Way back in 1998, American constitutional theorist Prof Karl Klare published a now famous article in which he set out to define South Africa’s post-apartheid constitutional project. He called this ‘transformative constitutionalism’ and defined it as follows: ‘a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’. He went on to state that transformative constitutionalism designates ‘an enterprise of inducing large-scale social change through nonviolent political processes grounded in law’.
Over the years, many legal academics, lawyers and judges have tried to come to terms with the demands that Klare’s definition entails (while, admittedly, some have suggested that transformative constitutionalism is an empty phrase). The focus of Klare’s piece was the judiciary and the work of judicial review. Yet, if we look at the definition, it is clear that, from the outset, transformative constitutionalism was not a project for the judiciary and for lawyers alone. Klare explicitly mentioned that the commitment to transforming the country’s ‘institutions and power relationships’ must take place in the context of what he called ‘conducive political developments’. In other words, Klare knew well that transformative constitutionalism would remain but an elusive dream without the necessary political buy-in. In 2011, Sanele Sibanda foregrounded this aspect when he argued that transformative constitutionalism should be understood as ‘a form of social and political consciousness that informs how we perceive the South African constitutional project’.
It is interesting to note that Sibanda had reason to cite Fanon in this regard and specifically his work on the ‘pitfalls of national consciousness’. In this work, Fanon argued that the national consciousness that developed immediately before and after independent statehood in the former colonies was, in many instances, a notion touted by political elites. As a result, Fanon became deeply critical of ‘national consciousness’, stating that ‘instead of being the all-embracing crystallisation of the innermost hopes of the whole people, instead of being the immediate and most obvious result of the mobilisation of the people’, it became ‘only an empty shell, a crude and fragile travesty of what it might have been’.
The South African post-apartheid version of Fanon’s ‘national consciousness’ was, of course, not ‘transformative constitutionalism’. Anyone familiar with the popular and populist discourse of the last twenty years or so will know that the South African equivalent of ‘national consciousness’ became the ‘national democratic revolution’ – the slogan that has been and continues to be endlessly repeated in speeches at rallies, funerals and anniversaries for the sole purpose of what Nigel Gibson calls ‘the advance of the new huckstering elite’. The events of the last few weeks in South African politics have not simply underscored what has been evident for some time now: that the national democratic revolution, whatever it may have been or meant in the distant (Leninist) past, is nothing but an empty shell – neither national, nor democratic, nor revolutionary. Rather, the events of the last few weeks make it patently clear that national democratic revolution is code for the politics of patronage, infighting, state capture and impunity.
Fanon warned of the ‘pitfalls’ of ‘national consciousness’ – in other words, he warned of it as of a trap. A trap, ironically, for the very constituency it supposedly represented: the masses, the ordinary people, the new citizens of the postcolony. A trap, because while promising that the basic needs of ‘the people’ would be met and that ‘the people shall govern’, ‘national consciousness’ was cynically used to fulfill only one silent promise – the self-promise of elite-driven domination. The national democratic revolution has followed exactly the same trajectory that Fanon traced with respect to national consciousness. And the recent local government election results have shown that a smaller and smaller proportion of the people are less and less inclined to blindly deny the trap in which the narcissism of a small elite is ensnaring us all.
This brings me back to the dream of ‘transformative constitutionalism’, the idea of ‘large-scale social change through nonviolent political processes grounded in law’. Instead of approximating this dream by contributing ‘conducive political developments’, the political process has allowed extremely concentrated and lawlessly violent enrichment with the increasing inescapability of the poverty trap for the majority of South Africans as its necessary correlate. The irony is that it is the judiciary – the branch of state about which Klare worried most in terms of a transformative consciousness – which has been/become a lone vanguard of transformative constitutionalism. As Pierre de Vos frequently points out, the courts are far more pro-poor, pro-democracy, pro-accountability than the government. But, as the late former Chief Justice Arthur Chaskalson once put it in a conversation, the courts cannot rule the country. And they are not meant to.
In the current climate, it has become de rigueur for the Left to blame – without proposing an alternative – the Constitution for everything from white monopoly capital to #FeesMustFall. But, in the final instance, such constitutional blame rests on an interpretation of the Constitution – and a deeply conservative one at that. Klare’s fundamental lesson about transformative constitutionalism was that the Constitution is capable of a progressive, forward-looking, post-liberal interpretation which could lead the way in the making of the new South Africa. Sibanda’s lesson was that it is high time to develop this interpretation into a widespread social and political consciousness that must inform and transform power in South Africa. He went on to argue that South African constitutionalism, in order to be truly transformative, requires a greater commitment to, amongst others, ‘mass bottom-up truly participatory democracy in that it allows people to take an active part in the decision-making processes that concern them’.
Translating these lessons into action has now become an overdue necessity. The world is imperiled, warned Einstein, not because of those who do evil but because of those who look on and do nothing.
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