MASILO LEPURU
“In our land the law of the nation reigns supreme.” (Mazisi Kunene in Shaka Emperor The Great).
The African Peer Review mechanism (APRM), in partnership with the United Nations Development Programme, the Institute for Pan-African Conversation and Thought (IPATC) at the University of Johannesburg, Wits School of Governance and Power FM proposes to host a series of conversations on “The New Republic”.
A seminar will be held in February 2023 to discuss themes such as the Constitution, Legal Framework, and the Judiciary. The final constitution of the so-called post-apartheid white South Africa has come under fire from radical quarters such as the Azanian Critical Tradition and Andile Mngxitama for among other things its anti-blackness.
This criticism seeks to counter the liberal consensus in the post-apartheid “new” South African republic which states that the final constitution is the most progressive in the world. The obvious questions posed are, progressive for who and by whose standards? These are questions that a call for The New Republic must pay attention to. What do these radical critics of the final constitution and its judiciary mean about the anti-blackness of this constitution with glowing liberal credentials?
To comprehend this radical critique, we must plot the genealogy of constitutionalism in South Africa. The great Chancellor Williams in a classic called The Destruction of Black Civilization, states that in precolonial Africa, there were African constitutions. There constitutions were based on African law, culture, and norms. At the heart of these African constitutions was the institutionalization of popular sovereignty.
These constitutions which aimed at advancing the collective interests of Africans were premised on the democratic will of Africans. One of the African axioms which captures this states that “Kgosi ke Kgosi ka batho” implying that a ruler rules through the consent of the collective. So, whatever laws were created, the collective will of the people was given expression.
Is this the case for the African majority in conqueror South Africa? Part of the radical critique is that something happened when the post-apartheid South African republic was ushered in in 1994. The conquest in a series of wars of colonisation since 1652 resulted not only in land dispossession but in the imposition of the epistemological paradigm of the European conqueror which is still intact to this day.
The legal manifestation of the epistemological paradigm of the European conqueror took the form of the imposition of Roman-Dutch law and the so-called common law of the English on the Indigenous people. These are the laws of the European conquerors which upon conquest distorted Indigenous law. The latter was conquered together with the Indigenous people and converted into a racist fiction called “customary law” as imagined by Lord Hailey.
A legal hierarchy was introduced which to this day grants this “customary law” the lowest status. This lowest legal status also reflects the humiliating material life of the Indigenous people in conquered Azania. In 1853 liberal white settlers in the Cape colony with “friends of the natives” syndrome created a nonracial constitution.
This constitution which introduced white settler constitutionalism for the first time, allowed the so-called civilized natives to vote. The repugnancy principle which the legal epistemological paradigm of the European conqueror used to judge and accept Indigenous law as valid was used to assess the Indigenous people.
Just as their law had to meet the standards of civilisation of the white settlers, Indigenous people were expected to be civilized to vote. Concurrently Dutch settlers in their white settler republics including the South African Republic, created constitutions which, explicitly excluded the Indigenous people. This racial exclusion was consummated by English settlers in 1910 with the white settler union which established white South Africa.
In 1961 when the Dutch settlers with delusions of indigeneity calling themselves Afrikaners restored their 1852 South African Republic, they continued the exclusion of the Indigenous people from their constitution. It was only in 1983 under the racist fear called swart gevaar that there was an attempt at constitutional reform which included Indians and Coloureds but continued to exclude the Indigenous people.
What is common about all these white settler constitutions since 1853? They were based on agreements between white settlers thus making them racial contracts and were based on the legal epistemological paradigm of the white settlers which distorted and excluded the law and culture of the Indigenous people.
But the most important thing about these racist constitutions is that they were based on parliamentary sovereignty. The popular will of white settlers was given expression when laws were created and passed. The courts and judges did not have the power to overturn these laws created by white parliaments.
Due to the persistent racist fantasy of swart gevaar on the part of white settlers which was reanimated by the coming into parliament of the Indigenous people as a numerical majority, judicial review and constitutional supremacy were introduced. Constitutional supremacy and judicial review were introduced through the Interim constitution of 1993 which laid the foundation of integrating for the first time the Indigenous people into a White Republic called South Africa.
The final constitution merely consummated this Interim constitution in 1996. What this means is that the Indigenous people as a majority in parliament cannot pass laws as they wish and the same way the white settlers have been doing since 1853. Another white settler legal gatekeeper was introduced, namely the constitutional court.
It is this court with the guardians of the final constitution, namely the constitutional court judges with judicial review which undermines the popular sovereignty of the Indigenous people. Will the New Republic eliminate the epistemological paradigm of white settlers and its anti-black constitutionalism? Or should the Indigenous people as a majority restore an African constitution in which they will see a reflection of themselves in terms of their law, culture, and norms in a post-conquest Azania (Black Republic) to deal with wit gevaar?
“Black people reject this… it is a solution given to us by the same (white) people who have created the problem” (Steve Biko, in I Write What I Like).
Masilo Lepuru is a Junior Researcher at the Institute for Pan-African Thought and Conversation.
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