New South African Review 5: Beyond Marikana by unknow

Author:unknow
Language: eng
Format: epub
ISBN: 9781868148745
Goodreads: 27248174
Publisher: Wits University Press
Published: 2016-02-01T00:00:00+00:00

THE TRANSFORMATIVE NATURE OF THE CONSTITUTION

A Constitution and its potential effects cannot be judged outside of the social, economic and political context in which it operates. The South African context is shaped by the country’s specific troubled history. The Constitutional Court often invokes this history as a guide when it interprets the specific provisions of the Constitution and academic writers have often remarked on its ‘historical self-conscientiousness’ (Klare 1998: 155). As I discuss below, judges who are authorised to interpret and enforce the specific provisions of the Constitution play a significant role in giving content to that document and can either hinder or hasten the achievement of a more just society. However, the judges, whoever they may be, are at least to some degree constrained by the text of the Constitution and must operate within the broad framework created by it. If that is true, the characterisation of the Constitution as a transformative constitution may be significant. But what is meant by this phrase?

It is widely accepted among South African constitutional law scholars and judges that the Constitution was written in response to the particular history of South Africa. In this view, the aim of the Constitution is said to be to facilitate transformation away from an unequal, oppressive, undemocratic society in which diversity is shunned and dignity is not respected, towards a more egalitarian, open, democratic one that celebrates diversity and the dignity of all. Often relying on the metaphor of the constitution as bridge, this view of the Constitution as committed to social, political, legal and economic transformation has become widely entrenched (Mureinik 1994). The Constitutional Court in several judgments has also affirmed the idea that the Constitution is transformative in nature.6 But what does this mean in practice? The Constitution is said to have set itself the mission of assisting with the transformation of society in the public and private spheres, rejecting ‘that part of the past which is disgracefully racist, authoritarian, insular, and repressive’ and facilitating a move towards a more democratic, universalistic, caring and egalitarian society (Makwanyane, para 262). South African constitutionalism thus is said to attempt to facilitate the transformation of society from one deeply divided by a racist and unequal past into one based on democracy, social justice, equality, dignity and freedom (Davis 1999: 44).

Exactly how the end product of this metamorphosis should look and when, if ever, it will be achieved must necessarily remain uncertain and dependent on the outcomes of this continuous interaction, but should simultaneously not be conceived as so vague as to preclude meaningful and deliberate participation in the process. Unlike traditional liberal constitutions that are said to authorise, regulate and check the exercise of public power – but supposedly allow voters and politicians to decide in which direction a society will move and at what pace that movement will occur – the South African Constitution is said to contain a commitment to creating a society that would look fundamentally different from that which existed at the time the Constitution was being drafted.

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