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The challenges associated with imposed and fractured constitutionalism could be solved by adopting transformative constitutionalism. Klare (1998), views transformative (objective) constitutionalism as a meaningful change in constitutional settings, culture and attitude; that is, practical change in terms of progressive realisation of democracy and rights on the ground. Such change occurs when the constitution is translated into actual events that increases protection of citizen rights. The author (Ibid) states that the inclusion of socio-economic rights in the South African constitution provides a good example of transformative constitutionalism. However, the blanket appreciation of the South African system has been challenged by the numerous protests over service delivery, the Rhodes must fall campaigns at various universities and protests over free education at universities.
Teshome (2014) defines transformative constitutionalism as seeking to overcome past discrimination and disadvantage suffered by groups on the basis of race, sex, color, while providing equal rights and protection to all citizens. According to former South African Chief Justice Pius Langa, transformative constitutionalism should provide the bridge between the past consisting of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future based on protecting human rights, democracy and peaceful co-existence and development opportunities. Twenty-four years into South Africa’s freedom, this idea of transformation is still a pipe dream just like in most African countries. Transformative constitutionalism aims to establish substantive equality in society by understanding the systematic and entrenched domination and inequality, examining social and economic condition of communities, the impact of inequality among the vulnerable groups and provision of remedial measures to uplift the disadvantaged.
Kibet and Fombad (2017) maintain that transformative constitutionalism, which was popularized during South Africa’s transition from apartheid to democracy, is the solution for failed constitutionalism and weak protection of fundamental rights and freedoms in Africa. This argument could explain why the western world continues to support constitution-making processes in Africa, with the recent cases being Kenya and Zimbabwe following the post-election violence that was witnessed in the two countries. They believe that only the upholding of the rule of law can solve Africa’s problems. Transformative constitutionalism focuses on substantive equality and justice, which entails empowering the previously-excluded segments of society through the protection of socio-economic rights and the attainment of social justice. This inevitably requires a broader view of justice beyond the narrow ‘negative rights’ conception, with less emphasis on legal technicalities and procedure since the realization of substantive justice requires the state to be proactive. Given that transformative constitutionalism places a lot of faith in the law as an instrument for social and political change, legal practitioners, legislators and law enforcers must view the law as such and be prepared to conceptualize and deploy it to achieve the envisaged transformation. In order to create the new society based on substantive equality requires the radical change of the state and society. This includes the reallocation of power and resource to all peoples; dismantling of the established systematic domination and economic inequality caused by discriminative provision of opportunities to the people. It also demands the empowerment of vulnerable and disadvantage peoples who suffered past discrimination through different measures like affirmative action. In addition to the understanding of substantive equality in the context of social vulnerability, transformation can be realized when the social and economic condition of disadvantaged people is improved.
Furthermore, substantive equality should be understood in lights of subjection to past discrimination and disadvantage, the impact of measures on vulnerable groups and providing remedial measures to such groups in order to bring them to equality. However, transformative constitutionalism has been criticised for obscuring the law-politics divide. It has also faced criticised for being insufficient to cure widespread poverty and inequality that continue to ravage post-colonial Africa, but ills were created by colonialist whose kith and kin now emphasise the rule of law and respect for property rights. The objective of attaining social or substantive justice requires the judiciary to participate in policy decision making or make orders that have significant budgetary implications such as enforcement of socio-economic rights. This creates conflicts with the political arms of government that largely retain the power over policy and government spending. This is perhaps the most controversial element of transformative constitutionalism as it necessarily engages the judiciary in the murky waters of politics and policy making. It is more controversial because the contours of judicial activism that usually go with transformative constitutionalism are amorphous. This facet of transformative constitutionalism could mean judicial pragmatism in bringing about socio-political change. It could also sound a death knell for the legitimacy of the judiciary as it may directly collide with political players who feel more entitled to drive the political agenda. Sometimes these political leaders disregard the rule of law in the name of national security and national security.
In the Omar al-Bashir case when he visited South Africa in 2015 for the Africa Union Summit, the courts insisted that he should have been arrested for the International Criminal Court warrants since South Africa acceded to the Rome statute. However, the South African government defended its decision not to arrest al-Bashir after weighing all the pros and cons, not only the legal reasons, including the risk posed towards the South African forces currently serving in the United Nations Peacekeeping Mission in Darfur. Despite these criticisms, transformative constitutionalism offers hope for better prospects of constitutionalism and protection of fundamental rights in Africa. It takes a more pragmatic approach towards the realisation of constitutionalism and fundamental rights and freedoms. This is essential especially in emergent democracies in Africa where the culture of human rights and constitutionalism is either nascent or fragile.
It is clear that transformative constitutionalism relies on the law and courts as the final arbiters of the meaning of the law for the success of its objectives. The question that arises concerns the demands of transformative constitutionalism on judges and the judicial process. Worth noting however, the same courts have been used to defend the status quo, making it difficult for the black majority to really benefit from the 1994 constitution. Instead it protects the whites who acquired their wealth by hook or crook prior to independence.
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