BYLINE: Sandra Liebenberg
Ten years ago, in an article published in the South African Journal on Human Rights, Professor Karl Klare - a leading intellectual light in the critical legal studies movement - described the South African Constitution as a transformative document.
By "transformative constitutionalism" he meant: "a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through non-violent political processes grounded in law."
He went on to argue the South African Constitution included many features of a social democratic constitution with its commitment to substantive equality, restitution and redistribution and socio-economic rights. However, it also transcends this conception by including features such as the promotion of diversity, equality on grounds such as gender and sexual orientation, environmental justice, participatory governance and holding powerful private actors accountable for human rights violations.
The Chief Justice, Pius Langa, in an extra-curial lecture at Stellenbosch Law Faculty, described "transformative constitutionalism" as "a permanent ideal" which embraces an openness to the other, a commitment to inclusive, democratic dialogue, and a sharing of the responsibility of transformation between all three branches of government in partnership with a vibrant, independent civil society.
The notion of "transformative constitutionalism" has found a deep resonance in the jurisprudence of the courts, academic literature and civil society campaigns for social justice. As our constitutional institutions are feeling the strain of recent developments, it is fitting to reflect on some of the challenges which face the realisation of this transformative vision of the Constitution.
I highlight three developments which represent the antithesis of the transformative constitutional project sketched above, but conclude with what I consider to be three signs of hope for the continued viability of this project.
The first challenge concerns the increasing signs of the emergence of a narrow, patriarchal nationalist identity with its characteristic penchant for the exclusion and marginalisation of "the other". This was most graphically manifested in the explosion of xenophobic violence earlier this year. However, its insidious presence can also be detected in the reactions of the labour minister and BEE leaders to the court's ruling concerning inclusion of South African citizens of Chinese descent in empowerment legislation, the daily "bureaucratic violence" dished out to refugees, asylum-seekers and other categories of non-nationals in their attempts to gain access to basic services from government departments, the endemic violence against women and Aids activists, and the horrific conditions in which prisoners are incarcerated in many prisons in South Africa. These phenomena are the antithesis of a constitutional project which values human dignity, interdependence and a diverse society.
Secondly, the statistics continue to tell the tale of increased socio-economic disparities in wealth. The on-going systemic inequality and deep conditions of poverty afflicting a large proportion of the population risks making the constitutional commitment to social justice and an improvement in people's quality of life seem hollow.
Finally, there are the subtle undermining and the not-so-subtle attacks on the foundation of a constitutional state - the rule of law and an independent judiciary. The subtle undermining refers to the trend which has emerged of many government departments …