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CONCERNED SOUTH AFRICAN INDIAN CITIZENS
BEEMA NAIDOO
3
May 1996
PETITION IN RELATION TO SECTION 6 (LANGUAGES) OF THE NEW
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
We are South African
citizens of Indian origin and are deeply concerned that our civil and political
rights will be infringed if section
6 of the Working Draft Constitution (as at
April 1996) is approved and certified by the Constitutional Court.
We
submit that Indian languages (Telegu, Hindi, Urdu, and Gujerati) should be
recognized and included in the category of official
languages in section 6 of
the Constitution of the Republic of South Africa 1996.
Enclosed is our
petition setting out our submission as well as a proposed text for section 6 of
the new Constitution of the Republic
of South Africa. As the guardian of the
new constitution and our constitutional rights, we hope that the Constitutional
Court will
examine section 6 in the light of the constitutional principles,
civil liberties and international humanitarian law.
BEEMA
NAIDOO
------
PETITION
3 May 1996
SUBMISSION
FOR A REVIEW BY THE CONSTITUTIONAL COURT OF SECTION 6 (LANGUAGE CLAUSE) OF THE
NEW CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA PRIOR TO CERTIFICATION
- We
are Concerned South African Indian Citizens permanently residing in the Republic
of South Africa.
- Mr.
Beema Naidoo is a South. African Telegu-speaking citizen, born in Mtunzini,
South Africa in 1920 and is a descendant of indentured
labourers who arrived in
South Africa from India (Andhra Pradesh) as part of the British/Natal indentured
labour scheme originating
in 1860. [Hereinafter both parties, Concerned South
African Citizens and Mr Beema Naidoo will be referred to as "we" or as the
"Petitioners"].
- . The
petitioners note with great concern that the Constitutional Assembly has not
recognized Indian languages as official languages
in section 6 of the Refined
Working Draft of the New Constitution of the Republic of South Africa (18 March
1996). [Hereinafter the
language clause in the new Constitution will be referred
to as section 6]. Furthermore, we understand that the Constitutional Assembly
negotiators have in their final draft (April 1996) significantly diminished the
rights of Indians and other minority linguistic groups
by deleting the phrase
"and development of" from section 6 (3).
- 4. Despite
submissions by various organizations and individuals, the Republic of South
Africa Constitution Act 1993 and the Working
Draft of the New Constitution 1996
have failed to acknowledge that South Africans of Indian origin have had a long
history in South
Africa. We are descendants of Indian indentured labourers who
first arrived in Natal in 1860. We note that the English annexed
Natal in 1843.
The English foisted their language on, inter alia, the inhabitants of the Colony
of Natal. South Africans of Indian
origin have, however, continued to nurture
and speak their own languages, namely, Telugu, Tamil, Hindi, as well as the
languages
of later arrivals (merchants), Gujarati and Urdu. In addition, South
Africans of Indian origin have been multi-lingual (speaking
Indian languages,
African languages, English and Afrikaans). As a result of the policy of
apartheid, Indian languages, history and
culture were not taught at schools and
Indian languages have only been introduced into the school curriculum in recent
years. There
are already indications that the new national and provincial
education policies will severely curtail the brief development of Indian
languages. In addition, serious consideration was given by the education
departments to eliminate entirely or reduce the extent
to which the history of
South African Indians is taught in the history syllabus. These are some
practical examples of how South
African Indian citizens will be deprived of
their fundamental human rights are considered essential for eleven official
linguistic
groups.
- The
Republic of South Africa is a signatory to many international treaties and
conventions, including the Universal Declaration of
Human Rights 1948 and the
International Covenant on Civil and Political Rights 1966, which provide that
all citizens must be accorded
equal civil and political rights and that there
should be no discrimination.
- a) Section
6 is the only provision in the constitution which has racial overtones and is
discriminatory in that it draws a distinction
between the right afforded to
specific linguistic groups of South African citizens, namely, the English,
Afrikaners, and Africans
on the one hand and other linguistic groups, such as
Indians, San, Greeks, and Portuguese (commonly referred to a minority linguistic
groups) on the other hand.
b) Minority African languages such as Tshivenda, siSwati, isiNdebele and
Xitsonga are afforded official status equal to that of isiZulu
and isiXhosa.
Yet the population of Tshivenda, siSwati, isiNdebele and Xitsonga speakers is
disproportionate to those speaking isiZulu
and isiXhosa. The criterion for
granting official language status to those linguistic groups is, in our view, a
racial and political
one. The Constitutional Assembly's decision is, therefore,
arbitrary and discriminatory.
d) It is perhaps surprising too that English and Afrikaans are considered
acceptable for inclusion in the category of official languages
and afforded
equal status with nine African languages. Yet British settlement in Natal and
the evolution of Afrikaans can be traced
approximately to a period less than 25
years from the arrival of Indian indentured labourers in Colony of Natal.
Indian immigration
into South Africa was prohibited in 1911. South Africa has
the largest Indian community outside India. The population of Indians
in South
Africa would have been significantly higher were it not for that prohibition of
immigration. On the other hand, the South
African government actively
encouraged immigration by whites, particularly from Great Britain and Europe,
thereby increasing the
population of English-speaking South Africans. As a
result of apartheid education, English and, later, Afrikaans were foisted upon
South African Indians who had to study either through the medium of English or
Afrikaans. As has been noted above, Indian languages
were not taught at
schools but were taught privately by Indians at vernacular classes after school
hours. It is only in that way
that Indian languages were nurtured and kept
alive. We emphasize that Indian languages (Telugu, Tamil, Hindi, Gujarati,
Urdu) are
living languages (both written and spoken). If Indian languages were
spoken in Natal just seventeen years after Natal was annexed
by the English,
why is English given preferential treatment? We appreciate that English is an
international language but this should
not diminish the right of Indian
languages to be accorded official language status. Afrikaans too evolved from
Dutch, German and
other indigenous languages but this evolution took place after
the Great Trek of 1836. It is incorrectly assumed that either English
or
Afrikaans is the official language of South African Indians.
e) It is particularly noteworthy that, of the four previously classified
race groups, only Indians are not linked to any of the official
languages.
f) The petitioners submit that the notion of a constitutional right should
neither be based on race nor on financial grounds. For
example, the fact that
the government may regard the development of African languages as a priority
should not be a ground for denying
official status to all recognized languages
of historically long-standing communities in South Africa. Such a priority is a
policy
decision which can be made from time to time by national/provincial
legislation or administrative regulation.
- From
a constitutional and legal perspective, the petitioners wish to point out that
there is a conflict between the different constitutional
provisions which will
have a significant impact on South African Indian civil rights. Section 31 of
the 1993 Constitution provides
that ‘every person shall have the right to
use the language and to participate in the cultural life his or her
choice’.
Section 30 of the 1996 Working Draft provides that
‘everyone has the right to use the language and to participate in the
cultural
life of their choice, but no one exercising these rights may violate
the rights of anyone else’. The essential content of
the right afforded
by section 31 (1) and section 30 of the Working Draft 1996 is negated by section
3 of the 1993 Constitution which
provides as follows: ‘Afrikaans,
English, siSwati, isiNdebele, Sesotho sa Leboa, Sesotho, Xitsonga, Setswana,
Tshivenda,
isiXhosa and isiZulu shall be the official South African languages at
national level, and conditions shall be created for their development
and for
the promotion of their equal use and enjoyment’, as well as by section
6(1) of the Working Draft which provides that
the ‘official languages of
the Republic are Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho,
siSwati, Xitsonga, Setswana,
Tshivenda, isiXhosa and isiZulu.’ What is
the official language of a South African Indian citizen and in what
circumstances
can we exercise our right to use Indian languages None of the
presently formulated official languages can be attributed to us and
we strongly
refute the suggestion that Indians are an insignificant minority in South Africa
and therefore it is not essential for
our languages to be included in the
category of official languages. Given the grave concerns expressed by minority
communities in
respect of their rights generally, it is imperative that the
Constitutional Court examine closely the language clause, section 6.
One of the
ways in which South Africans of Indian origin can feel secure of their
fundamental rights is if the constitution entrenches
their language rights.
Being linked to an official language will at the very least restore human
dignity, self-respect and the security
in the knowledge that we are recognised
South African citizens and not simply an insignificant group of settlers who
could potentially
be treated as foreigners in the future. Furthermore, official
language status will distinguish our rights from new waves of Indian
immigrants
who speak other Indian languages.
- We
believe that Indian languages spoken by the descendants of Indian indentured
labourers should be official languages under the proposed
new South African
constitution and the provincial constitution of KwaZulu Natal. It is simply not
acceptable that those languages
be afforded limited recognition under section
(10)(c) of the 1993 Constitution and section 6 of the 1996 Working
Draft.
- The
petitioners recognize that it is not practical to include Indian languages as
working official languages for government purposes
and for government records.
We also emphasize that we are not seeking to have separate Indian
language-medium schools but where
practicable, we wish to have Indian languages
included in the school curriculum. We seek greater clarity on the definition
and interpretation
of the following phrases in section 6:
a) ‘official languages’
b) ‘respect for’; and
c) ‘development of’
It is clear that the current use of the term ‘official
languages’ in section 6 is not in accordance with general international
usage. No country in the world has eleven official languages. We propose that
there be a single national working official language
and one or more working
official languages at the provincial level.
Even if there cannot be consensus on the number of working official
languages nationally and the eleven remain, they can be referred
to as working
official languages. Accordingly, there can be a broader and new definition
given to official languages under a general
category as being all recognized
languages spoken by South African citizens.
The term ‘respect for’ is, in our view, meaningless and of
nugatory value. One can respect, tolerate, and promote understanding
for a
language but this does not guarantee the perpetuation of any language as a
living language.
We suggest the following format:
PROPOSED TEXT FOR LANGUAGE CLAUSE IN NEW CONSTITUTION FOR THE REPUBLIC
OF SOUTH AFRICA
CHAPTER I
6.(1) The official languages of the Republic are Afrikaans, English,
isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana,
Tshivenda,
isiXhosa and isiZulu, German, Greek Gujerati, Hindi, Portuguese, Tamil, Telugu,
Urdu, Khoi, San, and sign language.
(2) National and provincial government may use particular official
languages for the purposes of government, taking into account
usage,
practicality and expense.
(3) The Pan South African Language Board must promote the conditions for
the development and use of the official languages.
(4) The Pan South African Language Board must promote respect for Arabic,
Hebrew, Sanskrit and other languages used for religious
purposes.
The
petitioners pray that the Constitutional Court will give careful consideration
to their submission.
BEEMA NAIDOO
CONCERNED SOUTH AFRICAN INDIAN CITIZENS
---------
18 May 1996
PETITION IN RELATION TO THE CERTIFICATION
OF SECTION 6 (LANGUAGES) OF THE NEW CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA
Our previous correspondence dated 3 May 1996 and 14 May 1996
refers.
Further to our petition dated 3 May 1996, we are sending you a
revised submission incorporating, as requested, the specific Constitutional
Principles which have not been complied with by the Constitutional Assembly in
drafting section 6 of the new Constitution, namely,
Constitutional Principles I,
II, III, V, VII, and XI.
We should be pleased to elaborate further on any
of the issues raised in our submission. We also wish to advise you that we now
have
many more signatories to our petition.
In 1789 U.S. Representative,
James Madison moved that the U.S. Congress amend the U.S. Constitution. During
his wide-ranging and
impassioned speech, he observed:
The prescriptions in favour of liberty ought to be leveled against that
quarter where the greatest danger lies, namely that which
possesses the highest
prerogative of power. But this is not found in either the Executive or
Legislative departments of government,
but in the body of the people operating
by the majority against the minority.
In essence, we support the Constitution and majority rule but we do
believe that section 6 needs to be re-visited by the Constitutional
Assembly
before we can call ourselves an equal nation. Despite the lofty democratic
principles espoused in the Preamble, we are
deeply concerned that section 6 has
infringed our civil and political rights. We hope that the Constitutional Court
will not certify
section 6 and instead refer that section back to the
Constitutional Assembly.
Thanking you, in anticipation, of the
Court’s find consideration of our petition.
BEEMA
NAIDOO
--------
PETITION
18 May 1996
SUBMISSION
FOR A REVIEW BY THE CONSTITUTIONAL COURT OF SECTION 6 (LANGUAGE CLAUSE) OF THE
NEW CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA PRIOR TO CERTIFICATION
- We
are Concerned South African Indian Citizens permanently residing in the Republic
of South Africa.
- Mr.
Beema Naidoo is a South. African Telegu-speaking citizen, born in Mtunzini,
South Africa in 1920 and is a descendant of indentured
labourers who arrived in
South Africa from India (Andhra Pradesh) as part of the British/Natal indentured
labour scheme originating
in 1860. [Hereinafter both parties, Concerned South
African Citizens and Mr Beema Naidoo will be referred to as "we" or as the
"Petitioners"].
- . The
petitioners note with great concern that the Constitutional Assembly has not
recognized Indian languages as official languages
in section 6 of the
Constitution of the Republic of South Africa Bill (as adopted on 8 May 1996).
[Hereinafter the language clause
in the new Constitution will be referred to as
section 6]. Furthermore, we note that the Constitutional Assembly negotiators
have
in their final draft (adopted on 8 May 1996) significantly diminished the
rights of Indians and other minority linguistic groups
by deleting the phrase
"and development of" from section 6 (3) of the Refined Working Draft (18 March
1996) and replacing that sub-section
with section 6(5)(b).
- Despite
submissions by various organizations and individuals, the Republic of South
Africa Constitution Act 1993 and the Constitution
of the Republic of South
Africa Bill 1996 have failed to acknowledge that South Africans of Indian origin
have had a long history
in South Africa. We are descendants of Indian
indentured labourers who first arrived in Natal in 1860. We note that the
English
annexed Natal in 1843. The English foisted their language on, inter
alia, the inhabitants of the Colony of Natal. South Africans
of Indian origin
have, however, continued to nurture and speak their own languages, namely,
Telugu, Tamil, Hindi, as well as the
languages of later arrivals (merchants),
Gujarati and Urdu. In addition, South Africans of Indian origin have been
multi-lingual
(speaking Indian languages, African languages, English and
Afrikaans). As a result of the policy of apartheid, Indian languages,
history
and culture were not taught at schools and Indian languages have only been
introduced into the school curriculum in recent
years. There are already
indications that the new national and provincial education policies will
severely curtail the brief development
of Indian languages. In addition,
serious consideration was given by the education departments to eliminate
entirely or reduce the
extent to which the history of South African Indians is
taught in the history syllabus. These are some practical examples of how
South
African Indian citizens will be deprived of their fundamental human rights are
considered essential for eleven official linguistic
groups.
- The
petitioners submit that, in drafting section 6 of the new Constitution, the
Constitutional Assembly has failed to comply with
Constitutional Principles I,
II, III, V, VII, and XI of Schedule 4 of the Interim Constitution 1993.
(Hereinafter referred to as
CP I, CP II, CP III, CP V, CP VII, CP XI]. The
submissions will be set out under four headings as follows:
A. Acknowledgement and Protection of Diversity of language and Culture.
B. Equality and the Prohibition Against Discrimination.
C. Amelioration of the Conditions of the Disadvantaged.
D. Enjoyment of Universally Accepted Fundamental Rights, Freedoms and Civil
Liberties.
- Acknowledgement
and Protection of Diversity of Language and
Culture.
Although the Constitutional Assembly acknowledges
Indian languages (Gujarati, Hindi, Tamil, Telugu, and Urdu) in section 6 (5),
the
protection that it affords to South African Indian citizens (and other
minority linguistic communities) is not in accordance with
Constitutional
Principle XI (CP XI) which provides that "the diversity of language and culture
shall be acknowledged and protected,
and conditions for their promotion shall be
encouraged. Section 6(5)(b) and, in particular, the phrase "respect for" is in
our view,
meaningless and of nugatory value.
(a) How can Indian languages be developed and nurtured simply by
‘promoting and ensuring respect for Indian and other languages?
One can
respect, tolerate, and promote understanding for a language but this does not
guarantee the perpetuation of any language
as a living language. (See Annexure
B for a sample of written Indian language);
(b) CP XI provides for the diversity of language and culture in South Africa
to be acknowledged and protected. CP XI does not provide
that there should be a
distinction drawn amongst linguistic groups in relation to the kind of
acknowledgement, protection and conditions
for‑ their promotion.
Accordingly, there should not be different categories of acknowledgement and
protection. Section 6,
as adopted in the final draft, in fact, draws a
distinction amongst three categories of linguistic groups. First, eleven
linguistic
groups have been accorded official status. Secondly, section 6(5)(a)
will protect and develop Khoi, Nama, and San languages as well
as sign language.
Thirdly, section 6(5)(b) affords limited recognition (but no provision for the
development of) Indian and other
minority languages as well as Arabic, Hebrew
and Sanskrit.
(c) By classifying and according unequal acknowledgement, protection and
development of languages to specific linguistic groups, the
Constitutional
Assembly has not only failed to comply with CP XI but also CP I, II, III, and V,
all of which impose mandatory guidelines
that the constitution shall be
‘committed to achieving equality between men and women of all races’
(CP I); everyone
shall enjoy all universally accepted fundamental rights,
freedoms and civil liberties’ (CP II); the ‘Constitution shall
prohibit racial, gender and all other forms of discrimination and shall promote
racial and gender equality and national unity (CP
III); and that ‘the
legal system shall ensure the equality of all before the law’ (CP V).
(d) There is neither logical nor legal explanation for the classification of
official languages in South Africa. The use of the term
‘official
language’ is not in accordance with international usage.
(i) Most countries have one and some have two official languages.
(ii) A few countries have three official languages.
(iii) Only Singapore has four official languages.
(iv) South Africa,
alone, has eleven official languages.
We seek greater clarity on the definition and interpretation of the
following phrases in section 6:
(a) "official
languages";
(b) "respect for"; and
(c) "development of".
B.
Equality and the Prohibition Against Discrimination
An underlying
theme stated expressly in CP 1, III, and V and implicitly in CP II [as has been
noted above in page 2, B (c)] is that
the Constitutional Assembly is obliged to
draft constitutional provisions affording equality to all South African citizens
and that
there should be no discrimination. In affording varying degrees of
equality in respect of the official status and development of
recognized South
African languages, section 6 flies in the face of these mandatory principles as
well as universally recognized fundamental
rights, freedoms and civil liberties.
For instance, Article 7 of the Universal Declaration of Human Rights 1948
(ratified by the
RSA) provides as follows:
All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal
protection against any
discrimination in violation of this Declaration and against ally incitement to
such discrimination.
Furthermore, Article I of the 1948 Declaration
provides:
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards
one another in a
spirit of brotherhood.
Article 2 emphasizes that
Everyone is entitled to all the rights and freedoms set forth in this
Declaration without distinction of any kind, such as race,
colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
Given the grave concerns expressed by minority communities in respect of
their rights generally, it is imperative that the Constitutional
Court examine
closely the language clause, section 6. One of the ways in which South Africans
of Indian origin can feel secure of
their fundamental rights is if the
constitution entrenches their language rights. Being linked to an official
language will at the
very least restore human dignity, self-respect and the
security in the knowledge that we are recognized South African citizens and
not
simply an insignificant group of settlers who could potentially be treated as
foreigners in the future. Furthermore, official
language status will
distinguish our rights from new waves of Indian ... [page cut off]
It is
particularly noteworthy that, of the four previously classified race groups,
only Indians are not linked to any of the official
languages. Section 6 is the
only provision in the constitution which has racial overtones and is
discriminatory in that it draws
a distinction between the right afforded to
specific linguistic groups of South African citizens, namely, the English,
Afrikaners,
and Africans on the one hand and other linguistic groups, such as
Indians, San, Greeks, and Portuguese on the other.
Section 6(4) states
expressly that "all official languages must enjoy parity of esteem and must be
treated equitably." Minority African
languages such as Tshivenda, siSwati,
isiNdebele and Xitsonga are afforded official status equal to that of isiZulu
and isiXhosa.
Yet the population of Tshivenda, siSwati, isiNdebele and Xitsonga
speakers is disproportionate to those speaking isiZulu and isiXhosa.
The
criterion for granting official language status to those linguistic groups is,
in our view, a racial and political one. The
Constitutional Assembly's decision
is, therefore, arbitrary and discriminatory and not in compliance with CP 1, II,
III, V, and XI.
It is perhaps surprising too that English and Afrikaans
are considered acceptable for inclusion in the category of official languages
and afforded equal status with nine African languages. Yet British settlement
in Natal and the evolution of Afrikaans can be traced
approximately to a period
less than 25 years from the arrival of Indian indentured labourers in Colony of
Natal. Indian immigration
into South Africa was prohibited in 1911. South
Africa has the largest Indian community outside India. The population of
Indians
in South Africa would have been significantly higher were it not for
that prohibition of immigration. On the other hand, the South
African
government actively encouraged immigration by whites, particularly from Great
Britain and Europe, thereby increasing the
population of English-speaking South
Africans. As a result of apartheid education, English and, later, Afrikaans
were foisted upon
South African Indians who had to study either through the
medium of English or Afrikaans. As has been noted above, Indian languages
were
not taught at schools but were taught privately by Indians at vernacular classes
after school hours. It is only in that way
that Indian languages were nurtured
and kept alive. We emphasize that Indian languages (Telugu, Tamil, Hindi,
Gujarati, Urdu) are
living languages (both written and spoken). If Indian
languages were spoken in Natal just seventeen years after Natal was annexed
by
the English, why is English given preferential treatment? We appreciate that
English is an international language but this should
not diminish the right of
Indian languages to be accorded official language status. Afrikaans too evolved
from Dutch, German and
other indigenous languages but this evolution took place
after the Great Trek of 1836. It is incorrectly assumed that either English
or
Afrikaans is the official language of South African Indians.
It is
particularly noteworthy that, in the global context, Indian languages would be
ranked together with Mandarin Chinese as majority
languages. Hindi is spoken by
over 411 million people in India alone. Moreover, Telugu is the second largest
language in India
with over 72 million speakers (Bengali -- 69 million, Tamil -
59 million, Urdu -- 47 million). Any one of these linguistic groups
would far
exceed the total population of South Africa. By analogy, Afrikaans, Tshivenda,
siSwati, isiNdebele and Xitsonga would
be small minority languages in global
terms. Indeed, the majority languages of South Africa (Sotho, isiXhosa,
isiZulu) are themselves
in the minority category when compared with global data
of Hindi, Telugu and Tamil speakers. Given the status of Indian languages
in a
global context, it is regrettable and unacceptable that these languages are not
accorded equal and official status in the South
African
Constitution.
C. Amelioration of the Conditions of the
Disadvantaged
CP V provides that ‘equality before the lays
includes laws, programmes or activities that have as their object the
amelioration
of the conditions of the disadvantaged, including those
disadvantaged on the grounds of race, colour or gender.’ The petitioners
submit that the notion of a constitutional right should neither be based on race
nor on financial grounds. For example, the fact
that the government may regard
the development of African languages as a priority should not be a ground for
denying official status
to all recognized languages of historically
long-standing communities in South Africa. Such a priority is a policy decision
which
can be made from time to time by national/provincial legislation or
administrative regulation. Furthermore, the government has recognized
that
Indians too were victims of apartheid and that they fall into the category of
disadvantaged. As has been stated above, Indian
languages have not been
developed by successive apartheid governments. Instead their languages were
nurtured and flourished in private
vernacular classes. In recent years Indian
languages have been introduced in the school curriculum. If there were to be an
educational
policy review of the school curriculum, there will be no
constitutional protection for the development of Indian languages unlike
those
afforded to official languages and to the Khoi, Nama, San and sign language
communities. Since Indians are also considered
to be disadvantaged, section 6
would be contrary to CP V.
- . Enjoyment
of Universally Accepted Fundamental Rights, Freedoms and Civil
Liberties
CP II provides as follows:
Everyone shall enjoy all universally accepted fundamental rights, freedoms
and civil liberties, which shall be provided for and protected
by entrenched and
justifiable provisions in the Constitution, which shall be drafted after having
given due consideration to inter
alia the fundamental rights contained in
Chapter 3 of this Constitution.
The Republic of South Africa is a
signatory to many international treaties and conventions, including the
Universal Declaration of
Human Rights 1948 (UDHR) and the International Covenant
on Civil and Political Rights 1966 (ICPR), which provide that all citizens
must
be accorded equal civil and political rights and that there should be no
discrimination. Article 26 of ICPR 1966 provides:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any
ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other
status.
It is submitted that not only section 6
but also section 9 of the new Constitution would be contrary to Article 26 of
ICPR, Article
7 of the UDHR 1948, CP II (and provisions of numerous other
international instruments).
The government has given much prominence to
the rights of the child. Yet section 6 (and section 9) would give unequal and
diminished
rights to, inter alia, South African Indian children. This would
surely be contrary to CP I, II, III, V, and XI as well as international
conventions such as article 24 of ICPR 1966 which provides as follows:
‘Every child shall have, without any discrimination
as to race, colour,
sex, language, religion, national or social origin, property or birth, the right
to such measures of protection
as are ... [page cut
off].
--------
CONCERNED SOUTH AFRICAN INDIAN
CITIZENS
23 May 1996
Our previous correspondence dated 3, 14,
18 May 1996 and your letter of 9 May 1996 refer.
Since our previous
correspondence with the Constitutional Court, we have learned of the Court's
advertisement in the Sunday Times
(19 May 1996) in relation to written
objections to the certification of the new Constitution. We wish to advise you
that we have
faxed a copy of our written objection to the Executive Director of
the Constitutional Assembly and their office has confirmed, by
telephone, that
they have received our objection. We are also sending you a copy of that
objection. The original one-page objection
as well as 24 copies are being sent
to you by post. Given the vagaries of the postal service and considerable
delays, we hope that
the copy faxed to you with this letter will suffice as
being a formal objection lodged with the Constitutional Court.
In your
letter of 9 May 1996, you stated that if we specified the constitutional
principles with which the Constitutional Assembly
has not complied, the
Constitutional Court would take into consideration our ‑submission when
certifying the new Constitution.
We hope that our letter of 14 May and revised
petition of 18 May 1996 has conformed with the guidelines set out in your letter
of
9 May 1996. Furthermore, we request that the Constitutional Court give due
consideration to our submission as set out in our petition
of 18 May 1996 as
well as in the written objection of 23 May 1996.
We also understand that
the Constitutional Court may give objectors the opportunity to present oral
argument at a public hearing before
the Court on 1 July 1996. We request that
the Court grant us the time to present oral argument (as ordinary citizens and
without
legal representation) in relation to our objection to the certification
of section 6 (as well as section 9) of the new Constitution.
B.
NAIDOO
Concerned South African Indian
Citizens
------
CONCERNED SOUTH AFRICAN INDIAN CITIZENS
AND
MR. BEEMA NAIDOO (A SOUTH AFRICAN CITIZEN)
23 May
1996
OBJECTION TO THE CERTIFICATION OF SECTION 6 AND 9 OF THE NEW
CONSTITUTION
(i) The Particular Provision of or Omission From The Constitution To Which
Objection Is Taken: Section 6 and Section 9
(ii) The Grounds For The Objection
(a) Section 6 is discriminatory and affords unequal acid varying degrees o
recognition of and protection to languages spoken by South
African citizens
contrary to constitutional principles I, II, III, V, VII and XI.
(b) The omission to include Indian languages in section 6 (1) is based on
racial, political and demographic grounds and is therefore
incompatible with the
constitutional principles I, II, III, V, VII and XI and universally accepted
fundamental rights, freedoms and
civil liberties.
(c) In drafting section 6, the Constitutional Assembly has failed to comply
with constitutional principle XI that diversity of language
be acknowledge and
protected and conditions created for their promotion. Instead of recognizing
the diversity of language and culture
in South Africa, the Constitutional
Assembly has created three categories of acknowledgement and protection for
different linguistic
groups. The limited recognition an protection afforded to
South African Indian languages is meaningless and is of nugatory value.
It is
submitted that section 6(5)(b) which provides for the promotion of respect for,
inter alia, South African Indian languages
will not create conditions for the
perpetuation of Indian languages as living languages in South Africa.
(d) Constitutional Principle V provides for the amelioration of the
conditions of the disadvantaged. By guaranteeing constitutional
rights only in
regard to the development of the eleven official languages as well as the Khoi,
Nama, San and Sign languages, the
Constitutional Assembly has not complied with
Constitutional Principle V since South African Indians too were victims under
apartheid
and are considered by the Government (according various public
statements), to be part of the disadvantaged group.
(e) Section 9 entrenches discrimination, namely, that equality includes
discrimination which is not ‘unfair’. This provision
is arbitrary,
capricious, vague, and discriminatory and is contrary to constitution principles
I, II, III, V as well as international
conventions enshrining fundamental
rights, freedoms and civil liberties referred to in constitutional principle II
and VII.
(iii) Relevant Constitutional Principles not complied with: I,
II, III, V, VII, and XI.
BEEMA
NAIDOO
--------
CERTIFICATION OF NEW CONSTITUTIONAL
TEXT
Thank you for submissions of 23 May 1996
I have been
asked by the President of the Constitutional Court to inform you that your
submission will in due course be taken into
account by the Constitutional
Court.
M NEINABER
[Editor’s Note: Several pages of
signatures are attached to the Petition]
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