Transformative Constitutionalism as a Gateway to Africanisation and Decolonisation in Higher Education.

 

 

 

 

The South African legal system is largely based on Roman-Dutch and English law. The common law, as it is often called, forms most of the legal principles which were developed by the courts prior to the advent of the country’s constitutional democracy, and in the years following the adoption of the Constitution of the Republic of South Africa, 1996 (hereafter “the Constitution”). In terms of section 39(2) of the Constitution, a court has a constitutional obligation to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation and when developing the common law or customary law. Equally, the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by the common law, customary law or legislation. This is however subject to the proviso that they are consistent with the Bill of Rights [1]. 

 

In the South African context, africanisation and decolonisation must be understood against the need to reform the legal order to repurpose and realign it with the quest for a just and a more equal society. It is against this backdrop that the notion of transformative constitutionalism arose as a distinctly South African concept that has since expanded to other legal traditions elsewhere [2]. Initially introduced by Karl Klare, the author describes transformative constitutionalism as “an enterprise of inducing large-scale social change through nonviolent political processes grounded in law” [3]. Equally, through the various rights in the Bill of Rights, the Constitution can be viewed as a transformative document. 

 

The scholarly definitions of africanisation and decolonisation also merits discussion. In a seminal article on the link between decolonisation and transformative constitutionalism, Sindane [4] posits “there is a very real difference between decolonisation, africanisation and transformative constitutionalism”. The author further notes that:

 

“decolonial theory and South Africa’s decolonial turn precisely rejects and criticises the post-1994 constitutional arrangement, therefore making transformative constitutionalism a misfit in the quest to decolonise and Africanise the LLB curriculum, and the commitment to decolonisation means to embrace a comprehensive rethink of South Africa, including its foundational chassis, the Constitution”.

 

This paper interrogates the extent to which the common law is at variance with the trilogy that is africanisation, decolonisation and transformative constitutionalism. It attempts to transformative constitutionalism cannot be achieved without a rethink of how africanisation and decolonisation fits into the broader spectrum of the South African legal system post-1994. A critical analysis of the link between the three concepts vis-à-vis the need to adopt an Afrocentric approach to the LLB curriculum is also conducted. The paper questions the common law as the foundational basis of the South African legal system, and the extent to which it is representative of indigenous African customs and traditions. Recommendations are made on how the LLB curriculum can be revised in order to be sufficiently reflective and adequately representative of the otherwise broadly diverse African cultures.

 

 

 

[1] Section 39(3) of the Constitution.

[2] Hailbronner “Transformative Constitutionalism” 2017 65 The American Journal of Comparative Law 527 532.

[3] Hailbronner supra, in reference to Klare “Legal Culture and Transformative Constitutionalism” 1998 14 South African Journal of Human Rights 146 150.

[4] Sindane “Why Decolonisation and Not Transformative Constitutionalism” 2021 21 Pretoria Student Law Review 236 238.