“Not yet uhuru” : the usurpation of the liberation aspirations of South Africa’s masses by a commitment to liberal constitutional democracy

Abstract

At the heart of this study is the idea of constitutionalism; its promise, conception and deployment in South Africa’s post-apartheid constitutional discourse; and ultimately the need for its re-imagination if it is to be part of advancing a truly decolonising liberatory project. A core premise of this study is that there exists, in post-apartheid South Africa, a stark discursive disjuncture between what has emerged as a hegemonic liberal democratic constitutional discourse and the discourse of liberation that served as the ideological pivot of the anti-colonial struggles. Animated by this premise, this study asks why it is that liberation as a framing set of ideas has either played no part or exerted so little obvious influence on how post-apartheid South Africa self-comprehends and organises itself in constitutive terms? Recognising that the formal end of colonial-apartheid as a system in 1994 inaugurated a seismic shift in the country’s constitutional discourse as the notion of constitutionalism took centre stage, this study seeks to problematize this idea by examining its underlying assumptions, connotations and import as deployed in mainstream South African academic and public discourses. In doing this the study aspires to offer a novel perspective that shifts the fixity of the conceptualisation of constitutionalism by amplifying the point that how one chooses to conceptualise constitutionalism has profound implications for what one understands to be the function, scope, ambition and possibility of a constitution. Crucially, the study seeks to advance a historicised, yet non-ideological understanding of the emergence of modern constitutionalism. This, the study argues, is necessary if the real constitutive work and worth of constitutions of different types and thrusts is to remain open to critical engagement as well as fostering the possibility of constitutional imaginings of new, different forms of society or social ordering. As the study works towards responding to the core question it poses, it embarks upon a critical historiography of South African constitutionalism from the 1910 Union constitution to the present one. It does this in an attempt to demonstrate that some of the challenges faced by the current constitution are, profoundly influenced, if not directly produced, by legal, structural, cultural and economic continuities rooted in the past, with race being a central axis around which South African constitutionalism has been imagined, enacted, opposed and resisted. In so doing, the study seeks to demonstrate that despite the indisputable paradigmatic shift ushered in by the fall of colonial-apartheid, on current evidence that shift has been unable to displace nor disrupt the many continuities that remain stubbornly etched into the South Africa’s constitutive DNA inherited from earlier racially exclusive and exploitative constitutional expressions. Engaging South African constitutionalism from a critical historical perspective, the study turns its attention to the emergence and eventual ascendance of transformative constitutionalism as arguably the mainstream conception of contemporary South African constitutionalism. The study argues that transformative constitutionalism, whilst claiming radical far reaching means and ends, has established limited intellectual and programmatic horizons focused on litigation. From within this discourse, it is argued, there is little or no evidence of other work directed at inculcating institutional or structural power shifts or innovations beyond the courts and lawyering. Ultimately, the study argues that transformative constitutionalism is an inadequate framework through which we can begin reimagining South African constitutionalism and its attendant political, social and cultural dynamics in a more emancipatory and inclusive ways. Finally, in light of the discursive disjuncture identified earlier, the study concludes by turning its attention to the notion of liberation. It does this in an attempt to reveal liberation thought’s constitutive potentialities through its political, social, economic, and cultural dimensions that exist as the epistemic underpinnings of the visions of liberated societies and states as imagined and put forward by the like of Steve Biko, Amilcar Cabral and Frantz Fanon amongst others.