16 June 2009

Namibia: Aspects of Affirmative Action Unconstitutional - Monitor Action Group

MONITOR Action Group says it has received legal advice stating that the implementation of affirmative action against white women farmers and young people who matriculated after 2002 is illegal.

MAG said the advice it got was that it is illegal, in terms of Article 23 of Namibia's Constitution, to appoint or to promote a non-Namibian with the same qualifications to the disadvantage of a Namibian citizen, black or white.

The party also said it is unconstitutional to give preference to any black or brown person who completed Grade 12 in or after 2002, and that it is also illegal to prevent any white woman farmer from applying for the exemption of land tax.

According to the legal advice MAG received, the Agribank Affirmative Action Loan Scheme, under which hundreds of farms have been bought by black owners, is also illegal because it is not regulated or governed by the necessary legislation.

Last year MAG stated in a press release, which was also sent to the Office of the President and the Prime Minister, that Government is "stubborn" and its refusal to listen to the party's pleas to debate the alleged unconstitutional acts "may result in a big embarrassment for the Government".

"Eventually Monitor Action Group was forced to get legal opinion, on its own account, in connection with the correct constitutional implementation of affirmative action," Kosie Pretorius of MAG said last week.

Pretorius did not say what they will do next. MAG does not have a huge support base and is not likely to institute a legal challenge due to the costs involved in such cases.

Last year MAG made a submission to the hearings conducted by the Office of the Ombudsman on discrimination in the workplace, appointments, promotions, discrimination in implementing understudy programmes, failure to comply with employment equity legislation, racism in sport, culture and schools, and discrimination against farmworkers.

The scope of the panel included submissions on 'reverse racism' - racial discrimination against formerly advantaged members of society.

The report has yet to see the light of day.

Namibia has ratified the International Convention on the Elimination of All Forms of Racial Discrimination, and Parliament enacted the Racial Discrimination Prohibition Act in 1991, which criminalises acts of racial discrimination and prohibits propagation of racial discrimination and the practice of apartheid.

However, the law does not define racism or racial discrimination.

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