Opinionista Professor Balthazar 3 December 2019

The Constitution and the early promise of transformative constitutionalism

When Chief Justice Mogoeng Mogoeng spoke of poverty, inequality, unbridled corruption and the inability to reconstruct the nation into the truly non-racial and non-sexist society envisaged by Madiba, he was in effect pointing to all of the monumental failures of the past 25 years which continue to threaten the future of constitutional democracy.

Chief Justice Mogoeng Mogoeng was the 17th annual Nelson Mandela lecturer on 23 November. As his topic, he chose the idea of transformative constitutionalism. The premise was set out early in his lecture: “The Constitution is an instrument for building; building a society within which none would have a reason to be ashamed of his or her state of affairs. So, if you want to know what kind of a South Africa, Africa and the global village ‘we the people of South Africa’ desire and plan to have, examine our Constitution.”

For his pains he was subjected to severe criticism for overstepping the judicial mark by venturing outside of the established judicial terrain.

While the lecture was hardly a dry academic exposition or used the restraint of exposition much favoured by the British Bench, it made key points which are critical to sustaining a constitutional democracy.

The Chief Justice said the following:

Our society remains toxified by racism, because we have not dealt with the first issues of colonialism and apartheid. Our people have reached a level of desperation; by our people I mean everybody who is poor; now, desperate people resolve to desperate measures and poverty is an instrument for the entrenchment of indignity. When you have been made to lose your dignity, anything is possible. Look at the overwhelming majority of people who rape; look at the overwhelming majority of people who commit crime. We have kept them in a state that allows them to be just where they are; by not giving practical expression to the injustices of the past by using the Constitution as a tool for transformation.”

In summary, a constitution, even one as majestic as ours, cannot lift itself unaided into operation. In a society in which inequality is overlaid by race, where millions live in grinding poverty, no different from conditions that prevailed under apartheid and where the distance between the awe-inspiring promises of the Constitution and the degrading realities encountered by millions each year grows all the greater, the constitutional scheme will be imperilled.

The Chief Justice as head of the judiciary is more than entitled to point this out to the nation, particularly in a lecture devoted to the memory of the founding father of the democratic nation. Indeed, it is a sign of how our legal culture has remained frozen in a colonial grip that the speech should be attacked as an example of judicial overreach. The Constitution and the challenges it poses eschews the continued adoption of the monastic approach to law, legal practice and the conduct of the judiciary as the custodian of the constitutional enterprise which we inherited from Britain.

If there is to be legitimate criticism of the lecture it is that it elides over the meaning of transformative constitutionalism. The term was initially coined more than 20 years ago by the distinguished academic, Prof Karl Klare, from Boston in an article published in the South African Journal of Human Rights.

Prof Klare’s idea was that the South African Constitution was transformative in that it envisaged radical social and economic change being powered by means of and through law. That did not mean that the Constitution itself would do the work of such change as some including a few of the original members of the Constitutional Court appeared to propagate. Rather, the Constitution posed the challenge of aligning the commitments of the Constitution with the political economy of the country. Either these changes would take place through legal means or by way of the diktats of some centralised politburo. We sensibly chose the former route.

In turn, this meant that a democratically elected government was tasked with implementing social and economic policies that could vindicate the vision contained in the Constitution by means of legislation and policy conceived of by the legislature and implemented by the executive. To be sure, the judiciary had an important role of play in all of this – it was to instil a culture of accountability by which the other two arms of the state would do their constitutionally mandated job and, where the existing body of law was an obstacle to such change, it was mandated to change the law.

For this reason, transformative constitutionalism is predicated on the importance of politics buttressed by law. To see the Constitution as a panacea to the problems inherited from colonialism and apartheid is to fail to grasp the fundamental idea. It is to fetishise the Constitution and elevate the judiciary to the government.

Perhaps the Chief Justice sought to steer away from so direct an approach for fear of being criticised of intruding too directly into politics; hence his definition of the role of the Constitution. Yet, when he spoke of poverty, inequality, unbridled corruption and the inability to reconstruct the nation into the truly non-racial and non-sexist society envisaged by Madiba, he was in effect pointing to all of the monumental failures of the past 25 years which continue to threaten the future of constitutional democracy, as is also the case for similar reasons in so many countries today including established democracies like the USA and the UK.

Thus, instead of complaining about style, or lack of precision for which some might have wished, we should rather pay attention to the essential argument of the lecture: without politics helping to align constitutional promise with economic and social policy, the Constitution will come under increasing attack. We dare not allow the promise of transformative constitutionalism to remain stillborn. DM

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