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Preamble to our Constitution is not a rotten foundation...

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Preamble to our Constitution is not a rotten foundation; true healing requires justice


Lwando Xaso is an attorney and a writer exploring the interaction between race, gender, history and popular culture. She is the author of the book, ‘Made in South Africa, A Black Woman’s Stories of Rage, Resistance and Progress’.

In continuing to analyse a podcast conversation titled Futures of the Constitution, presented by Sizwe Mpofu-Walsh and Tshepo Madlingozi, I want to focus on their analysis of the following line in the Preamble to the South African Constitution, which they take strong issue with: “We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to heal the divisions of the past.”

First published in the Daily Maverick 168 weekly newspaper.

According to the speakers, in resolving the injustices of our past, the Preamble mistakenly looks to healing rather than redistributive justice.

I understand our collective fatigue with healing as we have unfortunately come to associate it with a docile people and define it as one-sided forgiveness by black people, with no true atonement and recompense by white people for their crimes. Seen in the shadow of the Truth and Reconciliation Commission (TRC) then yes, healing should today be greeted with suspicion. However, the Preamble was drafted and adopted before the conclusion of the TRC, which was expected to be reparative. If we were writing the Preamble today knowing what we now know, I would understand their scorn for the words chosen.

Holistically understood, healing itself is not automatic. It cannot happen without painful incision, cauterisation and suturing of wounds. Healing is passive but it is not without upheaval and antagonism.

The Preamble and the Constitution itself were drafted in the aftermath of the worst political violence, which had claimed and destroyed innumerable lives, and many people remained displaced and traumatised by the violence of that era. The choice of, and emphasis on, the word ‘heal’ at that moment in history is not lost on me in light of the immediate anguish, both physical and psychic.

As one living freedom fighter put it to me recently: “Our country had been dismembered by colonial conquest, Bantustans, [the] Group Areas Act, job reservations, apartheid signs, race-classification laws, pass laws and, worst of all, the Native Lands Act. In choosing the wording of the Constitution and the Preamble, the framers of the Constitution wished to highlight the idea of One Constitution for One Nation. And it is deeply insensitive to mock the need for healing itself, as if the damage caused by centuries of oppression, by the complexes of inferiority and superiority that were, and continue to be so injurious, were and are of no moment.”

True healing is all-encompassing of truth, justice and reparations.

There can be no healing without redistributive justice and accountability, which to me is evidenced by the mandate of the TRC. Logic dictates that no division (whether economic, social or political) between a people can be healed without reparative measures to narrow the gap and to make good what was destroyed.

But the tragedy here is that in practice this is what has happened — healing is expected without justice. The disappointment of the speakers in the Preamble is borne by our failure to radically animate the words of the Preamble, the Constitution itself and all the laws and policies that support it.

I have spent the past three years as part of the curatorial team of the virtual exhibition I have had the chance to read submissions by each political party on what the wording of the Preamble should be.

I found the PAC’s proposed wording compelling and I am sure Mpofu-Walsh and Madlingozi would too, especially this part: “We are absolutely convinced that all contradictions of history, politics and nationhood in our country cannot be reconciled except through the complete end to the colonial dispossession and the rigorous economic restructuring by way of economic distribution that results in economic equity for all, the only true basis on which political equality and enjoyment of human rights in a non-racial society can be firmly founded.”

But multiple things can be true simultaneously. I can deem the criticism by Mpofu-Walsh and Madlingozi as warranted while resisting denigrating our Preamble as rotten and maintaining my belief that our Preamble, as it is, is transformative. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.


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All Comments 4

  • Redistributive justice may have a well motivated basis, however the consequences of destroying what is, as has been attempted in most post colonial Africa, has simply made the plight of the poor worse.
    ANC ideology’s ongoing destruction of the ability of SA to compete in a World economy is madness.

  • Redistributive justice: give to Blacks what Whites have acquired by some combination of inheritance, hard work, ingenuity, luck, oppression, dishonesty. Who decides how much from whom to whom? DM reports that State Capture has already redistributed about R1.5-trillion. How much more do Whites owe?

  • Perhaps it’s time that you explain in clear terms what is meant by “redistributive justice” and when it would be enough. I presently pay an estimated 65% of my income in taxes, for which I get less than 8% back in value. That’s 57% of my income gone towards redistribution.

    • I need 4 workers, but employ 6 black people + pay them more than the minimum wage – guess that’s more redistribution. I supply my own solar power because Eskom cannot – more redistribution. I provide my own security, medical services, schooling etc. That’s more redistribution. When is enough enough?

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