Kanya Cekeshe, the Fees must Fall student activist, has been languishing in prison for the past two years while Hellen Zille has been churning out her rancid and threadbare views about the greatness of colonialism to the African continent. Cekeshe and Zille are on the polar opposites of history.

Cekeshe was arrested, tried and found guilty and, pending his appeal, he is, for now, a convicted criminal. As we are wont to say, the law has taken its course, justice has been rendered, and the Rule of Law must be respected. It does not matter that Cekeshe was part of young and brave revolutionary students who were fighting for a free and decolonised education and in that sense were challenging the Constitution to face up to its promises.

The situation is turned on its head with regard to Helen Zille. Although she was roundly condemned mainly by black people and progressive sectors of the white community, including her party’s feeble remonstrations, she continued to be Western Cape premier and has lately been promoted within her party. Her implied savagery of African people and ontological violence that she continues to unleash with unmitigated hubris seem not to attract concomitant violence of the law.

Besides the pronouncement by the public protector, the law has not really extended its hand towards her and chances are that it will not. Notwithstanding the apparent and existential violent nature of her views on colonialism, Zille nonetheless draws from and represents the Eurocentric philosophical archive whose essence is that Africans are ontologically defective and naturally require European intervention. Cekeshe is in prison for fighting Zille’s views.

Cekeshe and Zille’s moments ought to bring into sharp focus the relationship between law, constitutionalism, liberal legality and justice in the context of a country that exhibits Gramsci’s morbid symptoms wherein the old is refusing to die, and the new is struggling to be born. In other words, it does happen, as in the case of Cekeshe, that legal justice becomes unjust and therefore, illegitimate despite its legality.

Cekeshe’s incarceration and Zille’s freedom should invite us to question the continued prevalence of liberal legality in South African legal thinking and practice. Liberal legality is essentially a view of the law as naturally an apolitical, objective and neutral normative system. By sleight of hand, liberal legality politically presents law as apolitical. In this sense, the law is then elevated to be the only vehicle to accomplish justice and justice to be only accomplished in law.

This “anti-ideological ideology”, to borrow from Christopher Allsobrook, manifests itself in legal education where students are taught that there is law proper and other disciplines that do not concern the law. It manifests itself in how the law is taught and disseminated. The consequences of all these are that there has been little change in how the majority of people, legal practitioners included, think about the law and make sense of the law and its purpose.

This is precisely why Cekeshe is languishing in jail. If asked why Cekeshe is in prison, the magistrate will likely intone that like any other case, facts were presented, and all he did was to apply the law. This is a classic example of the dangers of liberal legality. We are all taught to conceptualise and make sense of law in this fashion: facts, issue, the law, and apply the law and justice will be waiting. What is hardly engaged is that this is but one partial manner of making sense of the law.

Cekeshe and Zille allow us to rethink the role of law in advancing the project of decolonisation and radical transformation. If, as I and many argue, the foundational South African problem is colonialism, then it should follow that the foundational solution to the South African problem of colonialism is decolonisation.

Theorised in this manner, the only option available becomes decolonisation as radical transformation. Historically, many descriptors such as civilisation, progress and development have been used by Europeans to violently and imperiously prescribe what Africans need to arrive at the end of history – where Europe is today. In most instances, Africans themselves have been complicit in their unproblematic appropriation of these notions.

What is less said is that at the core of the notions of civilisation, progress and development is the Eurocentric conception of historical time which portend that all of humanity is destined to move in a linear time along the same lines that Europe has. Europe and North America often inhabit both our imagination and imagery of a developed Africa. This is an invented Eurocentric myth used to justify another myth of African ontological defect which has historically been used to justify colonialism and is now used to justify the spatio-temporal neo-liberalisation of the African continent.

Mediating the notions of civilisation and development has been and continues to be law. This is another way of saying that the law as we have it in South Africa represents a particular European “set of historical realities, cultural traits and mind-sets”.

Liberal legalism is thus a European ethnocentric enterprise which is today responsible for the continued incarceration of Cekeshe and the exoneration of Zille. Although the space for critical and alternative counter-hegemonic voices continue to be throttled in the name of “we have fought for this Constitution”, the current trajectory in terms of how we understand what the role of law should be is unsustainable.

As we continue to debate whether the law can be used as a tool to decolonise (South) Africa or whether it is the law itself that needs to be decolonised and what do we understand by decolonisation within the context of contemporary globalisation – perhaps our urgent task should be the repoliticisation of the Constitution. Repoliticising the Constitution suggests that we view our Constitution as fundamentally a political document meant to achieve certain political ends. Recognising the limitations of our law and the Constitution as fundamentally Eurocentric and ethnocentric artefacts, repoliticisation of our law and the Constitution suggests that we use the counter-hegemonic dimension of law to advance the project of decolonisation. It suggests that we use the law and the Constitution as a political strategy.

Finally, repoliticising the law and the Constitution suggests that we find ways of ensuring that the law and the Constitution face up to their promises. In this way, the law is reconceptualised to work for us as opposed to us working for it. It is only in this way that we can ensure that Cekeshe and the future Cekeshes do not end up in prison for fighting against injustice.

In this way of thinking, Helen Zille would not only be hauled to account for the violence she imperiously unleashes on African people, but her reasoning about Africans would, to borrow from Achille Mbembe, be rehabilitated. DM