housing and access to social welfare, the drafters intended the causes of inequality to be tackled at their source.
In my assessment this was meant to be the primary means of achieving a more just and equitable society. It is apparent that non-beneficiaries of affirmative action feel deeply aggrieved and consider it an affront to their dignity to be excluded from accessing social goods.
To deal with the inequalities caused by past discrimination, a university can rationally deny a learner access to a programme because of race.
It is unpalatable and jarring, but morally defensible. It is morally defensible to ask people who have benefited directly or indirectly from apartheid to bear this load during the reconstruction period.
Affirmative action is a middle-class concern as various segments of the society seek to access the limited largesse or social goods handed out by the state. A colleague from India recently remarked that autonomy and independence is the greatest gift a government can give its people.
Affirmative action is highly contested terrain as the social goods to which people seek access hold the promise of a better and independent life. Excluding people from participating in that promise is exclusionary and hence the unjustified but perhaps understandable comparisons to reverse discrimination.
Affirmative action is permissible if it is designed to advance equality. It is meant to empower and capacitate and not to be punitive. This hazy goal has to be developed and core principles, objectives and targets identified to guide the discretion of those making decisions.
Affirmative action is legitimate if it affirms previously disadvantaged people and is not if the objective is to impede or hinder white males. Those making these decisions must at all times be cognisant of the fact that the objective is to achieve a societal good.
Not filling a critical position in a police forensic laboratory after the post has been advertised three times because none of the successful candidates is African is likely to cause societal harm.
Those making the decision are obliged to balance the potential harm caused to the society by the non-appointment against the societal benefit that waiting for the correct candidate would bring.
The constitutional drafters did not elect to prescribe time frames and hence there is no sunset clause for affirmative action.
I suspect that the reasonable assumption that our educational, health and other social empowerment services would be fully functional and effective within 20 years was made by the drafters.
According to this thinking, the fundamentals of our society would be reconstructed within this period and be able to deliver productive and autonomous citizens.
The need for affirmative action would then become progressively less dire. For a variety of reasons, including incapacity and ineffectiveness, this has not occurred.
The systemic failings of our education, health and other empowerment systems mean that we are far from being structurally sound.
In the absence of internal empowering systems, for which the state is primarily responsible, affirmative action has to continue to be used as a Band-Aid to make up for the inequities of the past and for the failings of this government in respect of critical portfolios such as education and health.
Education is the fountain of other rights. It enables us to make more informed decisions, to exercise our rights and to realise our potential.
I do not believe that we are holding government sufficiently accountable for its failures in respect of this portfolio. It is bewildering that universities that depend so much on a functional educational system have not been more trenchant in their criticism of the failure to deliver effective education.
Affirmative action on its own will not achieve substantive equality if the empowering agencies such as education and health function ineffectually.
Affirmative action offers an opportunity to treat the consequences of inequality, but does not exonerate government from dealing robustly with the systemic causes of inequality.
Had we travelled the road envisaged and progressively improved the quality of life and freed the potential of the people of this country, we would have been debating whether the policy should move from a group-based affirming programme to an individual-based affirmation. This would divert the focus from race to the peculiar circumstances of the individual.
However, given our context of race-based inequality, it is premature to have this debate. It is not premature to debate why we are postponing having this debate.
Should the government continue not to deliver effectively on education and other services then, in time, the primary cause of the systemic inequality will be present incapacity and not past discrimination.
If that were to occur, then excluding people on the basis of race from accessing social goods, such as places in universities, will no longer be morally defensible. It would then not be appropriate to ask them to shoulder the burden of being excluded simply on account of their race.